observations on the acts of parliament, made by king james the first, king james the second, king james the third, king james the fourth, king james the fifth, queen mary, king james the sixth, king charles the first, king charles the second wherein . it is observ'd if they be in desuetude, abrogated, limited, or enlarged, . the decisions relating to these acts are mention'd, . some new doubts not yet decided are hinted at, . parallel citations from the civil, canon, feudal and municipal laws, and the laws of other nations are adduc'd for clearing these statutes / by sir george mackenzie ... mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing m estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) observations on the acts of parliament, made by king james the first, king james the second, king james the third, king james the fourth, king james the fifth, queen mary, king james the sixth, king charles the first, king charles the second wherein . it is observ'd if they be in desuetude, abrogated, limited, or enlarged, . the decisions relating to these acts are mention'd, . some new doubts not yet decided are hinted at, . parallel citations from the civil, canon, feudal and municipal laws, and the laws of other nations are adduc'd for clearing these statutes / by sir george mackenzie ... mackenzie, george, sir, - . [ ], , [ ] p. printed by the heir of andrew anderson ..., edinbvrgh : . errata: p. 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ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- scotland. law -- great britain. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion observations on the acts of parliament , made by king james the first , king james the second , king james the third , king james the fourth , king james the fifth , queen mary , king james the sixth , king charles the first , king charles the second . wherein . it is observ'd , if they be in desuetude , abrogated , limited , or enlarged . . the decisions relating to these acts are mention'd . . some new doubts not yet decided , are hinted at . . parallel citations from the civil , canon , feudal and municipal laws , and the laws of other nations are adduc'd , for clearing these statutes . by sir george mackenzie of rosebaugh , his maj●sties advocat for scotland . edinbvrgh , printed by the heir of andrew anderson , printer to his most sacred majesty , anno dom. . to the king . sir , none are so much obliged to laws as monarchs , since by them millions whom corrupt inclination , and mistaken interest tempt to shake their thrones , are yet forced by these to defend them , and find great satisfaction in the reasonableness and gentlen●ss of that kind of force ; by those your majesties predecessors were able to govern us very long , without any other arms : and when successful usurpers got the most victorious armies in europe , these armies were perswaded by law to serve you and ruine them , tho they saw in your service a dissolution of that society for which they had with much courage , but no justice so often exposed their lives : to prevent which for the future , provident law settled on your majesty , suitable revenues to defend your authoritie , and therein shewed that the safety of the king and law were inseparably joyned . it is to our iames's that we owe the great body of our laws , and so there lyes a special obligation upon your majesty to cherish them as their off-spring , to maintain them as your surest and least expensive guards , and to look on them as the only counsellours that can neither be byassed by partiality nor interest . but because your majesty has a special esteem for heroes , and courage ; allow me to represent to you that all those eminent romans , who conquered the world , were raised by pleading , and the command of armies were rewards bestowed by the suffrages of the people on those who pleaded best for them ; nor did cesar ( as their story observes ) take him to the camp , but because he loved rather to be first there , than second to cicero at the bar , where if he had stayed , he had not destroyed his native countrey , which cicero who continued to plead , so wisely preserv'd . that is the most generous heart , which is warmed by reflection , elevated by the hopes of fame , and used to victory ; and no reflections are so strong as those of men always imploy'd in reasoning ; fame has no such trumpet as eloquence ; nor can courage give so many and solide victories as reason does , and such courage does the love of justice inspire in those who adore it , that our profession has had its own martyrs too , who dar'd to die for it , without being diverted by action , from looking fixedly on the terrours of death , or comforted by the hopes of escaping it , as souldiers in battels are . the vertuous papinian is a glorious instance of this , who being chief minister of state to his emperour , after he had illustrated the law by many learned volums before he attained to the age of . choosed rather to die than justifie a barbarous act even in his prince & master ; this only use of our reason we want under your majesties happy reign , you being more unwilling to command what is unjust , than any of your subjects would be to suffer . and it was , sir , the attending your royal brother & you , that hightn'd thus in me an esteem of law , for i could not but admi●● that fixt justice which govern'd so absolutely two glorious and wise monarchs , and made so many thousands happy under them , amongst whom none is more sensible of that general happiness , and of your majesties special favours , than , may it please your maiesty , your maiesties most dutiful , loyal , and obedient subject and servant , george mackenzie . to the reader . my great pleasures are to inform and defend my countrey , the one whereof i do without vanity , and the other without humour , equally desirous to have my designs succeed , and careless how they are censur'd . we have an excellent pattern for a lawyer in the great labeo , tit . de orig. juris . labeo plurimum studiis operam dedit : & totum annum ita diviserat ut romae sex mensibus esset , sex mensibus ●ecederet , & conscribendis libris operam daret . in those observations i have satisfied the ardent desire our parliaments have had to have the laws revised ; & i have sincerely endeavour'd to preserve honest men from falling into snares by their ignorance , and to instruct my y●unger brothers in a science , by which i wish them to rise , for the se●vice of their countrey , and their own advantage ; one of the reasons which mov'd me to undertake this work , was , that even after i was a lawyer , i found that i understood ●ot our statutes , though these be the chief pillars of our law , and i wisht often then such an interpreter , as now i hope this book will be . these who have read my observations upon the act concerning bankrupts , will find that i might have been more voluminous , and seem●d more learn'd ; but my design was to write notes , and not commentaries : and this book , as all others of this kind , should not be judg'd by any one page , but by the whole ; and yet oft times a line which may seem easie now , ha● cost me considerable pains , even after i was kings advocat . the difficult acts or questions , which sometime i omit , shall be largely treated in the papers i shall leave . . it is 〈◊〉 for my 〈…〉 to know , that i 〈…〉 these acts ●y skeens edition , and sometimes by glendocks , an● so that act which for instance is the d in the one , may be the th in the other . . sometimes i refer my reader for the explication of one act , to the observations on another , and yet sometimes possibly it is not treated there , which was occasion'd by my not having all my papers together ; but the reader may look the index of glendocks acts , and he will find the acts omitted treated in one or other of the acts relating to that subject : and thus also that index may serve generally for one to this book also . . i follow sometimes the ordinary opinion , though possibly it is not my own : common opinions being still safe even when they are not well founded . . the errors of the transcriber have occasion'd those here corrected , and it ●ere very fit that the ●uyer would cause correct the book before he read it , for thus by small pains he may prevent considerable mistakes . errata . pagina . linta . for justimans read justinians . pa●● . act . l. . r. . ibid. l. ult . for sunday r. moonday . p. . l. , act . for act ● . par. . . par. . act . p. . act . l. . r. esloinȝie . p. . l. . for reub . r. repub. p. . act . l. . dele ( ●n ) p. . insert betwixt the and acts k. james the d , par. . p. . act . l. . for revetis r. revives . p. . l. . r. one helr . p. . l. . r. person . p. . l. . for ●s r. as . p. . after the end of the act , add k. james the d. par. . p. . act . l. . r. get . p. . l. . r. a d. comprising . ibid. l. . r. th . ibid. l. . r. fi●th . p. . l. . for prejudged r. perjured , ib. l. . r. to more than . p. . l. . r. d session . p. . dele the whole line from ●y &c. p. . l. ● for null r. quarrellable . p. . l. . act . for of r. under . p. . l. . for reparation r. repetition . p. . l. . r. ● . p. . l. . act . r. judges . p. . l. ▪ act . dele ( ) p. . l. . act . ● . probio●atur . p. ● . to notwithstanding , &c. add in the marg●n act . ibid. for . r. . ibid. for . r. . p. . l. . act . r. appoints . p. . l. . act . r. l. . § . ss de legatis . p. . l. ● . act . for confirmations r. in●estments . p. . l. . r. § sed naturalia . p. . l. ● . r. par. . p. . l. . act . r. was first . p. l. . for acts r. and. ibid. l. . r. for one only , was only . p. . l. . act . r. their rights . p. . l. . act . r. is probable . p. . l. . r. quod clericus in patrimonialibus ut laicus tractandus . p. . l. . r. . p. . l. . for erections r. kirk lands . p. . l. ● . r. as . p. . l. . r. hujusmodi . p. . l. . act . r. par. . act . ibid. l. . r. l. . ss . de via pub . p. . l. . act . r. par. . ja. . p. . l. . act . r. volentibus . p. . acts ▪ &c. l. . r. . p. . l. . act . for not in observance , r. not put in practice , p. . l. . act . r. gestabat . ibid : l. . ● . tit . . p. . l. . r. correctoriae . p. . l. . r. this act. ibid : l. . for proport●●n , r. property : p. . l. . dele and for the property that was feued out the time of 〈◊〉 erection . ibid : l. . r. ●nfavourable . p. . l. . act . for beneficed person , r. heretor . p. . act . r : . p. . l. : add after prerogative these words , in matters of trade , and delet all that follows . p. . l. . r. could not sell. p. l. . for first compriser , r. debitor . p. . l. . r. a fir●● compriser . p. . margin , r. act . p. . l. . r. l. . in ●in . p. . l. ●● . dele ( as that . ) p. . l. . dele ( refuse to . ) p. . l. . act . for satisfied , r. ●ufilfied . p. ● . l. , for transact , r. tran●m●● . ibid. l. . r. improving . p. . l. . r. the half of the fines of all who are not heretors . p. . l. p●n . dele ( not . ) ibid. for short , r. foresaid . p. . all from before act . should have been placed before act . observations upon the statutes and acts of k. james i. parliament i. it is observable , that our parliaments , do ordinarily begin with acts in favours of the church , as justi 〈…〉 codex does : and this statute renews the first statute , robert . cap : . our history observes , that this act was made to oblige the clergy to assist the king against duke murdoch ; and this is the first of these acts , upon which the reduction of erections was founded in anno . it being subsumed there , that though by this act , all deeds done to the prejudice of the church , are declared null ; yet these erections were very prejudicial to it , being in effect alienations of church-benefices and lands , in favours of laicks . to make war against the king , is treason ; and even to make war against private persons , is punishable conform to the common law ; that is to say , conform to the civil law : for the civil law is still called the common law in our statutes , which word we have borrowed from the french , who call the civil law ( le droict commun ; ) and by the common law , and our present custom , the raising of men in war-like manner , by mustering them , or forming them in companies , or swearing them to colours , though no design against the king be proved , is treason : for to raise war , is a part of his majesties prerogative ; and whoever makes war , usurps the regal power . the civil law , to which this relates , is , l. . ad l. jul. maj. & l. un . c. vt armorum usus , inscio principe , interdictus sit : nulli pr●rsus , nobis insciis atque inconsultis , quorumlibet armorum movendorum copia tribuatur ; but the justices refused to sustain the raising of fewer than an hundred men , to be treason ; or to sustain , that the raising them till after letters of fire and sword , did infer more than a convocation . earl of seaforth contra assint , feb. . . and invasions made by one subject upon another , with numbers of men without these qualifications , was found only punishable as a convocation by an arbitrary punishment , but i consider more the design than the numbers . rebellion , is properly rising in arms against the common-wealth , openly and notorly . it was called perduellion by the common law : and that is the species of treason , that is here punished by forefaulture of life , lands and goods , vid. r. m. l. . c. . leg . malcol . . c. . quon . attach . c. . these who refuse to assist the king , to punish notor rebels , are by this act punished as favourers of them . notor rebels , are only such as are denounced rebels , or against whom there are commissions of fire and sword granted by the council , or these who have risen in open rebellion , though there be yet no legal diligence against them ; as was decided february . and these who refuse to assist against such , are punishable as favourers of such rebels ; that is to say , as art and part of their crimes ; as is clear by the act par. . jac. . where favourers of rebels , are declared punishable , as art and part ; and consequently , the staying from the kings host , after open proclamation , commanding all heretors to go thereto , is punishable as treason : and it is clear by the journal books , that this crime has been punished by forefaulture , jan. . . and the : of april . likewise , i find andrew naiff in baldordy , pannalled for treasonable abiding from the kings host , at the raid of bigger , . and yet i find , that absents from the host are bail'd , march . . though treason is not of its own nature bailable ; and that these pannals , who are doom'd to have lost their estates and goods , after much debate , are notwithstanding quoad their persons only warded during the kings pleasure : and his majesty , by his gracious letter nov. : allowed such as were absent from the host at bothwel-bridge , to be only fined at most , in two years valued rent . this act was also the foundation of all our old proclamations , whereby all the heretors , betwixt sixty and sixteen , were charged to come to the kings host , when our kings were either engaged against their enemies at home or abroad ; at which occasions , heretors and liferenters , whether men or women , holding immediatly of the king , were cited ; and they cited and brought out their vassals : and therefore it was a good defence that they held not of the king , as is to be seen in the journal books , feb : : . but now the council commands all heretors by proclamation , to go to the host , under the command of such captains as are named in the proclamation . this obligation and statute , is not now taken away by the late act , giving his majesty the militia , as was found by the privy council october : and by the justices in march . so that heretors must attend either , but not both in the same countries : so the last act abrogates not the first , and that being given as a favour , were none , if it took off the first , which is greater , and arises from a feudal obligation , or at least is due to the king as king , and without which the peace of the country could not be maintained : and by the act : sess : : par : : car : : after the militia is granted , the parliament in the same act , makes a further tender of all their lives and fortunes , betwix● sixty and sixteen , when they shall be called for . secundo , it was found that this crime was not punishable now only by the punishment exprest in chap : : stat : alexander : whereby a thane was only punishable in six cows , and a young cow : an ochiern in fifteen ewes , or six shillings : and a labouring man in one cow and one sheep : for that statute is justly abrogated by this act that is posterior ; the remedies in that statute having been probably found ineffectual because of their meanness . this ochiern is by skeen called a freeholder ; but i find by many old evidents , that an ochiern is a chief of the branch of a great family , who has a considerable command ; and it is the corruption of the irish wochteran , which signifies still in the highlands , a master or superior . tertio , it was found , that though such as were above sixty , or below sixteen , were not obliged to go to the host themselves , because of the . stat : k. will : ( and this is sustained feb : : : ) yet their age did not excuse them from sending , which clears , why david lawson was convict for byding from the raid of dumfries , in regent mortons time , though he was alleaged to be past sixty five . quarto , that such burgesses as had lands in the countrey , were obliged to send one for these lands ( though it was alleaged that burgesses did not usually keep horses ) except they had been commanded by the town where they lived , to serve there . quinto , that the captains under whom they were commanded to go to the host , could not warrand them to stay at home ; because this feudal obligation could not be dispensed with by captains , who were only impowered to command : but if they came once out , and were listed ; it was found , that the captains might allow them to return home , upon occasion of sickness , or for other excuses , of which he was a competent judge . sexto , that the king needed not prove that the pannels came not to the host , that being a negative ; but that it was necessary for the pannel to prove that he was at the host. septimo , that the king was not obliged to prove the pannels to be heretors , but that they were obliged to renunce any heretage they had , in favours of the king , if they denied they were heretors ; even as in other cases , the king is not obliged to prove that any were his vassals , but they behoved to disclaim , upon their hazard : and of old , the notoriety of their being heretors , was refer'd to the assize , without any further probation , as june . . and some times to the pannels oath , as in the case of william wallace , july . , octavo , that not only such as were heretors by being actually infeft , were to send to the host , but that appearand heirs , and such as possessed the lands , were to send ; it being unreasonable , that the appearand heir's lying out , and not entering , should prejudge the king more in this case , than it does as to the casuality of escheat , &c. nono , it was found , that such as possess'd by the courtesie of scotland , were obliged to go to the host , by an express decision at this time , though the curiality be but a liferent , and other liferenters were not obliged to go , since heretors in our law are exponed in opposition to liferenters . these words in this act , ( without a reasonable excuse ) seem to insinuate , that not only relevant or legal defences , but even reasonable or equitable defences ought to be received , to defend such as stayed from the kings host : and thus inquests favour such as were known to be of so infirm a constitution , as that they could not without great danger to their life , undergo the fatigue of an army ; though they were not labouring under any present form'd disease , or morbus sonticus : and for the same reason , mean heretors were excused , though of old ; i find that this was found to be no defence , in the case of john ross of drumgranich , july . . but the reason that inclined the judges in this year . not to fine small heretors , was , because the proclamation commanded none to come out , but such as were to come upon horseback ; and so , such only could be fined as could keep horses : and though the decisions at this time , did only oblige such as had l : of valued rent to go ; yet by the act par : : jac : : such as can spend twenty pounds of land-rent yearly , are obliged to keep a horse ; which by the act par : : jac : : is to be computed l : of yearly constant rent . i find by the feudal law , that the vassal qui dominum in bello non adjuvavit , aut periclitantem deseruit , feudum ami●●ebat , rosenthal . conclus : : num : : but yet the words of the text in the feudal law , feudorum lib : : tit : : par : . are only , item qui dominum suum cum quo ad praelium iverit , in acie periclitantem dimiserit , beneficio indignum se judicavit ; and yet even by this text it is implyed , that he is obliged to go , and the expressing of that obligation seems omitted , because it was unnecessar , being implyed in the very nature of the few ▪ cra●g expresses it thus , alia est etiam feudi , si non an●i●tendi , saltem vassalli , ob quasi delictum , puniendi ratio , si dominum , se pro caesaris expeditione instruentem , non suerit comitatus , feudum enim eo casu amittet & dimidium fructuum illius anni , ex feudo domino pendet , non enim hic tantum contra dominum , sed contra imperium & remp : peccatur : so that it seems in his time , the vassal who h●ld of another superior then the king , forfaulted his feu for not going to the host ; but the immediat superior had right to half a years rent ; and the reason of this seems to have been , because , by all our old laws , the vassal was obliged to attend his immediat superior in going to the kings host ; and the proclamation then commanded every man to come with his vassals ; and therefore , as the king had right to the forfaulture , for not attending his host , so the immediat superior had right to this half years duty , for his not attending him ; and sometimes by the journal books it appears , that when vassals were fined , and not forfaulted , the immediat superior craved the half of the fine . the punishment of such as ride with moe than their ordinary houshold , is arbitrary ; and this act must only be interpret against such as ride ordinarly with great trains , and which may look like an unpeaceable design ; nor is any man punished for riding at solemn occasions with his friends and followers ; and i also think , that this act would only extend to such , against whom there lies a presumption , that they gather , or keep men together , upon some sinistrous design , either against the government , or their neighbours ; for if this were allowed , great men might keep troups together ; and for this same reason are convocations discharg'd by other acts ; and betwixt these acts and this , there is this difference , that by these , the convocating for a time irregularly those in whom the convocater pretends no interest , is discharg'd ; but by this act , the conveening men upon pretext of a retinue is discharged ; and though it may seem , that every man may keep as great a retinue as he pleases ; yet quilibet tantum in suo facere pot●st illud quod fieri potest sine aemulatione vicini , but multo majus sine aemulatione re●publicae . though by this law it is only appointed , that there be officers and ministers of the law , made through all the realm indefinitly , without telling by whom they are to be made ; yet by the . act par. . ch. . the power of choosing judges is declar'd to be one of his majesties prerogatives . it is observable from this act , that none can be judges who have not sufficiently of their own , where-through they may be punished , if they transgress , which is very just ; for a judge who decerns unjustly by palpable unjustice litem suam facit ; and therefore it may be well argu'd , that when any who is a judge , or has an heretable office , becomes insolvent , he may be forc'd to find a depute , who is solvent , or else he may be discharged to sit . obs. though it may seem , that if any heretable officer be incapable to exerce ; the king should name deputs jure devoluto ; yet by this act it is ordained , that if the heretable officer be incapable , he shall ordain others , for whom he shall be answerable . the design of this act is to empower the sheriff to arrest oppressors and vagabonds ; by these words to sojourn horse , is meant , to quarter horse , from the french word sejour ; by husbands of the land , is still meant husband-men in our acts of parliament ; by taxing the kings skaith is meant , to cause modifie what is due to the king ; and by assything the king is meant , the causing the malefactors pay what is modified . obs. that the legislative words in our statutes are very various , for in this and many other statutes of this king , the formula is the parliament statutes , and the king forbids , which words shew , that the legislative power is in the king ; for to forbid is the chief and most vigorous part of a statute . in the th act it is said , it is statute , and the king forbids . in the th it is statute by the whole parliament , and the king forbids . in the th it is statute by the whole parliament , and by the king forbidden . in the act par. jac. . it is decreeted by the whole parliament . in the act it is decreeted and statute . in the act par. d. it is ordained by the king and parliament . act . it is ordained and forbidden . act par. . jac. our soveraign lord through the whole ordinance of the parliament statutes . act par : jac : : through the consent of the whole parliament , it is ordain'd . act par : jac : . it is seen speedful . act par : jac : . it is statute and ordain'd , and act and : it is ordain'd . act par : jac : . rex per modum statuti ordinavit . act rex mandavit . in the old statutes of king robert and king alexander &c. it is said , dominus rex vult , or statuit rex , or desinivit rex , or prohibet rex , or decrevit & deliberavit rex , without speaking one word of the parliament or estates . act par : jac : . the king with the consent of the council . act . the king with the consent of the parliament and council . act . the king of deliverance of council . but the formula now is , our soveraign lord with advice and consent ; or , our soveraign lord and estates of parliament ; which last is not so proper , and though in most of the acts of the th parliament k. ja. d , it be said , that it is , statute and ordained by the whole three estates , yet it may be easily seen , that these acts were but in effect overtures propos'd by the three estates , to be ratified in parliament ; and so in effect are conceiv'd rather as overtures than acts : as also , where any thing is to be put in execution by the king , there the act runs in name of the parliament , and not of the king , as in the d act par. jac : . it is said , that the parliament has determined and ordain'd , that our lord the king gar●mend his money ; and in the act par : : jac : . the three estates has concluded , that our soveraign lord ride throw all the realm , &c. there are many wayes whereby the superior may crave production of his vassals evid●nts : for the king sometimes gets an act of parliament ordaining all the vassals of such a countrey to produce their evidents , as . act. parl. ▪ jac. . whereby all the heritors in the highlands are ordain'd to produce their evidents , with certification of losing their rights . the superior may also crave exhibition of these rights ; but the ordina● way is by an impr●bation , wherein certification is granted against the papers that are not produced ; which is deriv'd to us also from the feudalists , who affirm , that vassallus imperari potest sub poena caducitatis , comminatione legali , & certus terminus statui , si ●●tra eum instrumenta non edat . this commination is our certifi●ation , and this terminus , is our term in improbations . rosenthal . cap. . concl . . num . . and . in these actions the king needs produce nothing to prove that he is superior , for the king is presum'd to be general superior , and is infeft jure coronae , in all the lands of scotla●d ; but though other superiors must produce a seasing of the lands , yet they need produce nothing to prove that the d●fender is vassal who is oblidg'd to produce upon his hazard , or else to disclaim ; and yet if the superior , libel only that he is infeft in such an earldom , and that the defenders lands are part and pertinent of the earldom , without producing any thing to instruct that he stands expresly infeft in these lands , as a part of his earldom ; the lords would not put the defender in that case to produce simpliciter , but allowed the same day to the pursuer to prove that they were part and pertinent of the lands wherein the pursuer stands infeft , and to the defender to produce , if that were proved ; for the lords thought it hard , to force heretors to propale and lay open the secrets of their coveyances , where it was not certain , if the pursuer had any interest , albeit it was alleadged , that this would occasion two liti●-contestations in one cause . ( viz. ) one , whither the pursuer had right , and another , whether the defender had sufficient interest to seclude the pursuite ; for the lords thought , that this being an act before answer , did solve this difficulty ; and the ordinar maxime , that the vassal must disclaim upon his hazard , and the argument , that either the pursuer was superior , and would be found to be so , and then there was no wrong done , or else he was not , and in that case the defender was in no danger by disclaiming , were both found only to take place , where the pursuer produc'd a special right to the lands libell'd , but not where he pretended only , that the land possest by the vassal was part and pertinent of his land , which any pursuer might alledge . the third , and old way of forcing the vassal to exhibit his evidents , was by a feudal tryal , per pares curiae , that is to say , before an inquest ; for of old , the king summoned his vassals to appear before an inquest , to bring with them any right they pretended to such or such lands ; and that way is exprest in this act , as well as the other ; and in statut. . rob. . num . . but is now in desuetude , the lords of session being come in place of the inquest . the earl of rothes as donator to the ward of the countess of bu●cleugh , having pursued the tutors for inspection of the charter-chist , that he might know what lands held ward ; the lords ordained one of their own number to take inspection , and to shew to the donator what papers could prove the ward-holding , because it is presumed that all lands hold ward , decem. . . from this , and the subsequent acts : it s observable , that the parliament may , without citing parties , discharge priviledges contained in private mens rights , though they cannot without citation cas●e and annul privat rights . for understanding this act , it is fit to know that the distance betwixt the hecks of cruivs should be . inches wide , which is renew'd by the . act parl. . jac. . and should not be . inches conform to the . act. parl. . jac. . which the lords found july . to be ane error in the printing . they there also found that the mid-stream was in desuetude , notwithstanding that it was reviv'd in all these statutes ; but that the saturndays slop was to be observ'd in all cruivs , which was to continue by pulling up all the hecks to the breadth of an ell in every cruive , from saturnday at six a clock till sunday at sun-rising . though mines of gold and silver , be by this act declar'd to belong to the king , yet by the act. parl. . sess. . car. . they were declared to belong to the heretor , he paying to the king the tenth penny , which was the canon metallious , that was only due out of mines found in private fields , l. . c. de metal . but that act is res●inded in the general act rescissory , and this act is conform to the feudal law , feud . lib. . tit . quae sunt regalia . it has been doubted , whether lead , copper or tin belong to the king , or the heretor ; but the king is in possession of disponing upon these also ; and when he dispones them in a novo damus , even to the heretor , he reserves a tenth part to be payed in to his exchequer : and his majesty has granted general gifts of all copper-mines : and craig tells us , lib. . dieg . . that omnium gentium , omniumque aetatum consensu , ●odin●s omnes auri , argenti , stanni , aris , & similium , in patrimonio principis numerari ; but yet they are not enumerate in the foresaid text of the feudal law , otherwise , than by being comprehended under the word argentaria ; & frequens est in jure , sub majoribus minora comprehendi ; and yet i think , that if his majesty dispon'd land with all the silver-mines , this would not comprehend copper , tin , &c. so that this rule holds not in all cases ; nor doth it hold in any case , where things require special dispositions , as omnia regalia do ; nota , from this act to the . the acts are either in desuetude of no import , or explained in the observations upon other acts. by this act , it is ordain'd , that our coyn be of the weight and fynness of england , which was formerly ordain'd by the ch. . stat. dav. . and though by the . act. parl. . ja. . it is declar'd , that our soveraign lord cause print and conȝie gold , and silver of sick fynness as other countries doe ; yet after king james succeeded to the crown of england , he past a contract betwixt the mints of both nations , wherein they oblige themselves to keep the same standart ; and though the denominations be different now , yet the standart is now the same ; for the english denomination is . vnces , . deniers fine , which is call'd sterling fyne , ours is . deniers and . graine ; and albeit upon a very subtile inquirie , it is alleadg'd that the denominations cannot be adjusted , without some difference , yet it is so small a fraction as is not to be regarded ; and there are four indented pieces , two of gold , and two of silver made of the same fynness , and out of the same essay-pot ▪ two whereof are sent to scotland , the one of which is kept by the thesaurer , and the other in the mint ; and two are retain'd in england , the denominations are printed upon these pieces ; and in the lord hattons case , it was found that this common standart was to be the rule . vid. observation on the . act . parl. ja. . the last act of this first parliament in the black impression , is an inhibition made by king james the first to the bishop of st. andrews , delegated by the pope , to proceed upon the dismembration of a benefice purchased at rome . nota , there are many acts omitted out of skeens impression which were in that impression , because skeen judg'd them temporary , as this act and a taxation impos'd for the kings ransome by this parliament , wherein so much was put not only upon every boll of victual , but upon every beast of cattel . some acts are also to be found in skeen , which are not in that black impression , as the . act. parl. . ja. . ( in the old impression it is act . ) concerning purprision ; as also , some acts which were there only temporary , are made by skeen constant and perpetual laws , as the . act of the . parl. of this king ●uns thus in skeen , it is statute and ordain'd that the breakers of the acts of parliament be punish'd after the form and ordinance thereof ; whereas that act runs thus in the black impression , item , that it be enquired by the kings ministers gif the statutes made in his first parliament be kept , and if they be broken in any of their p●nctilio's , that the breakers of them be punisht after the form and ordinance of the said parliament . the rubricks also of the acts of that black impression differ almost every where , and very much from this impression , which proves that argumentum à rubro ad nigrum , is of no great weight with us , the rubrick being an inscription made by the clerk register , and no part of the act of parliament . king james the first , parl. , in the inscription of this parliament it is said , and of his kinrick the . year , by which word kinrick is meant his reign ; for kinrick in the saxon tongue signifies reign , and sometime kinrick signifies kingdome with us , as in the . act , parl. . ja. . in the inscription of this parliament according to the black impression , it is said , that to the three estates of the realm there gatherit were propon'd sundry articles , to which was answer'd in manner as after-follows , by the inscription of the first parliament , according to that impression it is said , electae fuerunt certae personae ad articulos datos per dominum regem determinandos data caeteris licentia recedendi : by which it appears that the lords of articles being nam'd , the parliament adjourn'd ; and the custome was , that they never mett again till the last day of the parliament , when the resolution of the articles was voted . . the resolution of the articles is said to be per dominum regem , because he is only law-giver , and the parliament only consents . it is said in the inscription of the third parliament , that these articles were put to certain persons chosen by the three estates , which insinuats that the lords of articles were chosen by the three estates , whereas now the way of choosing the articles is prescrib'd by the . act , . parl : sess : : ch : . by this act it is ordain'd , that if any lands or possessions of haly kirk be wrongously annaly'd , they should be restor'd by process of law. for understanding whereof , it is fit to know , that regularly , the lands and goods of the church , are not annaliable ; and church-men are not proprieters of them , but administrators , and li●renters , praecarij possessores , quibus tanquam commendatis , non tanquam proprijs uti debent . salv. lib. . and this is clear by the canon law , canon sine exceptione . . quest. . & can . ult . quest. . and the civil law , l. jubemus , . c. de sacro-sanctis ecclesijs ; but yet there are three cases excepted , in which it is permitted to alienat them exprest in gloss. causae , . quest. . viz. . in causa necessitatis , if the churches debts require the same , as for maintainig its fabrick , or to maintain the christian religion against infidels or hereticks . do . causa pietatis , as to maintain the poor , when starving , or to redeem prisoners from infidels . tio . causa damni vitandi , when the lands are not otherwise improvable ; for which last there is an act in the lateran council under alexander the d. cap. ad aures extr. de reb. eccles ▪ non alienand . by our law , all ecclesiastical persons are discharg'd to lessen the rental of their benefices , by setting feues , tacks , conversion of victual for money , or any other disposition . by the th act. parl. . jac. . bishops are discharg'd to set in tacks their quots and casualities , and though this last act seems unnecessary , because of the former , yet it was made , least it might have been debaitable whether casualities fell under the former prohibition , since tutors may transact for these , as we see in francies montgomeries case , against the earl of liven , where it was found , that tutors , who cannot alienat , may transact for casualities , as to give a liferent to the husband of the heretrix , in place of the courtesie , and though prelats , aswel as barrons , were allowed to feu their ward lands , for the better improvement of them , act. . i. c. . parl. . act. . jac. . parl. . yet these acts are only to be understood of lands to be feu'd out for the equivalent rent , when at first they were barren , but they are no warrand to bishops to tax their wards for a certain dutie , for this is contrarie to the interest of the church , and is so far from being warranted by any law , that there is an express act. ( viz. ) . parl . ja. . allowing them only to few out their ward lands by a temporary statute , to endure for three years allanerly ; which shews that regularly it was not lawful , and this did prejudge the king also , who might have right to the ward , and marriage , sede vacante , from which he would be debarr'd by taxing these casualities : and therefore sharp arch-bishop of st. andrews having taxt the ward-holdings of the lands of blebo , that right was reduced by his successor , . march , though it was alleadg'd , that though church-men cannot alienat teynds , which are the spiritualities of the church , yet they are domini , and not administratores tantum , as to the temporalitie , which was said to be also craigs opinion ; and taxing was a more constant rent to the church , and as a bishop might gift a ward which could not be quarelled by his successors , even for years after his death , or removal , so might he tax . nota , though by the . act , parl. ▪ ja. . the king may resume the annext property unlawfully dispon'd , but any process of law , yet in this act kirk-men are not to resume the lands wrongfully annalȝied by them , otherwayes than by lawful process of law. by this act hospitals founded by the king , are to be visited by the chancellor , but hospitals founded by bishops , or other subjects , are to be visited by the bishop , and ordinary ; which act is renew'd by the . act , parl. . ja. . but by the . act , parl. . jam . all the visiters are to be appointed by the king , and by our present practice . all actions intented for causing patrons , or others , compt for their intromissions with the rents of hospitals , are still intented at the instance of the chancellor . by the canon law , curis hospitalitatis , & hospitalium ad episcopi solicitudinem pertinet , sed ubi non aedificantur hospitalia cum permissione episcopi locus non est sacer , nec est sub episcopi cura . hereticks are by this act to be punished as law of hali● kirk requires , id est , by excommunication , with us they were burnt ; and by act . parl. . jam. . church-men who are hereticks are to be excommunicated , and depos'd , if they revock not their heresie ; the punishment by the common law is burning , and confiscation of moveables , clar. num. . this act was made against the first of our reformers , called then lollards , for the rubrick in the black impression bears of hereticks and lollards . obser. from this act it is observable , that the kirk was judge to heresie , in prima instantia ; and clarus makes the tryal so far ecclesiastick , that the cognition belongs to the church , and the punishment to the secular judge , but with us the justices are judges in prima instantia . it may be alledged from this act , that all transgressions of law are not punishable as contempt of authority , where there is no express sanction in the law , since by this act it is appointed that the breakers of acts of parliament are to be punished after the form and ordinance thereof ; by which words also it seems , that all acts of parliament are with us stricti juris , and not to be extended de casu in casum ; but yet with us laws are extended by parity of reason , and by analogie , as in the case of making men answerable for their wives not going to church , &c. and the meaning of this act is , that judges shall not have liberty , commutare paenam lege definitam expresse , for the best lawyers acknowledge , that though an statute should say , and it is ordained that this statute shall be understood exactly according to the letter , yet it is capable of even an extensive interpretation , if no unjustice follow on that extension , but much more if without this it would be unjust . bald. de stat . num . . voet. de statut sect . . cap. . and a declaratorie interpretation is by all lawyers acknowledg'd to be a literal interpretation , voet. ibid , albeit in general it cannot be deny'd , that these who have power to make statutes , must by a necessarie consequence have power to modifie and qualfie them as they please ; and as they may allow inferiour judges a power to interpret statutes in general , so they may discharge them in a particular statute to use that their power , and in that case an inferiour judge cannot extend or interpret otherways than in the terms foresaid . leagues and bonds are by this act only declared null , but by the act. parl. . jam. . and act . parl. . ch . they are declared punishable as sedition , and were punishable by warding , act . parl. . q. mary . if any carry horses under three years old , to be sold out of the country , they e●cheat them by this act , and by the act parl. . jam. if horse ( without making difference as to their age ) be carry'd beyond sea , the horse and ship and goods of the owner are escheated , and their persons to be punished arbitrarly . it is declared by that act , that there were several acts before discharging the exportation of horses , whereas i see none save this , and therefore these behov'd to have been acts of council , or unprinted acts of parliament , though generally all acts inferring escheat should be printed for certioration . these acts are now in desuetude , carrying horses out of the country being an improvement of rent , though that was then discharg'd upon the account of our wars with england ; but it would appear that the carrying horses out of the kingdom till they be three years old , was not discharg'd upon the account of war , but to the end the horses should be kept till they gave a greater price , and so should bring in more money ; therefore this prohibition it seems should still last . by this act , tallow transported is escheated , and the reason hereof is given by the . act. parl. . ja. . because by the transportation thereof it became very dear at home , and therefore the escheat of the transporters whole moveables is added , but the ill increasing the moveables of the masters , and skippers of such vessels in which it is transported , are declar'd to fall under confiscation , act. . parl. . q. m. and this act extends the former to strangers it is observable , that though this act discharg'd all persons to export , yet all other acts mentions strangers , when it is design'd that the prohibition shall be extended to them , as is also clear by the act. . parl ▪ ja. . and the . act. parl. . ja. d. so that it may be doubted if such penal acts should be extended to strangers where they are not mention'd ▪ and if the words , ( all persons ) are not in our acts to be restricted to natives . though by the civil law the owners be lyable for the skippers fault , in so far as concerns the prejudice done in the ship ; yet it seems hard , that an owners escheat shall fall for the skippers taking in tallow , else rich men would not be owners , and skippers might maliciously ruine their owners , and therefore it seems that by masters here should only be mean'd skippers , and by the civil law , the skipper was call'd magister navis . though this act punishes only stealers , or cutters of green wood in the night time , yet they are punishable for such faults at all times , the punishment is exprest , act. . parl. . ja. . but thereafter cutting of green wood is punisht as thift with death , act. . parl. . ja. . and yet i find none ever punished capitaly for this crime , and the ordinary way of pursuing , is , by process before the sheriffs , or the lords , for pecuniarie mulcts . by the common law no judge can cite a malefactor without his own territorie , and therefore , if a man cut my trees , i could only pursue him within my jurisdiction ratione criminis commissi , if i find him within it ; but yet he●e it is enacted , that if a man steal my wood , the same shall be punished in the court within which t●e lands lye , out of which the wood was stolne , and none other ; but it seems that this being only introduced in favours of the person injur'd , he may renunce it , and pursue before the judge of the jurisdiction , in which the offender dwels , who cannot obtrude this statute . for clearing this act , vid. infra ja . . parl. act . by this act , stalkers of deer are to pay shilling to the king , and their resetters ten pounds ; n●ta , reset in some cases , and in this , is more severly punished than the malefactors . the pain is augmented to a . lib. act. . parl. ja. . and at last shooting them with guns is declared punishable by death , act. . parl . and act. . parl. . q. m. by this act ▪ these who wilfully reset , maintain , or do favours to open and manifest rebells are punishable by forfalture . for understanding whereof , it is fit to know , that there are some manifest rebells de jure , and some de facto . such as are denunced and registrated , are manifest rebells de jure ; for though the leidges know them not , yet they ought to know them , and it would seem that this requires a denunciation within the shire where the resetter lives , act ▪ ● ▪ par● ▪ ▪ ja. ▪ and though that act bear , that the denunciation at the head burgh of the shire be sufficient , yet it seems that the denunciation being only a transient act , is not sufficient to put the leidges in mala fide , except the rebel be registrated as registration of other letters is necessary to put buyers in mala fide : such likewise , as are by positive act of parliament declared to have been forfaulted , ( as these exprest in the act. . pa●l . d. ch. d sess. . are likewise manifest rebels de jure , since all are oblig'd to know what is in acts of parliament ; but it has been doubted , whether the resetting even of these after they have been allow'd for many years , to appear publ●ckly in kirk and mercat , to the knowledge of the kings servants should infer paenam ordinariam ; or whether the said paena ordinaria can be inferr'd , by resetting such as are mention'd in a proclamation . these are manifest rebels de facto , whom the pannel knew to be rebels , or traitors , though they we●e not denunced ; and thus hamilton of munkland was forfaulted for resetting his own man , whom he had seen in the rebellion ; and if a man did see one kill the king , or should assist rebels in armes , before they were defeated , it were ridiculous to alleadge that this were not punishable as reset , because the rebels were not denunced rebels , since they could not be denunced before citation , and the danger in resetting actual open rebels is greater than in resetting poor lurking vagabonds ; but this kind of accession must be inferr'd only from clear qualifications of knowledge , such as these whereupon lawrie of blackwood was forfaulted winter session . in which process it was likewise found , that letters of intercommoning were not necessary to infer nottor rebellion , because denunciations for treason includs intercommoning ex sua natura ; it being hard to leave so dangerous certifications to be arbitrarly inferr'd from conjectures ; and the acts of parliament require very wisely , that the rebellion be wilfull ; these who are here call'd manifest , and open rebels , are by the th act. parl. ja. . call'd not●or rebels , and notorium , by the com●on law , is that which is committed palam & . inspectante populo & non ege● probatione mattheus de prebat . cap. . clar. § fin. quest. . which is to be understood of that which is in se notorium , but there may be notorium respectu noscentis without this , as in munklands case . by the . act. parl. . ja. . such as reset any rebels are punishable by death , and confiscation of moveables ; but it seems strange , that resetting rebels for a civil debt should infer death , or that resetting traitors should infer no more ; and therefore the act. parl. . ja. . is more just , ordaining the resetters of rebels to be punished with the same pain , that the rebels ought to have been punished with ; by this act also , all men are bound to search , take and apprehend them , or to certifie the k●ng and council of their lurking in their bounds , sub paena talionis . by the statut . david d. the resetter is not to be punished till the principal malefactor be convict , but this was repell'd in blackwoods case , because he had reset persons that were de facto , nottor rebels ; and certainly if a man should reset a company of nottor rebels , who could not be convict , because they could not be personally and distinctly known , yet the resetter might be convict . is in des●etude . though this act appoints deacons to be , yet all deacons are discharg'd , act par. jac : . and wardens ●re appointed in their place . act par : : jac : . and thereafter visitors are brought in . act par. q mary , but now deacons are restored to all incorporat trades ; but maltmen are discharged to have deacons by act par● jac : . and yet if a trade be not in possession of a deacon●ie , they cannot begin to choose deacons , without first obtaining liberty from the council for that effect , by petition ; so far still is the pu●lict peace of the nation thought concern'd in all deaconries , and in a process at the instance of the trads-men of brunt-island against their magistrates , concluding that they ought to have deacons , because their charter gave them as great priviledges as edinburgh had . the lords found that this charter gave the trades a liberty to have deacons , but did not oblige them to have them ; and therefore they having liv'd so long without deacons , and the trads men being so few , they were not oblig'd to have deacons . in spain and france , such colledges are discharg'd , vide perez : ad tit . : lib : : num : : habere tamen possunt decanum suum ibid : vide infra act . p : : jac : . is much innovated by the book of rates . is in desuetude . beggars ( or thigsters who are gentle beggars ) should have a token from the sheriff , or magistrates of burghs , else they are to be burnt in the cheek , this act ratifies only the th act par : jac : . and adds to it , that the chamberlain shall inquire in his air concerning this , but all this is regulated by the th act par. d sess : ch. . this act is extended to hearers of such leasing-making , act . par. . jac. . by this act leasing makers lose life and goods , and this act is made to determine the uncertainty of the cap : . stat . rob. . whereby the inventers of rumours betwixt king and people , were put in the kings will. i find an act in england against ●he same crime , vid : : hen : : c●p : : annot . nota , that though the legislative power belongs properly to the king in the parliament , yet the judicative power belongs properly to other courts ; and therefore by this act , private causes are appointed to be discus't before inferiour courts , and the parliament should not be judges in the first instance , but de facto , many privat cases are intended before them . though by this act it be ordained that honest men be appointed to modifie assythments ; yet this modification now belongs to the exchequer , who modifie the assythment , when the signature for the re-in-mission passes in the exchequer . king james the first , parl , . is in desuetude . this act was made to exclude all pretentions of the emperour or pope , and all laws made , or priviledges granted by them , but was not design'd to exclude the civil and canon laws , which by many of our statutes are call'd the common law , and are followed in this kingdom , and to exclude the danish laws in the isles , jac. par. c. . this act against transporting of money , is after many innovations severly renew'd , and the merchants ordained to swear thereupon , allowing only sixty pounds to passengers for their charges , by the act par : . sess : d ch : d. but many think it more reasonable to allow exportation as in holland , since the hindering exportation prejudges much all manner of commerce . the first part of the act discharging officers in the countrey , wherein any man is indyted to be upon his assize , seems to be founded upon the suspition that arises from an interest they may have , in having the pannel convict , since a part of his escheat belongs to them ; and therefore i think this should not be extended to exclude any such officers within the shire , as may expect no share , such as commissars , &c. the second part of the act which discharges those who indyte a man to be upon his assyze , extends also against informers , and these who gave advice for raising the libel ; but from this part of the act it clearly appears , that it is not generally true , that when a penalty is adjected to an act , the deed is not null , though the penalty be due , for it is here forbidden , that any officiar , or other who indyts a man , shall be on his assyze , under the penalty of ten pounds : and yet certainly this act would sett the informer from being on the assyze ; and though to this it may be answered , that this is unlawful by the law of nations , prior to all law , and so this law is only declaratory ; yet that cannot be alleadged as to discharging officers within the shire , to be upon assyzes , it may be also alleadg'd , that this penalty is only irrogated , in case any should pass on such assyzes , without being known to be such . but i do really believe , that we in our parliaments considered not the subtile distinction betwixt acts , which proceed paenam irrogando , and these which proceed actum irritando vide obs : on the the act par : jac : . it may be likewise concluded from this act , that the kings advocat is oblig'd to condescend who is his informer , for else the informer may be upon the pannels assyze ; and yet because that would discourage men from informing , & interest reipublicae ne crimina maneant impunita ; therefore the council has several times found , that the advocat is not oblig'd to condescend upon his informer , further than that , if it be referred to the advocats oath of calumny , that some of the assyzers , or witnesses were his informers , as to which he will be oblig'd to give his oath of calumny . the difference betwixt forethought-fellony and chaudmella , is only observed as to murder , though this act seems to extend it to all transgressions , and even as to murder the murderer is to be imprison'd , whether it be committed upon forethought-fellony , or chaudmella , for chaudmella or homicidium in rixa commissum , is capital by our present law. this act appointing all barons to appear in parliament , may seem abrogated by the act par : jac : . whereby the barons of each shire , are allowed to choose two wise men to re-present them , which is the custom at this day : but it is observable , that though by that act they may for their conveniency , choose two ; yet they are by no expresse law discharg'd to come in greater numbers . nota , it seems by that act , that a prelat or earl may send their procurator to vote for them , if they have themselves a lawful excuse ; but yet de praxi , that is not allow'd ; but this act is more fully explain'd in the observations on the act par : jac : . observe that this act proves the books of regiam majestatem , and quoniam attachiamenta , to be our law , for they are called the books of law. are explain'd in the th act par : jac : . this act appointing all ferriers to have bridges in places where horses are to be ferried , is renewed by the act par : jac : . wherein all passages on each side of the water are ordained to have bridges , whereupon brunt-island and kinghorn rais'd a process against kirkaldy , to have their passage-boats discharg'd , as not being able to have such bridges , and for the good of the kingdom , since if all places were allow'd to have boats , kinghorn and brunt-island ( which in the old evidents is called wester kinghorn ) could not have sufficient boats against storms as now , but this being thought by the council , matter of property was remitted to the session , it being dangerous upon pretext of publict good , to discharge property , for else many innovations might be pretended . before this act the kings council were the supream judges in civil causes ; but by this act some commissioners of parliament are to be chosen by turns , who with the chancellor , are to be the session , and are to be pay'd out of the unlaws ; so that the session was then a committee of parliament , their power is further settled and declared by the acts , , , parl : jam : d. by which it is clear , that they were to sit but fourty days at a time , and that the session was then ambulatory , and their sitting was proclaim'd in each shire where they were to sit , three moneths before ; and they were by that act to bear their own expenses , after which the sessions were by k james par. act . turn'd in a dayly council , which was to be chosen by the king , and was to sit at edinburgh continually , and wherever the king resided , they had the same power that the session had , and their sitting was to be notified to the people by open proclamation at the kings pleasure ; in place of all which , the colledge of justice , and the lords , as they now are , were instituted by king james th parl. th act . nota , there is power granted by this act to determine causes finally , which may import an excluding of appeals , but thereafter appeals are discharged expresly , jac. par. act . the sheriff ; are not now oblig'd to publish the acts of parliament , but they are to be published at the mercat cross of edinburgh only , and bind not the leidges till fourty dayes after publication , k. james par. act . king james the first , parliament . are explained in the th act par : jac : . by this act , wilful fire-raising is treason . . fire-raising by mis-governance is punishable in servants . . reckless fire-raising is punishable , either in the owner , or the mealer , or tennent . by the civil law , incendium casu fortuito is not punishable , but conductor tenetur de levissima culpa & incendium praesumitur culpa inhabitantium factum fuisse si intra domum originem habuerit & ●o casu pater familias tenetur ex facto & delicto familiae sed non tenetur si ortum habuerit incendium extra familiam vide gail . lib : obser : , & . though by this act , the magistrates of towns are to enquire concerning the skaith suffered by fire-raising , so that this seems to be a matter of government , and consequently proper to be try'd also by the privy council ; yet where the case is intricat in point of law , the council uses to remit the same to the session , as in doctor sibbalds case , april . king james the first , parliament . for explication of this act vid : sup : act par : ja : . and act par : ja : . this combination of workmen was also punished by the civil law , and it was found in the case of the lord hattoun , against the deacon of the masons of edinburgh , that a man might choose any stranger mason to build his house , and if any mason within the town give over the work , any other mason within the town might undertake it , notwithstanding of their own private statute . king james the first , parliament . the act here related to , is th act par : : jac : . deacons are discharged by this act , as tending to sedition ; and in place of them , the king did introduce wardens of crafts , who were to supervise the work of the respective trades-men , and were indeed deacons , but were called wardens , quasi guardians , act . par . . jac. . but thereafter , though q : mary of new supprest deacons , and introduced in place of them visiters ; yet thereafter , about the time of the reformation , to strengthen the popish party , and to oblige all trades-men thereto , she restored deacons by a special gift , and a letter to the council of edinburgh , since which time , they remain still legal corporations , and each private trade has their deaconry , confirmed by parliament vid. act par. ja. . this act regulating the expenses of unjust pleas , seems to have been first made in a provincial synod , for it relates to the official , or commissary court , and ends thus , et quod istud statuatur de authoritate concilij provincialis . but i find that in voet. de stat . that general laws are call'd jura provincialia . though all submissions with the decreets following thereupon , be declared null , if the submission be not made to an odd person ; yet this is now in desuetude , vide r. m. l. . c. . num . , , which sayes , that it is ordinary to submit to two , though it be difficult to make them agree ; and therefore the law recommends to them , to submit to an odd man. this act relates only to processes , for by it the causes of all merchants dying abroad , should be decided by their ordinary judges within the kingdom , viz. in the respective commissariots and shires , where they liv'd , if they went not abroad , animo remanendi ; but notwithstanding of this act , the testaments of such as live abroad , though animo remanendi , must be confirm'd in scotland , by the commissars of edinburgh , as communis patria , else no pursuite can be sustained , for their moveables that are in scotland , july . . in the case betwixt duff and bisset . and if it be fore-thought-fellony , he shall die therefore . this may seem to imply , that men die not for murder committed without fore-thought-fellony ; but this holds not in our law , for murder , though committed without fore-thought-fellony , is punishable by death , except it was either casual , or in self-defence , and then it is call'd properly homicide or man-slaughter . it is observable that crimes ought regularly to be punished in the place where they were committed , that where the scandal was given , there the reparation should be made , vide act par : jac : . & act par : jac : . and this same act is renew'd act par : : jac : . the way prescribed by this act , is now obsolet and in desuetude ; but the juster way now used is , that when a man is denunced fugitive for a crime , there are letters of intercommuning got out against him by authority of the council , and these are publish'd at the mercat crosses , where he uses to reside ; and if any within these shires , where these letters were publish'd , do reset or speak with him , they are pursu'd as intercommuners . nota , the resetter of a murderer is punish'd as a murderer , and this by the civil law is clear in resetters , as to all crimes , l. ff : de receptat : l : un : c : de crim : pecul . which is made our law by the act par : jac : . and yet some think , some resetters are only to be punish'd as severely as the principal offenders , who assist in the crime , and then reset , for these contract a double guilt ; but that such as only reset them who are guilty , should be more benignly punish'd , and , this answers , d. l : un . c : de crim : paec : in fine & l : ult § . ult : ff : ab●g . the civil law excuses parents , who reset , and punishes less friends and allies who reset , than others , l : : ff : h : t : and though this act be general , yet it seems that it ought to be restricted by the common law. observe first , that though barons do not use to judge murderers , yet by our old law , such as are infeft with pit and gallows , may punish slaughter , q : attach : c : . and this act allows them , if they be infeft with such freedom . observe secondly , that by this act , judges who are negligent to arrest malefactors , if they escape the being warned in both these cases pays pounds . it is fit for understanding this act , to know that magistrates within burghs , have not power to judge murders , except they be sheriffs within themselves , as edinburgh , pearth , innerness , and some other towns are . a lord of regality and his deputs , have as much power in judging murder as the justices have , though some contravert , whether they can judge murder under trust ▪ because that is treason , and the justices are only judges competent to treason . nota , there is a case exprest in this act , where moe witnesses than two are required to prove a crime ; the word croy here signifies an assy●hment , which the judge should pay to the nearest of kin , if he be negligent in ministring justice against the murderer , but this is in desuetude . the sense of this act is , that if a man has found law-burrows , which was called assurance by our old law , the friends of him who has found the law-burrows , are punishable if they wrong him to whom law-burrows are found . he who assaults with edge and ure , is to be imprison'd , that is to say , with an edg'd-tool , or any thing made of metal ▪ for ure in scots , signifies metal . king iames the first parliament . the banishing such as pay not custom , is in desuetude , and they now lose only their goods so stold , as by the l. . c. de vectigal . all barons might come to parliament before this act , but by this act they are allow'd to choose commissars , who are now call'd commissioners ; and by this act their expences are to be pay'd to them which is now done thus , the clerk register gives them a t●st●ficat declaring , that according to the sederunts of parliament , such commissioners did serve so long ; and by the late act they get letters of horning , for five pounds a-day , vid. supra act par. jac. . nota , that though this act impowers these commissioners to choose one to re-present them as their speaker ; yet there is no such person now chosen , and the chancellor is now constant president of the whole council , by the act . parl. . ch. d. this act ordaining such as interpret the kings laws wrongously , to be punished arbitrarly , stricks only against such as interpret the kings laws so , as to make them a meer cloak for for doing un-justice , but mistakes and probable errors , are not punishable ; nor are the lords punishable for such mistakes , because ipsorum sententiae pro veritate habentur . nota , laws like oaths , are to be taken according to the meaning of the imposer , else they be elusory ; and otherwise , every man would be his own law-giver and judge . the earl of argile was found guilty upon this statute , . for mis-interpreting so the test , by an quality adjected to his swearing of it , that he reserved still a power to himself , to rise in arms when ever he judg'd the same fit . king iames the first , parliament . by this act , all the prelats , lords , and barons are to swear the same alleagance to the queen , that they swore to the king ; and by the . act ja. they promise literas retinentia & fidelitatis to the same queen ; but the queen being a subject , there is no oath now made to her ; and tho by this act none were to be allow'd to enter to their feu till they had given this oath of fidelity to the king and queen ( which was conform to the feudal law ) yet no such oath is required as to either king or queen , before the vassals entry princeps legibus solutus est , augusta autem licet legibus soluta non sit , tamen eadem illi tribuunt privilegia , quae ipsi habent , l . ff . de leg . by this latine act , it is statute , that all such as flee from the king , or his lieutenent , are to be punished as nottor and publict rebels ; which act stricks not only against such as were sworn to colours , for those are punishable only by death according to the military law ; but all such as leave the kings host being obliged to attend ; and though it may be alleaged , that this act is to be extended only against such as flee in to the enemie , for else the punishment of treason were too severe for simple deserters ; and by the common law , there is ground for this distinction ; but by our law there is no ground for this opinion , because the going in to the enemie is per se treason . not. this is to be punished as perduellion and rebellion ; but it is not declar'd perduellion , or rebellion ; and therefore it may be argu'd , that the fisk has not the same priviledges , as to the way of procedore here , that he has in other species of high treason , or perduellion ; such as that the person himself may be pursued and condemn'd in absence upon probation ; and that his heir may be pursued after his death , &c. not. it may be argu'd , that this act should only be extended against such as flee from the armie , when the king , or his lieutenent are there in person in the fields , because then , there is great hazard , but not against such as desert any under officer . king iames the first parliament ▪ the office of maires was to execut summonds , and the kings maires praeco regis assisted in criminal courts , there are yet some maires of fee , or heretable maires in scotland , who have right by their charters to so many pairs of shoes , and so much money , &c. out of every pleugh , which fees are now very much regulated by possession ; by this act , maires of fee are to present persons to the sheriff , to serve under them , and if there be no mair of fee , id est heretable mair in that word or district , the shireff is to present an able person , who shall supplie his place by summonding , and this is the origine of sheriffs in that part to whom all our ordinar summonds are direct , by the chap. stat . david . the serjeand or maire ( for they are the same ) is ordained to give in his execution in writ , or by word , if he cannot writ , but he must prove all by witnesses , and there the sheriff , or mair may make executions or records ; for so executions were call'd of old . that witnesses in executions should dwell in different baronies is in desuetude ; that witnesses should swear that they by-stood , saw , and heard is only required now , in the execution of breives , who must swear the verity of their executions , but the witnesses even in that case , needs not swear that they were witnesses especially required to be witnesses ; which is only required now in seasines which bear , that the witnesses were ad hoc specialiter requisiti , and yet by this act all these qualifications are requir'd in all executions . not. it may be argu'd from this law , that the dates are substantial , not only in breivs , but in all other papers ; likeas the rubrick of this act calls them substantialia ; and therefore , if they be false , the whole writ is false , and it was so found as to executions ; whereupon one creditor is to be preferr'd to another such as are the intimations of assignations , . march , . or the executions of arrestments , for there to allow witnesses to make up the dates , were in effect to allow witnesses to prefer one creditor to another , and to establish considerable sums by witnesses ; but if the date of any other writ , or security be blotted , the owner is allow'd to astruct it by witnesses , . feb. . and though the moneth and day be blank , yet if the year be exprest , a bond , or such like writ is sufficient , being in re antiqua , . january : grant contra grant , but in such cases , the law presums , that the bond was granted the last day of that year , vid. gem : consil. . vid. r. m. l. . . there is no necessity now , that he who propons ane essonȝie , or excuse shall find caution to prove it at the next court , for now ane essonȝie being a dilator of its own nature , must , like all dilators , be instantly proven . not. sicknesse is only allow'd here to be proven by two leil-men , or the parish-priest , or minister deponing upon it ; but with us testificats upon soul and conscience are allow'd in all courts , except the justice court , where ●ssonzie must be proven by witnesses present in court , and to allow testificats is dangerous , because they may be forg'd , yet they were allow'd even in treason , in e. laudons case , : apryl , . but the speciality there was , that the earl was in holland , for it was thought hard to bring phisicians from thence , and yet i think the seal of the town should be brought in that case , vid. stat . will. c. . num . . & quon . attach . c. . the meaning of this act is , when any defender finds caution to answer as law will ( which is called here a borgh upon a weir of law ) he may either answer presently , or may have a day to give in his defences , he finding caution to answer of new ; this is explained , r. m. l. . c. . num . . but now with us there is no dyet allow'd in criminal courts , for the dyets there are peremptor . this falsing of dooms , or appeal was altered , and in place of them are come our suspensions , and reductions of decreets , for the doom is a decreet ; and in these reductions and suspensions it is lawful to insert only one reason at first , and the rest may be now eeked without protesting for a liberty to eeke new reasons , as is required by this act ; and a borgh or caution is yet necessary , in suspensions , as it was in falsing of dooms . by the civil law , appeals were to be interpos'd within ten days after sentence ; but by this act , the appeal was to be us'd immediatly , or at least before the pursuer walkt paces by the act . parl. . ja. . and in place of the words here used , viz. that doom is false stink and and rotten in the self , and thereto a borgh , the party leased was to say , i am gratumly hurt and injured by the said doom , and therefore i appeal ; and this was done , because the words here us'd were rude , and unmanerly . the meaning of this act is , that if the pursuer be forc'd to find caution , to answer as law will , he may force the defender to recounter it ; that is to say , to find caution also ▪ and whosoever is absent , after caution is so found , shall lose the cause , and shall be unlaw'd also , vid. c. . vers . . & . l. . r. m. this act appoints , that the ships which break in this kingdom shall be confiscated amongst us , if the ship belongs to a countrey which uses that law against us . for clearing this , it is fit to know that by the civil law , the goods of ship-wrackt persons fell not to the fisk. l. . c. de naufr : si quando naufragio navis expulsa fuerit ad litius , vel si quando aliquam terram attigerit ad dominos pertineat fiscus meus sese non interponat , quidenim jus habet fiscus in aliena calamitate ut de re tam luctuosa compendium sectetur ; and by the canon law , qui christianos naufragium sacientes damnata cupiditate r●bus suis spoliant excommunicantur , c. . extr. de rapt . but yet france does confiscat ship-wrackt goods , le bris est confisque au segnieur soveraigne . ●odin de 〈◊〉 c. ult . where it is asserted , that this was the law of both eastern and western seas ; which is false , for it is not the custome of holland nor pole , nor denmark , vid. curick ad tit . . jur hans ; with us , if no living creature escape that was in the ship , the goods are wreck , and belong to the admiral , by his gift from the king ; but if any living creature escape , neither ship nor goods are wreck , as was decided where only ane ox escapt , december . and yet by the present custome of the admirality , though no living creature escape , the admiral secures only the goods , and restors them , if the true owner claime them , and prove his propertie within year and day , being repayed of his salvage , for which we have no positive statute ; and it seems we have borrowed this from the statute of hen. . anno . cited by curick tit . . though skeen de verb. sig . verb. wrack cites another statute , viz. anno . ed. . c. . so that though the custome seems unjust , yet this law has seem'd just , because of lex talionis ; and the title , quod quisque juris in alium statuit ut ipse eodem jure utatur ; tit . . lib. . ff . and yet our present custome has justly corrected this law in manner above mentioned . and i likewise believe , that even after the year is elapsed , the true proprietar may recover his goods , if he prove the propertie , and if his goods be extant ; for . that which is mine , cannot be taken from me without my own fact and deed . . there were as good reason for the king to seize upon goods that were robb'd by land , for the proprietar quytes his goods as unwillingly in the one case as in the other , ly . even in goods that are thrown over board for the securitie of the vessel ; the law presums no design in the proprietar to quite them ; as de relicta § fin. inst. de rer . divis ; and therefore much lesse ought this to be sustained in goods forced from the proprietar by a tempest , since there is some consent in the one , but none in the other . to . if any privat man seize on such ship-wrackt goods , his seizing on them would be a crime , l. . & l. ult . de in●end . ruin . l. de submersis c. de naufrag ; and it is strange , that private men should be punished , because they seized on what was anothers , and yet the same calamitie which aggrages the crime in them , should establish a right in the publick ; and it may be well argued , that either the propertie is lost by the ship-wrack , and if so , why has the proprietar action against the seizers ; or if it be not lost , how has the fisk acquyred the propertie , for duo non possunt esse domini ejusdem rei in solidum . o. there is lesse reason for a shorter prescription in such than in any other moveables , for in other goods there may be a presumed design to quite the possession but here there can be none ; for it is palpably to be imputed to force . o. this is destructive to all commerce , and no nation ought to sustain it , because all nations will loss equalie by it . o. the owners may not know where to seek their ship-wrackt goods because lost in very remote countries ; and oftentimes the owners themselves being lost with them , leave none to prosecute their rights ; so that upon the whole matter it seems , that the custome of other nations can no more justifie ours in this , than the eating of our men amongst the cannibals would justifie our eating them ; and it seems rather that letters of mark ought to be granted in such cases , if restitution be refus'd . though this act appoints advocats to give their oath of calumnie only in temporal courts , yet this holds also in the commissar court , which is a spiritual court , and curia christianitatis . obs. . it seems that oaths of calumnie can only be craved in initio litis , in the beginning of the pley or cause , but yet now an oath of calumnie may be asked at any time . obs. . that though this act appoints advocats to give their oaths of calumnie , if their client be absent , yet that only holds in matters of fact , as to which the advocat is not obliged to swear , if his client be present , but as to alleageances in point of law , the advocat is obliged to swear though his client be present . thir verses are taken out of hostiensis tit . de jur . calum . & gloss. in § . just . de paen : tem . litigant ; which shews amongst other arguments , that the acts of parliaments , as we have them now printed , are not the same as they past in parliament . i have heard it debated in the process , keith contra purves , march . that an adocat was not obliged to give his oath of calumnie , whether he thought the right upon which he debated was really to the behoove of the earl of marshal , but only in general , that the advocats had good reason to debate it was not to his behoove , because their client said so to them ; but if this be allow'd , an oath of calumnie will signifie nothing , for advocats may alwayes find subterfuges to depone , that they have good reason to urge such a thing , for they may think their clients information sufficient warrand for them , though they are convinced the same is palpably false ; whereas the true design of the act of parliament was to debar advocats from proponing defences , and insisting in pleas which they thought unjust and calumnious . are in desuetude . but i am of opinion , that brieves with us have not their origine from the civil law , as skeen thinks , because sententia erat de brevi recitanda , or from the breve testatum of the feudal law , for these are very different from our brieves ; but from the court of rome , for their brieves are exactly the same . with ours , as breve de capienda possessione breve contra intrusum vide amydenium de stilo datariae , cap. . lib. . rebuff : praex : reg : . this act is abrogated by the union of both kingdoms , but from it may be observed , that to go and live in a countrey , that is in war with the king , is treason , since the enemy becomes thereby stronger and richer , and the kingdom weaker and poorer . upon this act is founded the stile of law-burrows , which bears , that the raiser dreads bodily harm of him against whom he seeks law-burrows , and that he has given his oath to that effect : this is like that oath of calumny , quod tenetur ille prestare qui novum opus nunciat , l. . § . . ff . de novo oper : nunciat : but it is the same exactly with the cautio de non offendendo , us'd both in france and flanders , in which the oath of the party is sufficient , ubi expectatio mali juramento ejus qui securitatem petit confirmari sufficiet christien : ad leg : mechlin : art : . tit : . num : . and with us , such as break law-burrows , are pursu'd by an action of contravention ; which term is likewise us'd among them in the same sense , art : . num : . ibid. observe , that though the letters of law-burrows contain no such warrand in the body of them , for taking the chargers oath , that he dreads bodily harm ; and though the messenger who executes the saids letters , does not exact the said oath from him , at whose instance the letters are to be execute ; yet that neither annuls the letters , nor the act of caution , though it would seem that caution is only to be found , because that oath is given ; but yet the party might have suspended upon that ground , and would not have been oblig'd to have found caution , till the charger had given his oath , conform to this act. free-holders or their acturneys , should compear at head-courts ; but though this act sayes , that if they be absent upon a necessary cause , they may send their acturney ; yet de praxi , though they can prove no reasonable cause , they cannot be unlaw'd , if they send any person with a letter of acturney , which is rais'd out of the chancellary , and the sending of seals is now in desuetude , for services and verdicts in criminal causes , which are the only papers that need now to be seal'd , may be sealed with any borrowed seal . obs. primo , several regalities in scotland , have chappel and chancery of their own , and grants acturneys themselves . obs. secundo , regalities are still a part of the shire ; and therefore the sheriff may cite the vassals of the regality , but the lord of regality cannot cite these who live within the shire , without letters of supplement , obtain'd by deliverance of the lords for that effect , vide act par ja. . obs. tertio , that the unlaw warranted by this act to be impos'd by sheriffs , for absence from head-courts , cannot exceed pounds , february . . december . . and the same unlaw of pounds is allow'd for absence from baron coutrs , march . . it has been likewise found , that though a vassal having been in use to have his servant received as his acturney at those courts , without a formal letter of acturney out of chancellary , cannot be fined quoad by gains , because of the preceeding custom ; yet for the future , they will be oblig'd to send formal letters of acturney , or else they will be fineable , intimation being made to them , that the former custom will be no more allow'd , july . . the bailie of the regality of paisley against the laird of duntreath . the taking of salmond at all times is allow'd on the waters of saloway and tweed , as long as berwick and roxburgh are in the english mens hands , but it is rescinded upon our kings succeeding to the crown of england , by the act par. ja. . king james the first , parl. . this act discharging the selling salmond abroad , except the one half of the price be pai'd in money , is in desuetude . this act is declaratory of the former law , else it could not have been drawn back to the prejudice of the private right here mentioned , and this was suitable to the common law ; for the governour of the kingdom is but a tutor , and a tutor cannot alienat lands belonging to the crown . king iames the first , parliament . these who break the kings protections are ordained to be p●nish'd , and the protections here mention'd , are these letters which our kings of old granted to monastries , burghs , &c. taking them into his special protection , and discharging all his subjects to injure them , under pain of his highest displeasure ; and it is observeable , that assizes were to sit upon these , whether the party accus'd was present , or absent . those protections are now in desuetude , nor can any pannel be proceeded against now in his absence , except in the case of perduellion allanerly . what we now call protections , were called there supercederes , but not protections . by the civil law , publica tutelae assertio principis solius eratl , capital : § . ad statuas . ff . de pan nunc salvagardiae dicuntur , vid. argentrate pag : . king iames the first , parliament . it was lately doubted , whether theft-boot , which is the transacting with thieves , by a judge , for freeing them from punishment , be in desuetude ; and it was found a crime yet punishable . there are two kinds of theft-boot declared by this act , to be punishable , the one is to sell a thief , which is to take a ransom for liberating him , 〈◊〉 other to fine with a thief , that is to take a share of what he has stoln , and so dismiss him , both which are exprest , act par. ja. . by concording with the thief , and putting him from the law. the punishment by this act seems to be the loss of the right of rega●●●y , as to lords of regali●y , but to be death in sheriffs , justices , &c. and if so , it seems strange that the lords of regality shall be 〈◊〉 punished than others . but i think the punishment as to both , 〈◊〉 of life and office , and the words of the act are only ill plac'd . and by the civil law , whoever commits either of these , are punish'd as the thief himself , l. . ff . de receptator , where the two species of theft boot exprest 〈◊〉 in this act , are also there exprest , quia cum apprehendere latrones possint pecunia accepta vel subreptorum parte demiserunt ; and this act punishes only theft-boot in judges : but yet if a private person take a part of the stoln goods , he may be punished as a resetter , albeit the meer letting of a thief go is not a crime in him , since he is not oblig'd to take him . this act was necessary , because formerly , transacting with thieves was discharg'd , but no punishment exprest , quon . attach . c. . & . & stat . rob. . c. & stat . will. c. by which last , who redeems a thief est legem aquae subiturus , which is now in desuetude . this oath is not now put to assizers , except the party require that they be purg'd of partiality ; for the ordinary oath now us'd is , that they shall truth say , and no truth conceal , in so far as they are to pass upon this assize . crowners do not now arrest male-factors , for all arrestments are by messengers , or the macers of the criminal court ; but yet some heretable crowners do assist at justice-airs to this day , and keep the bar , and secure malefactors as they go , and come from , and to it . there is a double interest in all crimes , the fisk or king has an interest , because his peace and laws are broke , and his subjects wrong'd , and this is call'd by the civil law , vindicta publica . the person wrong'd has another interest , which is call'd vindicta privata . that the king may pursue without the concourse of the person injur'd , is clear by this act , but because this act allow'd only sheriffs to pursue without consent of the party ; therefore this is extended to all cases , in ●●vours of the king , act . par. . ja. . this act is abrogated by the union of both nations , but argumento hujus legis , the taking protections from , or assurance with any enemie of the state is treason , and it may be alleadg'd that assuring merchant goods , or ships by hollanders when we had war with them ▪ vvas treason by this act , and by the common law ; for this is a corresponding vvith enemies . a thief novv by the regulations must be pursu'd upon . days only , as all malefactors . vide act . parl. . ja. . & act . parl. . ja. . and such as failȝie to bring in bullion are punished , act . parl. . ja. . & act . parl. . and all is novv innovated by the act . parl. . ch. d. the bell rung in edinbrugh , at . at night , conform to this act , till it was ordain'd to ring at . ( as it does ) which being altered at the desire of the earl of arrans lady when he was chancellour , it is therefore call'd the lady's bell. from her also the steps leading to st. giles church are call'd the ladies steps . by this act , the law is to be holden where the trespass is done , which is most just ; because , by punishing crymes upon the place , the scandal there given is taken off by a proportional terror . . the friends of the party injur'd , are thereby better repa●ed . . probation is more easy got , and assysers upon the place are readier to do justice , as knowing better the matter of fact. vid. stat will. reg. c. . and is conform to the civil law , l. . ff . in prin . de re milit : & tot : tit . c. ubi de crimine agi oportet ; and that this was the old law of nations , is clear by quint. c●rt . the carriers of gold and silver , ( except in so far as is necessary for spending ) infers also the escheat of the carriers other moveables , act . parl. . q. m. but the falling of their escheat was but . lib. after that act , and is now in desuetude , so that the words under the pain of escheat is to be interpreted of escheating the money so carry'd allanerly . k. james ii. parliament i. this is not an act , but a declaration concerning the fidelity sworn by the parliament , to their young king ; and i find no such declraation , or acknowledgement in an other parliament of any other king : so this is rather set down as a narration , than as an act of parliament ; for it mentions not bishops , and it expresses the consent of al● the free-holders . this is the first revocation that i find made by any of our kings , and here dispositions made by the king of moveables , is revocked , and though no mention be made of moveables , in latter revocations ; since a king who is minor , disponing moveables without an onerous cause , may revock them . ly , it is observable that the king is ( as his subjects ) minor till years compleat , and that the parliament is in place of tutors to him. ly , this inventar is conform to the civil law , whereby the tutor was oblig'd to make an inventar of his minors estate , and which is made our law , by the act . sess. . parl. . ch. . and to make an inventar unto dupois , is to make it according to weight ; dupois being a french word , signifying weight . ly , that in this act , rather the parliament than the king revocks , for the king was then minor ; but regularly the king's revocation passes under his privy seal first , and then is confirmed , and past by an act of parliament , vid. act th . parl. , ch. . but sometimes it passes first by proclamation , and then by act of parliament , act par. th ja. th . and sometimes by way of instrument , act . par. th ja. th . king james the second , parl. . the only act in this parliament warrands the kings lieutenent to force such as ly under violent presumptions of spilling and troubling the countrey , to find caution , that the countrey and the kings subjects shall be unharm'd , which shews clearly , that the king may upon presumptions ( of which he is sole judge ) oblige any of his subjects to give bond to live peaceably , without which , the government could not subsist . this act was occasion'd by the great outrages , committed by archibald earl of dowglas , in the south , during the kings minority . king iames the second , parliament . vid . stat. dav. d cap. . concerning the liberties of the haly-kirk . two justice courts were to be held yearly by the justices , at edinburgh and peebles , c. . quon . attach . and two justice-airs are to be held yearly , the one upon the north-side of forth , and the other upon the south-side of forth , c. . stat. rob. d. and by the scottis sea , is mean'd here , the water of forth . secundo , that part of this act , which appoints lords of regality to hold justice courts twice a year , is now in desuetude . by this act , after word is sent to the council , that there is any rebellion , burning , &c. the king is to call the sheriff , and see it re-drest , and all the barons oblige them to assist the king with their persons and goods , as oft as it shall be seen needful , by advice of his council : from which , it is observable , that the king needs not call a parliament , to assist him in a war ; but that the king and his council , may call for men and maintainance , in case of war , and this was very reasonable , for rebellion may be invincible , before a parliament be assembled , and parliaments do often give little help , in case of combination , if the occasions of it be popular , as was too clearly discover'd in our late rebellion . the reason why in the former act and this , the advice of the king's council is still exprest as necessary , was , because the king was then minor , and his person had been several times surpriz'd . in all this parliament , there is no mention made of the authority of the regent , as uses to be when the king is minor , but only the hail three estates have ordain'd , which i think proceeded from the hatred , the nobility had at that time to alexander livingstoun , who was then regent . i find , that in the ratification of the acts of parliament , called the black acts , folio . the duke of chattelrault then governour , is plac'd before the queen-mother , then regent . king iames the second , parliament . observe that excommunication takes away personam standi in judicio , so that excommunicate persons cannot pursue nor defend ; for the act sayes , that they shall not be heared nor answered in the law of judgement ; and though the word ( answered , ) would import only , that they cannot pursue ; yet the word , ( heared , ) imports both pursuing and defending ; and the words , heared , nor , answered , had been superfluous , if they had been to express only the pursuing . this act and the th act d par. ja. d. were made upon the earl of crawfords cruelty to kennedy , bishop of aberdene . king iames the second , parliament . this is the first time i find art and part mentioned in our law. nota : the time forbidden by law for killing of salmond is , from the feast of the assumption , viz. the of august to st. andrews , which is the of nov. act par. ▪ ja. . and though the third fault was death by the act par. ja. . yet by this act , the third fault is only punishable by loss of office. vid. act par. ja. . the form of causing restore goods spuilȝied now is , that the sheriff , or any judge discern , and upon this decreet letters of horning are rais'd , and the defenders denunced ; we find by this act , that old rule of the canon law , spoliatus ante omnia restituendus , here confirm'd , and the meaning of it is , that though the spuilzier have a sufficient and valid right to what he has spuilȝied , yet being pursu'd , his right will not defend him ; but he must first restore the person spuilȝied to his possession , for the law will not allow any man to be his own judge , and to intromet at his own hand . obs. secundo , that of old , all decreets were under the kings wax , that is to say , his seal ; and till of late , and the last institution of the session , all decreets , even of the session , were under the quarter-seal . observe , that all scotland is divided in royalty and regality . the royalty is that which was judged by the kings immediat judges , as sheriffs , and they are here and else-where , call'd the lords of the royal. these who were excommunicated , were denunced rebels , and letters of caption raised against them ; and this act , as to this point , is founded upon cap. th . stat. rob. d. and is morefully explained , act . parl. . ja. . where these letters are appointed to be raised by the authority of the council , after . days are expired from the date of the excommunication . nota. this is the first act that speaks of appryzing of lands , and it was done then at the mercat cross , in the same way that moveables were then , and are yet poyndable . nota. the punishment of such as break the peace , is left arbitrary by this act , and by this act , justices of the peace are ordained ( irenarchae by the civil law , ) of which there are whole titles in that law. vid. sup. act d. parl. . ja. . as also by this act , it is clear , that forfaultors for rebellion were only to be led before the parliament , for it is here said , that they shall be punished by the advice of the three estates ; but now open rebels , rysing in armes , may be tryed and forfaulted by the justices , by the act. th . parl. d. ch. d. this was statuted before , as to murder , c. . l. d. r. m. by a trespassour justified in this act , is mean't a person condemned by law or justice , and it is oft so mean't in all old laws . there are now no wardens in the borders , but these affaires are manadged by commissions from the king , cal'd commissioners for the borders . all officers offending wilfully , are to lose their offices for a year , by this act , but this act is not the only punishment , for if a judge execut a man wilfully , he will die for it ; and a judge being partial , or refusing to do justice , is to be punished rigorously , ja. . parl. d. act . and if he be faulty , or negligent , he loses his office ; if it be temporal for a year ; or is to be suspended from it , if it be heretable ; ja. d. parl. . act. . vid. ja. d. par. . act . & ja. d. parl. . act. . and the punishment of judges offending in their offices , is now arbitrary , suitable to the nature of the offence . tacks , which before this act were only personal rights , and were only valid against the granter ; are by this act ( for encouraging tennents to improve their rooms by tacks , and for the security of poor labourers ) made reall rights , and defend against all singular successors , that is to say , the buyer , or the superior of lyfrent escheats , or compryzers , or donators to bastardies , or ultimus haeres ; but if the land fall in the superiors hands , through ward , the tack sleeps , and reverts again at the expiration of the ward . vid. obs. on act . parl. d. ja. th . and they will defend against donators to forfaultors , though the tack be not confirmed , if it be set for an ordinary dutie , and without design to prejudge the fisk , as was found in the case of general dalȝiel contra the tennents of caldwall , . january , . for though the rubrick sayes , that the buyer shall keep the tacks , yet the act bears , in whose hands soever they come ; and as no tacks-men craved ever a confirmation to defend against forfaulting ; so it would shake louse all poor labourers securities , if they were not secure against such delinquences ; and might probably prejudge much the kings interest , by tempting them to follow their master , if they knew that they behoved to be forfaulted by his crime . this decision agrees with craig , pag. . and a decision . hume of manderstoun ; but the council did justly think , that this decision could not defend the tacks-man of a castle from giving it up to the king , since fortalices are not made for labouring the ground , and therefore also summar warnings are allowed from them on six days . though this act be only conceived in favours of labourers of the ground , yet it is extended so , as to defend all tacks-men , whether of tenements within town , ( though the act seems only to be made in favours of poor labourers of the ground ) , or of casualities ; such as salmond-fishing , coal-heughs , coal-work ; &c. and generally it extends to all tacks , but not to rentals , for these are tacks for grassumes and entries , and so for small duties ; provyding alwayes these tacks be cled with possession , for possession is the same thing to tacks , that seasines are to alienations , and of old some tacks had seasines , or instruments of possession , but neither was necessary , nor is now usual , but possession is so far necessary , that the last tack , with the first possession is preferred ; and the reason why they used seasins then , being to make the tack reall , and to defend against singular successors ; this was no more used after this act of parliament , by which possession makes a tack a reall-right , but a tack is preferred to an appryzing , though the appryzing was led before the tack was cloathed with possession , since the lands were denunced after the date of the tack , march , . since tacks are only declared valid against singular successors , by this act ; therefore obligations not to remove a tennent , will not be sustained against a singular successor , albeit it be exprest in the tack , though that as a personal obligment be valid against the setter , and his heirs ; for if this were sustained , the buyer would be thereby debarred from using and improving his propertie , as he thought fit , contra naturam dominij : and that it is not of the nature of a tack , is clear from this , because tacks must have a certain ish , which this has not , though the obligation should bear not to remove till money lent at the setting of the tack were payed , . june . thomson contra reid , and for the same reason , a tack set to one during his lifetime , with express provision to receive the tacks-mans heirs as kindly tennents , for payment of the accustomed tack-dutie , will not be valid against a singular successor , as wanting a certain ish ; albeit the tacks-men offer to restrict the tack to the life of an heir allenarly , . march , . and a tack set from . years to : years . upon payment of the old dutie , was not sustained against a singular successor , . july , . but tacks are valid , though they bear no special time of entrie , since the present time is in the construction of law presumed to be the time of entrie in that case , . december , . as also since a tack must have a certain tack-dutie , as well as a certain ish ; therefore , where the tack contains not a certain tack-dutie it is not valid against a singular successor , and thus a tack bearing , that a tacks-man should retain the annualrent of . merks , for the tack-dutie would not have been valid against a singular successor , because , in that case , there would nothing have been payable to the singular successor , yet if the least superplus had remained over the payment of the annualrent , though it had not exceeded one pennie , the tack would have been valid , because there would have been in that case a tack-dutie , th june , . thomson contra reid ; and for the same reason , a discharge of the tack-dutie before hand , though for an onerous cause ; and though the discharge was in the bodie of the tack , will not defend against a singular successor ; and this very statute bears , that these tacks shall be valid to the tennent for sicklike maill as they took them , for . january , . ross contra blair ; and therefore it being controverted whether a tack set to a creditor wherein he was to have retention of the tack-dutie , aye and till he were payed , and relieved of the sums due to him , should be sustained against a singular successor , it was found , th . december , . currie contra oliphant , that the tack was to be sustained , because the retention was to be allowed , by an expresse clause in the bodie of the tack it self , and not by a paper a part , and because the tacks-man was to pay a dozon of hens , and another of capons by and attour the sums that he was to retain , and was to relieve the setter of the publick burdens , which was to be in place of a tack-dutie ; but though this may hold where the tack bears the sums expresly , whereof the tacks-man is to have retention ; yet it were very dangerous to allow tacks bearing only in general ; that the tacks-man should retain his tack-dutie till he were payed , and relieved of what sums were due to him , and for which he stood engaged ; and if this were allowed , no singular successor could know even by production of the tack whether there were any superplus due , which might be in place of a tack-dutie , and it cannot be denyed , but that the first design of this statute , was to continue tacks , the tacks-man paying the true dutie , and therefore this act sayes ; they shall be valid for sicklike mail as they took them for , and craig pag. . sayes , si assedatio facta fuerit , nec certam contineat mercedem , non valet ex jure & si eadem merces assignata sit calono , assedatio non valet ; and therefore a tack for . lib. of dutie , bearing , that the tacks-man should retaine the tack-dutie for reparations , was not sustained , in so far as concerned the reparations , though the reparations were necessary , nor is there any tacite hypothetick in our law for reparations , as in the civil law ; but if the singular successor had known of such a clause , in the tack , the lords inclined to think that the same had been obligator against him ; and yet a singular successor is not obliged to consider a prior seasine , except it be registrated , or a prior disposition , nor any assigney a prior assignation . february . rae contra finlason . by the civil law , tacks were not valid against singular successors , l. . c. de locato , but the law of holland agrees with this statute , neolstad : decis : . this act was thought to have been in desuetude , till it revived by a decision , feb. . lord lee contra mark porthouse , but it is yet so to be understood , as that the land set in tack , must be valued according to what it was worth when the land was wodset ; for if the land be improved by the wodsetter , it were unjust , that the wodsetter should lose thereby , and therefore a wodsetter improving land , will not lose his tack , though the land become worth more than twice the tack-dutie , and though it would seem , that there is a contradiction in this act because it sayes in the first part , that if any man has wodset lands , and syne takes them for long time after the land be quit out , for half mail , or near thereby , that these tacks shall not be keeped , but if they beset for the very mail , or near thereby ; yet the answer is , that this law was so worded , to show that the parliament designed , that tacks after wodset should not be keeped after wodsets are redeemed , except they be set for a tack-dutie , somewhat proportionable to the worth of land ; and because this could not precisely be determined , therefore by comparing these two expressions ; it is clear , that such tacks after wodsets are to be sustained if they be set for more than the half of the real-dutie , though they be not for the full dutie . this act is in effect , but an exception from the former act , which having appointed all tacks to be valid against singular successors . this act begins , but if lands be wodset , and the here●or granter of the wodset be obliged to grant long tacks for an unconsiderable duty , after the lands are redeemed , these tacks shall not be kept . and therefore it may be argued , that this act should only defend against the setter , but not against singular successors , because the preceeding act , from which it is an exception , was only conceiv'd to secure against singular successors . but to this it is answer'd , that the former act needed not secure against the granters , for they were ever , and still are sufficient against them ; and this act runs not against singular successors , but in general , declares such tacks null , as exorbitant and usurary , and so should be null against all ; but if there be a valuable consideration to clear , that they are not forc'd and exorbitant , they will be sustain'd , as in the case , polwart contra hume , january . . where it was found , that a tack for a dewty , far within the worth , to be granted after redemption , was valid , because it was by one brother to another , who might have given it for a patrimony , and the brother who got the wodset , was excluded by a liferenter thirty six years . thir tacks who are to begin after the redemption of lands wodset , are valid against singular successors , though they be not cloathed with possession , prior to the singular successors right , because they are a part of the reversion , and not because they could not begin till the lands were redeem'd ; for if that were a good reason , then a tack whereof , the entry is deferr'd , for several years , should be valid against the singular successor , who had got a disposition of the lands , long after the setting of the tack , though before the tack was cloathed with possession , which is not true ; and if it were true , since tacks are not to be registrated , no man should know with what tacks lands are burdened , for this can be known no otherwise but by possession . these tacks which are to follow redemption , are valid , though they be not contained in the wodset , if they be of the same date with the wodset and reversion , as hadingtoun observes ; but in this case it may be doubted , whether these tacks ought not to be registrated , since all eeks to reversion are to be registrated , or else how can a singular successor know them ; and yet it is otherwise in tacks , which are to follow redemption of annualrents , for as an annualrent is different from the land , it being but a servitude upon the land , so the possession of the one cannot in law be constructed to be the possession of the other . vid. stat. d rob. . c. . but now spuilȝies are pursu'd before the lords or sheriffs , as other civil actions . there are many severe acts in this kings parliaments against spuilȝies , because there were many then committed by the douglasses and others . feinȝied fools , and bards , and sornars , and such like runners , are by this act to be imprison'd , and have their ears nailed to the trone for the first fault , and to be hang'd for the next ; and such as feinȝie themselves to be dumb , are punishable by the general words of this act , or others such like runners . but it may be doubted , if such punishments infer'd argumento legis , can be extended beyond an arbitrary punishment ; and yet the feinzing ones self dumb , thereby to draw money from the people , is species falsi . the buying and keeping of victual to a dearth , is a crime in all nations , and is punish'd with us , as regrating ; by this act it is punish'd as usury , and by escheating the victual : and yet this punishment has never been practis'd , but the ordinary course to prevent this crime is , that either the secret council sets prices , in cases of foreseen dearth , or else the magistrates use in their respective towns , to cause break open the doors where such victual is kept , and sell it at convenient prices , which is warranted by the act parl. ja. . vid. crim . pract . tit . forestallers . the escheating of old corn-stacks , that are kept longer than Ȝuil , was found to be in desuetude , at the justice-air in jedburgh , . and the first part of the act , ordaining all victual bought by private persons , more than will entertain their families for that cropt , to be therefore escheat , is also in desuetude , this was punish'd in the civil law , per. l. jul. de annonâ , and is punish'd tanquam crimen extraordinarium , l. . ff . de extraor : crim : and such as are guilty of it , were called dardanarij , or revenditores , tholos : cap : . num . . not only such as keep out their houses upon publick accounts are punishable as traitors , but even these who keep out their houses for private quarrels , if they be charged by letters from the council , to render them as use is by heraulds , they are also punishable as traitors , in case of contempt ; but if these who keep out their houses upon private feids , do thereafter yield them , the keeping them out is only punishable arbitrarly , and not as treason ; not only are such as keep out their houses immediatly against the king , executed as traitors , as we see in robert steuart's case , who was executed january . . but such as hound them out to keep their houses , are executed as traitors ; and thus the earl of orknay was executed , for hounding out his son , february . . though hounding out be not exprest in this act , for hounding out is still art and part ; but the justices refused , february . . in assints case , to sustain the garisoning of assints house , to infer treason , except it was garisoned after the publication of the letters of fire and sword , and that the garisoning of it before , did only infer deforcement , it being commanded to yield by the sheriff , in the kings name ; by which it seems , that garisoning houses , to defend against execution of the law , infers not treason , except it be done , either upon a publick account , or after raising and publishing letters of fire and sword. do , some argue from act , that since the assailing of houses , where the kings person is , shall be repute treason , if it be done without consent of the three estates , that therefore it is lawful to assault houses , or rise in arms , with consent of the three estates ; but this is a great mistake , for no opposition to , or invading of the king , can be justified by a warrand from the three estates ; and the meaning of this act is , that though it be pretended , that the king is prisoner in any castle , it is not lawful for any private person , upon that pretext , to raise armies and invade that place , without authority of parliament ; for it is dangerous to make private persons judges in such considerable cases . and the rysing in arms , or defending castles , on what pretext soever , is declar'd treason by the act par. ch. . the occasion of this act was , because this king had been twice kept in castles in his minority , once by the chancellour sir william creighton , and thereafter by sir alexander livingston , governour ; and at both times endeavours were us'd to besiege the castles of edinburgh and stirling , where he then was , vid. obser . on act par. ch. . by this act , regalities returning to the king in property , viz either by sale or forefalture ( for the kings property is never erected in a regality , but in a stewartry ) shall be judg'd by the sheriffs , and the ordinary judges ; and ordinarly when regalities return to the king , they are expresly supprest , and erected of new in stewartries , as orknay , act par. ch. . obser. that regulariter , these who dwell in regalities are not subject to the sheriff , vid. act par. ja. . and erections of regalities do ordinarly bear a power to repledge . the meaning of this act is , that the justice clerk shall not reveal who raises summonds , or obtains warrands for apprehending malefactors , &c. least also the malefactors , or defenders escape , before they be cited or apprehended ; as also , that when any man is delated for one cryme , the justice-clerk change not the pursuit , and raise it for another cryme , and whereas it is said , that it shall not be lawful to him to translate such actions , except it be for the better to the king ; the meaning is , that if the informer ignorantly inform in a great cryme , as if it were a small cryme , as if he should inform only that to be a ryot , which is treason , the justice-clerk may raise the pursuite as for treason . it is clear , that since by this act the name of the giver up of ditty in the porteous roll is to be conceal'd ( which is done for encouraging persons to delate ) that therefore treason should not be given up in a porteous roll , or else the paena talionis is lost , nor do i remember , that treason was taken up of old so , and if this were allow'd , discontented tennents , or servants knowing they were secure against talion might be induc'd easily to destroy their masters . this act appoints the strickers of false coyn to be punished as law will , and by the act , . parl. th . ja. . it is ordained , that they who falsify money , or counterfits the kings irons shall be punished according to the old law , and yet i find no law before that time , specifying the punishment in general ; for the . act parl. . ja. . punishes only with death , the home-bringers of black-money , that is to say , copper-money and by the act . parl. . q. m. the home-bringers of the false coyn should be delated , and the delaters is to have the half of all his goods moveable , and immoveable , but though the punishment of treason be not specified in any express act ; yet it appears , that it infers forfaulture , for else the revealer could not have the half of the offenders goods immoveable , and i find one drummond burnt for false money forging , the . november , . and his brother patrick murray burnt also , for art and part , red counsel and concealing the treasonable forging , coyning , and out-putting of false money , and the sentences upon false coyn , bear ordinarily forfalture . vid. supra act . parl. . ja. . but it were expedient to make an express act in this case . this act is now in desuetude ; and it was sounded upon the missio in possessionem per primum & secundum decretum , so much treated of● in the civil law ; but in place of all these are come our compryzings , and adjudications , whereby , if the debitor pay not , the creditor compryses , and is put in possession , and if he redeem not within the legal , then the land belongs absolut●ly to the creditor without redemption . king iames the second , parliament . by this act , the home-bringing of poyson is discharged , under the pain of treason ; and yet i find none punished as traitors upon this , and john dick , in anno . for poysoning his brother and sister , is only executed , but not forfaulted , but i believe he has had no lands to forfault ; nor do i see how a judge can proceed less severely in this case , than the law appoints ; especially , seing the act is so express , that this shall remain as an aye lasting statute . and the reason why the law is severer against poisoning than murder , is , because no man can defend himself against poison ; and poison uses never to be given , but by persons who have some trust , and so is murder under trust , which is likewise treason by our law , and yet it was only punish'd capitally by the civil law , l. . § . . ff . ad l. cornel de sicar . though this act discharges the bringing home of any poison , for any manner of use ; yet apothecaries are allow'd to bring it home , for their medecines , and this is likewise allow'd by the common law , and doctors ; and there is a venenum bonum , as well as malum ; and though buying and in-bringing of poison , be declared treason by this act , though it be not given ; yet by the opinion of the doctors , it is only punishable in that case , paenâ extraordinariâ gothofred : § . venenum . num . . this act against strangers bringing home poison , has not been observ'd amongst us , and it is hard to punish strangers for a law that they are not oblig'd to know ; and it appears they cannot be lyable , except they be advertised by some magistrate , that there is such a law ; and that therefore they should carry back these commodities ; and yet if a stranger should actually give poison , he would be punishable , though no such act as this had been made , since every man is oblig'd to know , that it is unlawful to give poison . king james the second , parliament . either it is provided that wodset lands shall be redeem'd for payment of ordinary money of scotland , and then it must be pai'd according to the rate the money gives at the time , when the redemption was us'd , and not according to the rate it gave at the time when the wodset was granted ; as for instance , if lands be wodset for ten thousand pounds , and thereafter the money be cry'd up , so that the dollar that was fifty six shilling , is to give a crown ; or a shilling is to give a merk ; in that case , the ten thousand pounds is to be consign'd , according to the rate as the money gave , though the wodsetter pay'd moe dollars and shillings , than he is to get back : this holds not only in redemption , by vertue of this act , but in all payments , as is clear by act par. . ja. . and act par. ja. . but if the money to be consign'd , be tailȝied money ( that is to say , a specifick kind of money , from the word talis ) as for instance , five thousand merks in rose-nobles , or the like specifick kind of money , then if so much money cannot be had of that kind in specie , it may be pay'd in as much of the present current coyn , as will answer to that kind of money , being of the same value as the gold and silver specifi'd in the said reversion , conform to the common law , which the lords interpret to be payment , according to the price , and value that the said tailȝied money was worth , the time of granting the obligation , march . . king iames the second , parliament : this act discharging the keeping of old stacks of corn ; and the next act discharging the girnaling of corn , seem to have been temporary , and the justices have refus'd to sustain dittay upon either . this act discharging the keeping up of more victual than will serve a mans family for a quarter of a year , and that they shall present the superplus to the mercat within nine dayes , seems likewise to have been but temporary , because of the scarcity that then was ; and at any time of scarcity , the magistrates of any burgh royal are in use , and may lawfully ( as some think ) break up the doors of victual-houses , within burgh , and ordain the victual to be sold at competent rates ; if the merchants be either unwilling , or absent ; but if the privy council be sitting , it is safer to make application to them . king james the second , parliament . obser . o. this is the first formal act of annexation , and though it bear only , that it shall not be lawful to the king to analȝie any part of his annexed property in fee , heretage , or frank-tenement , without consent of parliament ; yet this extends to long tacks ; for it is not lawful to set even long tacks of the annex'd property , and if it were , then the design of annexation , might easily be eluded , and the crown impoverish'd . albeit this act declares it lawful to the king , to intromet with any of the annex'd property , without process of law ; and by the act par. ja. . such as had , or should intromet for the future , by the kings command , with annex'd property , are secur'd : yet by our present custom , the king uses to reduce such rights , and not to intromet with them brevi manu . obser. o. that because this act bears , that the annex'd property cannot be dissolv'd , except by deliverance , and decreet of the whole parliament , and for great seand and reasonable causes of the realm ; therefore a dissolution contain'd in a confirmation of the annex'd property , after it is dispon'd , is not sufficient , but is reduceable , since dissolutions should be specially read and considered : whereas , confirmations and ratifications , pass in course without observation : likeas , disposition of the annex'd property , made before the dissolution , are declar'd null by the act par. ja. . this was so decided , february . . the king's advocat contra the earl of mortoun ; and by the act par. ch. . that decreet bearing this interpretation of all former annexations is ratified , and it is appointed , that orknay shall not be dissolv'd without the advice of the whole parliament , and for great and weighty causes , relating to the publick interest of the whole kingdom , to be considered before the disposition , least by a previous disposition , the parliament should be pre-determined in their deliberation ; and therefore it would appear , that where there is a disposition granted before dissolution ; not only is that dissolution null , as being filius ante patrem ; so that it could not make the preceeding disposition to convalesce , even from the date of the dissolution : but that a posterior disposition , relating to that dissolution , would be null , since by the first disposition , the parliament is once pre-determined in the deliberation ; and therefore it would be fit , that such dissolutions should expresly bear this difficulty , and dispense therewith , per expressum . it is here also fit to observe , that dispositions of rights , made of annex'd property , in the kings minority , though ratified in parliament , and after the kings majority , are null ; albeit any other deed done by a minor , in his minority , is valid , if ratifi'd in majority ; for though it may be alleadg'd , that the reason of this speciality is , because ratifications pass in course , and the grounds are not considered , as ought to be in annexations . yet the true reason of the speciality must be , that it is easie to obtain ratifications of such null rights ; and therefore the parliament , to preclude all from seeking them , has declar'd , that they shall not be valid when obtain'd ; or else , because a lawful dissolution is pre-requisit , and ought to preceed a lawful disposition of annex'd property ; and therefore , though the ratification might supply the defect of the prior disposition , yet it cannot supply the nullity arising from the want of the former dissolution . obser. o. that when any dispositions are reduc'd , the person who took such unlawful dispositions , must restore the bygone mails and dewties from the very date of his intromission ; for his right being contrary to an express law , he is not bonae fidei possessor nec facit fructus suos . and this act bears , that the takers shall refound all profits , for the time they had the lands ; so that the possessor has neither the benefit of a possessory judgement , though he has possest seven years ; nor should such rights prescrive , being null , and contrary to an express law , & quod non est alienabile non est praescriptibile ; nor doth the possessor sacere fructus consumptos suos , not being bonae fidei possessor ; and yet the lords shunn'd to decern such as had intrometted with the rents of orknay , lyable in repetition of the bygone mails and dewties , when their rights were reduc'd upon this act , because it had not been in observance , as some lords affirm'd ; and there was a most probable ground of ●gnorance in that case . as the wardens could not cognosce upon these crimes , which are call'd the points of the crown ; so neither can the commissioners for the borders , who are now come in their place . the meaning of the exception made in this act is , that tho the wardens cannot generally cognosce upon points of the crown , i● treason , fire-raising , &c. yet they may , if such a tryal be necessary , for conservation of the truce : that is to say , if these crimes be committed by common robbers upon the borders . though this act discharge any regalities to be granted otherwise , than by deliverance of parliament ; yet they are ordinarly granted by signatures under the kings hand , and a defence propon'd by the vassals upon this act , was repell'd by the exchequer , . at the passing of a signature , containing a new erection : but i see not how this could be repell'd by the lords of the session ; the act is so express , and so reasonable ; for the erection of a regality , makes a new justiciar , who has very great power ; and a lord of regality is regulus , a little king , and takes off the people from an immediat dependence upon the king. likeas , the lord of regality gets right by the erection , to the single escheats , which prejudgeth both king and people , and is expresly contrary to the act . par. ja. . discharging the giving away the kings casualities in great , and they prejudge much the prior , and establisht rights of sheriffs , subject the people to moe jurisdictions , and by multiplying registers , distract and render uncertain all buyers , and others who are oblig'd to know the condition of their debitors , and so much is the king concern'd in erections of such regalities , that they are expresly revock'd , by all our kings in their general revocations . though by this act , it would appear , that regalities ought to be null , if they be not originally granted in parliament ; yet a posterior confirmation in parliament is by our decisions found sufficient , though it may be alleadg'd that confirmations pass in course , without exact consideration ; whereas such regalities ought not to pass so slightly , since they establish a summar jurisdiction over the lives of the subjects ; and such previous grants do pre-determine the parliament in their free voting ; and therefore should no more be regarded than they are in the case of annex'd property , vid , not . on act . supra . and on act . par. ja. . notwithstanding of this act , several sheriff-ships are granted in fee since this act , and therefore are reduceable ; but it is very observable , that though these two prohibitions fell under the parliaments consideration at once , yet the parliament discharged only regalities , without consent of parliament , but they discharged heretable offices simply , as tending for ever to fix the dependence of a whole shire upon an subject ; whereas regalities are only over a mans own lands , or his vassals ; but sheriff-ships are over other men , and were it not for this , it may seem that the first act concerning regalities , was unnecessary , since this act would have serv'd for both , vid. observ . on the act parl. jac. . the rubrick and body of this act being compar'd , makes theft to be capital ; for the rubrick bears , that sornars shall be punished by death ; and the act sayes , that sornars shall be punished as thieves ; therefore thieves should be punish'd capitally , but we have no positive and specifick law for punishing theft capitally . ordinary actions within towns , are not judged now by the counsel of the burgh , as this act requires , but by the baillies . this act , as to the habit of members of parliament , is in desuetude , for the dukes , earls and lords , wear all scarlet cloath , with bars of ermine ; the duke has five bars , the earl four , and the lord three , and the burrows have no special habit. the fore-speakers for cost , here mention'd , and who are to have green-habits , were the advocats , who were allow'd to plead before the parliament , and this habit for them is in desuetude , for they plead before the parliament ; without any gown , or special habit. they are call'd fore-speakers for cost , because they may speak for money ; and advocats in our old journal-books , are still call'd prolocutors , or fore-speakers ; but friends are also in the journal-books , call'd prolocutors ; and therefore advocats are here distinguish'd from them , by the words prolocutors for cost . king james the second , parl. . the meaning of this is , that bone-fires ( call'd here bails ) be made at several places , to forwarn the people of the approach of the enemy , this is here call'd taikenings . though where treason is committed , the committers are to be imprison'd , and cannot be let out upon caution , because the crime is not bailable ; yet where there is only a presumption of rebellion , though it may be violent , the party may be let out upon security , for else a person might be punish'd without probation ; for imprisonment is a severe punishment . likeas , by the lib. . r. m. cap. . num . , , , & . it is there said , that he who is accus'd of treason , may be let out upon caution , and if he want caution , he is to be imprison'd : and yet by this act , it is appointed , that persons slander'd , or suspect of treason , shall remain in firmance till they be try'd by an assize , and this last is now in use ; but there must still some previous tryal be taken , by precognition and examination , before any man can be imprison'd , or his goods secur'd for treason , it being most unjust to use such severities , without very good ground . because this act of parliament sayes , that if persons be slandered for treason , they shall be tane , and their persons warded therefore . it was given as an instruction by the council to the circuit court . that such as compear'd and desir'd to go to the knowledge of an assize , might be bail'd , and let out upon caution because this act struck only against such as would not appear , but needed to be taken ; and yet this is not universally true , for if there be good grounds from a previous tryal by two witnesses , to suspect the person guilty , it is not just to admit caution , and the true speciality upon which the council founded that resolution , was , because above four thousand were delated in that porteous roll for treason , and it was almost impossible to imprison all . the acts , , , are abrogated by the union of england , and so is the ; but though they be abrogated , yet the following observations may be made from them . obser. o. from the act . that the supplying the scottish towns , then under the command of the english , is declar'd treason , as is in general , the assisting of all enemies to the state , vid. ja. par. cap. . ja. par. act . for though we have no special statute , declaring the assisting of enemies of the state to be treason ; our acts running generally against such as assist declar'd traitors , or assure with english men in particular ; yet it is treason by the common law , l. . ff . ad l. jul. maj. and such of our nation as continued in the dutch service , during the war with holland , in anno . were forfaulted as traitors . by the second part of this act , it is declared treason , for any who ride with the warden of the marches , or any other chiftain , to go away with any manner of goods , till they be thirded , that is to say , till they be divided : for one third , by the law of the borders , belongs to the king ; a second third to the warden , or chiftain ; and a third to the apprehenders : for understanding whereof , it is fit to know , that lands , when taken from enemies , become the kings , or the common-wealths , by the laws of all nations , but moveables by the law of god , deut. chap. . vers . . josh. chap. . vers . . when taken , were divided equally amongst the takers : but sometimes there was a division , the one half falling to such as fought ; the other , to these that stayed with the baggage ; and a fiftieth part of their part , who fought not , was dedicated to the lord ; whereas one of five hundred was only consecrated out of their part who fought , num. . verse . at present grotius distinction , lib. . de jur . bell. c. , , . is generally observ'd , whereby if moveables be taken by a party led on by an officer , who only knew the design , then the souldiers get no share , but all falls to the publick ; but if the moveables be taken in excursions , or free adventures , they belong to the takers : and voet. c. . n. . de jure milit sets down the several proportions , whereby goods are divided amongst a party and officers in holland ; where , if the party exceed . the captain gets a tenth , the leiutenent a fifth , the ensign a third , the quarter-master a double portion , the serjeant one and an half , and each souldier a single share ; but still the horse get double of what is due to the foot. by this act , which is a continuation of the former , it is declared capital , for any man to take from another , goods , or prisoners , which they are in possession of ; from which it is observable in war ; that possession or capture gives only right thus , inst. de rer . div . par. . it is said , item quae ex hostibus capiuntur statim jure gentium capientium fiunt ; and therefore a ship being pretended to belong to the king , because one of the kings friggots had beat the convoy that guarded her , and was in pursuit of another , and had taken both her and this ship , here controverted , if the privateer had not interveen'd , and it being answer'd , that an actual capture could only establish the property ; and this statute requir'd possession . the lords before answer , granted mutual probation , for trying whether this ship could have escaped from the friggot , if the privateer had not taken her . it is treason to raise a fray wilfully in the kings host , for this wilfully done , shews a design to ruine the army , and i find that the master of forbes was hang'd for raising a fray in the kings host at jedburgh , july . . the words without cause , are added here , because if a man doing his duty was the occasion of raising a fray , he ought not to be punish'd , as if an officer punishing a mutineer , should by that occasion , raise a fray ; this would not be punishable . by the civil law , such as were authors of sedition in an army , ( for a fray is properly sedition ) were punish'd as murderers , l. . § . . ff . ad l. cornel. de sicariis ; but if the common-wealth was in danger , they were punish'd as traitors , as in this statute , and in l. ff . ad l. jul. maj. and they are every where now punish'd by death , sand. decis . . tit . . des . . vid. voet. de jure milit . c. . num . . and if the authors cannot be known all involv'd in the guilt , are forc'd to cast lots , voet. ibidem . sometimes also , if the sedition was carried on , sine gravi tumultu & intra vociferationem , the guilty were only casheir'd l. . § . . ff . de re militi ; if the tumult was rais'd upon privat picques or grounds ; but if it was rais'd upon prejudices against the common-wealth , or prince , it was punish'd , even in that case , and though no actual prejudice follow'd , as treason , d. l. . ff . ad l. jul. maj. king iames the second parliament . this putting the kingdom in a posture of defence , was formerly ordain'd , stat. will. cap. . stat. . r. . cap. but all these acts are now in desuetude ; and the act concerning the militia , is regularly come in their place ; but yet the king may call for either , vid. observ . on act par. ja. . by the kings letters , by bailis is mean't letters to raise fire or takenings for advertising the countrey . by out-hornes , is mean'd these who follow'd the sheriffs , and whose office it was to raise the kings horn , for warning the countrey to assist the kings officers . this act contains what is fit to be done in time of pestilence , and because it was an affair to be govern'd by christian charity ; therefore the regulation of it was referr'd to the clergy ; and upon this account it is , that the act says , the clergy thinks , without speaking of king or parliament , it being ordinary in our acts of parliament , to set down the report , without drawing it into the formality of an act of parliament , and thus in the , and acts , parl. ja. . it is said , the lords thinks it expedient , by which word , lords , must be interpreted lords of articles there was of old distresses taken from such as came to fairs , that is to say , some thing was taken to be a surety for their good behaviour , and was deliver'd back at the end of the fair , if the owners committed no wrong , during the fair. this act is only to be interpreted of the fees due to the great constable of scotland , who is now the earl of errol , for he only can exact , during the time of parliament ; but yet that exaction by him at fairs , in time of parliament , is in desuetude ; and other constables have fees , which they exact in time of fairs , by special infestment , as the constable of dundee ; and it is observable from this act , that a long custom of exacting fees and customs from the people , is not warrantable , except either that old custom be founded upon an old and express infestment , or warranted by an act of parliament . king james the second , parliament . spuilzies are here divided in spuilȝies of moveables , and spuilȝies of fee , or heretage ; but that improper way of speaking is , not now us'd , for the dispossessing a man out of heretage , is called ejection and ejections , are now pursu'd before the lords , as ordinary actions , but not in the special way here prescribed . that maxim of spoliatus ante omnia restituendus , extends to spuilȝies , of both moveables and heretage . all those forms of process are to be consider'd at the institution of the session , by king james th . by this act appeals to king or parliament , are utterly discharged ; but the question is , whether only appeals stopping execution , be hereby discharg'd : and it is alleadg'd , that appeals were only discharg'd here , because the session was then a committee of parliament , and there lyes no appeals from the parliament ; but it seems there is likewise no appeals from the session , as presently constituted , because they are invested in all the priviledges the former session had , and that the act parl. ja. . allowing appeals , after this act must only be interpreted of appeals from inferiour judicatures ; but even these are also in desuetude : whether protestations for remeid of law , be allowable , notwithstanding of this act , was debated in anno . and the king determined by his letter in anno . that they were not to be allow'd to advocats , nor parties , after the lords of sessions decisions ; albeit it was alleadg'd then , that by an act of sederunt , in anno . protestations for remeid of law , were expresly excepted in the act discharging murmuration against the lords ; and that lethingtoun , balfour and hope , in their practiques , tit. lords of the session , do express these as allowable ; nor are they discharg'd expresly by these acts ; and though neither appeals to the parliament , nor protestations for remeid of law , before them , be not now to be practised by parties , or advocats ; yet it is not yet decided , how far the parliament may rescind the decreets of the lords ; and though they might , yet it was urg'd , that it is not fit they should , since parliaments may seem more subject to passion and factions then the session , great men have too much influence there : and by these , and such appeals , the sitting of parliaments would be very much lengthen'd ; and because their sitting is uncertain , the sentences of the lords could not be acquiesced in as a security , and all pleas would be thereby both endless and expensive , and there is as great reason for discharging appeals to king and parliament , as there was at this time ; for the lords then , though a committee of parliament , were not more learn'd than the session now ; and upon these considerations the parliament , . did by a letter to the king , in a case betwixt sir thomas hamilton and alrud , declare that there could be no appeal from the lords of session . this act against litsters , buying and selling cloath , is extended so by the act parl. ja. . that no crafts-men may use merchandise ; and the reason of this law is , because if they were allow'd to buy , they would make none , and so neither improve themselves , nor the native commodities of the kingdom , this act is renewed by the th act sessi . parl. ch. d. every merchant must sail with at least , three serplaiths of goods , and the serplaith contains stone of weight , but by the act parl. ja. . it is appointed , that no man sail without half a last of goods , which was introduced , because pedling merchants having very small stocks , were both a discredit to the nation , and were also forc'd to sell at any rate , for they could not wait for a price ; but now all such acts are in desuetude . obs. that by this act it is appointed , that none sail or trade but free burgesses , which is restricted by the act parl. ja. . in which it is declar'd lawful for prelats , lords , barons , and clerks , to send their own servants ; and by the act parl. ch. sess. . it is declared lawful for indwellers in burghs of regalities , or baronies and others , to send abroad corn , cattel , neat , hydes , and all the native commodities of the kingdom . in all acts for visiting hospitals , the chancellor is still one ; and though by this act , where the foundation of hospitals cannot be found , the remeid is refer'd to the king ; yet by the act parl. ja. . it is appointed , that where the foundation cannot be found , the rents shall be bestow'd upon the poor . by the canon law , hospitals are not benefices , and yet the care of them belong'd to the bishop , tit . . quest . . vid. not : on act parl. ja. . supra . this sumptuary law is in desuetude , by musling of women here is mean'd , being masked . feues being free and gratuitous donations , bestow'd for service , it was just that the vassal should not have liberty to sell without the consent of the granter , for else others might be obtruded upon him as vassals , and he might want the service of that family , which he particularly chus'd ; but yet the feudal law allow'd the vassal to grant a sub-feu , which though it may seem a kind of alienation , yet was allow'd by that law , lib. . tit . . § . sed etiam . because in alienations , the superiour would have lost the service of the first family , and would have had but one vassal ; whereas in sub-infeudations , the first vassal must still remain vassal , and be lyable to all the casualities and services , and the superiour gets likewise another vassal , viz. the sub-vassal , a sub-feu being likewise but emphiteusis , the sub-vassal is but in effect a tennent ; and therefore by this act of parliament , the king declares , that for better cultivating and labouring of the kingdom , he will allow all his own vassals to set their lands , which they hold immediatly of him in sub-feu : and it is declar'd , that this act shall be equivalent to a confirmation . and these sub-feues are by this act only call'd assedations ; and are by the act par ja. . ordain'd to be set for the policy of the realm ; because , as i conceive , the kings vassals being thus freed from the labouring of their own lands , they might be the abler to serve the king in his wars ; and the land likewise be the better laboured , by these sub-feuars , who could attend the labouring thereof . upon which words , our soveraign lord , shall ratifie and approve the said assedation . it was debated , whether a sub-feu , set by vertue of this act , did fall under the forefalture of the vassal , though it was not confirm'd in the person of the sub-vassal ; and it was alleadg'd , that the sub-feu could not be quarrell'd ; because the king by this act , having invited men to take sub-feus , it was not just , that the invitation given by a publick law , should become a snare ; and having promis'd to ratifie and approve the sub-feu , that promise being insert in this publick law , was equivalent to a confirmation ; and therefore should defend against a forefalture , as well as a confirmation could have done ; and though these words were alleadg'd only to import a promise to ratifie , which did imply , that application should have been made for a confirmation . yet to this it was answer'd , that this was an invitation , and the words subjoyn'd thereto , must therefore be considered as a present approbation , especially , seing there is no time prefixt for craving of a confirmation , nor any irritancy annex'd to the not craving thereof . it was likewise urg'd , that by the act parl. . ja. . this sub-feuing should be no cause of forefalture ; and that since this act would defend against ward and recognition , it should much more defend against forefalture upon treason , for that being a most personal crime , of which , not only the sub-vassal is innocent , but oft-times concurs with the king , against his own supe●iour ; the poor sub-vassal ought therefore to be less troubled upon it , than upon recognition , to which the sub-va●sal himself is somewhat accessory , because he receives the right , upon which the recognition is infer'd . and whereas it was urg'd , that by the act parl. ja. . the sub-vassals of the kings vassals , who were forefalted at that time , are secured , if themselves were innocent ; which act had been unnecessary , if this act had secured them , and that act is declar'd to have been only temporary , & pro eâ vice , by the act parl. ja. . to this it was answer'd , that by this act , such sub-feus are only allow'd , as are set for the just avail , and all other feus might have been quarrell'd ; and therefore that act was made to secure the sub-vassals of forefalted persons , whose rights might have been quarrell'd upon that head , or else that act has been made ad majorem cautelam , and to prevent all debate , which is most usual . upon this debate the lords found , that this sub-feu fell not under the forefalture , this general law being equivalent to a confirmation , february . . marquess of huntly contra cairuburrow . it has also been debated , whether wodsets feu'd out are secur'd against this act , as well as lands irredeemably dispon'd , and i think they are , since a wodset right is as properly a feu , as an irredeemable right . what is meant in this act by the competent avail ; for which ward lands may be feu'd , is dubious , but the just avail , for which the kings proper lands may be feu'd , is by several acts of parliament , declar'd to be the retour-dewty , or new extent ; and therefore i think that the competent avail here , must also be interpreted to be the retour-dewty , and in january . betwixt the same parties , it was found , that though the competent avail be the retour-dewty , exprest in his service ; yet the sub-vassal getting a part of the lands feu'd to him , he ought to pay no more for the competent avail , but his proportion of his superiours retour-dewty ▪ and that if a charter was given him blank by his superiour , which he fill'd up himself with a special reddendo ; the charter was not therefore null , and he was only lyable in his just proportion of the said retour'd-dewty , and the vassal , if he pleases , may by a process against his superiour , get this competent avail , to which his share should extend , determin'd , and that being specifi'd in his service , will thereafter become his retour-dewty , though ordinarly the sub-vassal , to prevent expence , or by mistake uses to retour the dewty that was payable by his superiour , especially if the difference be not great . the punishment of such as abuse the power of their jurisdiction of regality , is left arbitrary by this act. vid. c. . stat. rob. . this act is explain'd in the act parl. ja. . by this act all remissions are null , except the party injur'd be assythed , and he who produces the remission , must either find sufficient caution to pay the assythment within fourty days , or to stay in prison till the payment , and by the act parl. ja. . and act parl. ja. . it is provided , that if the remi●sion contain not an assythment expresly in the body of it , the remission shall be null ; but because these acts were temporary , therefore by the act parl ja. . if any remission or respit be granted , before the party injur'd be first satisfi'd , the remission is to be null ; and though by that last act , it would seem that an assythment subsequent to the remission , would not make the remission to convalesce ; because that act requires , that the remission shall be null , as said is , yet the meaning of that act seems only to be , that without an assythment the remission shall be null . from the same act , exception is made of remissions granted , for quieting the highlands or borders , which may be valid without assythment , gratiâ factâ a princip● nocenti non valet nisi pax sit prius habita ab haeredibus offensi , which we call a letter of slains , vel nisi fiat reparatio damnorum , plot. concil . . clar. quest. . num . . ubi traditur posse regem tamen gratiare nocentem sine pace privati , quando damnandus elaborasset pro bono reipublicae , vid. l. non omnes § . fin . ff . de re milit . the second part of this act relates to remissions , for spuilȝie● or theft , as to which , the lords of the session may restore the party , and assyth him , notwithstanding of the remission . by this act , no free-holder can be forc'd to come to parliament , except he hold a twenty pound land of the king ; but none can be now compell'd , and this was only in the time when all free-holders were oblig'd to compear in parliament , as the kings head-court , nor can any now vot in the election of the commissioners , except they hold a shilling land of the king immediatly , or hold ten chalders of victual , or a pound ( feu-dewty , all deducted ) off a bishop , or abbot formerly , and hold the same now of the king , act par. ch. . but now again , since the restitution of bishops , the bishops represent their own land in particular , and so their vassals are not allow'd to sit in parliament . vid. act par. ch. . the negligence so severely punish'd in judges by this act , must be negligentia dolosa & supina , and the distinction here observ'd , betwixt the punishment of heretable officers and others , is ordinary amongst the doctors , bald. ad l. . ff . de serv. fugitiv . where he says , that pro negligentia judex removetur ab officio sed hoc non tenet in judice perpetuo farin . q. . num . . says , that majores officiales non removentur , sed minores facile removentur , by th● cap. . stat. rob. . a negligent judge , viz. a baillie of regality is to be punish'd by escheating his moveables , and their life is to be in the kings will. a faulty judge is also punishable by this act , in the same way as a negligent judge , which must not be mean'd of the meanest fault , seing the punishment is so great ; but whereas by this act the punishment is the loss of office for ever , if it be not heretable ; yet by the act parl. . ja. . the heretable officer lose● his office for three years ; whereas this act bears , this being lawfully prov'd , and notorly kend , we must not conclude , that a judge may be convict upon this notoriety without probation , for these two are only exegetick of one another , and the sense is , they being convict upon notor probation , vid. supra observ . on act parl. ja. . the form now to be follow'd in case any man should masterfully possess another mans lands is , that if violence was us'd at the entering , then the council upon a complaint , will restore the party dispossess'd ; but if the intrant entred in vacuam possessionem , though without any right , he behov'd to be pursu'd before the session , by an action of intrusion . k. james iii. parliament i. by this act , the third of the king's rents of assyse ; that is to say , the third of his lands and customes , belong to the queen as her dowrie , or terce allenarly , which is conform to the common law of this kingdom , by which the wife has right to a third of all the lands , in which a man dies infest , and that though she be otherwise provided , if she be not expresly secluded from it by her contract of marriage , so that it seems the queen would have had right to a terce of proper lands belonging to the king , though this act had not been made . but now by the act parl. ch. . if a wife be provided to a particular provision , though never so small , either in her contract of marriage , or in any other write , she will be secluded from a terce , except her terce be expresly reserv'd to her by and attour the particular provision . nota , the rents of assize , comprehends the kings customes and lands , as was found , decemb. . . and march . . ogilvie contra gray . it may be doubted whether this act was temporary , relating only to this queen , or if any queen of great-britain will have right as queen of scotland , to a third of the property , conform to this act , since the act seems to be reasonable in it self , and that the queen is founded in this right by the common law , and if this had been only a temporary right , relating only to this queen , it would not have been inserted amongst the general laws ; or at least , it would not have been generally conceiv'd , as this act is , in these terms , the dowrie of the queen , for terminus indefinitus aequi●ollet universali . i find , that in the act parl. ja. . queen ann is provided to the third of the property , but not to the third of the customes , but that being by express paction , derogats not from this law. sometimes benefices ecclesiastick , were bestow'd upon secular persons , who were call'd commendators , because the benefice was commended and intrusted to their oversight , and they were procuratores in r●m s●am & habebant tantum detentionem & poss●ssionem ; but were not proprietars , and so could not dispone , roman . concil . . and because commendators were but trusties or tutors ; therefore rights made by them , though with consent of the chapter , are no longer binding in our law , than during the commendators own right : and by this act , these commendams are discharg'd , and yet the deeds done by them , are not annull'd ; and therefore many rights made by commendators since this act , are sustain'd as valid , though they were not proprietars . by the canon law , only the pope could grant commendam perpetuam , and the bishops could only grant commends for six moneths , c. nemo . elect. l. . the pain of lawburrows here exprest , is hightned by the act . par. ja. . by which every earl or lords penalty is made two thousand pounds ; every great baron , a thousand pounds ; every free-holder , a thousand merks ; every fewar , five hundred merks ; the un-landed gentleman , two hundred merks ; and the yeoman , one hundred merks , which last act is now observ'd : and though penalties be exprest here , against breakers of lawburrows , found to church-men , and that there be no mention made of them in the last act , yet an arch-bishop , or bishop , can pursue now for the same penalty that is due to an earl : and bishops and their wives are allow'd the same solemnities at their funerals , that are allow'd to noblemen and their wives , by the act par. ch. . and though there be no mention made here of dukes and marquesses , yet the priviledge granted to earls , is extended to them . o by this act , the penalty is to be apply'd to the king , and is due by and attour the reparation due to the person les'd ; but by the last act and the present custom , the penalty is to be divided betwixt the king and the party , and though by this act the master is free , if he present his servant , who breaks the law-burrows . less than the law-burrows ; that is to say ( he who found the lawburrows ) bring the trespassors to the king or sheriff , within fourty days , dominus noxali judicio servi sui nomine conventus servum actori noxae dedendo liberatur ; yet by our present custom , the master finds caution , that the raiser of law-burrows shall be skaithless from him against whom it is rais'd , and his men-tennents and servants ; and therefore the master seems now lyable , though he should present his servants . albeit these be the ordinary penalties allow'd , where there is no other proof of the danger , then the oath of the complainer ; yet if the complainer prove threatnings , the council or criminal court , may ordain surety of law-burrows , to be found upon such sums as they think proportional to the danger . vid. not. on act par. ja. . supra . though by this act , all summons are to be on twenty one days warning ; yet all summons that are priviledg'd by their own nature , or the lords deliverance , come in upon six days . vid. hope form of process ; and by an act of sederunt , july . . it is declar'd that no actions can be priviledg'd , except removings , recent spuilȝies , recent ejections , intrusions , succeeding in the vice , exhibitions , causes alimentary , summons , for making forthcoming , transferrings , poyndings of the ground , walkennings , special declarators , suspensions , prevento's and transumpts , all which , and all second summons in all actions , are to come in upon six days warnings , except recent spuilȝies , because by the act par. ja. . these were to come in on . days ; ejections , intrusions and succeeding in the vice , which are of the nature of recent spuilȝies : but since this act appointed all summons to come in upon . days ; dubitatur , how the lords could have priviledg'd any summons upon fewer days , though there was an old immemorial custom for this , prior to this act of sederunt ; and it will be fit to ratifie this act of sederunt in the first parliament . by that act of sederunt likewise , second summons may be executed against persons within edinburgh , or the suburbs thereof upon twenty four hours . vid. observations on the act parl ja. . this is abrogated by the union of the nations . money is yet escheated to the king and his customs , if taken out of the countrey without a warrand ; but that part of the act which allows a noble for every private man's expence , is in desuetude for now every man is allow'd to carry out what may defray his expence ; and that part of the act , appointing every man to make faith , and swear that he carries no money out with him , is also in desuetude : but any man may be pursued for having carried out money , and his having carried out , and the quantity may be proven by his oath . we see also in this act , that seculars could not judge ecclesiasticks , for ecclesiasticks were to be judg'd by the official , that is to say , the bishops judge , in whose place the commissars are now come , and this priviledge descends to church-men from the canon law , c. . de judiciis : but since the reformation , this priviledge fell , for now all men whether secular , or ecclesiastick , answer to the civil judge . the great reason why our own coyn should not be carried out is , because our money is finer nor forraign money , being eleven denier fine , and so is constantly exported , and being melted down into forraign coyn , is brought home again to us , at a greater extrinsick value ; but yet because it might be doubted if this prohibition extended to the carrying out of all money that is current , or if that which is not current may be carried out ▪ such as ryals , &c. for the carrying out of gold and silver , is generally ordain'd to pay custom when it is carried out , by act par. ja. . but by the act par. ja. . the carrying out of all gold and silver , coyn'd or un-coyn'd , infers escheat of the gold and silver so exported . vid. not . on act par. ja. supra . king james the third , parl , . by this act noblemen and gentlemen pretend to be free from custom of what is imported for their own use , as to which , i have insert this paper . reasons , why the nobility , barons , and other heretors in scotland , are lyable to pay customs and excise , for what commodities they bring in , though for their own private use . our laws and acts of parliament , have granted to his majesty , the custom of all goods , exported or to be imported , as is clear by the act par. ja. . the words being , that his majesty , with consent of the nobility , council and estates ; have ordain'd that all cloath , and other merchandice , brought into this realm , shall pay custom , &c. and therefore the king being , as to this , founded in the rule , all must be lyable , except where there are clear exceptions derogating from the general concession . likeas , by an express statute , act par. ch. . the customs of all goods , are confirmed to the king. and a special , a. b. c. of all customable goods , expressing what each species is to pay . in which act there is no exception of any person whatsoever . by the foresaid act par. ja. . customs are to be paid to the king , according to the use of any other kingdom , but so it is , that ●y the use of other kingdoms , and particularly of england , and france , the nobility , barons and others , pay customs for all imported goods . the customs being granted for the defence of the kingdom , and the support of his majesties royal dignity , it is just that the nobility and barons , should rather pay than any others , since they are of all others most concerned , to maintain the one , and support the other . scotland being a countrey , that has no consumption , for imported goods , save within themselves , if the nobility and gentry should not pay , they might bring home all their own commoditie● , and so there should be little or no customs due to the king. they might colour the trade of merchants , by granting simulat commissions , for bringing home , the goods of merchants , under their names , which would occasion much perjury , and at least put the customers to a process , and suspend the payment of the true customes , till that were clear'd by process . when this kingdom thinks fit , to guard against the importation of any forraign goods , they do this by imposing great customs , as was lately done by imposing per cent . upon all english cloath . but so it is , that if this exemption were allow'd to the nobility and others ; these prohibitions would be useless and ineffectual , for those prohibited goods might be brought in by them , and so our manufactories , could never be encouraged , nor could we force other nations , justly to ballance their trade with us , or keep our money within our own countrey . if these exemptions were allow'd , there could be no possibility of lessening and curbing the luxury of the nation ; for the nobility and gentry , might still wear what they pleas'd , at least it would be an encouragement to them , to bring home things superfluous , they being free from impositions , whereas their being burdened with custom , would discourage them to bring home superflueties . the exchequer has in their tacks been in use to set the customs with express order , to allow no exemptions , and the customers have exacted customs from the nobility and gentry , which proves the kings possession , and the acquiescence of those , who plead the exemption . whereas it is pretended , o. customs are regularly a duty , impos'd upon merchandice and traffique ; but what noblemen and gentlemen , import for their own use , is not merchandice , nor commerce . o. by this act and by act . par. ja , . the act par. ja , . and the . cap. leg. burg. there is an express exemption from customs , granted to the nobility , barons and other heretors , for what they import to their own use . it is answered , that as to the first , custom being impos'd for the uses foresaid , the payment should be regulated , by the reason that imposed the imposition , and not by the nature of the traffique ; and if that were a good reason , neither merchants , burg●ss●s , nor any else should pay customs , for what they are to apply and consume for their own privat use . o. though that were generally true , as it is not , yet the laws and customs of this kingdom , should alter the case here , as it does in other kingdoms . to the d it is answered , that o. there is a great difference in our law , betwixt these , persons being free to trade , and so not lyable to the pains of un-free traders , and their being free from paying of customs ; and the first two acts cited , do certainly militate only in the first case , by granting them a freedom to trade , but not a freedom from paying of customs . and as to the act p●r. ja. . it does not grant an exemption from customs . and albeit it may be urg'd , that the first part of that act having imposed customs on all , and this being an exception , it must be an exception from the rule , yet consequential arguments , should not take away express laws , nor is this an exception , but rather a cautionary reservation , and these use to be insert ad majorem cautelam and should never be extended beyond the terms of the reservation . but so it is , that the reservation is not conceiv'd absolutely , but only conform to the laws and liberties , granted to them before . and therefore since it cannot be subsumed , that there are any former laws , granting this exemption from customs , it must be restricted to the priviledge of their b●ing free , from the pains of un-free trading only . o. it is to be consider'd , that the former laws , allows them only the liberty from being punish'd as un-free traders , as to what they import by their own servants , for their own privat use , and as the return of commodities of their own product , exported by them . nor does the . chap. leg. burg. extend further than to exeem barons , from in-land customs , due to subjects . o. the time of that act , the customs were justly impos'd , upon exported goods , but thereafter his majesty was graciously pleas'd , to lay the greatest part of the customs upon the imported commodities ; and so having very much freed the barons of a duty , that burdened their product , it was not reasonable , that their product and imported goods should be both free . likeas , so convincing was this argument , that albeit some shadow of an exemption , was subjoyn'd , when the customs were imposed , upon their product by the first constitution , in that act . yet when this burden was transferred , by the act . from the export to the import , the barons did require no such exemption , nor does the act bear any ▪ and so this act is innovated , by the said posterior act. as to the excise , there can be no pretence , for any exemption from it , since there being no such duty extant , the time of the act . that act cannot be extended to the excise ; and whereas it is pretended , that by the act sess. pa. ch. . this exemption is renewed after the imposing of excise . it is answered , that the said act ch. . does not express any such priviledge , but only says , that the regulation of the differences , betwixt the burghs royal and burghs of barony , introduced by that act , shall be but prejudice , to the noblemen , prelats and others , of their priviledge of importing any of the goods , allowed to be then imported , for their own and families use allenarly ; which can only be interpreted , to relate to their freedom of trading , that being the only design of the whole acts , in which there is no design of restricting or innovating any thing , with relation to custom or excise . and thereafter since at all times , the king is founded quoad the payment of customs ; much less ought we to debate this with him at this time , when his majesty is content to lessen his uncontroverted right in the customes , for the enriching these who controvert this his right , by consenting at their desire to discharge , more imported goods , than would pay him more customes then he can expect from these not exeemed . notwithstanding of these reasons , yet by the present tacks , noblemen and gentlemen , are exeem'd from paying customs for what they bring for their own use , but they are not , exeem'd from excise , nor the additional duties , because these were granted to the king , in contemplation of what the king lost by the want of the custom due to him , upon goods now prohibited , vid. gimnas . de vectig . p. . where it is told us , that by the laws of germany , illustres & generosi sunt immunes pro his quae sunt pro victu & cultu suo vid. l. omnium . c. de vectigal . vid. annot. act par. . ja. . vid. annot. act par. . ja. . obser . o. this act appoints all ships to have chartor parties , and because there was no penalty against these , who had no chartor party ; therefore by the act par. ja. . the penalty of twenty pounds is adjected ; and yet both these acts are in desuetude , ; for within the kingdom , no chartor parties are used , nor are they found necessary , even for these who sail abroad . observ. o. that though it be said in this act , that when any debate happens betwixt master and merchant , that they shall underly the jurisdiction , and ordinance of the burgh , to which the ship is fraughted , without any exception ; yet by the custom now observ'd , such pursuites may be intented against the defender , wherever he dwells , or before the lords , even in the first instance . observ. o. that though by this act it be ordain'd , that no merchant goods be riven or spilt , with unreasonable stowing , or the masters fault , under pain of tinsel of the fraught , and amending of the skaith , yet the skipper is lya●le , if the goods be spilt , though without his fault , & ex casu f●rtuito , as by water from a pomp , though the pomp had a stellage about it , and was proven to have been a sufficient pomp , before the ship set forth , so that this danger could not have been foreseen , & quamvis locator non tenetur ex casu fortuito ; and the words in a bill of loadning obliging the skipper to restore the goods well conditioned , can only bind , ad exactissimam diligentiam vid. peckium pag. . yet the lords thought , that if such defences were allow'd , merchants could have no security , for they were neither oblig'd to know , nor could they prove the secret frailties of ships , november . . lowrie contra angus . this act in so far as it appoints a seek-fraught to be paid to the chaplain of the nation , is in d●suetude : and by the chaplain of the nation , here is mean'd the kings almoner , which was to be given to him for the use of the poor , for in the next line it appoints a tunn fraught to be paid to the kirk-work of the town , to which they are fraughted ; but i know there are some who say that capellanus noster , mentioned among the witnesses , to the kings deeds , is mean'd the director of the chancellary : the chancellary being call'd in all our old writs , capella regia . bruges was the first staple of this nation , but it 's discharg'd by this act , to be the staple for the future , and our ships are allow'd to go to the french ports by the following act , because of the alliances we had with france , and that france and flanders were then entring into wars ▪ staple goods are by this act to remain in staple , and not to go to mercats , for clearing of which act , it is fit to know that kings and common-wealthes , allow some goods only to be sold at particular places , and these are call'd staple goods ; and the place is call'd , the staple port , jus stapuli est potestas sistendi in suo foro restringendique merces speciali emporii beneficio certis civitatibus competens loccen . de jur. marit . lib. . c. . num . . potest enim rex ob bonum publicum in hoc casu dispensare , l. ult . c. de leg . but this priviledge of staple , is not competent , except it be specially granted , and strangers as well as natives , may be forc'd to observe that priviledge , for they are here tanquam subditi temporarii , grot. de jur . bell. part . num . and . but yet this act discharging the carrying of staple goods by sea , from simon and jude's day , till candlemas , is in desuetude ; for our best trade is now in winter , but the reason why winter trade was then discharg'd , was because our vessels were small , and our sea-men ignorant , so that many perished by winter voyages . are explain'd in the acts , and , par. ja. . and by the act par. . ja. . as is also the last act of this parliament . vid. annot. on act par. ja. . supra . king james the third , parliament . this act is conform to iter : camer : cap. . and the last act ordain'd to be put to execution by this act is act par. ja. . this act is in desuetude , for it is now lawful to carry any kind of cattel out of the countrey , without hazard of confiscation . it is clear from this act , that the warden might then have granted licences for goods prohibited , but this the commissioners of the borders cannot now do . king iames the third , parliament . vid. act par. ja. . but it is to be observ'd from these words , in this act it shall be lawful to the kings highness to take the decision of any cause that comes before him , at his empleasance . likeas it was wont to be of before , that the king himself may be judge as he pleases ; but though the king did call an action to be judg'd before himself , that was depending before the lords ; yet his majesty was thereafter pleased , upon a representation of the inconveniences that would arise , to refer it back to them ; and some interpret this of the kings power , when he is sitting in his judicatures ; though i think the act will not bear that gloss : ●ut certain it is , that at first all masters were judges in their own families , and that kings themselves judg'd in their own kingdoms , as we see in the instance of solomon and others , vid. ch . . stat. david . where there is a decision of the kings insert amongst his statutes , and the doctors are of opinion , that princeps habens causam cum suo subdito potest ipse judicare si vult . peregr . de jure sisci tit . . num . . and this seems founded on l. & hoc tiberius . ff . de haer . instit . & l. proxime ff . de his qu● in test . delent . and though thereafter they did disburden themselves of that charge , by electing other judges , yet they did not debar themselves from that power ; and therefore we use to say , that all jurisdiction in scotland is cumulative and not privative ; but if the king take the cognition of any cause , he will try it according to the forms of that court , where it should have been decided ; and therefore if he be to try a criminal , the pannel will be allow'd to hear the witnesses depone against him , and the matter of fact will be judg'd by an assyze . if it be alledg'd , the meaning of this act is only that the king may try any action he pleases in his council , that is to say , his session , ( for of old , the session was call'd his council , and yet they are call'd his council and session ) to this it may be answered , this a●t appoints that causes should be first try'd by the judge ordinary , and if he either refuse to judge , or judge wrong , the council is to judge , not the cause , but him , and this induc'd some to urge , that the absence from the host could not be pursu'd before the council , though the punishment was restricted to an arbitrary punishment ; for which they brought these reasons : o. that this would confound the nature and limits of all the judicatures , which are the great foundations of our law , and which is contrary to this act. o. it is the great security of the people , that when they are try'd for crimes , they should be judg'd , not only by the learn'd judges , as to relevancy , but by their peers , whom they may judge again as to the probation . o. advocats are to be heard before the criminal court , but not before the council ▪ and the debate is to be there in writ , which obliges a judge to do justly , and the probation is to be led in presence of the pannel . o. before the council the crime may be refer'd to oath , which is not suitable to the criminal law , even where the punishment is arbitrary , except the party be by act of parliament , oblig'd to depone , as in the case of conventicles . o. there are no exculpations before the council , which are necessary in crimes . o. several acts of parliament appoint , that cases may be pursu'd before the criminal court , or council , when that is intended , and which were unnecessary , if all causes might naturally be pursu'd before either . it being likewise debated from this act , that a judge for giving an unjust decreet , might be pursu'd before the council in the first instance for oppression , the council did in january . find , that a sheriff , or other inferiour judge , could not be ●ursu'd before the council , until his decreet were first reduc'd before the judge ordinary , and that because the act par. ja. . appoints all actions to be first pursu'd before the judge ordinary , and the lords of the session are judges ordinary to reductions , and are there appointed to cognosce the wrongs done by inferiour judges ; and if this were sustain'd , the privy council should become the session , nor would any man be a sheriff , since he might every day be pursu'd before the council ; and whereas it was pretended , that the council were judges to oppression , and there might be great oppression committed by inferiour judges , sub sigurâ judicij . it was answered , that when the decreet was reduc'd , they might then be punish●d as oppressours , if there was no colour of justice for their decision , as the said act provided , sheriff of bamff contra arthur forbes . vid. obs. on the act par. ja. . and act par. ch. . we see that the granting reversions by the wodsetters , were but new inventions in anno ; and reversions were only personal , and did not oblige singular successors before that act , but by this act they affect singular successors , providing they be registrated . and though this act speak only of reversions ; yet elks to reversions , and obligations to grant reversions , are also real rights , if registrated . o. a reversion , though not registrated , is by our law valid against singular suc●●ssors , if it be incorporated , and contain'd in the body of the wodset it self , for then the singular successor must know the same , since it is incorporated in his own right . by this act personal rights are ordain'd to prescryve , if no diligence was us'd thereupon within fourty years , as heretable rights do prescrive by the act par. ja. . and though this act appoints only obligations to prescryve ; and that the word , obligation , does properly signifie only bonds and c●ntracts ; yet this act extends to testaments and decreets , july . . and this prescription is also extended to all personal actions for moveable goods , and so it did defend against an action for a kirk-bell , december . . for in effect all these are obligations . whereas the act says , except document be taken thereupon ; the meaning is , that diligence upon the writ , that is , to prescryve interrupts prescription ; and thus horning upon a bond , or citation upon an action interrupts , july . . m crae contra m cdonald : and payment made by the principal debitor , interrup●s as to the cautioners . it is observable , that prescription upon this act , runs not against minors , & contra non valentes agere , though neither of these are excepted in this act ; because these exceptions are warranted by the common law , and it may be alleadg'd , that it runs not against furious persons , since they are in all things compar'd to minors , albeit there is this difference , that a man may feign himself to be fu●ious , to the end prescription may not run against him : but yet prescription runs against things left , ad pios usus ; nor is the time of war and pestilence , when there is no judicature , nor session to be defalked , june . . prescriptions runs only against personal bonds , from the term of payment , and not from the date of the bond , because till then , the creditor cannot pursue , fe●ruary . . lutefoot contra glencorse . it is pretended that this act is in desuetude , and that magistrats may be continued for many years , or at least , that this act must be so interpreted , as to infer only a necessity of a new election yearly ; but not of yearly changing the persons elected ; for sometimes there are few to be choosed , as in small burghs , and in great burghs a forc'd alteration might prejudge the towns interest , because there are few worthy to be elected in these little towns , and the lords inclin'd to this gloss , in the town of edinburghs process against sir andrew ramsay . the burrow law here related to is , cap. . leg . burg . it appears by this and many other acts , and old evidents , that alderman , was the same of old with our provost , and they are still plac'd above baillies , it comes from the saxon word ealdor senior , thus we say for age , or for eeld . notars are now only chosen by the kings authority , and are examined by three lords of the session , and get their protocals marked at their admission by the clerk to the notars , who is one of the registers deput clerks : nor are the notars to be admitted by the king , to be examined by the bishops , as this act appoints ; and yet our style retains to this day , so much of the old form , that the notars express still in all the instruments , and other papers sign'd by them , that they are notars of such a diocie . by this act all woolen cloath is to be met by the rig , and not by the selvedge , but by the act par. ch. . linen cloath is ordain'd to be taken up by the selvedge , and not by the rig ; because woolen cloath stretches , when measur'd by the selvedge , but the selvedge of linen hinders it to stretch . though this act appoints only heretable sheriffs , or sheriffs in that part , that is to say , any ordinary person who executes the kings letters , to put their stamp to the execution ; yet by the act par. ja. . the execution of all letters must be stamped ; and though here , the not stamping makes the executions to be only null ; yet by that act , such as omit to stamp are punish'd by deprivation . vid. observ. on that act. oppression of the kings leiges in fairs , by taking more custom from them than is due , is by this act punish'd only arbitrarly , as to the offenders persons , and by a years suspension from their offices , and what custom is allow'd in such cases , is exprest , act . par. ja. . how far arbitrary punishments may be extended , is doubted . these who have fairs , had not power to exact toll , gl . in l. un . c. de nundinis , because fairs enrich the place , and toll wrongs commerce . though removing of tennents , and poinding their goods , be appointed by this act , to be three days after whitsunday or martinmass ; yet by the act par. q. mary . all warnings against tennents , are to be used fourty dayes before whitsunday only ; the old form of removing was , that the master did only intimate to the tennent that he was to remove , and broke a lance before the tennents door , as the symbol of breaking their tack ; and within . days ejected the tennent , as craig observes ; but now the tennent must be warned days before the term , and a decreet of removing must be had , whereupon he must be charged and denunced before he can be ejected ; and after that letters of ejection are directed to the sheriff . all murders committed by fore-thought fellony , that is to say , upon design , or per insidias ( called assassinium ) are denyed the protection of a sanctuary , or girth by this act ; but it appears that the crime of assassination was here excepted expresly , because it not being exprest in the very text of the canon law , there were several debates about it ; vid. covar . variar . resolut . cap. . for though it be ordinarily proved , per cap. . de homicidio si quis per industriam occederit proximum suum & per i●sidias ab altari meo avellet cum ut moriatur ; which text seems to be mean't by these words in this act ; for the which the law grants not the immunitie of the kirk ; and in which our law has followed the common opinion , that assassinators are denyed the priviledge ; yet cap. inter alia gives immunitie to all , except publicus latro & depopulator agrorum ; and that cap. de homicid . excepts only church-men , who have assassinated proditorie , and who indeed should have less immunitie than others ; but now the churches being a sanctuary or girth , is in desuetude , since poperie was abolished ; though the kings palaces are still sanctuaries in all nations , if princes be dwelling therein ; and yet i think they should not be sanctuaries if they dwell not there , except that allowance be granted them , either by express concession or prescription ; but these gave not protection to such as were notorious criminals , novel . justin. . cap. . verb. neque homicidis , neque adulteris , neque virginum raptoribus , delinquentibus terminorum custodies cautelam , sed etiam inde extrahes & supplicium iis inferes : non enim talia delinquentibus parcere convenit &c. and now i find not that any of the kings palaces are sanctuaries as to cryms with us , and in no case should they be a sanctuary against searching for , and apprehending malefactors ; as is clear , l. . ff . de fugitiv , div. marcus facultatem dedit ingrediendi tam caesaris quam senatorum praedia volentibus fugitivos inquerere . the conȝie-house pretends also to be a sanctuary with us . this priviledge of a sanctuary was only granted to holy , and consecrated places , and amongst protestants , no consecrations are in use , but yet according to the canon-law , churches even before consecration , are generally thought by lawyers to have that immunitie , vid. covar . variar . resolut . cap. . num . . and albeit this priviledge be properly a canonical priviledge , yet it cannot be denyed , but that the very churches of the gentiles had this priviledge , as is clear by t●●ucid . lib. . and was approved of by councils and fathers , who are cited cap. . quest. . praesertim cap. miror & cap. pen. & fin . de immunitate ecclesi●st . vid num . cap. . i●sua cap. . deuter. cap. . exod. cap. . but though by the canon law , . paces about the mother-church , and , about other churches had the same priviledge of immunitie ; albeit skeen speaks only of the . paces in his annotations , ad cap. . statut. alex. d. yet i read of no such priviledge to either the . or the . paces , nor to the palaces of bishops , nor to hospitals , vid. covar . ibid. before this act the tennent might have been poynded by the brief of distres , for all the personal debt owing by his master , but by the first part of this act , it is appointed , that the tennents shall be poynded only for as much as they owe their master which did hold only in poynding for moveable debts ; for in decreets of poynding the ground , the creditor might have poynded all he found upon the ground , and all invecta & illata , though the tennent owed not so much to the master ; yea , though he owed him nothing , as was found . july . and though the tennents term of payment were not come , if the term of payment of the annualrent were by-past ; and they who were so poynded , had their relief of the heretor , for whose debt they were poynded ; but now the lords extends this act so , as to defend tennents against poynding upon infertments of annualrent granted by the master , so that execution cannot passe against them for more than they owe their master , as to which only they can be personally lyable , and their goods or invecta & illata can b● only poynded ; but yet this was not properly an extension for debita fundi are the heretors or lords debt , since the heretor is personally , and the land is really lyable therefore . this act extends only to tennents of lands , but not to tennents of teinds , who cannot be poynded for their masters debt , . january . the second part of this statute prescribes the way of appryzing lands from debitors , and it is the original statute whereupon apprysings are founded in our law ; and it seems strange , that so material a part of our law should not have an entire statute , but should have been brought in at the close of another , and less important case . the form prescribed to compryzings , by this statute , is , that if the creditor cannot recover payment by poynding the moveables , the sheriff shall cause sell the land to the avail of the debt ; and from this act it is , that to this day the moveables must first be fought , and though the appryzing will be null for want of this solemnitie ; yet the offering to prove that there were as many moveables upon the lands as might pay the debt , will not reduce the compryzing , except these moveables were offered to the messenger , when he was executing the appryzing , and when the scheduls of appryzing were laid on upon the ground of the lands ; tantum creditur nuncio referenti se fecisse executionem in stabilibus quia non ●●t●bant bona mobilia debitoris quod non auditur volens probare contrarium ad annullandam executionem surd. concil . num . . lib. . this solemnitie descends from l. . § . de re jud. by which moveables were first to be poynded , and then immoveables failȝing of these , and was formerly introduc'd into this nation by the cap. . stat. d. rob. . by this act , it is appointed , that the lands be appryzed to the avail of the debt , this proportion was long observed , and much was referred to the arbitriment of the judge and inquest . balfour , who collects the oldest decisions , and such as were about the time of the institution of the colledge of justice , in his title of comprizings ▪ chap. . gives this for a rule , that ilk twenty shilling land of old extent , was comprized to twenty merks , july . james heren contra henrie livel , and ilk mark land of yearly profit was to be comprized to twenty merks of stock , which answered to five for the hundred , penult may . adam dickson contra john carhattel , penult . march , . but i have seen diverse old comprizing led about this time , at the instance of george lord seaton , and lady jean hepburn his mother , against some vassals , and wodsetters in the barony of west-niddery in linlithgow shire , where more then five of the hundred was allowed , as will appear by computation ; one of these comprizings dated . march , . bears . aikers , with . shilling scots per aiker to have been appryzed in payment of two hundred and fourty pounds of principal due to the said lord george ; and a second comprizing also led at his instance , dated . december , . bears , aikers , and two parts of an aiker of infield land to have been appryzed in payment of two hundred and fourty pounds of principal due to the said lord george ; and a 〈◊〉 compryzing also led at his instance , dated . december , . bears , . aikers , and two parts of an aiker of infield to have been apprized for payment of three hundred and fourty two pounds of principle , each aiker being valued to a merk of yearly rent ; a third appryzing at his instance , dated . feb. . bears , . aikers and a half to have been appryzed for . lib , of principal , ilk aiker being valued to . shil●ing of yearly rent , and a fourth comprizing , dated , th may , . bears , . aikers to have been apprized in payment of two hundred and twenty merks principal , and the rent of an aiker to be valued to a boll of victual , and the price of the boll to have been valued to . shilling scots yearly ; and this was by and attour the sheriffie , for which the like proportion of lands was appryzed , as the several appryzings bears ; and for the better making of the proportion , they also bear , that the sheriff and inquest came to the ground of the lands , and measured off the aikers , and set a constant price on the victual , but by one of the decisions cited by balfour , later than these ; it 's like that five per cent has been theirby appointed to have been the rule in time coming , as he sayes . when annualrents out of lands were appryzed , the inquest did never exceed per cent without a dispensation from the lords of session , or else they were pr●judg●d , sayes craig , pag. . and the compryzings were reduceable , but dispensations were easily granted ▪ and craig saye● , they were sought to free the inquest from hazard of perjury , but upon what ground it was , that the inquest scrupled more in compryzing of annualrents , than in compryzing of lands , where they allowed a rent answerable to per cent , i cannot conjecture , except for one or two reasons , . that annualrent is a thing odious , and unlawful by the opinion of many divines ▪ and therefore not to be stretched . . annualrents were free of publick burdens , to which lands were subject , and therefore a greater allowance might have been given of land-rent than annualrent . when life-rent rights , such as conjunct-fee , simple-liferent terces or curialitie were comprized , the estimation was made according to the age of the life-renter , or life-rentrix , when within . years , the estimation was years purchase , that is as much as the fruits and rents had yeelded for . years preceeding , or might yeeld in . years thereafter ; and when the life-renter exceeded . years of age , and was not of the age of . compleat four years purchase was the estimation ; and if years of age was exceeded , and the sixtieth not attained the estimation , was three years purchase ; and if the life-renter was weak , or sicklie , or that there was any other cause that might interrupt the liferent-right , the inquest did value , as the circumstances determined ; craig pag. . in fine . & dict . pag. . in princ . and when any servitude was apprized , the inquest did also value as they thought the servitude profitable , craig loco citato . this was the way of procedor in old comprizings , in making a proportion betwixt the debt , and the thing appryzed . the form and stile of decreets of compryzings of old was shortly thus ; the clerk of the compryzing , who was ordinarily the sheriffs clerk , did extend a writing upon parchment , containing all the particulars of the procedor , to wit , that the creditor having obtained a sentence before the sheriff , decerning his debitor to pay a certain sum , and there being no moveables to pay it , the sheriff came to the ground of the land with an inquest of most knowing persons within the shire selected for that effect , and there measured off some aikers for the money , and sheriffie corresponding , each aiker paying so much victual , and the victual being valued to a suitable rate , redeemable always by the debitor within the time contained in the act of parliament ; and which writing is seal'd with the seals of the judge , and of the inquest . o. though this statute appoints the sheriff to sell , yet upon deliverence of the lords of the session , they will appoint the compryzing to be led before messengers , or macers , whom they will make sheriffs in that part . it being debated , whether a compryzers marriage fell to the king , where the comprizer was payed within the legal , though he was not payed when the marriage fell , but was payed thereafter , and before the legal expired ; it was urged that it did fall , because the compryzer was vassal , and so as all casualties due by other vassals should fall , and that the king should rather have this casualty from comprizers , than from any vassals , because a compryzer could by a special statute , be entred by the king , though a singular successor . o. if the king were seeking this casualty by the debitors death , the comprizer would exclude him , by alledging that the debitor was denuded , and it were unjust , that by this means , the king should want his casualty from both . o. the king falls all other casualties by the compryzer , such as recognition , liferent escheat , and the compryzer by being entred , can do all deeds that other proprietars can do ; and therefore should be lyable in all other casualties , as they are . o. if this were not allow'd , the king might be still defrauded of this casualty , for the comprizer might still secure the debitor , and if his own marriage fell , he might thereafter cause redeem himself ; and whereas it was pretended , that a comprising is but a pignus praetorium & in pignori●us non transfertur dominium , and so the debitor being still proprietar , remain'd still vassal . to this it was replyed , that though a comprysing resemble pignus praetorium , yet it is truely an alienation , and this statute appoints the land to be sold to the creditor ; and by the whole tenor of comprisings , it is clear that it is a judicial vendition made under reversion , and so resembles more a legal wodset ; and therefore as in wodsets , the wodsetters marriage would fall , so ought the comprizers , and its being a legal vendition and alienation appears from this also , that it falls under recognition ; and recognition presupposes still alienationem dominij . the lords upon this debate ( which clears much the nature of comprisings ) prefer'd the king , for they found that the compriser being vassal , the marriage fell by his death , he having died before the comprysing was redeem'd , and therefore it may be doubted , whether the compriser will have his relief , for the damnage incur'd by this casualty from his debitor , before the lands can be redeem'd from him , since it fell by his fault , in not paying him ; nor is the debitor much prejudg'd , for if the lands had not been compris'd , this casualty might have fallen by his own death , and the inconveniency urg'd from the multitude of marriages , that would fall by the great number of comprizers , is of no w●ight , since if a man had sold his land , and divided it amongst his creditors , all their marriages had as well fallen , in that case , as in this . o. whereas by this act , the legal is to extend to seven years only , so that if there be one shilling resting after seven years , the comprysing expires ; yet by the act par. ch. . anno . this legal is extended to ten years , but both the seven and ten are to be compted from the date of the decreet of apprising , and not from the date of the allowance , by our practick . o. though superiours be not oblig'd to receive singular successors , yet they are bound to receive comprizers upon payment of a years dewty of the lands comprised , and this singularity is introduc'd in favours of commerce , and of poor debitors , but to ballance this speciality , the superiour is allow'd to retain the land comprised to himself , upon payment of the sums comprised for , because he is also proprietar of the lands , having dominium directum , as the vassal who is debitor has dominium utile , vid. . march. . black contra pitmedine . but it was lately found , that the superiour could not redeem after seven or ten years , no more than the vassal , for though the legal , as to the superiour , be not limited , yet he comes but in place of the vassal , and so ought to have no more priviledge , and this general must be restricted by the other parts of the act. o. though the superiour be bound to receive the comprisers , and that without producing their authors right , because it is not presumable that their debitors , from whom they comprised , will produce their rights to them ; yet where adjudications are led , for compleating dispositions , or other rights , the superiour is not oblig'd to receive such adjudgers , until they instruct the last vassals right ; for such adjudgers as these are not ordain'd by the act of parliament to be received , june . . m cneil contra m cdougal . but it may be doubted , what an adjudger , who has done ulti●at diligence , to recover his debitors writs , shall do , if he cannot obtain them , it being very hard , that he should ly out of his right , because of the contumacy of the person , who is oblig'd to compleat the right . vid. obs . on the act par. sess. ch. . though it is said here , that justice-airs need not be continu'd ; yet justice-courts are declar'd peremptor , so that if actions before them be not call'd , the day to which the citation is given , the citation is null , & perit instantiâ . act . par. . ja. . vid. observ. on that act. by this act it is declar'd , that the rolls and registers be put in books , and have the same strength that the rolls had : for understanding which , it 's fit to know , that both in parliament and exchequer , there were no registers but rolls . and by this act the rolls are ordain'd to be turn'd into books . and these books are declar'd to be as authentick as their originals , and the clerk is yet design'd clerk of the council register and rolls . this is the only act , by which counterfeiters of money are punish'd by death ; and yet this act properly stricks against the counterfeiters and coyners of copper-money only , which in our law is call'd black money . it has been doubted , whether the officers of the mint could coyn copper-money without express permission ; but it was lately found they could not , because coyning is ex sua natura inter regalia . o. there have been several warrands expresly granted to the saids officers themselves , for coyning copper-money , and determining the quantity to be coyn'd , and the rates to be follow'd , which had been needless , if this could have been done without a warrand . o. there is so great profit to the coyners , and so great loss to the people , by coyning copper and black money , that it was necessary the coyning should have been determin'd . o. it had been unnecessary and absurd , to have discharg'd the counterfiting and currency of black-money by this act , if it had been lawful to have coin'd without a warrand ; and whereas it was alleadg'd that black money was coin'd in england without warrand ; to this it was answer'd , that such farthings &c. past only in the place where they were coin'd in england , but what passes in one place of scotland , passes through all . vid. annot. on act par. ja. . supra . king james the third , parliament . the design of this act is , to shew that in reductions of decreets of inferiour courts before the parliament , the defender is not allow'd to propone defences , that were competent and omitted in the first instance ; and yet in reductions of decreets of inferiour courts , before the session , alleadgances , though competent and omitted at the time of the first decreet , are receivable by the lords , especially if the decreets be in absence nota , that dilators might have been then propon'd , separatim ; but now after a dilator is repell'd , all the other dilators must be propon'd together . nota o. it is clear by this act , that decreets of inferiour courts were reduc'd before the parliament , but these lords were then not what our session is now ; the session being then a committee of parliament , as is also clear by this act. nota o. that brieves of mort-ancestrie ( which are now call'd brieves for serving of heirs , were then led and expede in justice-airs , though it was still by an inquest , as this act bears ; and if then difficulties did occur in serving of heirs , it is clear that superiour courts might give their opinion upon these , though they cannot serve an heir ; and thus two several persons having rais'd brieves for serving themselves heirs to captain ross , they were advocated from the macers ; and it was debated before the lords , what probation was sufficient to exclude the king as ultimus hares , albeit it was alleadg'd , that this was only proper to be debated before the inquest , and yet though the lords may determine , how a thing may be proven , & ipsum modum probandi , as in that case where the debate did run , whether the being habit and repute cousins , was sufficient in agnatione antiquâ ; yet the lords in the case forrester contra the heirs of the laird of wrights-houses , refused to consider the probation it self , and the objections against the writs produc'd , but remitted the same to the inquest ; though it was alleadg'd , that it being objected here , that the writs produc'd for probation were vitiated , the lords could only judge this as being species falsi ; but withal , the lords declared , that if the inquest desired to know whether the papers were vitiated , they would give them their opinion therein . the lords of the session themselves have been sometimes the inquest , as in serving king charles the first , heir to queen ann his mother , and king charles the second , to the duke of lenox ; though it was alleadg'd that this was inconvenient , because no other judge could reduce their verdict ; but certainly , either the parliament might have reduc'd it , and found them guilty of error , or the lords of the session might have reduc'd their own verdict , upon new probation ; for in this case they proceeded , not as supream judges , but as members of inquest . the parliament have been sometimes the inquest , as in serving the earl of mar heir to his mother . by this act , the party put to the horn for slaughter , is to find caution before he be relax'd , not only to compear to underly the law , but to pay twenty pounds for his escheat goods , and this is to this day exprest in all relaxations . vid. observ . on act par. ja. . by this , and by the first act of this parliament , it is clear , that that parliament did delegat some of their number , not only in some particular cases , but with a general power to represent them in all things which seems hard ; for that were to make and create a new parliament : but here their power was delegated only as to debatable cases , for these lords were then in place of the session ; and i have heard it debated , if the council could delegat their power , to any of their number , as to all things , for that were to make a new council ; and since the king impower'd only nine to be a quorum , they might not impower a fewer number ; nor were it fit for the people , to have the supream power committed to so few , nec potest delegatus delegare : nor can the justices , nor commissioners for teinds , make such committees , though they are as supream as the council . vid. observ. on the last act par. ja. . by this act it seems that the council may reduce the verdicts of inquests and sentences of the justices , though the regular way of questioning assizers , who assoilȝe , be by a summons of error before the justices , and a new inquest of fourty five persons ; and de facto , the council do cancel such verdicts and sentences , before themselves , as they did in george grahames case ; and ordinarly they mitigat the sentences of the justices . nota , the books of regiam majestatem , are by this act called his majesties laws , and the place here related to , is lib. . r.m. cap. . because the riches of this realm , consists chiefly in our fishing , therefore bushes are ordain'd to be made , since these are able to ride out in storms , which lesser vessels cannot do , and it is best fishing when the waters are troubled ; this is renew'd by the act parliament ja. . though by this act , he who tines his action is to pay fourty shilling of expences ; yet the modification is left arbitrary to the respective judges , conform to the civil law , which appoints condemnationem in expensas & litium damna contra temere litigantes inst. hic . depen . temerè litigantium § . . and by the act par. ja. . the defender pays twelve pennies out of every pound to the lords ; and the defenders expences at the lords modification . king iames the third , parliament . by the civil law , he who is to succeed as heir , is still to be tutor of law ; but because this could not well be , where the immediat heir was himself under twenty five yea●s ; and therefore by this it is appointed , that the age of a tutor of law , or tutor legitimus , shall be the age of twenty five years , though the age of majority be twenty one , because it requires greater experience to govern other mens affairs than our own ; and if the immediat heir , be not of that age , the next heir who has attain'd to that age , is to be tutor . and by the civil law , no man could be a tutor , even by a testament , till he attain'd to that age , inst. qui testament . tutor § . by this act also , the nearest agnat , that is to say , the nearest of the fathers side is to be tutor , which was conform to the old civil law ; but justinian ; by the nov. . did take away this difference betwixt agnats and cognats , both as to succession , and tutories , and we in both follow the old law , and not this novel . by this act , the laws called leges burgorum , bound in with reg. maj. are declard a part of our law , and the chapter particularly related to is cap. . though this act appoints only the heirs of barons , gentlemen , and free-holders to have heirship-moveables . yet by our law , all prelats , barons and burgesses may have heirs , and these heirs have right to the best of every thing that belong'd to their predecessor , as their heirship-moveable , conform to a roll , expressing what is heirship-moveable , a copy of which roll may be had from the clerk of edinburgh ; the reason why moveable-heirship was allowed only to prelats , barons , and burgesses , seems to be , either because these being the only three states of parliament , they only ought to be allow'd such considerable plenishing , as heirship-moveables ; or else because in those dayes , none but persons of these qualities , could have such moveables ; under the word prelats are comprehended all benefic'd persons . by burgesses are understood all trades-men , and others traffecking , or working within burghs , but not honorary burgesses ; by barons are understood , all who are infest in lands , though not erected in a barony , and that maxime , semel baro , semper baro , is to be interpreted presumptive , so that he who is infest in lands , is presum'd to die infest : but if he was devested before his death , either by comprysing , resignation , or otherwise , he cannot be counted a baron , and have an heir , january . . straton contra chirnside . these words ( of the best of ilk thing ) must be interpreted , de corporibus , but not de quantitatibus & rebus ●ungibilibus quae pondere numero , vel mensurâ constant , as money , cloath , &c. and so the stool of a salt-pan , which was out of use , was accounted but iron , and fell not under moveable-heirship , had. . reid contra thomson . item , where there are a dozen of spoons , or moe , the heir shall have a dozen , if they be fewer , he gets but one spoon , dict. cap. . l. burg . which custom hath extended , not only to other things that go by dozens , but likewise so ; as these things that go by pairs , and are of one use , must belong to the heir ; and thus the heirship of oxen was found to be a yoke , july . . black contra kincaid . dubitatur , o. if the appearand heir of a man , who has only a disposition , but is not infest , may have moveable heirship . dubitatur , o. if the appearand heir of him who has an assignation to a reversion of lands , may have moveable heirship , since assignations to reversions , are real rights . by this act it is declar'd , that the act ordaining personal obligations , to prescrive in fourty years , was to be interpreted so , as to extend to all obligations , prior to that act , which seems hard ; for these who had these obligations , were in bona fide , not to do diligence ; and therefore , some time should have been allow'd to do diligence , as thirteen years were allow'd in the act of prescription . and therefore it would seem , that the act par. ja. . ordaining personal obligations to expire in fourty years , rather declares what was law before , and that such prescriptions have been formerly allow'd hereupon , the common law , or some old act ; for this statute likewise says , the time of the making of the said acts , so that it appears there have been other acts besides that one , to which this relates . retours to this day express the old and new extent ; by the old extent is meant , that to which the whole lands of scotland were valu'd , by the first general valuation . and by the new extent is understood the second valuation , which was long after the former : the old extent is said in all retours to be tempore pacis ; and the new tempore guerrae , or belli , the reason of which , some think to be , that the new extent being made in time of war , there was a necessity to highten the valuation , for maintaining the war ; these casualties being the greatest part of the kings revenue ; whereas the old extent is very inconsiderable , being in time of peace , when there was no necessity for any addition to the revenue , and when the value of the money was very mean. by this act , four of the old council are to sit with the new council ; but this act is now innovated by the posterior different constitutions of privat burghs , edinburgh , and many other burghs having far more , whilst others have but the numbers here prescrived , or fewer . and as to edinburgh , the manner of choosing the magistrates and counc●l thereof , is regulated by ●king iames the sixth , his decreet arbitral , commonly call'd the sett . vid. ja. . par. act . the superiour not entering to his superiority , to the effect he may enter , his vassal tines his superiority for his lifetime ; and though this act determines not for whose lifetime the superiority is to be lost ; yet by an act of sederunt anno . it is ordain'd that the superior tines his superiority for his own lifetime , and not for the vassals lifetime , and declares this to be the meaning of the act. by this act it is clear , that stealing of dogs , hauks , and the like , is not to be punish'd as theft , but only by a fine or penalty of ten pounds , and in effect this is not contrectatio rei alienae lucri faciendi causa ; these beasts being rather useful for sport than gain , but it may be doubted , if a fowler , who makes it his trade , & ita lucrum sacit , may not be punish'd as a thief , for stealing another poor fowlers dog , who lives by that trade , and whose dog is his pleugh , and especially since such dogs are now bought and sold. this act containing the pains of such as break dovecots , cunninghares , &c. is alter'd , and the penalty hightned by subsequent acts of parliament , viz. by the act par. ja. . and by the act par. ja. . but these acts are without prejudice of putting all former acts to execution , made against the foresaid crimes . this penal statute against ferriers , not making bridges , is in desuetude , as are the prices here exprest ▪ vid. act . par. ja. . supra , and act par. ja. . king james the third , parliament . it would seem by this act , that all ordinary actions must be first pursu'd before inferiour courts , which is likewise appointed by the . act par. ja. . but now any action may be pursu'd before the session or parliament , in the first instance . but there can no action be rais'd before the parliament without special warrand first past in the articles , for bringing the same before the parliament . vid. not . on act pa. ja. . act pa. ja. . and act pa. ja. . supra . by this act which is in present observance , such assyzers as assoilȝie a pannel unjustly , are to be pursu'd for error ; but such as condemn him unjustly are not , the reason whereof seems to be , that the law-givers presum'd , that no assyzer would condemn unjustly , but that probably they might shew favour in absolving ; and if assyzers were punish'd for condemning , they would never condemn ▪ and since they get no sallaries , they should not be severely us'd , but though we have no law allowing assyzes of error , against such as condemn ; yet it may be alleadg'd that assyzers may be pursu'd if they condemn a man without any shadow of probation . o. this act appoints that the assyzers who are to judge of the error , be noble persons ; for these that are to judge of the error of others , ought to be more judicious than they ; but by a statut sess. . c. . it is declar'd , that by noble persons is meant only landed-gentlemen . o. the error must be infer'd upon principles and grounds , which were represented to the assyze , at the time of the verdict , though the retour may be reduc'd upon other grounds than such as was than represented , as is clear by the act par. ja. . it is also appointed by this act , that though the verdict be reduc'd , yet the person assoilȝed unjustly , cannot thereafter be punish'd , there being jus quaesitum to him by the verdict , and upon the same principle ; by the act par. ja. . if any speak to the assize after they are inclos'd , the verdict is declar'd null , but the pannel being thereby acquit , cannot thereafter be accus'd . o. the place of reg. maj. cited , but not exprest in this act is , lib. . c. . where an assize of error is said to consist of twenty four leil and lawful men , though they are call'd here twenty five noble persons . o. it may be doubted from this act , whether though the pannel be not assoilȝed ; yet it any , or moe assizers who voted to assoilȝe , notwithstanding of the clear evidences to the contrary , may not be pursu'd as temere jurantes super assisam , since he is guilty of perjury , and perjury is infer'd from an unjust oath , and not from the effect ; and though it may be pretended , that he follow'd his privat knowledge , yet that cannot defend , since this may be urg'd , for all of them , if all should assoilȝe ; nor could any thing deter each particular assyzer more , than that each may be found guilty , whereas if they thought that they would not be lyable , except the major part assoilȝed , they would adventure upon assoilȝing , as an uncertain event : but yet the justices inclin'd not to this opinion , since no error was ever pursu'd , except where a person guilty was freed , this being the vindicta publica , allow'd in that case . it is likewise observable from this act , that the assyzers committing wilful error , shall first be called before the king and his council , who shall give them a great assyze , and therefore his majesties advocat having pursued an assyze of error in july , . he first called the persons who had committed the error before the privy council , and asked at every man judicially , whether he owned his verdict , or not , and these that owned not the verdict , were not insisted against criminally , but when this cause came to be called before the justices . it was alleadged for them , o. that the verdict bearing only , that the major part had assoilȝed & non constabat , who had assoilȝed , and who condemned , which should hold much more after the act of regulations , in anno by which it is appointed that the assyzers should mark in their verdict , who assoilȝed or condemned , to the end it might be known who should be pursued for error , but this was repelled , because the king being prejudged by the verdict , their giving in the verdict made all criminal , and such as were free should prove their innocence , for else it should be impossible for the king to be able otherwise to prove the guilt , which should hold much more now , because the assyzers had , by the regulations , an easie remedie for preventing this , & sibi imputent , who did not mark who assoilzied , and who condemned ; and though these regulations introduced that , as a further remedie for clearing this matter , yet that was not necessary ; for there were assyzes of error , before assyzers were ordained to be so marked . o. it was alleadged , that this was not wilfull , nor by partial means , which partiality behoved necessarily to be proven by the words of the act , but this was repelled , because the error being clear , the error behoved necessarily to be wilfull , and by partial means , nor was it possible to prove these occult qualities otherwise than ab ef●●ctu . o. it was alleadged , that there being fourscore upon the pannel , the difficultie of differencing the probation might excuse from wilfull error , but this was repelled , because the probation adduced was so clear . o. by this act , assyzes of error are only to be allowed , where the persons indited are shown before the assize , in the assyze of error , but so it is , the persons assoilȝed by the former assyze were forfaulted in absence , and were neither then nor now shown to the assyze ; and the reason of this speciality , is , because , if the persons assoilȝed were present they might prove their own innocencie , and so clear likewise these who assoilȝed them , but this was repelled , because , by these words shown before the assyze is only meaned , that their designations and not their persons should be shown to the assyze of error , for else there could be no assyze of error in forfaulters in absence , and though the persons were present , they would not be admitted hoc ordine , to clear their own innocence , and the assyzers should have assoilȝed , or condemned according to the probation then led . for explication of this act , vid : not one act . par. . ja. . this act is explained in the observ. on the . act par. ja. . by this act , deeds done , and rights made by furious persons , or idiots are reduceable , not only from the date of the brievs , but from the time that these persons were found to be idiots or furious ; for the verdict of the inquests upon such brievs is declaratory , and finds that these persons were such from such a time . observ , that albeit , from the stile of the brieve , of old a furious , or idiots deed could only be reduced from the date of the brieve , and that by this act , such deeds be only declared to be reduceable from the time that the inquest found , that the granter was furious or idiot , yet the granter himself being convalesced , may reduce deeds done by himself , though there was neither brievs , nor inquest , finding him furious , the furie being clearl● proven , there being no reason that the negligence of ag●ats or friends in not raising brievs should prejudge the furious person , . feb. . and which seems yet harder , the heir of the furious person will be allow'd to reduce , though there was no brieve nor inquest in his own lifetime ; and it is very hard to know his condition after death , july . . for sententia aut decretum judicis non facit furiosum sed declarat ; but there is this difference , that if the furious person was declar'd by an inquest that verdict proves per se , as to all deeds done after ; but if this idiotry or furiosity , was not found by an inquest , it must be prov'n by witnesses , and when the furious person is re-convalesc'd , deeds done by him after that are valid , though there be no declarator , and if there be only lucid intervals , the deed is presum'd to have been done in the fury , or lucid interval , according as the deed itself is reasonable or unreasonable ; and for clearing of this , the lords in a case , steuart contra steuart , ordain'd witnesses to be led before answer , to clear what condition the granter was in , at the subscriving of the deed contraverted , and it would seem that the presumption lyes for its being done during the ●ury , and not during the lucid interval , if the granter was found furious by an inquest ; b●cause this act of parliament sayes , that frae it may be known by the inquest , that the persons are fools or furious , all alienations made by them , shall be null . o●serv . o. this act of parliament stricks only against natural fools and idiots ; and therefore where men become idiots , by doting or old age , though they cannot recover , or by sickness , where they may recover . it was thought that they could not be found idiots by an inquest ; and indeed this were very dangerous , for many who have been very famous and great men , might have been thus affronted in their old age or sickness , or at least the exchequer will not grant tutories dative to the nearest agnats , until their condition be first try'd by an inquest , though the cravers offer to prove the same by witnesses , beyond all exception ; and thus it seems , that though deeds done by idiots or furious persons may be declar'd null by way of action ; yet themselves cannot be declar'd idiots otherwise , than by an inquest . observ. o. that though all deeds done by furious persons , are here declar'd null ; yet sometimes they may oblige themselves validly is absents , and pupils may be oblig'd , ● . furiosus ff ▪ de act & oblig . & l. si a furioso ff . si cert . pet. vid. act par. ja. . observ. o. from these words , and though it be known by the inquest , that the inquest may find a person idiot or furious upon their proper knowledge , for they are both judges and witnesses by our law. vid. observ . on the act par. ja. . by the act , money and gold being cry'd up , that is to say , the value of coyns being rais'd by the parliament here , which is now usually done by the council ( both as to forraign coyns and our own ) the parliament did by the act , ordain that all debts should be paid with sick money , and of the same price as the money had course before this proclamation and act , which was only to take place , where the terms of payment were by-past before the act , which makes me think , that the reason of the act was , because the parliament thought it just , that no mans breach of obligation & mora , should be advantageous to him ; and if the creditor had got his money in specie , he might have made other use of it , by carrying it abroad , &c. but yet now all debts may be paid , according to the course that money has the time of the payment , for as the money may be cry'd up , so it may be cry'd down , and to bring both to an equality , the debitor and creditor run an equal hazard ; for whatever difference may be , as to the taxing the price of other things , si aestimatio rei creditae creverit aut decreverit : yet in money perpetua est aestimatio l. . ff . de contra hend . empt. for clearing of which question , vid. vin. quest. select . lib. . cap. . and so this act is in desuetude , vid. act ja. par. . but though debts upon privat obligations , were to be paid with money at the same avail that the money was at the time of the contract , and not the time of the payment ; yet the kings taxations and publick dues , were by the kings own concession , to be paid according to the value of the money at the time of the payment , and are not to be exacted in money , according as the money was worth before it was cry'd up , vid. last act par. ja. . it has been much doubted , whether it was true policie to cry up money ; for though this seems to be an encouragement to forraigners , to export our commodity , of which we have too much , and to import money , of which we have too little ; yet it is urg'd on the other hand , that in crying up money , we do but undervalue our own commoditie , and our own land , and raise the value of money , which is the commodity of a forraign countrey , such as spain and other places who have mines ; as for instance , if we have use for carrying our money abroad , forraigners will only give us commodities conform to the intrinsick value , for they will not consider our raising of it , and so he who got the money , which was so rais'● , is cheated in as much as the money is rais'd above the intrinsick value . o. as to our own commodities at home , either they are rais'd to the same proportion with the money , and then forraign merchants will not bring in money for our commoditie , because they can gain nothing by bringing it in , and so we lose the design of raising our money , or else the commodities are not rais'd in value to the money , and so the forraign merchant does only cheat us ; as for instance , if our money be rais'd a tenth part , the forraign merchant gives us only nine pieces for ten . o. this raises the exchange to our great loss ; for he who draws the bills upon london or paris , considering that our ten pieces are but nine , there he will add the value of a tenth piece to the exchange . o. if forraign princes find we have advantage by this raising of our money , they will either raise their own to the same proportion ; and then we shall have no gain , or to a higher , and then we shall have loss ; and at best , di●ferent raisings of money will occasion but great variation , and uncertainty in coyns . courts of guerra here forbidden , seem to have been courts holden upon neighbour-feid and riots , and skeen founds them upon § ult . tit . . de pac . tenend . lib. . de feud . si ministeriales alicujus domini inter se guerram habuerint , comes sive judex in cujus regimine eam fecerint per leges & judicia ex ratione prosequatur . king iames the third , parliament . this act is ratifi'd by the act par. ja. . vid. observ. on that act. king james the third , parl. . though all men be allow'd to bring in victual from forraign countries by this act , yet the importation of victual from ireland is prohibited by act sess. par. . ch. . the act concerning cruives , is explain'd in the act par. ja. . which is the act here related to . this act appointed the taking more than just ●raught , to be a point of dittay , because it was oppression , and irregular exaction , and this is still taken up as dittay in circuit courts ; yet the council does also punish it , and i think , the master of the ground where the ferry is , may punish such irregular exactions . the unlaw of such as burn muires , is by this act five pounds , which is renew'd act par. ja. . but by the act par. ja. . the punishment is five pounds for the first time , ten for the second , and twenty for the third time , and these penalties are ratifi'd act par. ja. . the using other barrels than the hamburg measure , is made point of dittay , because other barrels were lookt on as false measure ; but our barrel now is , ten gallons for salmond , and eight and an half for herring . the act here related to , is act par. ja. . where this act is explain'd . pvrprusion is the usurping and appropriating our superiours lands or high-wayes and purpresture is much now in desuetude . the ordinary remedy now , being actions of molestation , or declarators of property ; but purpr●sion is not absolutely in desuetude : for by the act par ja. . it is ordain'd that such as till the kings parks , or commonties , shall be lyable in purprusion , and punish'd according to the old ●aws , the same being try'd , either by way of molestation , or before the lords of session ; and the old punishment was an arbitrary punishment , and the loss of his lands , which he held of the king , and the reason why that act did appoint the tryal to be by molestation before the lords was , because of old it was only try'd by an assize before the justices . vid. lib. . cap. . num . . & lib. . cap. . r. m. it is doubted , whether vassals of regalities building upon the streets of burghs of regalitie , may be punish'd for purpresture , or whether the building a foot or two furder than formerly , even in burghs royal , would infer that punishment . from these words of the act , that nae vassal , nor sub-vassal , or other tennent under the baron , has power or jurisdiction to hold a court. it is fit to observe , that this holds not only in purprusion , though that be the case mention'd in this act ; but generally , vassals nor sub-vassals cannot hold courts , except they be infest , cum curiis ; and even then they have only power to hold courts for payment of their own rents , or such other things as necessarly follow the labouring of land , except the vassal be a baron , in which case he has power to j●dge ryots , and unlaw for bloodwits , as sheriffs do . this act is not ●o be found in the black impression . there is an act omitted by skeen , which is the last in the black impression , whereby the parliament delegats their full parliamentary power to some of their number , for hearing some ambaci●itors , and deciding some causes , licet delegatus non potest delegare , and such delegations of the supream power may be dangerous . king james the third , parliament . though this act appoints barons and lords , who led their own men or vassals at that time to the host , to be lyable for the skaith they do , in coming to the kings host ; yet this act is now upon the parity of reason , extended to all officers , who are now come in place of these . it may be alleadg'd from this act , that it is not lawful for such as go to the kings host to take free quarter , or meat and drink gratis , which we call free-quarter , which may be further clear from cap. . stat. . rob. . where these that come to the host , are ordain'd to be serv'd for their money , and that they take nothing , but at the sight of the baillies , and others there mention'd , under the pain of being punish'd as robbers : but it is still doubted , whether the countrey may be put to be the first advancers , when the militia is rais'd in such haste , that these who are remote , cannot provide present money , and the countrey into which they are sent , have by their irregularities occasion'd their coming , it being unjust that innocent shires who send in their militia , should be put to expences , in levying and entertaining men to repress the irregularities of others . it is observable from this act , that it is not the parliament but the king , without mentioning consent of parliament , who commands the proprietars of castles to furnish them for defence against the enemy , with victual and artillery , and the reason of this is , because there was no fort nor strength , or turris pinnata , call'd tower-houses , allow'd to be build in scotland , without an express warrand under the kings own hand , this being one of the effects o● his prerogative , in the sole disposing , and making of peace and war ; and since arms cannot be born without his licence , much less should strengths be built : and from these grounds , and the practise of other nations , it was contended lately , that the king may garrison any mans house , when he and his council find the having a garrison in that place , for maintaining the peace of the countrey is necessary ; but craig is of opinion , that it is treason , or at least purpresture , to deny the king the use of our castles , or towers in such cases , jure anglorum turres omnes , quia ad defensionem , s●u munitionem , regni extructae tantum praesumuntur , ad regem pertinent , ad quem & regni defensio ; quod si idem & jure nostro observari quis dicat , non , ut opinor , a●errabit , cur enim qui turrim sive fortal●●tium suum regi denegat , crimen laesae majestatis incurrit , magis quam si equum , aut aedes , aut rem aliam , nulla alia ratio probabilis reddi potest , nisi quod negatio haec ex jure feudali , regem & dominum videtur privare jure fui dominij , & species quaedam purpresturae est , & alias res nostras principi poscenti possumus negare sine perduellionis periculo . which agrees with the opinion of forraign lawyers who treat of the power of kings in general , fritz . de jur . praesidij , penes quem monarchia , is urbes , arces occupare potest , ●isque pro tuenda securitate publica praesidia imponere potest . but in this as in all such cases , the prerogative should not be made use of , except in cases of extream necessity , and even then the heretor is to be repaid , if he must hire another house , as at sea in storms , all the parties concern'd in the ship are to contribute for repairing his loss , who for lightning and securing his ship , is forc'd to throw his goods over-board . if a woman who has a conjunct-fee , alienat it during her marriage , the alienation is 〈◊〉 , except she ratifie the same judicially outwith the presence of her husband upon oath , never to revock it , and then the alienation is valid , but though this act sustains a judicial instrument under the seal of the judge , as a sufficient probation ; yet now something must be produc'd under her own hand , or by two notars , and the lords would not sustain the act of renunciation , though under the hand of both judge and clerk , february . . gordon contra maxvel . the reason of which decision i conceive to be not because this act to which the decision is contrary , is only set down as a memorandum , and relates a decision of parliament , without statuting any thing thereupon , for confirming the same , for the meer setting down this decision among the acts of parliament , gives it the strength of an act ; but because the time of that act ▪ one notar was sufficient , but now , either a woman must subscrive her self , or two notars for her . observ. o. that decisions of parliament bind as laws , though they be not set down as general laws , for the inserting them amongst laws , make them equal to laws . some times decisions by the king , are inserted amongst the acts of parliament , as cap. david . observ. o. that though an oath is sufficient to confirm the renunciation of a joynture stante matrimonio ; yet it is not sufficient to confirm a personal obligation , granted by a woman , stante matrimonio , as is decided , november . sinclar contra richardson and his spouse ; the reason of which disparity seems to be , that in conjunct-fees , she is domina , and the obligation is not to take effect till after her husbands death : but in other obligations , where the design is to bind her self , the obligation is invalid , because she being sub potestate mariti , cannot oblige her self ; and upon the same ground it is , that dispositions granted by heretrixes stante matrimonio , will be sustained , they having therein plenum dominium , as to the property ; and even personal obligations for sums of money granted by a woman , who was an appearand heir , there being a back-bond granted to her , declaring that she should not be thereby personally oblig'd , was sustain'd to be the foundation of a comprizing ; for as she might have dispon'd her own heretage expresly , so she might have lawfully granted an obligation , whereby the same might have been adjudg'd , january . . pringle and bruce contra paterson . vid. stockman . decis . . by the canon law , laicks have no power of choising or electing ●hurch men , c. quisquis . c , massana . . de elect . & elect potest . so that the priviledge here granted , seems contrary to the canon law ; but as the king of france had power by the concordata with pope leo th , to nominat bishops and abbots ; so our king had the nomination of bishops and abbots , and the provision of them belong'd to the pope , as is clear by the act par. ja. . which though this act says , did belong to our kings by the priviledge of their crown ( for prerogative was then call'd priviledge ) yet it is con●e●● , that they deriv'd this priviledge from the pope , act par. ja. . for understanding this act , it is necess●ry to know , that if the kings who had these priviledges , did not nominat within six moneths , the pope might confer the benefice as he pleas'd : and if the king did nominat an unfit person , the pope might refuse him ; and the king was oblig'd to n●me another within three moneths , vid. past . de benefi cap. . but our kings not acknowledging this power of precluding , it is statute by this act , that our kings may present at all times , till the prelate named by the pope show his bulls of provision to the king and chapter , and though the king should admit to the temporality a prelate before showing of his bulls , it will not be prejudicial to the kings priviledge of presentation , that is to say , that though the king had admitted a person , whom the pope had rejected as unfit , he might yet of new present , and the pope should not have right , jure devoluto . for understanding this act , it is fit to know , that regulariter beneficia vacatura , could not be purchast ; and yet the pope had reserv'd a power to confer , even these ex plenitudi●e potestatis , cap. proposuit de confer . praebend . . decret . but this act i● made to annul all such provisions to benefices , not yet vacand . king iames the third , parliament . this act giving the warden power to continue his courts , shews that the continuance of courts , is not of its own nature lawful ; and therefore no judge may continue his courts , except he have an express warrand for it , since such as are cited , may be thus prejudg'd by delays : but since the king is the fountain of jurisdiction , it is thought the king may grant such warrands , tho there be some cases wherein the king has restricted himself by express statute , as in criminal courts , which are declar'd to be peremptor by the act par. ja. . where it is observable , that these courts are declar'd not to be con●inuable by the kings spec●●l will and direction , to shew that continuations of courts depended upon him ; and generally it is by the will of the letters , that it is known what actions abide continuation or not ; and though the wardens courts be justice-courts , yet it is thought they may be continued , notwithstanding of that posterior act. by this act the breakers of the king or wardens safe conduct , are punishable by death , which is conform to the civil law , l. . ff . ad leg. jul. majest . and to the practice of other nations , christin . tit . . art. . what difference there is inter pacem , securitatem , salvagardiam & salvum conductum . vid. afflict . lib. . tit . . though the selling or buying of corrupt wine , after it is found to be such , be declar'd punishable by death ; yet the selling corrupt wine willingly , even before that , is punishable : and though selling corrupt wine in the general be punishable ; yet this must be restricted to the case of knowledge , for he who sells or buys without knowing of it to be corrupt , or to have been found so , is not punishable by death . king james the third , parl. . of old every heretor brought his own men to weapon-showing , and to the kings host , as is clear by the act par. ja. . and all these were commanded by the sheriffs , lords of regalities , and the kings other officers , and were call'd together by letters patent under the privy seal , directed to these officers , as is clear by this act ; but now the militia is commanded by colonels , and chosen by the king , and are call'd together by proclamation , and letters from the council , subscriv'd only by the chancellor or president of the council . from this and other old writs , it is clear , that the privy seal was then the seal of the privy council , but now they have a seal peculiar to themselves , which is call'd the signet of the privy council . vid. annot. on act par. ja. . the kings rents of old were govern'd by the kings master-houshold and compt-roller , and the council , but now by the exchequer , and the master-houshold has no interest in them , ratione officij ; that office belonging heretably to the earl of argile , is now extinct by his fore●alture , but the office of compt-roller is engrossed in the thesaurers office : by this act , such as detain the kings rents , are to be distrainȝied , that is to say , pursu'd in the ordinary way , viz. by poynding the ground for their reddendo , by hornings upon their tacks ; but though the uplifting the kings feu-duties was design'd once to have been by quartering , yet this was thereafter found illegal ; nor could the excise be so lifted , if that way were not warranted by parliament , there is no special punishment exprest here against the officers . who detain the kings rents : but by the civil law , these who abstracted publick money , or converted it to their own use , erant rei peculiatus , qui olim paenâ quadrupli postea deportatione puni●bantur , magistratus vero qui durante officio publicas pecunias abstraxerunt capite puniuntur , l. un . c h. . but this crime only holds in the misapplying of publick money , and not in the withholding the kings rents . nota. this and the next act bear not to be made with consent of the three estates of parliament , but only that the lords think expedient ; by which i think must be mean'd the lords of the articles , or else this and the next act being concessions of the barons , in what related to themselves , they were not thought fit to be drawn as acts of parliament , but only as concessions ; but i incline rather to think that by lords here is mean'd , the lords of articles , because the acts and of this parliament bear the conclusion of the lords of the articles , though sometimes by the word , lords , are mean'd the three estates of parliament , as in the act par. ja. . by this act the rose-noble was made the standart of all the gold , and it was of twenty two carrets and ten grain fineness , but now our gold is only of twenty two carrets fineness , that gold being too soft , and consequently , subject to be wasted . by this act also the warden of the cunȝie-house were first instituted , for understanding of whose office , it is fit to know , that the master of the cunȝie-house has the care of coyning , and as checks over him , are for trying the fineness , the essay-master , and for trying the weight are the warden , who trons the money , and the counter-warden , who weighs after him , and is his check , and over them all is the general of the mint . by this act respits are discharg'd , whereby justice is delay'd ; and it 's here said , that respits are more against justice than remissions ; the reason whereof seems to be , that remissions are only granted after some tryal ; but respits are granted more easily , and may be sought more frequently , and that before the state of the case be examined ; nor is the party injur'd , assyth'd here as in remissions : for the same reason also , precepts for continuing justice courts , are discharg'd , and the justices allow'd not to respect them act par. ja. . and by the act of that same parliament , they are discharg'd also ; for that act stricks against respits , as well as against protections . the act anent ferries is explain'd in the observations upon the act par. ja. . observe o. from this act , that the silver of scotland should be penny fine ; for though this act says , that it shall be the fineness of penny fine ; yet the meaning of that act is , because penny fine is the finest imaginary value , but there must be still a twelfth part allow'd of alley to make the siver malleable ; and albeit the punishment in the act against these who work not up to this fineness be arbitrary , yet it is declar'd to be punishable by death , by the act par. q. m. observ. o. that the ordaining this act to take effect after forty days proclamation , implys , that regularly acts may be put in execution sooner , as by the act par. ja. . king james the third , parliament . this act is only a temporary statute , ending with these who swore to observe it , but the bringing malefactors to the bar in sober manner , without assisters , is commanded by many acts , and though by this act it seems , that the justices cannot hinder some of the pannels friends to stand with him upon the pannel ; that is to say , to stay at the bar , and that four friends are allow'd to the pursuer , and ten to the defender , by the act par. q. m. yet the justices do suffer few or none to stand with the pannel , as they see occasion for it . the crowner of old received the porteous rolls , that is to say , the names of such malefactors as were to be pursu'd at justice-airs , but now the justice clerk keeps it himself , and gives it to the macers of the criminal courts , or messengers who cite the persons to be pursu'd . the defenders in slaughter are by this to be cited upon six dayes to find caution , or else are to be denunc'd rebels ; but now if the criminals be not in prison , they are to be cited to find caution upon fifteen dayes , but if they be in prison they may get an indictment to answer upon twenty four hours . by this statute it is clear , that a person apprehended and incarcerated , must first be maintain'd upon his own expences , and if he be not able to aliment himself , the sheriff is to aliment him upon his majesties allowance , and by a late act of the justice court the keeper of the tolbooth of edinburgh is discharg'd to receive any criminal prisoner , till he who enters him prisoner , find caution to aliment ; for before that act , poor people were starv'd and ruin'd by their imprisonment . this act is in desuetude , for nothing is due now to crowners , because they do not attach as formerly , and this was the price of their pains or fee. this act is in desuetude , for no sheriff tholes now an assize , the last nor no day of a justice-air , except he be pursu'd for some particular crime , or for malversation in his office. by this act if the sheriff hear of any convocations , he should charge them to cease , and if they refuse , he should continue the court , and pursue them , and the punishment is imprisonment for a year ; from which act , it was argu'd justly in the earl of caithness case , that though men refus'd to dissipat at the sheriffs desire , he could not summarly fall on them , and kill them , for that were too dangerous a power to be given to any sheriff , and all that he could do by this act , was to acquaint the king , and then pursue them . this act ordaining the causes of widows and orphans , kirk-men , &c. only to belong to the cognition of the lords , is in desuetude , and these actions do properly belong to the commissariot court. the burrows of scotland have liberty to meet in time of parliament , and to propose as a body , and third estate , any overtures for trade , but no other state of parliament can lawfully meet , this being a singularity indulg'd to them for the good of commerce ; and the subsequent acts are propos'd by that estate to the parliament , and by them turn'd into acts , as appears by the rubrick it self . vid. act par ja. . vid. observ . on act par. cha. . and on act par. ja. . the act here ratifi'd , though not exprest , is act par. ja. . though this act allows the burrows to meet every year at inner-●eithing only , yet thereafter they are allow'd to meet four times in the year , at what place they shall think most expedient , act pa. ja. . and the burgh of edinburgh , with six of the rest may conveen them , act par. ja. . now they meet in july at edinburgh , pearth , dundee , aberdene , stirling , and the provost of the town in which they meet , being always president without election , and though the fine of each absent burgh be here five pounds , yet it is made twenty pounds , act par. . ja. . this act adds to the ordinary annexations , that the king shall be bound by his oath at the coronation , that he shall not alienat the annext property , which oath is given by all the succeeding kings . it is observable also in this act , that the kings great seal , and the seals of all the prelats , lords , barons , and commissioners for burrows are appended , which was usual in these days , in all concessions granted in parliament , and i have several patents of honour , granted by the king in parliament , wherein the kings great seal was appended , as now it is to the patent ; and the seals of all the ecclesiasticks , were appended upon the right side , and these of the laicks on the left side , each seal hanging from a label or tag , on which the owners name was writ , and in anno . a commission to the lord seton to be ambassador in france , was thus seal'd by the king , and sign'd by the nobility , and by the act par. ja. . the morning-gift of the abbacy of dumfermling is said to have been under the kings great seal , and the seals and subscriptions of the estates in favours of q ann. this priviledge was granted by malcolm leg . m. c. num . . but both that priviledge and this statute , are now in desuetude , so that now the crowner has none of the malefactors horses . this act appointing that strangers be well us'd , and that no new customs , impositions or exactions be put upon them , seems to limit the kings prerogative acknowledg'd by the act sess. par. ch. . by which it is declar'd , that the king may dispose and order trade with forraigners as he pleases , a consequent of which prerogative is , that he may either discharge trade with forraigners , or burden it as he pleases , since by this act no new imposition can be laid on . but the answer to this is , that this act relates to strangers , and not to the kings own subjects , so that though strangers come , they should be civily us'd by this act , yet they may be debar'd by that act. this act granting a commission to examine the laws , and put them in one book , took effect in skeens edition of the acts of parliament , and regiam majestatem , in which many of the old acts , yet to be seen in the records of parliament , are left out . observ. that the acts of parliament are call'd the kings laws , and not the acts of parliament , for the king has only the legislative power , and the estates of parliament only consent . the books of regiam majestatem , are likewise numbred amongst our laws , but what is mean'd by the words ( acts and statutes ) added in this act to the kings laws , and reg. maj. i do not understand , except by these be mean'd the burrow-laws , and the statutes of the gildry , and these other books that are bound in with reg. maj. k. james iv. parliament i. by the twelfth articl . iter. just. the burrows had liberty to repledge their own burgesses from being upon assizes ; which priviledge is here regulated ; but now the priviledge it self is in desuetude ; for all burgesses are oblig'd to pass upon assizes , except the chirurgeons of edinburgh , who have a special priviledge , because of their necessary attendence upon sick persons . by this statute all ships must come first to free burghs , and no strangers can fraught ships ; but now by the act sess. par. ch. . all ●urghs of barony and regality , may traffick in the product of scotland , as freely as royal burghs . vid. that act and the observ . thereon : that part of the act discharging strangers to buy fish that is not salted , is now in desuetude . it was argued from this act , in the case of the town of linlithgow against borrowstounness , that the burrows royal had the only priviledge of having all goods liver'd and loadned at their ports ; and which is likewise clear by act par. ja. . and by act par. ja. . o. without this priviledge , the burrows were not able to pay the sixth part of the burdens laid upon them , in contemplation of their trade , since a clandestine trade without this might be carry'd on by the burghs of barony and regality , who , since they may retail publickly , might have the same priviledge as they , if they had likewise power to import publickly . o. this was most convenient for securing the kings customs ; because where ever there is livering allow'd , the king must have waiters , and upon which consideration , the magistrats of burghs royal are by the acts of parliament , appointed to assist the kings customers ; and whereas it was pretended , that the priviledge of commerce was inter regalia , and consequently the king might grant a free port to any burgh he pleas'd . o. the priviledge of a free port was different from that of livering , and loadning . o. the acts of parliament cited , did only discharge strangers to load and liver , which is yet more clear by the act par. ja. . to which it was reply'd , that the king and parliament , having formerly granted the sole power of loadning and livering to free burrows , it was no diminution of his power to assert , that he could not give a new grant of that to any , whereof he was formerly divested . to the d it was reply'd , that the sole priviledge of a free port granted by a king to a burgh of regality , or barony , can extend no further , than that thereby they may have the priviledge of bringing into their port , the goods proper only to be sold by them . to the d it was reply'd , that this act discharges strangers and others to liver at any place , except at the ports of burghs royal ; and though in that act par. ja. . this act is repeated , as relating only to strangers , yet in the next line , strangers and others are in that again discharged ; likeas by the acts of parliament , the sole priviledge of losing and loosing , is declar'd to belong only to burghs royal , which in sea-faring terms , signifies loadning and un-loadning . by the act par. ja. . the rents of churches , or benefices , whereof the king is patron , are declar'd to belong to him sede vacante , by the priviledge of his crown , and this was so formerly declar'd by the cap. stat. rob. . and skeen there observes , that cum alicujus beneficii ecclesiastici patronatus pertinet ad regem terra si quae sunt ei annexa pertinent quodammodo ad regem ; and therefore by this act it is appointed , that it being declar'd by the best and worthiest clerks of the realm , that if any church-man received , and purchast such a benefice at rome , they should be punish'd and these who supplyed them ; this declaration from clerks was requir'd , because the secular would not meddle with church-men in these days , till church-men had some way declar'd them guilty . king james the fourth parliament . that part of the act appointing the intromission with the kirk rents , to be a point of dittay ( that is to say , to be a crime ) is now in desuetude ; for they have no other priviledge here , more than laicks ; but to intromet with their rents , either by arms or open force , is the crime of oppression with us , and was punish'd by the romans , lege julià de vi , per deportationem in liberos homines , & ultimum supplicium in servos . observ. that by this act , parsons and vicars are founded in jure , as to teinds , for it is declar'd a crime to intromet without a right from them . i understand not how it is said here , that the king could not discharge any part of the taxation granted to him , though it was granted for a particular or publick use , for it is ordinary and lawful to kings with us , to discharge privat parties their particular proportions , except the contrary be expresly provided , and the offer be so qualifi'd by the parliament ; but here the king was minor , as appears by the subsequent act , or rather this taxation being granted originally for maintaining an ambassador for the kings , marriage , as is clear by the act , and so ad particularem effectum , it could not be diverted from that particular use , lest else the embassie should have fail'd ; and from this we may observe , that what is granted for a general and publick use , cannot be otherwise apply'd or taken away . it is observable from this act that the king was minor , and that is the reason why he could not discharge something here exprest , which falls not under his annex'd property . the parliament here recommends only to the king , that his majesty shall cause his wardens observe the days appointed for truce , and they meddle not with it , because what concerns peace and war , belongs to the king , and not to the parliament . the restrictions here put upon the king , proceeded from his minority . nota , councellours are made accusable to the king and parliament of their council , till the next parliament ; for the words are , and shall be responsal and accusable to the king for their counsel ; but this was in the kings minority , and therefore there were greater reason that they should have been lyable for their counsel , than when a king is major , for then he may judge of their advice ; in which case , nemo tenetur de concilio nisi doloso aut fraudulento . but it may be infer'd from this act , that regulariter , counsellours are not lyable for what they do , else this act had been needless , obliging them to be lyable only till the next parliament . but it is also observable , that this act was made by these who had risen in rebellion against king james the third , under pretext of his sons command , though in effect they forced him when he was a child , to head them against his father , and in this act they force him to make use of their counsel ; and yet the act bears only , that the king humbled himself to abide at their counsel ; the same persons made an act declaring that rebellion lawful , which is yet extant amongst the black acts , but was expung'd as most abominable and rebellious . though this act appoints that our gold and silver shall be of the fineness of brudges ; yet by the act par. ja. . and act par. q. m. the silver is to be eleven penny fine , and the gold twenty two carret fine , so that the best money being but twelve penny fine , and the best gold twenty four carret fine ; there is a twelfth part of alley allow'd in either , and so our silver-work , and our coyn should be of the same fineness ; but this act has been in desuetude , as to silver-work , for which the gold-smiths alleadge , that the people are to be blam'd , and not they , since the people will not go to the price , and they do the people no wrong , since they proportion the price to the intrinsick value . we observe both in our plate and coyn , the same standart with england ; but the standart of the french plate is finer than their coyn , to discourage their subjects from having much plate , and encouraging them to bring it to the mint , for current money . the reason that is alleadg'd , why this alley is allow'd to both gold and silver is commonly said to be , because they are not malliable without some mixture of copper , but the contrary will appear to these , who use to refine silver with lead , and gold with antimony , by which , gold and silver may be brought to the exactest fineness , without all mixture , and they are then most malliable and soft ; but the true reason why the copper is added , is , because without it , both gold and silver would be too soft , and so too much subject to wearing and loss , as appears in the english rose-nobles , and the double of hungarian ducats , and the venetian cequins ; for which cause the emperor now adds more copper to his ducats ; and the english make no more rose-nobles , or any other gold so fine . is formerly explain'd in the act par. ja. . the prince of scotland was earl of cumberland , whilst that countrey belong'd to this crown , but when the steuarts came to the crown , which was in the reign of rob. the . their heretage which was renfrew , &c. was erected in a principality . that there was such an erection , is clear from the revocations made by k. ja. . and k. ja. . where all dispositions of lands annex'd to the principality , are revocked , but the erection it self is lost . however to supply that , the rights made by the king bear still to be as prince when there is no prince , and as administrator to the prince when there is a prince , and the revenue of the principality is manag'd in cumulo , with the rest of the kings revenue , when there is no prince , but when there is a prince , he has a chamberlain , who receives and compts for the principality a part . it was debated january . whether when there was no prince existing , the vassals who held of the prince , were to be repute vassals holding of the king immediatly ; or as vassals holding still of the principality , and so holding of a subject , the principality being still a distinct see , whereof the king had only the administration . but it was found by the lords , that when there was no prince , they held of the king ; and therefore they found , that the laird of lusses marriage fell to the kings donator ; though it was alledg'd that his marriage of these lands could not fall to the king , since he held other lands taxt ward of the king , and he who holds lands of the king , is not lyable in a marriage , for lands holden of a subject , and consequently , he being content to pay the taxt marriage to the king , the ordinary avail of his marriage could not be crav'd , for lands which he held of the prince , who was but a subject . the reasons of which decision were o. that appanages given to children , do in their own nature imply to be only temporary , and whilst the child exists to whom it is provided for an appanage ; and therefore since we have not the foundation of the principality it self , we must construct it to have been thus erected . o. by this act it is ordain'd , that when there is no prince , the vassals of the principality shall come to parliament , and none can come to parliament 〈◊〉 such as hold of the king ; and that same act says , till the king have a son , who shall be immediat betwixt the king and them , which clearly demonstrats , that till there be a son , they hold immediatly of the king. o. this is yet more clear by the act par. ch. . and the act par. ch. . whereby lands holding of the king and prince , are aequiparate quoad all legal effects . o. when the kings comes to any estate jure privato , by succession or forefalture , these lands alter their nature , and the vassals hold of the king as king , and are not consider'd as holding of a subject as formerly ; and therefore the same should hold when the principality by the not existing of a prince , returns to the crown . o. by an express decision observ'd by dury . it is found , that whilst there is a prince , the lands of the principality hold of the prince , but when there is no prince , they hold of the king. o when there is no prince , the king dispones the casualties , and sometimes the lands , as he does these of his own property , and it were absurd to assert , that when there is no prince , the king dispones as administrator , for else he behov'd to be comptable ; nor can there be an administrator where there is no pupil : but the king is term'd sometimes an administrator ex errore stili , or ad majorem cautelam , or else the king is truly made to dispone both as king and prince to keep up the principality as a distinct fee and erection , lest otherwise the knowledge of the lands might perish , the erection being lost . o. this is clear by the practice of forraign nations , perez . ad tit . . lib. . cod . num . . terrae quae in appanagium dantur penes domanium semper manent solo usufructu provisionali●er concesso , alias contingeret regium domanium sensim diminui . men used to give their best horse or some other acknowledgment to great men , and especially to chiefs of clans , for their protection , and these are here discharg'd , and are a kind of black-meal , they are now intirely in desuetude . nota , possession past memory of man is not sufficient in unwarrantable exactions & oportet consuetudo sit rationabilis alias non tenet . this act is in desuetude , for actions of poinding the ground , are now pursu'd for recovering bygone annualrents , in the ordinary form of process . the forcing the kings tennents to do service , is punish'd as oppression by this act , but the punishment is not specifi'd , and though oppression be punish'd by death , act par. ja. , and by the act par. . ja. . yet i think that here oppression could not reach that far , and though it be ordain'd to be a point of dittay ( that is to say a crime ) by this act , yet such oppressions use to be pursu'd before the council , though some oppressions may be pursu'd before the justice court , or council , as is clear by the act par. ch. . and oppression is a general name for violence , as stellionatus is in dolo . king iames the fourth , parliament . the alliance betwixt scotland and france is here ordain'd to be renewed , and new priviledges to be desir'd , which were accordingly obtain'd , and the alliance here mentioned is inserted in the . act , . par. q. m. the form of the chancellary is not to be alter'd , except in the brieve of the summonds of error ; the reason of which exception is , because by the . act of this parl. the form of the summonds of error is alter'd in some points : but by the act . par. . ja. . the stile is to be alter'd in no letters . by this act the superior of ward lands , or his donatar , are obliged to maintain the heir during the time he has the ward lands , if the heir has no other blensh nor feu-lands ; and though he have blensh or feu , yet if he have not as much of either as may entertain him , or if they be appryzed , in either of these cases the heir will have action ex paritate rationis ; and by the same parity of reason , it may be doubted whether donatars to liferent escheats are bound to entertain the rebels whose escheat they have purchast , and it may be argued that they are not , since a man is only at the horn by his own fault : this donatar to the ward is obliged to aliment the ward pupil , by allowing him an aliment , and not by keeping him in his house ; and the donatars assigney is bound to aliment , though he got no mails and duties , if he cannot shew why he was excluded from getting them , sibbald contra faulconer . the sheriff of the shire , or baillies are warranted to take surety of the superior or donatar , that they shall not waste nor destroy the lands during their right which our practique extends also to liferenters , who are bound to find caution to keep up their liferent houses and others in the same condition wherein they found them , and this is conform to the common law ; and all this matter is learnedly treated , christin . ad leges mechlin . tit . . and the way how this caution is to be found , is fully cleared , act . par. . ja. . where this shall be explained : this act is founded upon cap. . l. malcolm . by which there is a mutual contract betwixt the king and his vassals , in which that king distribuit totam terram regni scotiae hominibus suis & omnes barones concesserunt wardam & relevium de haerede cujuscunque baronis defuncti ad sustentationem domini regis . and though arnisaeus de potest . majesti . num . inveighs against this law ( for which he cites boethius and john majors history ) as contrary to reason , that being to add affliction to the afflicted : and because pupils may serve the superior by a substitute , or by allowing a part of the feu to him who serves . yet i know no man would refuse land upon this condition ; and it is presumable that whilst the vassal is a pupil , he will only need an aliment , but yet i confess that according to the very text of the feudal law , pupils are neither obliged to serve by themselves , nor substitutes , lib. . feud . tit . . cap. si minor , § . si quis decess . . tho posterior custume introduced the necessity of substitutes , gloss. in dict : § . si quis . to which we by the foresaid contract have added that the superior shall have the feu , and not be obliged to accept even of a substitute . it is the received practice of scotland , that the liferentrix should entertain the heir if she liferent his whole estate , which is only founded upon a consequence from this act , and the paritie of reason ; but in my judgement , this practice is neither warranted by this act , argumento legis , nor is it founded upon the principles of , nor suitable to the analogie of law , for as to the act of parliament it ( being joyn'd with the act . par. . ja. . whereby it is explained ) ordains that the donatar to the ward shall find caution not to destroy the biggings , &c. as also that he shall entertain the 〈…〉 the ward , but when it comes to statute anent life-renters , it appoints only that they shall likewise find caution not to destroy the bigging , but it appoints not that they shall aliment the heir , ergo , not only is there no warrand for the liferentrix alimenting the heir from this act , but on the contrary , the parliament having both cases under their consideration , and not having extended the case of alimenting to life-renters , it must be concluded that they design'd not that life-renters should aliment nam casu● omissus habetu● pro ommisso . o. laws ought not to be extended at most but ex paritate rationis , and therefore though life renters and wardatars aequiparantur by these statutes , quoa d the finding of caution , that was most reasonable , because there was eadem paritas rationis , since neither should waste that to which they had but a temporary right , and by the common law life-renters were lyable in the same way which was called cantio usu fructuaria , but quoad the alimenting , the superior in the ward , or his donatar , should be in a different case from the life-renter , because the superior in effect is but tutor durante wardâ , and therefore he should aliment the minor , but the life-rentrix is a singular successor . o. in making contracts of marriage , there is no more allowed for a life-renter than what may be a competency for entertaining the life-rentrix , and suitable to her quality ; and therefore it is against reason & contra illud quod agitatum est inter partes contrahentes , to take away a part of her aliment to aliment another . o. she being made domina of her life-rent by her contract , and there being jus quaesitum to her thereby quod ejus est auferri ab eà nequit sine consensu suo . o. tochers are oft times augmented in consideration of the coniunct-fie , and therefore its most unreasonable and illegal that what was given her for an onerous cause , should be taken from her and applyed to the behove of one who represents the contracter , who was bound to warrand her life-rent , and who got good deed upon that account ; and it is unjust that the husband by spending his estate should burden her , or that his heir should not rather want than she . o. whatever may be said to oblidge a mother jure naturae to entertain her own children ; and i think this aliment has been at first founded on that principle of justice , whereby donatores , patroni & parentes , were only lyable in quantum facere potuerunt , called by lawyers exceptio competentiae , yet there is no reason that a life-rentrix should be oblidged to entertain an appearand heir , who is a meer stranger ; and this jus naturae oblidges the mother not only to entertain the appearand heir , but all her children , as was found in the case of the countess of buchan : and albeit the act of parliament speaks only of heirs ; yet by our law , even appearand heirs will get an aliment allow'd them , though thereafter they renounce , but it is less clear , if it will be allow'd them after they have renounced , july . . hamilton contra symington : and yet in this case they are but meer strangers , and can no more be called heirs , or appearand heirs , after renunciation ; as also , though this act mentions only ward lands , yet it is ex praxi extended to others who have no ward lands , the feb. . finnay contra oliphant ; and though both the rubrick and the words of the act provide only aliment for minors , yet it is extended to appearand heirs , who are majors , as in the case of rig contra the lady carberrie ; nor will it be sufficient that the life-rentrix offer to entertain the appearand heir in the family with her , as durie observes , the . feb. . noble contra his mother ; nor is this only extended where the mother liferents all , but it is even extended to the case where all the minors estate , beside what is life-rented , is not sufficient to pay the debt , and is affected by legal diligences ; as was found feb. . antonia brown contra her mother ; but it may be very well doubted whether this last decision may be extended where the debt is only personal , and i find the lords did refuse to decide this point in a case debated . betwixt the lady staniehill and her son , though the son there alleadg'd that he sold his land to hinder comprising , and if it had been comprized she would have been lyable . and this action for alimenting the heirs was still sustained against both the grand-fathers relict , and the fathers relict pro rata , of their life-rents which they had of the appearand heir ; albeit it was alleadg'd that the mother having a nearer relation , and being the wise of him who spent the estate , should be only lyable , or at least first lyable , . decemb. . laird airdrie contra the two ladies ; but yet i find the grand-father was found lyable in no proportion with the mother , where he had only reserv'd a mean proportion to himself , when he did infest the appearand heirs father , . july , . it may be doubted whether a husband marrying the life-rentrix , having given her a provision in contemplation of this joynture will be lyable to aliment , since he is a meer stranger , to which all that can be answer'd is , that he was oblidg'd to know it was lyable to this burden ; and if he will be found lyable , it may be doubted if he will not be free from the provision given in contemplation thereof ; tanquam causa data causa non sequuta . as also , it may be doubted whether the pursuing such an action as this will infer a passive title , seing the appearand heir is thus lucratus , but yet i think it will not , since he reaps thereby no advantage which would have accresced to the creditors to whom no part of his aliment would have belong'd ; and even appearand heirs renuncing , will have right to an aliment , as is observed before . the civilians think that a mother is oblig'd to aliment her child till it be past three years of age , l. . c. de patr. pot. & ibid. gloss . and even after three years of age , if the father be not able to aliment the child , the mother is , because the child is oblig'd to aliment and reverence the mother , vid. surd. de aliment . quaest . , tit . . but they make no mention of such an alimentary action as this , which we allow . though buyers of land be obliged to keep the tacks set by their predecessors , yet the superior is not obliged to keep them when the land falls to him in ward , during which time he is proprietar , nor are life-renters nor conjunct-fiars oblig'd to keep them during their temporary rights ; but when these rights expire , the tacks revive ; and yet by this act the superior or life-renter cannot remove them till the next whitsunday after the ward or life-rents fall , the tennents paying the maills and duties to the superiors or life-renters ; but it may be doubted whether this will hold , when the duty is only a simulate duty , and not near the rent of the land , for this was design'd to secure the tennents reasonably , but not to prejudge the superior or life-renter ; but certainly this act will not defend these tennents who have payed their duties to their masters before hand . though particular pains be set down as to law-burrows , in civil cases , by former acts , yet in criminal cases , because of the importance and danger , it is left arbitrary to the judges to cause the parties find caution under what sums they please , and before the council , likewise , the sum under which caution is to be found , is , de praxi arbitrary . since this act sayes that the party complainand shall be harmless , it would seem by this act , the council can oblige no party to keep another harmless , except where the party himself complains , in which case he must give his oath he dreads bodily harm , conform to the act , par. . ja. . vid. observ . on that act. but yet the council is in use to cause men find caution to keep others skaithless , even where the parties do not crave it ; but this is only in cases where there have been previous breaches of the peace amongst them , so that either a party does complain , and then he must give his oath , and if he complain not there must be a previous breach of the peace , and in that case there is no need of an oath or a complaint that he does fear bodily harm . though the council or justices may by this act exact law-burrows , yet by this act it is only ordain'd where complaints are rais'd before them , and by complaints here is not to be understood common bills , for law-burrows upon common bills are only raised in course before the session ; and there is a particular servant in the bill chamber , whose office it is only to write upon these bills , and take the bonds , and see that the cautioner be sufficient ; but the council and the criminal court , only exact caution of law-burrows , when there are processes intented before them , and the judges there do see that either party has reason to fear bodily harm , because of what has preceeded . by this act dismembration is made equal to slaughter , and it is to be try'd within three suns , and seems by this act to infer death , if it be upon forethought-fellony ; but i have not observ'd it punish'd by death , but only as mutilation by an arbitrary punishment , or confiscation of moveable and assythment to the party , vid. act par. ja. . by this act the kings leiges are to assist at justice-airs , under pain of being punish'd as favourers of the trespassers , and that dittay is to be taken up against them for that effect ; but by our present practice , though the heretors of every shire be by a proclamation ordain'd to attend the justices , whilst they remain in their shire , yet their absence is never made point of dittay . i find by the registers of council , that all the southern shires were cited to attend the justice-airs in q. m. reign , and to bring with them provision for twenty days . all these acts are in desuetude ; but it 's observable that park of foulfoordlies , being charg'd to wait upon hume of wedderburn his superior , at the host , conform to his charter , and being thereafter pursu'd for not attending him . the lords found the vassall fineable , though he pretended that by this act . he was to attend the sheriff , for he ought to have waited upon his superior to the sheriff , or the kings captain , and these obligations were different and very consistent , july . vid. observ . on act par. . and act par. ja. . supra for clearing the act. convocations in the countrey are punish'd only by pecuniary mulcts , or imprisonment before the secret council ; but convocations within towns are more dangerous ; and therefore punish'd in this act by confiscating the moveables of the offenders , and their lives are to be in the kings will , so that their lives may be taken ; but by this act , the rising at the command of their magistrats , is declar'd no crime ; and therefore it may be doubted , whether if the magistrats should raise their burgesses to invade their neighbours , or to oppose his majesties forces , if in these cases they can be pursu'd for convocation , since they are by this act warranted to rise at command of their magistrats , which certainly might defend them in dubious , but not in clear cases ▪ observe that by this act all burgesses are ordain'd to obey their magistrats , when , and in what ways they shall be charg'd , either for the defence of the kingdom , or common good of the burgh , under the pains foresaids , but the magistrats use only to fine such as refuse to ride with them , and i have heard the lords demure , whether burgesses were oblig'd to attend prisoners without the priviledge of the town , at the desire of the magistrats , since sheriffs were bound to receive prisoners there , and burgesses are only bound to watch and ward within their own town and territory . the rule laid down in this act , viz. that wherever the defender may be punish'd by infamy , he must compear personally , holds not still true , but wherever he is to be punish'd personally , he must compear personally ; and therefore it is that defenders before the criminal court and council , must compear personally . the common-good of burrows ought not to be sett without consent of the deacons of crafts , which is observ'd to this day , nam quod omnes tangit ab omnibus debet approbari ; and by the act par. ja. . it is ordain'd that the common-good shall be rouped yearly , which is also observ'd , and though that act appoints it to be set , by the advice of the magistrats and council , without speaking of deacons of crafts , yet that does not exclude them . by the civil law bona civitatum non possunt vendi sine permissu principum propositis sacro-sanctis evangeliis & insinuato decreto apud praesidem provinciae l. ult . c. de reb . civit. vendend . by this act also the rents of burrows cannot be set for longer time than three years allanerly , but it may be doubted , if they may be set from three years to three years , for many three years in one paper ; or if such obligations will force magistrats to renew the tacks , for if this were sustain'd , the act might be easily eluded , but the of february . the earl of galloway contra burgesses of wigtoun . the lords found that this nullity was not receivable ope exceptionis , especially not being propon'd by the town . these tacks seem likewise to be valid , if restricted to three years , vide annot. ad act par. ja. . vide act par. ja. . & act par. ja. . by all which , crack'd gold is commanded to be taken , if it be of fineness , all which renew'd acts shew , that the people were unwilling to receive such gold. king james the fourth , parl. ▪ vide annot. ad act par. ja. . but for further clearing this act , it is fit to know that the pope was in use , and pretended right to confer by prevention , benefices which were elective , and some whereof , the patronages belong'd to the king and subjects , vid. coras . specimen jur. eccles. lib. cap. . as appears by this act and by the act par. . ja. . and therefore by this act the impetration of these in such cases , is discharged under the pain of proscription and banishment ; but by the act par , ja. . and the act par. ja. . it is also punisht as treason . it is against the interest of the church to unite benefices , because every union extinguishes some benefices , and lessens the care of the souls ; and yet union is allow'd when the benef●ces to be united are impair'd , by poverty , hostility , or by destruction of the people to be car'd for , and least the interest of persons should be more consider'd than that of the church . it is by the canon law appointed , that all unions of benefices must be perpetual ; but the pope having reserv'd to himself the power of uniting any benefices , propter plenitudinem potestatis cap. . de prebend . in . clem. . ut lit . pend . nihil innov . therefore the subjects of this kingdom went to rome , and got benefices united ; and to prevent this , all unions of benefices are discharg'd by the act par. ja. . and the obtaining such unions and annexations is declar'd treason , and since our bishopricks and abbacies were founded by our kings , it was unjust that they could have been united without his consent , because even by the canon law , benefices cannot be united without consent of the laick patron bengeus de benefic . cap. . § . . num . . unions are now made by the commission of the kirk , and the ordinary reasons upon which churches are united with us , are the meanness of the provision , the meanness of the two parochs , and the paucity of the hearers ; to the granting of which unions the patrons must still be call'd , because of the above-cited constitution of the canon law , but they may be united , though the patron consent not , if he shew no good reason for his dissent . the popes also us'd to value benefices upon new informations , whereby the value was much hightned ; and therefore by that act it is ordain'd that no benefices be higher than they were in bagimonts roll , which bagimont was a cardinal , who had made a rental of all the benefices in this kings time , as skeen de verb sig observes , verb ▪ bagimont ; and this taxation of benefices , is founded on extravag . suscepti regiminis lib. . it is therefore appointed that none supply with money , those who are to go to rome , to make such purchases , act par. ja. . but that act seems unnecessary , for the purchasers being declar'd traitors , it was certainly treason to assist them with money , so that the said act was made to certifie and clear ignorant people , which the law calls ad majorem evidentiam . this act is formerly explain'd , and that part of it which appoints the hosts , with whom strangers lodge , to be comptable for their uncustomed goods , is in desuetude , except they were conscious to the guilt . vid. observ . on act par. ja. . supra . crafts men who exact from these of their craft , are to be punish'd as oppressors ; but i doubt what is the meaning of these words , and shall buy their life as common oppressors ; and the most probable meaning is , that they shall be bound to take remissions for so doing , as for a capital crime . nota , common oppression is capital by this act , and such statutes , or impositions laid on by crafts-men , for extortioning the leiges , are reprobated by the laws of all nations , as a species of monopoly , vid. tritz . de monopoliis cap , vid. observ . on act par. ja. . supra . crafts-men leaving off mens work , if others refuse to compleat it , because of statutes among themselves , forbidding them to undertake any such work , such are punishable as oppressors ; but if they refuse upon any other account , they are not punishable ; for this act punishes only such as make use of such unlawful statutes , and if crafts-men should come in to cheat this act by a general resolution not to suffer any to compleat what another had begun ; i believe that the magistrat might punish this as a cheating contravention of this law. nota , that trades-men who make statutes against the common-well of the leiges , are punishable as oppressors , for otherwise crafts-men might extortion the people at their pleasure . this is also discharg'd , l. un . c. tit . . lib. . de monopoliis & nov . . cap. . aedificiorum quoque artifices vel aergolabi , aliorumque operum professores penitus arceantur pacta inter se componere ut ne quis quod alteri commissum sit opus impleat , vid trith . cap. . and observ . on act par. ja. . supra . it is free to sell victual in all burrows any day of the week , though it be no mercat day by this act ; yet now every burgh has its own mercat days for corn as well as for other things . though by this act the users of false measures and weights be only punish'd as falsaries ; yet the justices found that the havers of false measures should be also punish'd as falsaries , though using could not be proven ; since these who had them , are presum'd to have had them only for use , except the presumption were taken off , as by proving that the weights were only borrow'd , or laid aside upon tryal , may . in the case of porteous at a justice-court in jedburgh ; but by the cap. stat. dav. . the users of false weights were only to pay cows to the king. it is clear from this , that the masters commanding his servants , or cottars to break laws , such as muir-burning , specifi'd in this act , does not free the servants , but makes both lyable ( albeit ignorance and command when joyn'd , might seem to excuse the breach of a penal statute , at least a poenâ ordinaria ) but the masters command should not excuse from the punishment where the transgression is either against the law of god , of nature , nations , or the crime is atrocious in it self . some of the nobility having most rebelliously fought against king james the third , upon a false pretext , that he was bringing in the english upon the kingdom , they advanc'd his son king james the fourth to be leader , and having prevail'd , they secur'd themselves by several acts , yet extant in the black impression , but which are omitted in this impression except this one . the king revocks all tailȝies made to heirs-male in prejudice of heirs general ; because ( as craig observes ) this is against conscience , and is defrauding of the righteous heir ; and i have seen old licences granted by the pope , to make such tailȝies and alienations for reasons exprest in the bull , and upon consideration whereof the pope dispences with the matter of conscience , and in the act the estates without the king revock all such rights , quod notandum . nota , the king here revocks all change of holdings from ward to blench , and not from ward to feu , because it was lawful at that time to change from ward to feu by the act par. . ja. . nota , union of lands in barony is revocked by this , and all the posterior revocations of our kings , because one seasine serves after the union , and the proprietar is only oblig'd to answer at one court , so that the king loses several casualties . vid. act par. . ja. . king james the fourth , parl. . by this act barons are to cause their sons learn latin & jure , that is to say law , because the act sayes , that they may have knowledge of law to prevent needlesse coming before the king 's principal auditor , for which reason also advocations are much discourag'd by many subsequent acts : auditor was not a proper term for the session , for andientia is properly allow'd only to such as have not jurisdiction , as is clear by gothesr . ad rubr. c. de episcopali audientia . by this act all actions of error against brieves , or inordinate process are to be pursued within three years , else they prescrive : and by the act . par. . ja. . it is declared that the prescription secures only the assyzers against wilful error , but that the retour may be quarrelled within years , as to the right of blood prejudg'd by the said wrongous retour . and it is observable that the law favours still revenge less than reparation . obs. . notwithstanding of this act a retour , or the execution of a brieve , or any other piece of the process may be improven at any time within fourty years , and the process it self may be reduc'd in consequentiam by reduction of any writ whereupon it followed , hope tit . reductions of decreets . obs . that this short prescription of three years runs not against such as are minors , or out of the realm , in imitation of the civil law , which allow'd immobilia praescribi inter praesentes decennio , inter absentes viginti annis . obs. . that these words , ( be rais'd and pursu'd , ) imply not that the process must be ended , but that it must be begun within three years , and the process is said to be pursu'd when the summonds is executed . vid. observ. on act . par. . ja. . king james the fourth , parliament . it is observable that though this parliament is exprest in the printed acts , as held upon the th of march , and all these acts are exprest as past upon that day , yet i find by the records themselves , that they were all past upon the th of march , which is also called quinta dies parliamenti . item , it is observable that all the acts of this parliament are only set down in way of breviat , and thus the act is thus exprest in the original record . item , it is statute and ordain'd that where any person happens to get a remission in time to come , that the said remission shall not extend nor save the taker for greater crimes , be any general clause nor is contain'd especially , and that the greatest action shall be specified , or else it shall not be comprehended ; and that the general clause shall not include greater nor the special clause . this act is formerly explained . in the observ. on act . par. . ja. . and act . par. . ja. . these acts are useless , for all these jurisdictions are now otherwayes divided and established . the shires of inverness and ross having been again after this act united , they were and are now disjoyned ; and whereas this act makes the town of thane and dingwall to be the head burghs of the shire of ross , the town of ●orteross is added as another head burgh to the other two , by an act of parliament , . it is appointed that general clauses in remissions , remitting all crimes , shall not be extended to greater crimes than the crimes specially condescended upon in the remission , but to evite this , remissions do now express specially all the great crimes , and then a general is subjoyned ; and upon this law it was controverted in glenkindies case , whether a remission for slaughter should be extended to murder , since murder was pretended to be a greater crime , as proceeding upon forethought fellony ; to which it was answer'd , that slaughter was a general term comprehending both slaughter and murder . it may be argued from this law by a parity of reason , that discharges granted for a special sum , and thereafter discharging generally all debts , shall not be extended to other sums greater than that which is specially discharged ; but yet the th february , . it was found that such general clauses did cut off all sums , even though greater than the sum discharged in special . this act ordains all remissions for slaughter to be null , if the slaughter was premeditated , and upon forethought fellony ; nor is this act temporary , being to last in all time coming , till the king revock the same specially ; but yet this excellent law is not de praxi now observed , though it be most reasonable , vid. act . par. . ja. . and the same reason given here for it , ( viz. because many in trust to get remissions did commit slaughter , ) is set down to the same purpose , canon injusta , quaest. . nonne etiam cum uni indulget indigno ad prolapsionis contagium provocat universos , facilitas enim veniae incentivum tribuit delinquendi . by the cap. . stat. dav. . it is ordain'd that no remission for murder upon forethought fellony shall be given , except in parliament , and for a publick good . observe here the discreet stile wherein kings are limited in the exercise of their royal power , for here the king declares it is his pleasure that such an act be past , and desires the estates to pass it ; and since this act is to last till it be revocked by the king , it may be doubted if the king alone may revock it without authority of parliament . the like act discharging remissions for burning corns , ja. . par. . act . though bishops are by this act to appoint and deprive notars , yet they are now both tryed and deprived only by the lords of session . though this act appoints bishops and their ordinars to take inquisition who uses false writs , yet none but the lords of session are now judges to improbation , which is the only process competent for trying falshood of writs in the first instance , and the commissar who is the bishops depute can never judge of falshood now ; except where the falshood falls in only incidenter , and by way of exception ; as if i were pursuing any action before the commissars , and it were alleadged that the execution of the summonds were false , there the commissar would be judge competent to try the falshood of the executions , for else his jurisdiction were useless ; and all sheriffs , lords of regalities , stewards and the like , have the same priviledges . by this act summonds for recent spuilȝies must be executed upon . days , whereas all summonds were to be executed upon . days , by the act , par. . ja. . which is the act here related to , though not cited ; and by an act of sederunt july , . this priviledge is extended to recent intrusions , which is a kind of spuilȝie in immoveables . observ. . that since the parliament thought that the former act of parliament could not be derogated from without an express statute , it may seem strange why the lords do priviledge any summonds by their own power , or if they had power , why they did not make actions of recent spuilȝie and intrusions to come in upon days , as well as exhibitions , poynding of the ground , and other less favourable causes ? to which nothing can be answered , but that there was an old custome for the one , but not for the other . observ. . that the last words of the said act , viz , that there shall be no exception dilator admitted against that summonds , it being lawfully indorsed , seem to imply that the judge should grant no continuation , though that properly cannot be called an exception dilator , or else that the judge should restore spoliatum ante omnia , and admit no exception upon property nor compensation , &c. but these are not properly dilator defences , or that the not continuation of the summonds upon days warning , should not be objected , but that is likewise unnecessary , since the first part of the act did that sufficiently ; and so these words with that sense had been superfluous , and therefore i rather incline to think that these words were only designed to show the parliaments great desire to have recent spuilȝies dispatch'd , though ill exprest ; it may be doubted whether recent spuilȝies being only such as are raised within days after the spuilȝie is committed , sabbath or feriot days should be counted amongst the . observ. . that it may be argued that spuilȝies regularly cannot be pursued before the sheriff , or else why is it allowed here as a priviledge to recent spuilȝies , that they may be pursued before the sheriff ; and it seems the reason why spuilȝies regularly should not be pursued before sheriffs , is because the dammages in spuilȝies must be taxed by an oath in litem , and that is nobilis officii , and consequently cannot be administrated by any inferior judge , nor can these inferior judges modifie what is sworn by an oath in litem , that being yet nobilioris officii . by this act the sheriff is to have pennies of every pound , as sentence-money , which was called sportulae by the civil law , and this sentence-money is still in use . this act appoints every lord and laird to have a cuningare ; but it may seem strange why none are allow'd to have dove-coats , except they have ten chalder of victual in rent ; and yet men are commanded to make cuningars , since cunins may prejudge neighbours , as doves do ; which makes craig , as i conceive , doubt whether the vassals may have a cunigare , except the same be granted to him : but though the superior grant cunigars with the clause cum cuniculis cuniculariis , the former doubt remains , for the superior cannot prejudge third parties . to which these answers may satisfie . o. that it was necessary by this act once to invite men to plant cunigars , whereas dove-coats were frequent before the act . that restricts them . o. this command is only to lords and lairds , which implyes men of estates , but is not given to all the lieges ; and i doubt not but if an heretor of ten chalders of victual , or thereby , should plant a cuningar , but his neighbours might by common law , and an argument drawn from the act . par. . ja. . force them either to inclose their cuningar , or to give it over . before this act the heir could not have been pursued for any debt till the executor was first discust ; but by this act the heir is made lyable to the creditor after his annus deliberandi expires , both as to heretable and moveable debts , which was very just , because quoad the creditor , they all represent the defunct , but yet he will get his relief of all moveable debts from the executor , as far as the inventar extends ; and if he be served heir within the year , the creditor will get action against him for heretable debts , even within the year , for by entering heir he renounces his benefit of deliberating , and if he possess the estate , he ought to pay the heretable debt ; but though he enter heir within the year , he should not be lyable for moveable debts by this act till the year expire , since as to these he has no benefit by entering , and though he renounce the benefit of deliberating , yet he does not renounce the benefit of this act , hading . tit. heirs . nota , heirs are call'd in this act heretors , from the french word heretiers . but quaeritur if the executor be discust , and found insolvent , may not the heir eo casu be pursued within year and day , and the affirmative seems strongly founded upon the reason and decision of this act : and yet by the present practice , the heir enter'd is lyable even for moveable debts , tho pursu'd within the year . item , though by this act the executor is bound to find caution to relieve the heir of all moveable debts , yet there is no law obliging the heir to relieve the executor of heretable debts , but de practica , the lords sustain ex paritate rationis , actions against the heir for relieving the executor of all heretable debts , . march , . faulconer contra blair , vid. spotswood , tit . executor carnoussie contra laird meldrum , which seems to be contrary to the words of this act , whereby it is more than insinuated that the fathers moveable goods should pay his debts ; and by the narrative of act par. . ja. . is yet more clear ; by the civil law the children that were in potestate patris were forced to enter heir , but thereafter this was thought too severe , and therefore the roman praetor allowed even to these heirs a liberty to abstain , and a year to deliberate whether they would be heirs , which we have borrowed from thence , but jure novissimo the heir was to be only lyable according to the inventar , if he made one , & non ultra vires inventarii , which holds only with us in executors who are heirs in moveables , for heirs in heretable rights are lyable in solidum , if they once enter . if the marriage was not quarreled by a process in the husbands time , as unlawful , the wife will have right to her terce , without necessity of proving a lawful marriage , and will possess her terce till the marriage be found to have been unlawful ; for in the common law , and ours , an unquarrel'd cohabitation is a valid probation of the marriage , l. in libera ff . de rit . nupt . yet it cedes to a contrary probation , as all praesumptiones juris do , vid. pacian . tract . de prob . lib. . cap. . and in our law bastardy is not inferr'd , because the marriage cannot be proven , but it must be prov'd positive that the defunct was reputed bastard , feb. . k. advocat contra craw , & june , . . livingston contra burn and if that be prov'd , he who pretends to be heir must prove also that the defuncts father and mother were lawfully married . by the same parity of reason the husband will have right to the courtesie of scotland till the marriage be found null ; and the allegiance of bastardy is not receivable summarly against the service of an heir , vid. infra observ . on act . par. . ja. . all who did hold of the king were of old oblig'd to come to parliament , till by this act these whose lands are within merks of new extent are indulg'd not to come , except they be specially called by the king. this act seems obsolet , for none are specially called now ; whether the king may yet call any barons he pleases , is dubious , both because they were once bound , as well as impower●d to come ; and this faculty was only remitted for their own advantage , and after that , this act allows the king to call them ; and it seems reasonable that if there be any wise baronin the kingdom , the king who calls parliaments for consulting the great affairs of the kingdome , should have liberty to call him , albeit the shire choose him not , and the king may make any man a lord of parliament . nota , these who were then members of parliament could have sent their procurators , but now no procurators are admitted for absents further than to excuse their absence , which is done by a letter to the commissioner , or chancellor , or by a member . vid. obs . act par. act par. ja. . act par. ja. . supra , and act par. char. . infra . this statute is explained act . par. . ja. . but the reason why it is here added , that the isles especially shall be govern'd by the kings laws , was , because the kings of denmark pretended that the isles of orkney and shetland should be govern'd by their laws ; for the king of denmark renounced all right to these isles in favours of k. james the third his son in law , in anno . vid. skeen de verb. sig . verb. annuel . that all officers should be chang'd yearly , is formerly gloss'd , in the observ . on act par. . and act par. ja . that none have jurisdiction within burgh , but such as use merchandise , is by some interpreted to be sufficiently satisfied in those who once used merchandise , even as semel baro is semper baro , and few present provosts are actual traders ; and therefore it was doubted whether one who has been a merchant , but was thereafter a senator of the colledge of justice , might not be a provost . vid. infra observ . on act par. ja. . it is fit to know that the dukes of burgundy gave the scots the first priviledge of staples , which was transferr'd to camphire at the christening of prince henry . the conservator is by a right under the great seal constituted judge there betwixt merchants , and he must have by this act six assessors , or at least four , which is still observ'd , and the decreets run in his name , with the consent of his assessors ; and of late by articles with the prince of orange . the conservator has the sole criminal jurisdiction , when crimes are committed by scots merchants ; he is likewise by his patent constituted agent for all affairs relating to scotland , as well as for trade . by an act of the burrows at air . it is declar'd that all goods that pay custom , either when they are carri'd out from , or in to the kingdom , shall be accounted staple goods , and so being under the protection of the conservator , he claims to have fees for them ; but in anno . there is a list of staple goods made by the burrows ; and in . they made a new list , declaring and ratifying the former . this act is still observ'd , for the conservator uses to come or send in july ; but by twenty pounds great , here exprest , are mean'd twenty pounds fleems . this act forbidding mercats to be holden on holy days , is in observance , but this part which forbids mercats in kirk-yards , under pain of escheating the goods , is not observ'd , though renew'd act par. . ja. . and mercats are discharg'd in churches , decret . pars . distinct . . but i find them not discharg'd expresly in church-yards , though church-yards had in other things the same immunity with churches , and thus they were sanctuaries , as churches were , can. sicut antiquitus canon definivit . quest . and their extent was to be fourty paces in greater churches , thirty in lesser . vid. observ . on act par. ja. . this act is useless , for no taxation can be laid on , except either in parliaments , or conventions of estates , and to these all the three estates must be call'd ; but it shews that of old , taxations were laid on in conventions , which consisted of any the king call'd summarly off the street ; nor were the burrows oft-times call'd , therefore this act was made , declaring that no taxation or contribution should be given without warning the burrows , as one of the three estates : taxations are properly burdens laid on by parliaments ; and contributions are our voluntar offers made by conventions ; but we use now the word taxation for both , what burdens are laid on by parliaments and conventions ; though this act requires indefinitly the burrows to be call'd , yet by the act par. q. m. it is only requir'd that six of the burrows be call'd . the burrows royal pay a sixth part of the taxation of scotland , and they divide their proportion amongst themselves , according to pounds scots , which is their as , or imaginary total , according to which every town pays their proportion : and though any burgh resign their priviledge in parliament , they must pay till they dispone their common good to the rest , and then their proportion is divided amongst the rest . this act appointing no burgesse , or gild-brother to be made without consent of the great council of the town is in desuetude . vid. leg . burg . cap. . the pain now is arbitrary , and punishable , either before the council or criminal court , vid. act par. . ja. . this act is useless because of the act . ordaining all seasines to be registrated , and this act is thereby in desuetude . these acts are but temporary , and yet they serve to clear the act par. ja. . and the lords found that by forfalture in the act . is mean'd , not only recognition , which is sometimes call'd a forfalture , but forfalture for treason , &c. and by this we may see , that abrogated laws , and laws that are in desuetude , should be read and consider'd , and may be of great use in decisions and arguings . the reason of making this act was , because lands united are fictione juris , one and the same , and so should properly answer to the court , to which the principal messwage answers ; and therefore this act was made to secure the interest of the ordinary judge , which declares , that notwithstanding lands are united in a barony , yet they shall answer as formerly , to their own jurisdictions , but the baron whose lands are united , needs only compear by this act in that jurisdiction , where the principal messwage by the union is , and yet de praxi , they are still call'd in all the suterols of the other shires , where any of their lands ly , and are forced to send acturneys which seems contrary to this act. there are two kinds of brieves , one call'd a ●rieve of pley , which is our ordinary summons ; another call'd a brieve of inquest , which is yet in use , as in services of heirs , tutors , &c. vid. for clearing this act , lib. . r. m. cap. , & . & stat. rob. . cap. . and because the service of heirs is no brieve of pley , therefore no exception is to be admitted against it , except it be instantly verified . this act appoints all brieves to be executed upon fifteen days , and the lords have found , that all such acts as these appointing citations upon such a number of days , do not require that both the day of citation and compearance be free , but it is sufficient that either of them be free , july . . meculloch con . meculloch . if the brieve be not proclai●'d upon a mercat day , then it must be proclaim'd before the town officers , and six honest men to make it publick , and thus it seems the parliament thought these equivalent to a mercat day ; but this holds not in other cases , where proclamations are to be upon mercat days , nor even in brieves is this now used . nota , by this act , if persons refuse to pass upon the inquest , the sheriff is authoris'd to compel them ; and this i think the justices may do in criminal cases also , for the justices ar● higher judges than the sheriffs ; and as the publick is more concern'd in these cases , so men will be more unwilling to pass upon them , except they be compell'd ; and though there be pecuniary penalties appointed against absent assyzers , yet that is but an ordinary remedy , and does not exclude this extraordinary one ; even as the penalties appointed against witnesses , does not exclude the taking them with caption . falsing of dooms are now in desuetude altogether , and to them have succeeeded reductions , in our present practice . vid. ●bs . on the act par. ja. . by this act it is ordain'd , that all measures and weights be made the same thorow all scotland , and the standarts to remain at edinburgh , and to be ordain'd by the chamberlain and his council , for then the chamberlain , or camerarius scotiae , was judge in all things that concerned the burghs of scotland , and was in use to hold a council , who with him judg'd in matters that concern'd all the burghs in general , as the dean of gild and his council judge in every particular burgh , and his statutes of old concerning weights and measures , are to be seen , iter. camer . cap. . but this office and jurisdiction over the burrows , is now obsolet , and the rectification of weights and measures is only considered by the parliament , or by the council in prosecution of the acts of parliament . though by this act all the standarts of weights and measures , are ordain'd to remain at edinburgh ; yet by act of burrows they have been divided thus ; the standart of the stone-weight remains at lanerk , because the chief commodity of old that was weighed by the stone-weight , was wool , which was paid in to the king at lanerk , and was therefore call'd lanae-arca . the standart of the pynt or jugg , was left at stirling , because the kings court recided there . the standart of the furlot remains at linlithgow , because the king had no other residence in the three lothians , which were the chief countreys for corns . and edinburgh had the ell , which is the chief instrument for measuring silks , or other forraign stuffs . i find likewise , that the town of wigtoun , and other particular burghs , have an acknowledgment paid them for measuring the jaggs within particular brewaries within their territory , and these who agree with them to pay this , are said to have a free stallage ; and the imposition is call'd their deaurie , because it is taken up by their dean , when the shire resolv'd to quarrel this imposition . it was answer'd , that it was just , because th●y inspected the measures for the good of the lieges , and that it was confirm'd by immemorial possession . i have here set down the foundations of all measures and weights for what was set down in the cap. . stat. robert . is not exact . of the weights , and foundation thereof . a corn or pickle of wheat , taken out of the midst of an ear of wheat , is the foundation of a grains-weight . eighteen of these grains make the half-drop-weight . thirty six grains make a drop-weight . four drop-weight is a quarter of an ounce . four quarter ▪ make an ounce-weight . eight ounces is a merk-weight . two merk-weig●● 〈◊〉 a pound-weight . sixteen pound-weight makes the stone-weight of laner● ▪ there was also a trone stone-weight , which did weigh nine●een pounds and eight ounces of paris weight , wherewith the butter , cheese , wool , tallow , and such other countrey commodities as carry refuse was weigh'd . there are other quantities whereof the weight is here set down , to give some contentment to the reader , as a tun-weight of light goods , which is the common fraughting of all merchandise betwixt this countrey and france , england or spain , which tunn is esteem'd to weigh pounds weight . a sack of goods , which is the common fraughting of all merchandise from this countrey to the low-countreys , esteem'd to weigh stones , or pound weight , the sirplith of goods which was the common fraughting of merchandise betwixt this countrey and the eastern countreys , is esteem'd to weigh eighty stone-weight , or pound weight . the last of goods is esteem'd to weigh stone-weight , or pound weight of light goods . the last of metal and other heavy goods ▪ is pound weight . the fodder of lead is stone , or pound weight . the vveights follovving are us'd by apothecaries , in mixture of their medecines , vvherein the least is a grain . twenty grains make a scruple . three scruples maketh a draghm . eight draghms maketh an ounce . sixteen ounces maketh a pound . the medicinal pound is twelve ounces . a sheckle-weight mentioned in the bible , is half an ounce . a talent is counted pound weight . a talent of money is crowns . the weight of all quantity of wheat bread , at every price of wheat is set down in a table hereafter following . in all our nei●hbour countreys , the flesh is sold by weight . if the meal were sold also by weight , it might prove profitable to the lieges . the twelve ounces troy weight 〈◊〉 england , weigh twelve ounces three drop twenty one grains 〈◊〉 weight . now of these our weights , are made other measures , both for corns and liqu 〈…〉 ff . the foundation of the liquid metts , proceeding from the vveight . the scottish pint , or standart jugg of stirling , is found to contain three pound seven ounce weight of the water of leith . every pint is divided into two chopins , or four mutchkins . two pints maketh a quart. four quarts or eight pints is a gallon . the herring-barrels contains now eight gallons and an half , though by the act par. ja. . it is to contain nine gallons , twelve of these go to a last , and eight to a tunn . the salmond-barrel contains now ten gallons and a quart , though by the act par. ja. . it ought to contain fourteen gallons ; and by the act par. ja. . it should contain twelve gallons ; but by an act of council , july . . it is to contain ten gallons . two barrels , or seventeen gallons is the full of burdeaux-hogs-head . the puncheons of high-countrey wines , are of thirteen or fourteen gallons . three paris puncheons make a tunn , or four hogs-heads makes a tunn . two pypes , or two butts is a tunn . six barr●kins or ter●●s make a tunn . six english buns of bear is a tunn . six salmond-barrels is a tunn . eight herring-barrels is a tunn . twelve barrels makes a last . our scottish pint contains being fill'd to the top , very near four pints and an half of english. now if the ground be true , that the pint doth weigh fifty five ounces , then consequently the tunn should weigh stone fourteen pound . the puncheon full twenty nine stone three pound and eight ounces . the barrel being full fourteen stone , nineteen pound , twelve ounces . the gallon should weigh one stone , eleven pound , eight ounces . the quart full six pound fourteen ounces . the pint three pound , seven ounces . the chopin one pound , eleven ounces and an half . the mutchkin full thirteen ounces twelve drops . by our custom there is a plouck in every jugg or stoup , and the wine is only measured to the mark or plouck , but ale and strong waters are measur'd to the top . by the . cap. statut. dav. . the pound of caithness is ordain'd to be the common measure , but that weight is not so much as known now ; but it is clear by the cap. . stat. robert. . the pound then contain'd fifteen ounces , but now it is sixteen ounces . the foundation of the dry-metts . the furlot of linlithgow , which is the standart for the whole countrey , for metting of wheat , ry , beans , pease , meal , and white salt contains twenty one pints and a mutchkin of water ; which furlot is divided in four pecks , and the peck is divided in two half pecks or four forparts . the furlot for metting of bear , malt , or oats , which were call'd heaped corns , contains thirty one pints of water . four firlots make the boll . sixteen bolls is a chalder . eighteen bolls and an half is counted for a last of ry. the half boll mett of the water measure of leith , contains nine pecks of the ordinary measure . the english quarter of corn contains near by two bolls of scottish measure . the boll of wheat will weigh fourteen stone and three pound . the furlot of dry-wheat three stone , eight pound , twelve ounces . the peck will weigh fourteen pound three ounce . the half peck seven pound one ounce and an half . the measure for coals is declar'd to be the culross chalder , by the act sess. par. . ch. . the foundation of measures for length , breadth , and thickness . three barley corns fair and round , lying in length , without the tails make an inch. twelve inches maketh a foot. three foot is an english yard . three foot and an inch or thirty seven inches makes the ell of edinburgh , which ell is parted in four quarters , and every quarter in four nails ; which measure of a foot having fallen in desuetude , is renew'd by the act sess. par. ch. . fourty five inches is the english ell. twenty seven inches is the fleemish ell. in france every town hath a divers measure , the foot wherewith the glassen-wrights measure their work , is sometimes of nine inches , and sometimes of eight inches . of the rood of vvork . a rood of land contains ells of measure ; but a rood of work wrought by masons or sklaiters contains but thirty six ells , that is , if any piece of work be found to be eighteen ells in length , and two ells in breadth , it makes a rood . twelve ells in length and three ells in breadth , is a rood . nine ells in length and four in breadth is a rood . eight ells in length , and four ells and an half in breadth , is a rood . six ells in length and six ells in breadth is a rood . a rood of land within burgh is esteemed of old to be twenty foot , that is , five foot in length , and four in breadth . the foundation of an aiker of land. six ells of the standart of edinburgh , makes a lineal-fall wherewith land is measur'd . six ells long and six ells breadth , make a superficial , or square-fall , wherewith land is reckon'd . fourty lineal falls makes a rood . ten falls in length and four in breadth , makes a rood . eight falls in length and five in breadth , makes a rood . four roods is an aiker . so an aiker contains lineal falls , or ells. eighty falls in length , and two falls in breadth makes an aiker . fourty falls in length and four in breadth , makes an aiker : thirty two falls in length and five in breadth , is an aiker . twenty falls in length and eight in breadth , is an aiker . sixteen falls in length and ten in breadth , is an aiker . four aikers are counted for a ministers gleib . six aikers arable land for a husband land. thirteen aikers is counted an oxen-gate . four oxen-gate is esteem'd a pound land of old extent . vid. observ . on act par. ja. . supra . this act is only conceiv'd in prohibitive terms , without any penal sanction , and though this be forbidden , yet it is not declar'd a crime , and yet it was found a crime to poynd labouring oxen in time of labouring , and punishable by a pecunial mulct , january . lord rentoun contra the sheriff-depute of the merss . the time of labouring is not determin'd by this act , and therefore the lords have special regard in this to the custom and season of each respective country , as was decided november . . so that tho they were labouring , yet if it was not the season of labouring , they have not the priviledge . but if the debitors labouring be ended , though the season of labouring be not generally ended in the country , yet his labouring goods may be poynded , november . . spootswood h. t. tells us that a paritate rationis , this priviledge was extended to a going salt-pan , sed leges in privilegiis non sunt extendendae . if the debitor have no other moveable goods ; the creditor may poynd even labouring goods , by the words of this act ; for it seems the parliament thought it not just that a man should lose his debt altogether , and though the priviledge here granted may seem only a delay , yet by abstracting the goods , during that suspension , he may be totally frustrated . the common law , to which this statute relates , is l. . c. quae res pigr . obl . possunt & authent . agricultores ibid. but by that law , the persons of the labourers could not be apprehended , nor made that law any distinction whether there were other goods poyndable . vid. tract . crim. tit . . where this act is more fully explain'd . this act is explain'd , act par. ja. . the former acts of revocation , revock not expresly all things done in hurt and prejudice of the kirk , but this was imply'd under the general of what was done in hurt of the king's soul and conscience ; but in this latin revocation , which appears has been ordain'd to be in latin , that a church-man might draw it ; the king revocks all that has been in detrimentum seu laesionem ecclesiae catholicae , and to shew the king and parliament enixa voluntas , all such deeds are ordain'd to be raz'd out of the books of parliament . the word kirk , comes from the greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , for so the house of god was nam'd amongst the christians who were greeks , as the latins nam'd it , domus dei vid. mons ▪ fleurii des mocurs des christiens , who gives this origination for the word kirk . king james the fourth , parliament . by the act par. . ja. . some places were ordain'd to answer at justice-airs in other places than the head burghs of their own sheriff-doms , which is here restricted only to justice-airs and sheriff-courts , by which i think is mean'd taking of dittay ; but now both these acts are in desuetude , for every place answers to justice-airs , according to the division of their own shires . it is most observable from this act , that it was made in a scotish parliament or council , holden within england , which refutes that opinion , that our kings cannot hold parliaments nor councils without their own territories , upon the mistaken principle that judex extra territorium jus non dicit . it is likewise observable , that this act is made only by the king , with the advice of his lords . and it is probable , that this act like a testamentum militare in procinctu , must have some allowance given to it against the common rules , and that it imported only a discharge of the wards and marriages of such as died in this host , and was only valid because the king and lords remitted only therein a casuality due to themselves ; so that this act was but a general discharge by the king and his subjects then present , who were superiours ; but why then is it inserted amongst the acts of parliament ? or how could it have oblig'd absents ? and the rubrick calls it an act made by our soveraign lord king james the . and yet this is not properly an act of parliament ; for this parliament is held in anno . whereas this act is made in anno . and it may seem only an act of council made by the advice of the lords , that is to say , the lords of council , which judicature then govern'd the kings property by its acts ; and it has been thereafter inserted amongst the acts of parliament , for the greater security of those who had hazarded their lives at this time ; and therefore by the . act p. . i. . this favour is extended to the vassals holding of subjects . k. james v. parliament i. the master by this act is bound to deliver up his servant who is attach'd or challeng'd as a thief , or robber , vid. stat. alex. . c. . stat. will. c. . stat. da. . c. . and act . par. . ja. . and in the registers of the council there are many bonds given by masters in those terms , vid. obs . on the said act. king james the fifth , parliament . these two acts discharging the wards of those who were killed in the kings host , or prorogating for years the tacks of tennents , were very reasonable , but being temporary , are not now in observance , for the wards of these who died in the kings host at worcester , or else where , fell without any priviledge ▪ that the d act is temporary only , appears from these words , that are now killed in pursuing or defending in time of weir , against our auld enemies of england ; for that enmity ceas'd by the union . observ. from both these acts , that the receiving a deadly wound , is equiparated to the being killed . king iames the fifth , parliament . by this act the porteous roll was to be deliver'd to the crowner , but now it is deliver'd to the sheriff when justice-airs are to be held , though these who are crowners do still protest against this innovation . when the crowner got the porteous roll , containing the names of those who were to be cited to the justice-airs , he was obliged to cite them at their dwelling houses , and paroch kirks , by this act ; for by the word , arrestment in this act , and many of our old laws , is meant citation ; but if they can be apprehended personally , this manner of citation is unnecessary , though that be not here exprest . by the present practique , if they cannot be apprehended personally , they are to be cited at their dwelling houses , and at the mercat cross of the head burgh of the shire where they live . . by this act if the persons to be cited can be found , the crowner is to take surety of them for their appearance , which the sheriff yet does ; but if they be not streinȝieable , that is to say , if they cannot be apprehended , then the crowner was to arrest their goods , like to the annotatio bonorum in the civil law. . if they have no goods to be arrested , they were to be put in the kings castles , that is to say the kings prisons . . if the king has no castles within that shire , they were to be deliver'd to the sheriffs , who are bound to keep them securely . by this act the crowner is to be answerable for the caution he takes ; for the act says , that they shall take sicker surety , sik as they will stand for to the kings grace ; and it is pretended that the clerk of the justiciary is not bound for the surety he accepts , though the crowner and sheriff be , because the crowner is oblig'd to know who are solvendo in the shire , which the clerk of the criminal court cannot know through all scotland ; but i think that both are equally oblig'd , viz. to do exact diligence to know the solvency of these they take ; and since the punishment of taking insufficient caution is not here exprest , it seems to be arbitrary , and in effect to take surety that is notorly insufficient , seems the same guilt with letting a malefactor escape . the master here is only oblig'd to present such tennents as dwell within the shire with him ; but by the act . par. . ja. . if the complainer would attach the tennent , & the master be required to deliver him up , whether he liv'd in the shire with the tennent , or not , he was to be punish'd as art and part , in case he refused to deliver him up ; and by this act he is only to pay the unlaw . but this last act is not well observ'd , for now no man is lyable for his tennent , except highland heretors , and chiefs of clanns , who are to find caution to the council for that effect , vid. acts , , , &c. par. . ja. . but by this act it is clear that the king may make masters still lyable for their tennents who live upon their ground , and that in any court , though this act appoints them to be presented to justice airs , since eadem est ratio , and this act was adduc'd for justifying the proclamation that appointed masters to be lyable for their tennents , vid. act . par. . ja. . and the acts there cited , where masters are lyable for servants , vid. tit . . lib. . feud . where vassals are oblig'd to present their servants to their superiors , if they have offended them : but since by this act masters are only to be lyable for the tennents unlaw , if he present them not . it may be doubted what this unlaw is , since in justice airs if the tennent was absent , he was ordinarly denunced fugitive ; for the justice court does not unlaw an absent defender , and therefore by this unlaw may be mean't what the tennent would be unlaw'd in , if he had been present , vid. stat. will. regis , cap. ▪ & . by this act these who are surety to the party injur'd , for assythment , may be called before the lords of council , either in session or out of session ; but this is now abrogated by the late constitution of the session , who are come in place of the lords of council who then were . the meaning of these words in the act ( and as for slaughter and mutilation , to keep the order of the act made thereupon of before ; ) is that slaughter and mutilation are not comprehended under this act , because by the . act , par. . ja. . no remission can be granted for these crimes , and therefore there can be no assythment . this act is further explained in crim. pract . tit . fire-raising ; but it is fit here to observe , that in these words , that particular justice courts shall be set thereto , as shall please the kings grace , his council , and the justices ; the word ( and ) is taken disjunctive , as is often in the civil law , and our statutes , l. . ff . de haered . instit. nota , the killing of thieves is declared no crime . king james the fifth , parl. . excommunication is here called the process of cursing , and excommunication used in time of popery to be granted for not payment of civil debt , or not performing of contracts , or not restoring of spuilȝied goods , is now in desuetude ( for all these were held to be mortal sins ; ) and by this act letters to poynd or appryze were to be granted thereupon ; and by the . act , par. . q. m. their moveable escheat falls to the king , if they ly under the process of excommunication for a year , the creditor being first payed , which acts are further enlarg'd by the . act . par. ja. . by which their whole rents and revenues are to be applyed to the use of the publick , and all gifts of escheat granted to the behove of the wife , children , or confidents of such as are excommunicated for popery , are declared null , act . par. . ja. . it may seem strange that excommunication repells ab agendo sed non a defendendo , and yet horning debars from both , though the person excommunicated be the greatest delinquent , being at gods horn , . july , . colstoun contra cranstoun , vid. observ . on act . par. . ja. . supra . this act is innovated and enlarged by the . par. ch. . sess. . act. . this act is in observance to this day , but it holds only in forrests noto●ly known to be such ; for if there was probable reason of doubting whether it be a forrest , the goods feeding in it will not be escheat for bygones , vid. leg. for. c. . § . . & sequen . because this act sayes , if any person be found putting their goods in pasturage in the kings forrest , they shall escheat the same ; therefore it seems reasonable that if goods be only found there , this is not suffici●nt to escheat them , since they might have strayed there , & dominus non tenetur ad poenam si animal ex seipso ingrediatur in locum prohibitum ut est forresta borel , de magistrat . edict . lib. . cap. . num . . vid. annot. on act par. ja. . supra . this act relates to act par. ja. . whereby hares are not to be kill'd in time of snow : and act par. ja. . and act par. ja. . whereby hares are not to be kill'd at any times by guns , girns , nets , or cross-bows , which last is yet in observance , and all these acts are reviv'd by a proclamation of council , in febr. . by the act par. ja· , it is ordain'd that the superior of ward lands or his donatar , shall find caution to leave the houses , orchyards , woods , stanks , parks , &c. in as good condition as they found them , they taking their sustentation , or using them in needful things , without waste or destruction , which is extended to all liferenters and conjunct-feers , who are ordain'd to find the like caution by this act. by which also , all sheriffs , stewards , magistrats within burgh , and spiritual men within their bounds , are also commanded to exact this caution . these acts are also extended to all such as have life-rent tacks from the heretors , without payment of any considerable duty , though the words of this act run only against such as have liferent infeftments ; but this act should not be extended to such as have liferent-tacks , for payment of an equivalent duty , qui sunt conductores & non usufructuarii ; for the heretor is rather oblig'd to entertain the houses to such tacks-men , than they to him , january . . laird of laidly contra boyd . but this is to be understood of such tacks-men , as pay a dewty equivalent to the rent , for else relicts would in place of liferents , take tacks during their life for any imaginary dewty , which should not free them from the finding of caution . in that case it was also found , that this act did oblige donatars of liferent-escheats , to find caution to maintain the houses , orchyards , &c. which fall under his gift ; but quid juris , if the fisk retain liferents so faln in his own hands , & peregr . de jur . fisc . tit . . num . . is of opinion , that usufructu sisco legato siscus non satisdat de utendo fruendo arbitrio boni viri ; but it is hard that the heir should be in a worse case by the crimes of the liferenter , or their going to the horn , so that his estate should be thereby expos'd to mis-managment : and albeit where a liferent is left to the fisk , caution may seem to be remitted by the intention of the party , yet that should not be extended to the case of its falling to the fisk , without his consent , and it rather seems , that since a donatar is ty'd to find caution , that therefore the fisk should . nota , there needs no precognition to be taken by an assize of the condition the houses were in conform to the act. par. i● . . for that act only ordains such precognitions to be taken when houses are ruinous within burgh , and the liferenters refuse to concur in re-building them , in which case the heretor is allow'd to repair , he finding caution to pay the liferenters the dewty that these houses pay'd formerly , march . . foulis contra allan . though this act ordains the sheriffs , and others who refuse to exact this caution , to be lyable to the heretor of the ward-lands , without mentioning that they shall be lyable to liferenters , or conjunct-fiars , yet doubtless they are lyable to them also for the damnage sustain'd , in not exacting this surety . though in some cases cautio juratoria be allow'd , yet it would not be allow'd here gail . lib. . obs . . for that caution cannot secure the heretor , and there is as little reason to receive it in this case , as in removings . but perez ▪ is of opinion , that cautio juratoria is receivable si offerens sit probatae & honestae vitae . there was likewise cautio usufructuaria by the civilians , & introducta est per senatus consultum in iis quae usu consumuntur , § . . just . de usufruct . & l. . ff . de usufructu earum rer . quae usu consum . but all this matter is learnedly treated by christin . ad consuetud mechli● . tit . . where he determines that the lesser and temporary expences are to be bestow'd by the liferenter , but that she will get 〈◊〉 from the heretor of these expences , quae perpetuam rei utilita . tem concernunt , if she advertise the heretor , that they were necessary , and first desir'd him to repair , but that she cannot by her reparation alter the form of the thing , though for the better , nor use it otherways than the proprietar himself did . by the former act ja. par. cap. . to which this relates , the liferenters are to find caution that they shall not destroy the orch-yards , woods , &c. from which it may be observ'd , that where woods are upon liferented lands , the liferenter as well as the conjunct-fiar , may make use of as much of the wood , or coal , as is necessary for her own use , since she is only restrain'd by this act from wasting ; and by the custom of some countreys , she cannot pretend right to trees fallen by winds or accidents , if the trees be such as are fit for sale , & in sylvâ caedua ita in●isionem facere potest ut ad fructum pertineat non vere ad destructionem vid. l. ex sylva . ff . de usufruct . which agrees with our law , by which the liferentrix has only right to as much of the coals or trees as are necessary for her own use ; but even this right is only due to her , whilst the land is the fiars , but does not hinder the fiar to sell his own land , craig . pag. . forestallers are these who buy goods before they come to an open mercat ; and regraters are properly only these who buy up all goods , that they may sell them again at dearer rates . but our law has us'd these two words promiscuously , though by this act such as buy any thing before it be presented to the mercat , or who buy it in the mercat ; but before the mercat be proclaim'd , which is call'd here the time of day of the mercat , are punish'd as forestallers ; yet there must be something of design proven , as if they should stand in the way upon a mercat day , or should every day cause buy up what were going to such a town , to hinder the traffick of that town ; for it were hard to make generally all who buy things going to a town , or a mercat forstalling , for that may be done either ignorantly , or necessarly . though the punishment here be imprisonment and escheating of the defenders moveables , yet by the act par. ja. . the punishment is ordain'd to be fourty pounds for the first fault , a hundred for the second , and escheating of moveables for the third ; and though severals have been found guilty of forstalling , as particularly upon the . of june . and the . of august that year ; yet i find no punishment follow'd . the chamberlain of old was the only judge in his chamberland-air , cap. stat. will. reg. but now the justices are only competent judges to this crime , they were call'd dardanarii by the civil law , and were punish'd poenâ extraordinariâ l. . ff . de extraor . crim . this act is innovated and enlarg'd by the act i sess. ch. par. . all officers within burgh are discharg'd to purchase lordships out of burgh , least they give dreadure to their neighbours ; by which they are as i conceive , discharg'd to be lords of session , or lord barons , or at least they lose their offices how soon they attain to these . each burgh does to this day compt in exchequer for their feu-dewty yearly , conform to this and other acts. it was thought that a pursuit against the magistrats of edinburgh , for compting for their common good upon this act , was not competent at the instance of a privat burgess , or of any save the lord thesaurer of the kingdom , who comes in place of the chamberlain air , though it was said to be actio popularis , and a species of suspectae tutelae ; but this would have given too great occasion to faction , and would have discourag'd magistracy too much , nor are such popular actions in matters of government to be easily allow'd under monarchy , though they are necessary in privat rights . though this act appoint such as trouble burrows in using their liberties , to be punish'd in justice courts , as common oppressors ▪ yet this is in desuetude , except the oppression ▪ be very attrocious ; but the ordinary remedy is now , either by actions of molestation , or declarator of property before the session , or by actions of ryot before the privy council . colonel borthwick having gotten a gift of this penal statute , pursu'd the malt-men criminally thereupon ; which pursuit was discharg'd by the council . upon a bill , and these statutes found to be in desuetude , and impracticable in this age , wherein malt cannot be sold for two shilling more than the price of the boll of bear , as this act appoints . by our law , all single escheats fall to the king , for bona mobilia sunt allodialia , and hold not of the ordinary superior , who has no right , jure proprio , to the escheats of such as dwell within his territory : and thus lords of regality have only right to such escheats by their erection from the king. but the liferent-escheats which fall either for civil or criminal causes , belong to immediat superiors respective , so that if a vassal who is at the horn , have lands holden of many superiors , each superior will have right to the land which holds of himself ; for feus being given for service , and the vassal being nullus in jure ; by his rebellion the feu returns to the superior , except in the case of treason , in which it falls to the king. observe from this act , that the lords of articles are judges to processes in the first instance , but the debate must be resum'd to the parliament . by this act justice-airs and courts are peremptor at the second diet ; but by the act par. ja. . they are peremptor at the first diet , and parties not appearing now are unlaw'd if pursuers , and are declar'd fugitive if defenders , at the first diet. vid. observ . on act par. ja. . supra . this act relates to another act of parliament , dated the . of july . but there is no parliament amongst our printed laws of that date . though by this act depredations , reiffs and spuilȝies , are ordain'd to be first civily pursu'd ; yet the justices use to sustain criminal pursuits for these causes in the first instance ; except a defence be propon'd upon matter of right , as if the defender alleadg'd he had a disposition , or other right ; and in these cases the justices superceed to give answer to the criminal pursuit , till the civil right and title be first discust ; and this the privy council uses to do in riots pursu'd before them . king james the fifth , parl. . after many alterations observ'd by me in the annot. on act par. ja. . and act par. ja. . at last the session was establish'd in the way it now is by king james the fifth , in this his fifth parliament , and is ordain'd to consist of fourteen lords , seven whereof were to be of the clergy , or spiritual ; and seven temporal with the president , who was to be of the clergy ; but since the abolition of popery , they are all seculars or laicks , though sometimes bishops were extraordinary lords ; and though this act of parliament appoints the half to be spiritual , and the half temporal , with a president ; yet by the a●t par. ja. . it is declar'd it shall be lawful to the king to present any able person , whether he be of the spiritual or temporal state. vid. observ , on act par. ch. . the present lords are ordain'd to have all the priviledges that the lords of session ( for so they were call'd in the reign of king james the second ) had formerly ; and therefore it is alleaged , that since appeals could not be received from them , that they cannot be received from the lords of council and session , as was formerly observed , act par. ja. . the chancellor when present , is to preceed , and because he preceeds , therefore he gives his vote last ; and because it was controverted , whether he was to be president in the parliament , therefore by the act par. ch. . he is declar'd to be president in all courts , and he did preceed by vertue of this act in exchequer , till he was discharg'd by his majesty by a letter in anno . these words , and sicklike other lords as shall please the king's grace to subjoyn to them of his great council , who shall have vote , to the number of , or . are all the warrand that there is for nominating the extraordinary lords of session , who cannot exceed . they are still named by a letter from the king , as the ordinary lords are , but they are not examined like them ; and these extraordinary lords are marked in the books of sederunt after all the ordinary lords . these words , and the lords to subscrive all deliverances , and none other , is all the warrand that was for the lords subscriving all the bills for raising summonds before the criminal court , but i think these general words should be restricted , secundum subjectam materiam , as all general words in law ought to be , for we see that notwithstanding of these general words , the warrands for raising summonds before the privy council are subscrived only by privy counsellors , and now the justices are only in use to subscrive their own bills , though the other lords of session are not excluded from that power . this act is the warrand that the lords have for making acts of sederunt , which were so called , because the lords sitting are marked , sederunt such and such men ; but these acts are to reach no further than the ordering of forms of process , or the regulating their own house , and therefore this act sayes , for advising and making of their rules and institutes for the order of justice ; this same power is almost allow'd by all nations to their supream judicatures , vin. comment . ad § . . inst. lib. . tit . . christin . vol. . decis . . num . . this division of the kingdom , in order to the calling causes , is now in desuetude ; for all causes are now enrolled according to the order of the returns of the process , vid. act. . sess. . par. . ch. . artic. . no session sits now on munday , and so this act is in desuetude ; suspensions are called on tuesday and wednesday , and ordinary actions upon thursday , friday , and saturnday . the friday was allotted for the causes of the king and queen , and the actions of ministers and strangers ; but by the regulations the kings causes may be call'd on any day , the party defender being advertis'd . dayes before , of the particular day on which it is to be called . it has been doubted before this act , whether the queens causes should enjoy the priviledge of the kings causes ; and the priviledge is by this act extended to her , & ita augusti privilegia ad augustam sunt extendenda , l. . ss . de legibus . now the lords sit from . to . and they sit down sometimes before . as occasion requires . nota , by this act parties were allow'd to plead their own cause , and they needed not have advocats , except they pleased , but no other party not contain'd in the summonds can have liberty to speak ; but the lords can now hinder parties to plead , or force them to have advocats , to shun confusion and nonsence . it seems also that though an action be to a mans behove he cannot be allow'd to speak , except his name be in the summonds . the order of tabulating summonds is now much alter'd , for no summonds are tabulated except actions of declarators , improbations , contraventions , and other actions at the king 's advocats instance , upon the back of which summonds he writes , tabuletur erga diem veneris proximè sequentem , and except this be written upon it , the action cannot be debated ; and some think that if the action be called without this , a decreet thereupon pronounced would be null . witnesses are now examin'd by one of the ordinary lords in the afternoon , as here , and that lord who sat last week in the outer-house does the next week examine witnesses . the quorum of the lords by this act is ten , either ordinary or extraordinary , for either make up the quorum ; but now eight lords with the president make a quorum , which alteration proceeds from the . act . par. ja. . nota . by this act that advising of processes cannot be recommended to any particular lord. nota . that by this act publication of witnesses is allow'd , else how is it ordain'd here that publication of witnesses should be before the hail auditor , and advocats were allow'd to see the depositions , and to debate against them , till the year . at which time this was discharg'd , upon pretext that advocats did spend too much time in debating against the depositions , and that witnesses depositions were more to be credited when no man was to see them , or know them , than when the persons interested were to see them , because it was probable they would take pains to please them : but we find great mistakes by not letting advocats see the depositions , since they might clear many things that seem inconsistent , and which depend upon other matters of fact ; and it 's rather presumeable that witnesses knowing that what they say is not to be seen , will take liberty to depone too liberally , the not publication also of the depositions tends much to make judge ▪ arbitrary , since the warrands whereon they proceed is not known ; and publication of testimonies i● a kind of confronting witnesses with the parties , which is oft-times very useful , and this publication is for these reasons allow'd by the civil law , and in most nations , vid. marant . de processus publicatione , and in england in all cases , and is even with us allow'd in some cases yet , as in falshood ▪ clerks to the signet are now called writers to the signet , but their fees specified by the next act are innovated by the regulations ; at first there was but one clerk of session , who was called the clerk of council , as is clear by the . act of this parliament , and he was chosen per vices , out of the writers to the signet ; but all the writers to the signet , or clerks of the signet , were at first admitted to be present at the decision of causes , whereof this act is a vestige ; thereafter there were two clerks of the session , and at last three , but lest their number should increase , by an unprinted act of parliament , it was declar'd that they could not be moe than three , notwithstanding whereof , in anno . the register appointed six , whereupon the king by his letter in anno . reduced them again to three , and now again there are six clerks , as before the year . it is appointed by this act , that deliverance upon bills presented to the session be only written by a writer to the council ( that it to say , a clerk of session ) and not by a writer to the signet . by the last words of this act it appears that an advocat may be ●●mpelled to plead for any man , except he can alledge that he 〈…〉 employed for the other party , or the like , &c. which is 〈…〉 the civil law , l. . c. de postulando . 〈…〉 present practice advocats and all remove at the advising 〈◊〉 the cause , though in england and france causes are openly advised , which discourages very much all arbitrariness . that advocats should propone all their dilators together the second time , is still ordered , but never observed ; for where the dilators are of importance , or intricat , the lords will allow them to be proponed separatly . by this act such as misrepresent the lords , or accuse them unjustly , either by a formal process , or to the king , , are to be punish'd arbitrarly by way of action , for they are here appointed to be called before the king , but such as dishonour or lightlie them , are to be punished by the lords themselves ; and the lords are in use to send such as contemn them or their orders to the castle , or tolbooth , or to ordain them to crave pardon upon their knees , &c. suitable to the offence . the lords are to this day free of taxations , conform to this act ; but of late if there be no exception of them in the acts imposing taxations , they are in use to get a letter from the king , declaring them free , though this may seem needless , because of . act par. . ch. . and the . act par. . ch. . though the precedency due to the wives of lords of the session , or advocats , be continued with them after their husbands death , which we derive from the civil law , l , faemina . ff . de senatoribus , yet immunity from taxes is not extended to their wives , stockman . decis . . king james the fifth , parliament . though regularly crimes die with the committers , and cannot be punish'd after their death , yet by this act it is ordain'd that treason may be pursu'd after the committers death , which holds only in treason committed against the kings person and common-wealth , that is to say , in perduellion , where there is a design against the kingdom , such as raising war , bringing in forreiners , &c. but holds not in simple treason , or laese majestie , such as are the keeping out of a castle , or in offering to detain the king's person prisoner upon any private account , for the words against the king's person , or common-weal are copulative ; neither does this act hold in statutory treason , which are meerly treasons by vertue of a statute , such as stealing in landed men , or murder under trust , &c. in all cases where treason is to be pursued after the death of the committer , it is necessary to call the appearand heir , because his right as appear and heir , is to be forefaulted by the sentence ; but though it is ordinarly believ'd that the bones of the committer must be raised and brought to the bar ; yet this is not necessary . nota , that the common or civil law is a sufficient warrand to sustain actions in this kingdom , because of its great equity , except where the same is over-ruled by a contrary law or custom . the civil law to which this act relates , is l. ult , ff . ad l. jul. maj . extinguitur crimen mortalitate nisi sorte quis majestatis reus suerit . it has been much doubted amongst lawyers how far the delict or crime of the predecessor should infer action against their heirs , which may be resolv'd in these conclusions . . that all corporal punishment expires with the committer , nam noxa caput sequitur , instit . lib. . tit de nox , act. . per tot . & § . . . as to any civil conclusion , & quoad interesse pecuniarium ; the civil law did only sustain restitution against the heir in two cases , viz. if either litis-contestation had past in the defuncts own time , or if the heir had got advantage by the crime or delict of his predecessor , as if for instance , the stollen goods , or the money conceal'd by his predecessor had remain'd with him , § . non autem omnes . instit. de perpet . & temporal . action . . by the canon law the heir was lyable to refound the damnage done by the predecessor , though there was neither litis contestation past in his time , nor did any advantage remain with his heir , cap : ult . ext . de sepult . cap. in literis ext . de rapt . and though the opinion of the canonists seem to the lawyers of this age more equitable , they thinking litis-contestation but a subtilty , yet i conceive that there was very much reason for the civil law to require litis-contestation , since if the defunct himself had been pursu'd he might have alleadg'd many things which might have defended him that were unknown to the heir ; as for instance , he might have alleadg'd that the sheep alledg'd to be stollen were intrometted with by the owners warrand , and might have cited witnesses who were present , which the heir could not know , and yet our practice follows the canon law , as more conscionable . i find that in the . council at constantinople , it was after debate found that origin and theodorus might be anathematiz'd after their death , though vigilius then pope of rome maintain'd , neminem post mortem condemnandum , and this occasion'd a great schism . there is interpos'd betwixt this and the next act a distinct act in the black impression , whereby the king and parliament ordain several acts past in the last parliament to be now pronounc'd and authoriz'd by his grace and the three estates , which has been left out , because the way of authorizing acts now , is only by his majesties touching them with the scepter , and if they be voted in a former session , they may be touch'd without any new vote or act ; but if they were past in a former parliament , they must have a vote , else they cannot be call'd the acts of the present parliament . the king here revock'd when he was in france , and his revocation is subscribed by a notar , which was at that time sufficient , but his supplying the solemnities by his kingly power , was unnecessary , for the king cannot supply the want of solemnities , either in his own or other mens acts or deeds , there is little in this revocation different from what was in former revocations , save that , o. the king revocks all tacks and assedations made for longer space than five years ; which article is also repeated in the act par. ja. . and the reason of it is , because there is too great a restraint laid upon the king , by these long tacks , hindering him thereby to improve his property , or casualty ; for which reason likewise , long tacks set by tutors , are not allow'd , and though this may seem only to extend to tacks sett by kings in their minority ; yet by the same reason , and upon the same act , a tack of the customs set by the king in his majority , to fleming and peebles , was reduced before the exchequer , november . . because the tack was sett for seven years . o. the king here revocks all rights made by him , by evil or false suggestion , or by expreeming of a false cause , though ordinarly false narratives do not reduce deeds betwixt majors ; this lawyers terms ex suppressione veri & expressione falsi ; and this article of revocation , agrees with the civil law , vid. tit . c. de precib . offerend . & tit . c. si contra jus vel utilit . public . his majesty here revocks all tacks and assedations made in his minority for longer space than five years , which is likwise a clause repeated in all the posterior revocations , and though it may seem , that no deed done by a minor in his minority , is revockable , except lesion could be alleadg'd ; yet craig is of opinion , that the very setting of a tack is a lesion , though it be not set under the true value , minorem enim laedi puto quod rei suae liberâ administratione prohibentur lib. . dieg , . the three head-courts to be held by sheriffs , &c. conform to this act , are as follows ; the first is upon the first tuesday after the fourteenth of january , which is the first tuesday after the twelfth day of yule : the second court is upon the first tuesday after law-sunday : the third is upon the first tuesday after the twenty ninth of september , which is michaelmas day ; but now they need not writ any excuse to the king , or council , if they be not personally present . this act makes a difference betwixt such as owe sute and presence , and these who owe sute only ; all such barons and free-holders as owe sute and presence , ought to be present in these head courts ; but this act determines not who owe sute and presence : and though the cap. stat. rob . statutes that none owe sute and presence , but these who are expresly lyable thereto by the●r infeftments ; yet by our present practice , vassals of ward lands , and consequently of taxt ward lands , are also lyable to compear in the superiours head courts , without any citation , though they be not c●ted ; and though this be not exprest in their infeftment , for hoc mest , in the nature of their holding , but vass●ls who hold ble●sh or ●eu , are not oblig'd to compear without citation , except they be thereto ty'd by their infeftment , march . . bishop of aberdeen contra his vassals . and by this act also , the infeftment is made the rule of compearance ; these who owe sute only , are only oblig'd to send an able man to attend , and serve upon inquests ; and ordinarly charters bear tres sectas curiae . this act appointing sheriff-deputs , and all other deputs to be sworn yearly is in desuetude . this act appointing all executions even of letters , by warrand of inferiour courts to be stamped , was running in desuetude , till it was revived by a decision in january . where an execution proceeding upon a warrand before an inferiour court , was found not sufficient , because not stamped , and horning and other executions before the lords were always null by way of action , if not stamped , july . . this act appoints that all mayors and officers shall have a signet , bearing the first letters of their name , or some other mark that shall be universally known : and therefore , though the executions bear that they were stamped , yet if they do not appear to be stamped , the executions may be quarrell'd as null , especially if they be recent , even as testaments were null by the civil law , if they did not appear to have formam insculptamque signi imaginem , l. . § . . qui testament . fac . but on the contrary , if the executions bear not that they were stamped , they will not be valid , though they appear to be stamped , because another than the messenger might have affix'd that stamp , vid. observ . on act par. ja. . albeit this act appoints all such as execute sheriffs or barons precepts , &c. to leave copies ; yet it has been found , that the execution of a barons verbal precept needs no writ , but m●y be prov'd by witnesses , but this was betwixt a baron and his tennents , where there needed no written precepts ; whereas this act requiring written executions , is only to be interpreted , ' where there are written precepts , because it says they shall indorse their executions ; and there can be no indorsation , where there is no written precept . it is requir'd by this act , that the executor should show the letters , which are his warrand , and that he should offer a copy to the servants , and yet both these are in desuetude . this act requires six knocks , and the affixing of a copy upon the most patent door of the defenders dwelling house , which the lords found was only in the case where there could be no entry , but found that there was no necessity of knocking when the door 〈◊〉 patent , and servants found therein , december . . counte● 〈◊〉 cassils contra the earl of roxburgh ; but it may be doubted still , whether six knocks be necessary where the door is patent , but no servants within , and the act says only , that if they get no entress , they shall knock ; though a man may be cited in an ordinary action , by a copy left at the inn where he stayed fourty days ; yet a man cannot be denunc'd upon a copy left at his inn , which is so determined in odium of his escheat , november . . it has been doubted , whether a messengers execution , bearing that he came to the defenders house , and was by force keeped out , so that he could not give a personal citation ; if in that case the defender should be holden pro confesso , as personally apprehended , it being offered to be proven that he was really within , and some of the lords were of opinion , that he should be holden as confest , the messenger proving that he was within ; or if the execution had born that he and the witnesses had given a particular evidence of their knowledge of his being within . othe●s thought that he should be holden as confest , unless he could instruct that he was alibi , in regard of the contumacy . but most resolv'd , that holding as confest , being a solemn and important certification , peculiar to scotland that the assertion of the messenger and his execution , should not be sufficient , nor put the defender to alleadge alibi , but that warrand should be granted to cite at the mercat cross , with certification to be holden as confest , july . . lindsay and swinton contra inglis . this order of citing , first p●rsonally , and failȝing thereof , at the dwelling-house , was allow'd by the civil law , l. . § . . ff . de lib. adgno . and all the●e practical questions are much cleared by christ. ad leges mechlin . lib. primo , tit . . articulo . in fine , where it will be found that the being holden pro confesso , is not a certification peculiar to our nation , for other places use it , as brabant . this act appointing all notars to be examined by the sheriff , and that the sheriff keep a book containing their subscriptions , is in desuetude . this act appointing all seasins upon precepts out of the chancellary , to be given by sheriff clerks and their deputs , is declared by the act par. ja. . to extend only to precepts past upon retours , and not to seasins past upon other precepts ; and it is very observable , that though that last act narrats that this act appoints such seasins to be taken by sheriffs and their clerks , yet there is no mention here of sheriffs , but only of sheriff clerks , and yet the lords of session do now find seasines null , ope exceptionis , except they be given both by sheriffs as baillies , and sheriff clerks as notars . the reason why seasins upon retours must be given by the sheriffs is , because he is to answer for the retour'd dewty , for which he ordinarly takes surety when he gives seasines , and at the delivery of the precept , there is a note made by the director of the chancellary in the responde book , bearing the sums for which the sheriff is to take surety , and he is to be charg'd , and compts therefore yearly in exchequer by the act par. ja. . and act par. and act par. ja. . this act is in desuetude since the registers were introduced in anno . falsifying the kings charter , or the counterfeiting of it , was of old treason , but the falsifying the charter of a privat person was only to be punish'd by mutilation , r. m. lib. . cap. . and thereafter , by the losse of the right hand , statut. alex. cap. . by this act all falshood is punishable conform to the old statutes , which are these i related , and conform to the civil , and canon laws , and that was deportatio cum publicatione bonorum , l. . § . ult . ff . ad l. cornel. de falsis , but because this act relates only to false instruments , therefore by the act par. . q. m. it is extended to all evidents , but because both these acts struck only against false notars ; therefore by the act par. . ja. . all forgers of any writs , and all who are in accession thereto , are to be punish'd , and death is the ordinary punishment with us , though sometimes , if the matter be small , the punishment is lessened . as to false witnesses , vid. tract . crim. tit . falshood . by this act there must be still instruments taken in the hands of the clerk of court , if any be taken at all ; but if the party be jealous of the clerk of court , he may take another notar with him , and take also instruments in his hands , after the form and manner prescribed by this act. notwithstanding that by this act no commission can be granted to apprize lands , or serve brieves to any but to the sheriff if heretable , yet it is ordinary now for the lords to grant commissions to their macers , in both these cases , who are thereby made sheriffs in that part , and this act of parliament being objected against struans service , feb. . it was found to be in desuetude . leasing-making betwixt the king and his people , is punish'd by tinsel , or loss of life and goods , by the act par. ja. . and by this act it is ordain'd , that such as make leasings of his majesty to his barons and great men , shall be punished in the same way as they who make leasings to his majesty of his barons and lieges , and though there seem'd a clear parity of reason for this , before the act , and that eadem est natura & idem est affectus correlativorum ; yet our predecessors would not extend crimes by consequence , and by the act par. ja. . the hearing and not revealing , and apprehending such leasing-makers , is punish'd as leasing-making . by this act there is an indemnity granted under the name of a general remission ; but though in general remissions and indemnities there needs no extract be taken of the general pardon , yet here every man is to take an extract of the pardon . nota , that though such as keep correspondence with rebels after their guilt , be punishable as traitors , yet here such only as kept intelligence with the dowglasses , and with kilspindie their ●am , which is an old word signifying cousine , after the doom of forfaultor against them , are declared punishable , and this seems just where the crimes were not clearly understood by the people to be such . king james the fifth parliament . by this act there ought to be a constant vice-president in the session , but this is in desuetude ; for vice-presidents are chosen by the lords in absence of the president , and thus the lord stairs was chosen vice-president in sir john gilmor's absence , . likeas , though by this act the eldest lord is to be president in absence of the vice-president , yet now in absence of the president the vote of the lords elects him who is to preside in his place . it is also observable that our kings have been so jealous of suffering any act of the pope to have authority , without being ratified by them as kings , that the popes ratification of the colledge of justice being thought convenient , because of the assignation of some ecclesiastick benefices , for its better support , the king does in this act ratifie and confirm the popes ratification of the king 's first act. sheriffs , stewards , &c. compear yet yearly in exchequer , and make their aeque , and the time of their compearance is in july , vid. supra obs . on act . par. . ja. . bribing is expresly discharged by the cap , stat. k. will. and by the cap stat . rob. . they who take lands to champart , are to be in the kings will , and lose their employment for all their life-time . champart is a ●rench word , signifying a part of the land controverted , so that whosoever takes part of the thing controverted , per pactum de quotâ litis , falls under that law. by this act whoever takes rewards or buds are punishable by tinsel of honour , fame , and dignity ; and by the act , par. ja. . the taking by their wives and servants , which was here omitted , is punishable by infamy , deprivation , and confiscation of all the defenders moveables . by this act , giving of partial counsel , that is to say , consulting , is declared a species of bribing , though nothing be taken , at least it is punishable as bribing , so that it seems a judge may not consult albeit he abstain from judging in that cause . these words , that he shall take no further rewards nor buds than is permitted of the law , are set down to shew that judges may lawfully take the quota allowed by law to judges , which we call sentence-money , and the civil law sportulae . the taking bribes was in the civil law punish'd per l. jul. repetundarum , l. , , . d. t. and the punishment was death , if money was taken to pronounce a capital sentence , or confiscation of goods , and banishment in other cases , l. . § . . eod . tit . but by the doctors , and in our law , this crime is called barratrie . such as defame judges as bribers , are punished here as bribers ; but besides the poena talionis which is inflicted upon all such as murmure against judges ; there is likewise an arbitrary punishment adjected , and either the king or his council are judges competent to the cognition of this crime by this act. nota , that if a spiritual man murmure against any judge , he has the priviledge to be called before his own judge ordinar by this act ; but this revocatio sori is not now in use since the reformation . base infeftments are these which are given to be holden of the disponer , which are valid rights in themselves , though they never attain possession , for else they could not give good interest to reduce the rights that may hinder them to attain possession . these base infeftments are introduced with us contrary to the principles of the feudal law , which allows no feudal conveyance without the superiors consent , and were introduc'd rather by accident than upon design . this act upon which they are founded being introduc'd rather to suppress simulate infeftments , than to strengthen base infeftments , and the great priviledges arising to them now , did insensibly grow from the favour which our law shewed alwayes to lawful creditors , even as the priviledge of necessitating superiors to receive comprizers did . base infeftments , though yet wanting possession , are preferable to posterior arrestments , but they are not preferred to posterior life-rent escheats , except they attained possession in cursu rebellionis , feb , . . miln contra clerkson ; and before this act of parliament , . they were still preferr'd to posterior publick infeftments : but by this act it is statuted that publick infeftments cloathed with possession for year and day shall be preferr'd to base infeftments not cloathed with possession , though prior , which praesumptione juris & de jure , are by this declared to be simulate rights . but though this act requires that the publick posterior infeftment be granted for onerous causes , yet a publick posterior infeftment , though gratuitous , will be preferr'd , march , . law con . balgownie . but this may be doubted because of this act , and in that decision the publick infeftment was preferr'd , because inhibition had follow'd thereupon , for any act that can take off the presumption of simulation , and which will make the infeftment any way to be known , doth fortifie the infeftment , as well as if possession had follow'd ; and so an inhibition following upon the debt for which the base infeftment was granted , will prefer that infeftment to a posterior publick infeftment , without necessity to reduce ex capite inhibitionis , and an infeftment following upon an appryzing was without reduction ex capite inhibitionis , preferr'd to a prior base infeftment , though clad with possession , because the appryzing follow'd upon a debt whereupon inhibition was serv'd before that base infeftment , the said of march , . and likewise , if other diligence was done , or the time was so short that a years possession could not be attain'd , then a terms possession was sustain'd ; or though there followed no possession at all , the base infeftment will be preferr'd to a posterior publick infeftment interveening , before the possession could be acquir'd , feb. . possession likewise of a part of the land sustains the infeftment for all , but this should hold only in lands erected in a barony , or such wherein one seasing may serve , feb. . ker contra ker. hope in his lesser practiques is of opinion , that in the concourse of two base infeftments , the prior will be preferr'd in petitorio , though no possession follow'd thereupon , which seems to be reasonable , because before this act of parliament , jus illud obtinebat , and by this act , nihil quoad hoc est innovatum ; yet de practicâ a base infeftment is as null till it be cloathed with possession , as an infeftment à me is before it be confirmed . if neither of the two base infeftments be cloathed with possession prior in tempore est prior in jure . the husbands possession was alledg'd to be the wifes possession as to her principal , but not quoad her additional joynture , decemb. . lady craig contra lord loure ; and in our law the husbands possession is accounted the wifes possession whether the husband possest by himself , or by wod-setters , or comprizers deriving right from him , though it was alledg'd that this was not the husbands possession , they having possest proprio jure , which priviledge is not only introduc'd ob savorem detis , but because she could not possess , for which reason likewise a base infeftment for relief is preferr'd to a posterior publick infeftment upon a comprizing , albeit the cautioner was only charged to make payment , which was found a sufficient distress , july , . as also , after a solemn dispute , the lords did prefer a prior base infeftment for warrandice , though not cloathed with natural possession to a posterior publick infeftment , january , . brown contra scot. but here the infeftment of warrandice was given simul & semel with the infeftment of the principal lands , so that there remains still a doubt as to infeftments of warrandice given ex intervallo , but infeftments for relief were not found sufficiently cloath'd with possession , by payment of the sums for which they were granted as infeftments of warrandice are by possession of the principal lands , because it was alledg'd that it was more natural that the possession of one land should cloath the infeftment of another , than that possession of annualrents should cloath an infeftment of land , and that there might be greater collusion in payment of sums , than in possessing of lands , because creditors might alter their sums , and take new assignations , or retire old rights , whereas no man could quite his principal lands , june , . cramond contra the tennents of east-barns . but a fathers possession as life-renter was not sufficient to prefer a base infeftment given to the son to a posterior publick infeftment granted to a second wife , or to any creditor the like in a base infeftment granted by a good-sir to his oye by the daughter , which was not found sufficient , being cloathed with the foresaid civil possession of the good-sirs reservation of life-rent to exclude a posterior publick infeftment , of july , . and this possession by the husband , or father , or disponer , is called possessio per constitutum , and is not favourable in a competition with other creditors , and therefore a factory granted by the father to the son to uplift the mails and duties of lands dispon'd , to be holden base by the son of the father , was not found sufficient to cloath the sons infeftment , though there were several processes intented upon the factory , july , . this act requires natural possession , by labouring the land , or civil , by uplifting the mails and duties ; and before registers were invented , that kind of possession was only able to put their creditors in mala fide , but though civil possession hath been found sufficient , such as obtaining of decreets , and payment of annualrents , albeit the same had no relation to the infeftment of annualrent , but was only relative to the bond whereupon the infeftment followed ; yet the setting of a back-tack by the accepter of a wodset , hath not been found sufficient to maintain a base infeftment , except payment of the back-tack-duty had likewise followed , so that it appears that possessio naturalis vel civilis sufficit sed non illa quae a doctoribus dicitur civilissima , as is a back-tack . by this act also , such as make double dispositions to defraud their creditors , shall be declared infamous , and shall be punished in their persons and goods at the kings pleasure , and this punishment is extended against such as make double assignations , and the act par. ja. . bears , that no dewty shall be dispon'd to two sundry persons , which is crimen stellionatus by the law , and though this act does not make double dispositions to be crimen stellionatus , yet it is so in effect ; but the civil law distinguisheth thus , l. quin. duobus ff . ad l. corn. de falso qui rem unant duobus vendidit dicens rem esse suam tenetur falsi , at si non dicat esse suam tenetur stellionatus . though by this act superiours receiving double resignations are guilty and punishable as said is , and seing to receive such resignations , is a great prejudice , because it puts the parties to great expences , and that the superior is presum'd to get , and may get advantage by accepting such double resignations , or contributing to the making of such double rights , therefore they ought likewise to be lyable in damnage and interest to the party injured . by this act it is statuted , that a charge to enter heir , may be directed against the successors of the defuncts ( they being of perfect age ) to enter to their lands , within fourty days , year and day being first past , after the decease of the predecessor , and a comprizing being led upon their failȝing to enter , the same shall be as valid as if they were infeft . nota , though this act bears the being of perfect age , yet minors may be validly charged to enter heir de practica ; but seing this act is only made against such as may enter , but wilfully ly out : it might have been doubted whether minors in ward-lands may be charged to enter heir , for these cannot enter till they be twenty one years compleat ; but by our constant practique they may be charged , since this is necessary for compleating the creditors diligence . nota , that this act does not appoint that generally such execution should pass against the appearand heir , as if he were entred , but only that his land may be apprized ; and therefore quaeritur what execution may be gotten against his moveable heirship , and it may be urg'd that the same may be affected , as the defuncts other moveables ; for though they be heirship , respectu haeredis , yet they are but moveables respectu creditoris , for they become only heirship after they are drawn ; and yet it hath been found , that the moveable-heirship may be adjudg'd , and by that decision it would appear , that they can only be affected by apprising ; but there is a warrand wanting in this act for apprising them ; there is an act of sederunt anno . allowing charges to enter heir , to be rais'd within the year and day , but the summons thereupon must be execute after the year and day expire , but not till the fourty days expire after the execution of the charge ; but this annus deliberandi , being introduced in favours of the appearand heir , he may omit the same , and renunce within the year if he pleaseth ; neither can an adjudication following within the year be challeng'd ex eo capite , july . . albeit that the said act appoints , that a charge to enter heir may be rais'd after year and day expire , after the defuncts death ; yet the year and day must only be computed from the appearand heirs birth , if he was posthume spots . tit . heirs , livingstoun contra houlerton , & de jure civili posthumus non habetur pro nato cum de incommodo ejus agitur l. etiam § . ille , ff . de minor . though the meaning of this act seems to be , that where tradesmen , who are free-men , either desert their work , or delays the same , the owner of the work may choose other free-men , or complain to the deacon ; yet it was found in july . by the council in the case of borlands against the masons of edinburgh , that where a free man either deserted or delay'd , the owner of the work might imploy any , even unfree-men ; though it was alleadg'd , it was not just to punish all the free-men for the fault of one ; nor was it convenient for the common-wealth , that unfree-men should be admitted , for whose work none can be answerable . this act is verbatim , formerly set down , act par. . ja. . by the civil law , testaments and all writs of importance were to be seal'd ; and with us the appending of the seal without the subscription of the party was sufficient , r. m. lib. . cap. . num . , & . and papers were then tri'd by comparison of seals , as now by comparison of subscriptions ; but by this act the subscription of the party and witnesses is likewise to be added with the seal , and thereafter , k. ja. par. . act . all papers of importance are to be both seal'd and subscrived ; but now they need only be subscrived without being seal'd ; and though by this act , the subscription of the notar is sufficient ; yet by that act two notars and four witnesses are requisit , where the party cannot write . by the act par. . ja. . writs that are to be registrated , need not be sealed , but there is no express law dispensing with sealing , as to other papers which need no registration , so that the not sealing is in these warranted only by uncontroverted custom . fire-rising , and ravishing of women are to be put under surety , as mutilation and slaughter , by this act ; from which , some concluded that mutilation was punishable as these crimes were ; but the act appoint not the punishment to be the same , but the way of finding caution to be the same , and by the old law , stat. rob. cap. . mutilation is to be proceeded against as murder ; but yet licet redimere vitam , and it is not declar'd there punishable by death , and in all the journal books , no man was ever punish'd with death for mutilation ; the punishment being ordinarly confiscation of moveables , and assythment to the party ; nor see i any warrand for confiscation of moveables , since the crime is not punishable by death , nor any express statute to warrand confiscation ; i find that mutilation is infer'd upon the cutting of a thumb or finger , though digitus was alleadg'd not to be membrum ; but pars membri , june . . and it was formerly found , july . . ch●in contra mowat ; but though this may infer mutilation ; yet i conceive it would not infer dis-membration , vid. observ . on act par. ja. . by this act all the lieges may sell fleshes on sunday , munday , and thursday , but thereafter all mercats being discharg'd on holy-days , there is an act of town council , ordaining these landward fleshers to bring in their fleshes only on tuesday , thursday and saturnday , and not to sell in pieces , but in quarters , which is confirm'd by a decreet of the session , july . . and ratifi'd in the parliament , . from this act it is clear that the acts of parliament cannot be re-printed without the kings special approbation even though the lord register consent ; for else why needed the register get a warrand by this act , and the custom alwise is , that the register gets a special warrand for that effect , and the council the of november . found that the kings printer having re-printed the acts of parliament without such a special warrand , the copies were confiscable and should be burnt , and the reason of this is , because of the great danger that may arise from the wrong printing of acts of parliament , the difference of a word altering the sense to a contrariety ; but yet it seems the register should have liberty to re-print them , since he is answerable for all the errors ; and therefore we see that the register used still to subjoin his subscription to the acts he re-prints , as is to be seen at the end of the par. ja. . where sir john skeen's ordinary subscription is set down at the end of the acts which he reprinted ; and sir john hay's at the end of the first parliament , ch. . q. mary . parliament iii. all the acts of this parliament except the first , are temporary , for encouraging of such as were to hazard their lives in that army , and are renewed fully by three equipollent acts , viz. acts , , , par. ja. . by this act church-men are to have right to the fruits on the ground the year they die , and to the annat thereafter ; and from this it is to be observ'd , that the annat was a casualty that befel by and attour the fruits that were on the ground , which belonged to the church-men jure proprio ; and formerly the church-men had right to all the fruits of the year , if he surviv'd the first of january ; for in beneficiis annus inceptus habetur pro completo ; but if he survived michaelmas , he had right to that whole year , jure proprio , and the half of the subsequent year , jure annatae ; but now by the act sess. par. ch. . if the incumbents survive whitsunday , they have right to the preceeding half year by their own right , and to the next half year by their ann ; but if they survive michaelmas , they have right to the whole year ( viz. from january to january ) by their own right , and to the half of the other year as ann ; and though it may seem incongruous , that a minister living till the last day before michaelmas , gets no more than he who lives till the day after whitsunday ; yet this is regulated in this case , as it is in all liferents , and this is allow'd them for the support of their poor families , for that act declares that the same shall belong to their executors , without necessity of a confirmation ; and though this act declares , that the ann is to belong to their executors , yet in effect that is not well exprest , for it belongs to their nearest of kin and wife , though they be not nominated , nor confirmed executors . if there be bairns the ann is equally divided betwixt them and the wife ; but if there be no bairns , it is divided equally betwixt the wife and nearest of kin , she having right in that case to a half , and not to the whole , because the ann was of old introduc'd in favours of the nearest of kin , as appears by this act , for church-men had no wives under popery , when this ann was introduced , june . . elizabeth scremgeor con . the executors of her husband . though this ann falls to bishops and ministers , who die incumbents , yet it belongs not to such as renunce voluntarly their benefices , as was found in bishop lightoun's case ; and neither manse nor gleib fall under the ann , for the last incumbents executors have no right to the gleib , except the same was sown before his decease , july . . colvil contra the lord balmerino . the reason why michaelmas , and not martinmas is made the term in this case is , because ministers stipends are payable out of the teinds , or by somewhat which is come in place of them ; and therefore michaelmas should have been the ordinary term , and generally in payment of all stipends , the terms of whitsunday , because the sowing is then ended , and michaelmas , because the corns are then separated from the ground , are the legal terms for payment of stipends . the foresaid act allows an ann to bishops , though the act of the general assembly , and the kings letter in anno ( by which anns were first establish'd as they now are ) did not mention them , and under the bishops ann falls only the quots of such testaments as were actually confirm'd in his lifetime , or during his ann , july . . captain wisheart contra the bishop of edinburgh : by the canon law , the annat was a quota payable to the pope and colledge of cardinals , by every intrant , out of his benefice , vid. tush . concl . . but a casualty like ours is payable in the protestant churches of germany , vide carpzov . jus consistoriale tit . de decimis . it may be doubted whether that maxim annus inceptus habetur pro completo , does yet hold good in other beneficiary cases ; for though it be altered by act of parliament , quoad annats ; yet where there is no act of parliament , why should not the old rule hold . but i rather think that the act extends to all benefic'd persons , albeit the rubrick mentions only bishops and ministers , and so there are two errors in the rubrick of the said act , one , in that it mentions only bishops and ministers ; another , in that it mentions only their executors , and not their relict , or nearest of kin ; and the rubrick should have born , act regulating the ann of benefic'd persons , which shews also how weak the argument is , a rubro ad nigrum . the ancient bishops allow'd sometimes the uplifting of the first years rents of benefices , for assisting christian princes against infidels , but the popes thereafter reserv'd them to the use of the roman see , upon pretext to supply the general necessities of the church . pope john . extravag . suscepti . de elect . was in this follow'd by boniface the . who stated them in an ordinary revenue , till the council of basil oppos'd the same ; and still many learn'd doctors of the romish church it self condemn'd them as simoniacal , whereupon the french kings did by concordats , force the pope to pass from the same in france . they were call'd annats , anns , or annals , because they were fructus primi anni ; and it seems with us , they were not at the popes disposal absolutely , else this act of parliament could not have dispos'd upon them . but it seems our kings have in parliament assum'd to themselves , what others settled by concordats with the popes , as may appear in all the regalia throughout the whole old acts of parliament . the whole doctrine of annats is excellently treated by antonius nassa de materia annatarum . but i conceive our ann which is a half years stipend , comes from the saxon reform'd church , wherein ultra salarium quod defunctus aecclesiae minister promeruit ex singulari beneficio viduae ac liberis dimidius gratiae annus assignetur carpzov . jurisp. consistor . lib. . tit . . it was introduc'd there in anno . a little before king james introduc'd it here by the letter to the general-assembly in montrose . by this act , such as did dy in that army were to have their ward , non-entress , relief and marriage freely from the queen . it is observable , that though usually such acts are made when our armies are in procinctu going to battel ; and though the king nor his exchequer seek no advantage by casualties in such cases , yet regularly it is no defence in law against a ward or marriage , that he by whose death they were sought , were killed in the kings service . though where there is a governour , the style of acts of parliament made by him , is , the governour with the advice of the three estates ; yet this act says , by the consent of the governour , and the consent of the noblemen , both spiritual and temporal ; by which words also it is clear , that the lords of the clergy are to be accounted as noblemen , and so are to find caution under the same pains as noblemen , and to pay publick burdens as noblemen , &c. queen mary , parliament . by this act , these who are excommunicated , and continues so for a year , for any cause , lose their moveables , creditors being first paid ; and by the act par. ja. . they are to lose their liferent-escheats , if they be excommunicated for religion , vid. supra . observ . on act par. ja. . vid. my criminal tract . tit . treason . this act inflicting the pain of death , and confiscation of moveables , upon such as shoot at deer wild-fowl , or wild-beasts , is deservedly in desuetude . vid. infra observ . on act par. q. mary . this act and the instructions subsequent to it , were but temporary remedies , for repairing lands burnt at that time by the english invasion ; but though only parliaments can regularly invert property , yet the privy council do force heretors to sell burnt tenements , if they will not repair them themselves , to the end other heretors , and the publick advantage of the burgh may not be prejudg'd ; and this the council did in anno . when all the houses near the parliament closs were burnt , and this is conform to a power granted by the act sess. par. ch. . by which it is appointed that the provost and baillies may charge all persons who have the property of such ruinous lands , to repair them within year and day , and if they refuse , the magistrats may value and sell , vid. observations on the act par. . ja. . queen mary , parl. . this act as to the prices of wine is in desuetude , but not in so far as concerns the mixing of wines , which by the opinion of the civilians is a species of falshood , and is punishable as such , carpz . de falso . this act against abominable oaths is enlarg'd , act . par. . ja. . vide my crim. observ . tit. blasphemy , § . . this act against perturbers of the kirk is enlarg'd , act . par. . ja. . for that act reaches all tumults in kirk-yards , and the punishment in that act extends to confiscation of all the offenders moveables . it is observable from this act , that children are only to be scourged for such crimes , minority lessening the punishment , and all within years are accounted children . vid. crim. obs . tit. bigamie . vid. crim. obs . tit. adultery , vid. crim. tit. falshood . notars are still according to this act examined and admitted by the lords , but are not presented by the sheriffs ; for now they are presented by the clerk to the notars , who gives in a bill for them to the lords . by this act the instruments of such as exerce the office of notar , not being lawfully admitted , are null , but yet if the pretended notar was habite and repute a notar , his instruments will be sustained . such as usurp the office of notars are punishable by this act as falsaries or forgers , yet i never observ'd that for this crime death was inflicted upon them . nota , it is observable from this and many other acts , that the acts are call'd the kings laws , and not laws made by the parliament , and the act related to , made by king james the . but not condescended upon here , is the act par. . ja. . it is observable from this act , that the secret council used by their own authority to make sumptuary laws , both as to meat and cloathing ; and by the act of council here related to , the contemners of the said act of council are to be punished in their persons and goods at the lord governours will ; and yet one of the accusations against the earl of middleton was , that the lord lorn being found guilty of treason , the time of the execution was referr'd to him , as being then the king's commissioner , which it became no subject to accept . printing is inter regalia , and so the king may discharge any man to print without his licence , vide fritch . de typographiae abusu , where he makes the regulation of the press to depend upon every magistrat by the law of nations , and printing may do as much mischief to the government as arms , and so the magistrate should have the command of the one as well as of the other , though i know it is most unjustly pretended by some republicans , that printing being a trade , no man can be debarr'd from the free use of it , except by parliament , in which their own consent is imply'd : we see also that the king allows his own printer only to print bibles , and other school books , &c. vide act par. ja. . against the sellers of erroneous books . queen mary , parliament . it is observable that this revocation of q. m. was under the privy seal , whereas other revocations are only under the king's hand , it differs in nothing else from the other revocations . in the first part of this act , reversions which were formerly , as all other writs sufficient , if sealed by the granters seal , are declared null , if they be not sealed and subscrived , and though it is here declared that if the party cannot subscrive , a notar may subscrive for him ; yet by the act par. ja. . it is requisite that there be two notars and four witnesses , in matters of importance , or heretage , where the party cannot write . by the second part it is declared that all reversions are null if they be not registrated , except reversions of land within burgh , which need no registration , and this is again enacted , act . par. . ja. . by this act reversions taken by way of instrument in the hands of the notar that gave the seasine , are as valid as reversions subscrived by the party himself , and registrat ; for according to the law then standing , reversions were sufficient , if subscrived by one notar , though the party did not subscrive , and instruments taken in the hand of the notar that gave the seasine were as sufficient as a reversion under a notars hand ; but since that act all reversions both without and within burgh should be signed by the party himself , or by two notars , and no reversion within burgh needs to be registrated , feb. . irwine contra corsen , which being found inconvenient , was thereafter first corrected by an act of sederunt , feb. . and now by the act , par ch. . by which they are ordain'd to be registrated in the town clerks books within dayes after the date thereof , except they be incorporated in the body of rights . though this act runs only against committers of slaughter , yet it holds in all criminal causes . if any man be out of the countrey , he must be cited upon days , but if he was in the countrey the time of the first citation , it is sufficient by this act that he be cited upon days ; and though this act says , that if he was eight days cited before his departure , he may be cited upon days to the second dyet ; yet it holds if he was in the countrey at the first citation , though he went immediatly out of the same . vid. crim. obs . tit. . of libels , part . vid. notes upon act . par. . ja. . the form of citing the nearest of kin is now introduced in the choosing of tutors dative by the exchequer , and is establish'd most iustly by the act , sess. . par. . ch. . though formerly the king might have granted tutories dative , without any citation of the nearest kins-men . nota by this act it is clear that a curator cannot by a privat renunciation of his office free himself , but he can only be freed by the judge , for though by the civil law tutors and curators were forced to accept , yet by our law they are not , but if they once accept , or administrat , though without a formal acceptance they are still lyable from the date of their administration , and not from the date of their nomination , and that which was at first voluntary becomes necessary . though this statute anent lentron be renewed , act . par. . ja. . and that the council used lately to grant dispensations , yet these penal statutes concerning lentron are now in desuetude . vid. observ . on act par. . ja. . and on acts , and . par. . ja. . these instruments of resignations are not only to be sealed by this act , but to be registrated , by the . act , sess. . par. . ch. . all warnings are by this act to be made only upon days , which holds , though the party be out of the countrey , because the act is general , though in other cases a party out of the countrey must be cited on days , feb. . m cbrair contra crighton ; and yet though this act be general , there needs no formal warning conform to this act from a tower or fortalice ( turris pinnata ) even though the possessor had a tack ; nor in lands liferented , for in these the heretor will get upon a bill letters from the lords , charging the present possessor to remove upon days , because towers and such houses belong not to labouring , nor are useful for it ; and this act was made in favours of labourers , and it were unreasonable that the heretor , after a life-rentrix is dead , should be put to all these delays for removing those who possess by a right , that is ipso jure expired . these words of this act appointing warnings to be made , either personally , or at their dwelling houses , and at the ground of the lands , are so to be interpreted , as that there must be still a copy left upon the ground of the land , or at his dwelling house , and upon the ground of the land , which citation upon the ground of the land , was , as it seems , made necessary , because in all real executions , quae praedia tangunt , copies must still be left upon the ground , and to the end that all who pretend to have real rights , and even sub-tennents may be thereby certiorated , feb. . craw contra craw. because this act ordains all warnings to be made days before whitsunday , and speaks not of another term , therefore the warning must be made before whitsunday , though the person warned be not oblig'd to remove by his tack till the martinmass , but execution must be superceeded till then , vid. july , . and december , . fowles contra tennents , and inglis contra tennents , june , . ramsay centra weir . though this act appoints these warnings to be made at the kirk doors of the paroch within which the land lyes , yet the lords have sustain'd warnings to be made at that kirk which was reputed the paroch , and where warnings were used to be made , though it was not truly the paroch kirk , january , . earl of argyle contra campbel ; and though by this act such warnings should be read in time of divine service ( that is to say , immediatly after sermon ) yet they sustain'd the warning , the execution bearing , that it was lawfully used , and the user mending his execution at the bar , of january , inter eosdem . though the reasons of advocation here exprest seem to hold only in actions of removing , because they are annex'd to this act , yet they hold generally in all advocations , vid. my crim. observ . tit. advocations ; and though the priviledge granted to advocats here of being only pursuable before the lords may only seem competent in removings , yet it is extended to all cases , and now they may advocat any action intented against them before inferior courts . i find that the advocats of vtright have the same priviledge , rub. de advocatis , art. . vide voet. de statutis , sect. . cap. . num . . where likewse he determines that this priviledge of exemption extends not to criminal cases , but that in these they may be pursu'd before inferiour judges , for these are not properly comprehended under the word actions , nor are statutes to be extended de casu in casum . this act is explain'd in the observations upon the act par. ja. . supra . and act par. sess. ch. . vid. crim . obser . tit . pursuers . of old when any right was quarrell'd as null , the nullity was sustain'd by way of exception or reply , and a day was allow'd to the defender to call his warrand , that is to say , the person who was his author , and who was bound in warrandice ; but now few nullities are regulariter received by exception , but by way of reduction , to the end the authors may be call'd , who may defend him ; and ordinarly the defender intimats at the bar , the pursuit to his authors advocats , to the end they may defend him , and if they do not , they are lyable in an action of eviction for damnage and interest ; but the old form of calling warrands is in desuetude . though bonds of man-rent are hereby discharg'd ; yet former heretable bonds are excepted . vid. crim . observ . tit . falshood . num . ▪ it is observable that there needed a particular act of parliament for cutting down the wood of falkland , because as i think , the queen was then a minor , and it was to be cut down by the regent , and the regent being but a tutor , it has been thought he needed a decreet or act of parliament for his warrand , even as the tutor of a private party , cannot alienat his pupils lands , without a decreet of the lords of the session , and it may be argu'd from this act , that though a wood be old , yet it cannot be cut down by a tutor , without the warrand of a judge ; for this act bears , that this wood was old and ready to perish . it may be likewise doubted , whether since the kings parks are a part of the annext property , the king , or any having right from him may cut down the wood without an express act of dissolution , or other warrand from the parliament , since the king is only but a liferenter of the annex'd property , and a liferenter can only cut down what is necessary for his own use . but since woods would perish if they were not cut , i think there needs no previous dissolution . though by this act , deacons are discharg'd as tending to sedition , and visitors appointed to be chosen in their place , yet the very next year , the same queen mary allows deacons to be chosen by a special grant to the crafts-men of edinburgh ; because , as that grant bears expresly the act was never in observance , and since the making of it , it was found by experience , that deacons were necessary in towns ; from which it may be argu'd , that when a law is found absolutely inconvenient , the king may dispense with it till the next parliament , especially where the law had never been observ'd ; but i think the speciality of that grant lys in this , that this being an act of parliament relating to government , and made for the security of the crown , the monarch may use it , or dispense with it as he pleases , as every person may dispense with what is introduced in his own favours , though to this it may be answer'd , that what is introduced for the good of the common-well , as the act bears this was , cannot be dispensed with , without the consent of the three estates ; to which it may be reply'd , that matters of government doe not concern them directly , but by consequence , government being the interest of the king , as property is of the subject . this act is inlarg'd by the act par. ja. . by which the lords of session are ordain'd to grant letters summarly on six days , against such as stop high-ways . this act is explain'd in the act par. ja. . though by the act par. sess. ch. : the burghs of regality or barony ; are allow'd to bring home timber , iron , &c. as the return of the native commodities of the kingdom ; yet it was controverted if they might bring home salt , and it was found that they could not bring home wine , nor salt , nor brandy , even as the return of their native commodities , so that none can trade in these save the burghs royal. the acts here related to , are the act par. ja. . and and acts par. ja. . which declares the breaking of dove-cots , parks , and ponds to be theft , and upon the of july . raith and dean are ordain'd to be hang'd for breaking of yards , stealing of bees-skeps and sybows ; and it was theft by the civil law , lege pomponius . par . pomponius . ff . fam. erisc . vide crim. observ . tit . theft , num . . this act against the speaking evil of the queens grace , or french-men , was made when the french-men came over to assist the queen against the english ; and though it be temporary quoad the french ; yet it is still a standing statute quoad our monarchs , and it is observable by it , that the hearers of false reports against the queen , and not reporting the same , are punishable as the principal speakers , but it may be doubted , if hearers are obliged to dilate , when they cannot prove . though this case in so far as concerns these temporary pleys have now no force , yet that part of the act appointing women and others , who make perturbation in the passage to towns is still in observance , and the punishment is by our practice arbitrary . queen mary , parliament . by this act the judge is allow'd to exact caution from such as propone improbation , and this act was found to extend as well to exceptions of improbation as to actions of improbation ; and though it appoints caution only to be found , yet the lords ordain oftimes the money to be consign'd , and fourty pound is the ordinary sum , and sometimes they sustain cautio juratoria , where the party cannot find caution , but this cautio juratoria , is never allow'd , except where there are previous and strong presumptions of falshood , or else the lieges might be extreamly vex'd , ordinarly the same day is appointed by the judge for the proponer of the falshood to consign , and for the producer of the writ to bide by the same , like to these consignations , were the sponsions mentioned in the civil law , whereby litigators sponsionem faciebant certae pecuniae quae ejus lucro cederet qui judicio vicisset l. paen . ff . de alcae toribus l. . § . ult . ff . de praescript . verb. nota , by this act where improbation is propon'd at the kings instance , the informer is to find caution , but if the kings advocat insist , ad vindictam publicam , i conceive he is oblig'd to find no caution , because he is never presum'd to pursue calumniously . when any thing is to be proven by writ , if the writ be not produc'd , this act appoints that protestation shall be given against the probation of that part of the exception ; but now the form is to call upon the act , and crave circumduction of the term , which circumduction is here call'd protestation , but if the writ be produc'd , this act appoints that the other party shall be heard against the same , after renunciation of probation , and the form is , that when any writ is produc'd in modum probationis , the other party protests to be heard against the same , at the advising of the cause , and the producer puts up an act renuncing further probation . this act appoints the expences of plea to be tax'd , and insert in decreets , which is conform to the ch. and . quon . attach . and though by the civil law , expences of plea ought not to exceed the principal sum pursu'd for , bart. in l. . cod. de indiction : yet i have seen more expences allow'd than the sum pursu'd for , extended to , and it were very unjust , that if a person of quality were pursu'd unjustly by a mean rogue , for a small matter , that his expences should not be determined according to what he was really forc'd to expend , for the necessity of expending is the only just rule in such cases . queen mary , parliament . this act of parliament doth enable french-men to bruik lands and estate in scotland , and naturalizes them so as that they may enjoy all the priviledges here , as any scots-man may do , but though quoad the point of succession , strangers have by many nations been debarr'd , and that by the roman law , cum peregrinis testamenti factio non erat , l. . c. de hared . instituend . l. . § . . ff . de ● . yet craig . pag. . observes , that strangers were not debarr'd from succession in scotland , and i find it so decided , january , . in the case of one richardson . these priviledges granted by this act , are likewise confirmed to the frenches by an act of sederunt , the of june , . from these first words in this act appointing letters of naturality ( or naturalization ) to be given to such of the french subjects as shall happen to be in the kingdom of scotland , it may be doubted that french-men cannot pretend to this right except they live here ; but this is expresly contrary to the french priviledges there granted to us . it may be also urg'd that dutch-men or others cannot pretend to it , though they be naturalized in france ; for to naturalize them because they are naturaliz'd in france , were to allow the french king to naturalize any he pleas'd in scotland , though enemies to us . . only french-men are naturaliz'd , which is to be interpreted only of such as are properly so . . this were fictio fictionis , which is reprobated by law. it seems also just that except this priviledge be continu'd to us in france , french-men ought not to have it in scotland . quaer . if merchants , though not naturaliz'd will not have right to heretable rights granted for security of their money , for without this there could be no commerce . this act contains the french priviledges to us communicated by the french , whereby the scots may succeed in france in the same way that the french-men themselves did , and they are by this act naturaliz'd to that and all other effects , and which was very necessary for us , since by the law of france the fisk excludes the true heirs of strangers , except as to goods brought in by them , which priviledge is call'd by the french droict d' anbeine , beside this right of succession , the scots likewise are free to be preferr'd to all ecclesiastical dignities . the gentlemen are free from taxes , and the scottish ships free from imposts , albeit of late the french exact from us sols per tun , as from other strangers : as to which i drew this memorial , as assessor to the royal burrows . a memorial concerning the priviledges due to the scots in france . the french nation finding themselves oblig'd to have forraign recruits , for maintaining their wars , pitch'd upon scotland , as a nation very sit to furnish them levies , and so old was their alliance , that a league offensive and defensive was enter'd into betwixt charles the great , king of france , and achaius king of scotland , in anno . at which time charles the great bestow'd upon the king of scotland the double tressure , garnish'd with flower de luces , or as the french call it , fleurie & contre fleury born by them , at this day as all the french historians and heraulds do acknowledge . after this the french being ingaged in constant wars with the english , they imploy'd the scots on all occasions , in which their great succours and services are set down by favin a learned french author , in his theatre of honour , and to ingage that nation the more , as well as to reward their services , the guarding of the king's person was bestowed upon them by charles the th . and they were holden as naturalized french-men , and were exempted from payment of all customs ; and though many of these contracts and leagues be lost , yet these following papers are still extant . a treaty containing these priviledges betwixt alexander the d . and lewis of france , called st. lewis . another betwixt king robert le bruce and king john. an act of parliament . relative to the like act in france , wherein q. mary , who was then married to francis , dolphine of france , doth with the consent of parliament naturalize all the french in scotland , and enable them to succeed to estates moveable and immoveable here , and free them from all taxes payable by strangers ; in which act of parliament the copy of the priviledges granted by the french to the scots , is verbatim ingrossed . item , a patent by francis king of france , dated may . exeeming the scots nation from paying custome in normandie . item , an act of exchequer approving thereof , dated the said year . item , an act of the thesaurers in france , consenting to the same . item , letters patent from the said king to his great council for expeding the former patent , dated the said year . item , act of the great council consenting thereto . item , an act of the cour des aides at paris , approving the said patent . item , charter by king henry the d . of france , exeeming the scots nation from customs in normandy , and containing on the back thereof , the consent of the cour du parlement at rouen , as also , an approbation of the cour des aides , dated . item , charter by the said king , exeeming the scots nation from paying any custome through the whole towns in france and normandy , containing an approbation of the cour du parlement at rouen , as also approbation of the chambre des comptes of rouen , also approbation of the cour des aides in rouen , all in anno . item , extract forth of the register of cour des aides , for the scots merchants transporting wares from normandy , to find caution that the saids goods shall be sold in scotland , dated the said year . item , charter by the said king henry , discharging the act foresaid of finding caution , but to give their oath if they be required , dated . item , copy of a confirmation by king henry the . of the scots priviledges granted by his predecessors , dated . item , supplication james colvil to the burrows of scotland , craving recompence for obtaining the said charter . item , copy of a warrand by king henry the . to his cours des parlements , and other judges , for restoring to scots merchants whatever has been taken from them , and granting them free trade through his whole kingdom , dated . item , confirmation by the said king henry the . exeeming the scots nation from paying customs in normandy , containing approbation of the cour du parlement of rouen , and registrated in the chambre des comptes , with consent of the kings advocat , and also registrat in the cour des aides , with consent of the kings advocat there , as also registrat in rouen , in anno . item , charter by the said king , direct to the cour des aides in normandy , discharging the famine act of finding caution that the goods transported from normandy shall be sold in scotland . item , extract forth of the cours des aides of rouen , for registration of the former letters . item , extract of the register of the cour de chambre des comptes of rouen , for registration of the saids letters . item , extract of the register of the chambre des comptes of normandy , for registration of the former letters . item , extract forth of the domain books in rouen , consenting to the registration of the saids letters in their books ; as also , extract of the books of diep , consenting to the registration thereof in their books . item , two warrands of the thesaurers of the finances in normandy for the registrating of the foresaids letters ; all the saids writs are dated in anno . item , extract of the domain in rouen for customing the scots mens goods there , in respect the scots priviledges were not confirmed by king lewis . dated . item , charter by lewis . confirming the scots priviledges , and exemption of customs in normandy , and registrat in four several courts in france , dated in july . item , extract of the approbation of the said charter at rouen the famine year . item , extract of the said chambre des comptes the famine year . item , charter be the said king of the saids priviledges direct to the chambre des comptes in rouen , dated in august , . item , extract of the cour des aides of rouen of the former letters . item , extract of the domain of rouen approving the saids letters . item , warrand of the thesaurer of finances , approving the registration of the saids letters . item , warrand of the burrow of new-haven , consenting to the registration of the foresaids letters , in anno . item , extract in form of arrest of the great council of france , declaring that the scots merchants shall pay but for every weight of wool sols of custome , and for every piece of scots hydes sols deniers , and that notwithstanding of the new taxt of customs raised in the dutchie of normandy upon such merchandice , and this to evite all process that might fall thereupon , dated . item , warrand by the said king lewis to the chambre des aides , and m r. desportes in normandy , to proceed to the approbation of the said arrest of the great council , which is registrat in the books des aides of normandy in the foresaid year . item , extract of the cour des aides , approving the registration of the saids letters . item , extract of domain of rouen , approving the saids letters . item , extract of the intimation made to the customers of new-haven of the foresaids letters , and approbation thereof in the cour des aides . item , extract of the burrow of diep , consenting to the registration of the saids letters in the great council , all dated in anno . conform to these priviledges , the parliament of paris did in anno . discern the scottish nation to have right to all the priviledges , and to be capable of employments , and free from all customs , whereupon the learned mr. servin that famous advocat has written a learned book , maintaining the saids priviledges , to which he has annexed the said decree and sentence . likeas the saids priviledges are acknowledged by le bret , in his book concerning the prerogatives of the kings of france , cap. naturalization , and many other french lawyers , and by favin in his above-cited theatre . by vertue of which rights and priviledges , the scots have been alwayes esteem'd as naturaliz'd in france , and have enjoy'd all the priviledges due to the natives , until of late , that there being sols per tun imposed upon forraign bottoms , some of the scots in rouen were charg'd for payment thereof , whereupon m cmath , blackburn and pringle , having been pursu'd in the cour des aides , they were not only in july . absolv'd from paying any part of the said taxation , but the collectors were ordain'd to restore unto them what they had exacted upon that head : as also , there being a scots vessel consign'd to mr. pringle , in anno . and he being charg'd for the said sols per tun , he was freed from the said taxation by the parliament of rouen after full debate , upon june , . on our part likewise the french enjoy all the priviledges of natives , and possess lands and heretages , and are as capable of succession as the natives are , nor pay they any taxes , being declared free conform to the said treaties by several acts of exchequer in scotland , though the english have impos'd a crown per tun to compense that sols . from all which it appears most just and reasonable that the scots should have all the priviledges of the natives of france , because , . the same have been granted to them by solemn charters and concessions , which though it had been free to the french king to have at first granted , yet being granted , he was not thereafter by the principles of justice free to have recalled the same . . though meer gratuitous priviledges might be recalled , as they cannot , yet renumeratory priviledges granted for services done , as these charters can never be recall'd without an open violation of justice ; and it is undeniable that scotland has spent more blood and money in the french service than all those priviledges were ever worth , and it 's known that the last concessions were granted to the scots , for giving q. mary in marriage to the dauphine of france , whereby if he had had children , scotland it self had been annexed to france ; and because the scots did refuse her to k. edward the of england , they were thereupon invaded by the english , and their nation was almost ruined . . though renumeratory concessions might be quarrell'd , as they cannot , yet mutual treaties and contracts can never be abrogated nor taken away without the consent of both the parties contracters . . the scots being secured by decisions of the supream courts of france , as said is , they have thereby the greatest security that the law of any nation can give . as these reasons may convince any man that it were against the justice of france to take away the priviledges of the scottish nation , so the principles of prudence and policy seem very much to oppose the taking them away , for , . what can any other strangers expect from concessions , treaties , or contracts , when so old and well deserved priviledges are questioned , it being very well known to all nations that scotland has deserv'd extraordinarly of france , and this alliance has been famous beyond all the other alliances now known in the world. . the scots and scottish nation have upon this account refused all other alliances , to their great loss and prejudice , in so much that they have oft times suffered their kingdom to be invaded , harrass'd and ruin'd by the english , because we preferr'd the french alliance to theirs , and as our countrey-men have alwayes been ready to spend their lives for the french , so within these years we have lost men in their service , who did not amongst them all bring home livers to this kingdome ; and it 's very well known how ready we are to own the french interest in all courts and countreys where we live abroad . the kingdoms of scotland and england may come to divide by the failure of the scottish line in england , and so it still seems prudent for the french king not to extinguish his interest in scotland . and whereas it may be pretended that we have forfeited our priviledges by declaring war against the french , to this it is answer'd , that . the denouncing of war by us was only the effect of a necessary obligation upon us as being a part of great britain , and not a war enter'd into by scotland upon any national account . . by treaties following upon the war , all things are restor'd to the former condition they were in , except in so far as former treaties were innovated by express conditions ; but so it is there is nothing inserted in any of those treaties to the prejudice of our former leagues and priviledges , and therefore they must revive and return to the same force and vigour they were in before the war. i find this act registrated and recorded in the books of sederunt , and generally it is observable , that most of the publick papers , whereupon any legal debates or securities might depend , were inserted in the books of sederunt , which was somewhat like the french custom of verifying in the parliament of paris ( that is the same with our session ) the kings edicts , and thus the pacification betwixt the regent and the hamiltons in anno . and many such papers are inserted there ; and of old even publick accidents were likewise insert , such as ecclipses , &c. queen mary , parl. . ordina●ly in acts of indemnity , which follow civil war , as this is , the king or state does only discharge all action that may be competent , for all manner of omissions or commissions , by vertue of any power or warrand of those in power for the time , as is to be seen in the act sess. par. ch. . but here in this act , all actions that may be competent for any cause or occasion , during the time , for which the troubles lasted , are once discharg'd , except there be a warrand given by the persons named in the act , for intenting actions during that time , but thereafter by the act par. ja. . the lords of session are made judges to the interpretation of that act of oblivion , and all decreets recovered during these times , are declared irreduceable , if they be not pursued within year and day , and this short prescription is declar'd to run against minors , which is likewise conform to the said act , in which late acts the nature o● amnesties and oblivion , shall be more fully declar'd . vid. obs . ad act par. ja. . vid. obs . ad act par. ja. . upon this act the forgers or bringers home of false money use to be forefaulted , as was found in the case of john drummond , november . . and many other cases , and though it was alleadg'd in defence of hamilton and burn , october . that only officers of the mint-house used to be forefaulted because of their ex●berant trust , and that it was easie for them to commit such crimes , yet drummond was no officer , but a sadler in pearth , the words of this act , that are ordinarly founded upon , are , that the revealers of forgers or home bringers of false coyn , shall have the one half of the escheat of all their lands and goods , moveable and immoveable ; and this punishment is peculiar to treason ; and it seems that forging or coyning is an incroachment upon the kings prerogatives ; one of which is the coyning of money , but i see not why bringing home of false coyn , could upon this account be declared treason . it is also observable from the former case , . that the meanness of the quantity or value coyn'd , excuses not from the punishment of this act , vid. crim. observ : tit. falshood . by this act it is appointed , that no parson , vicar , or other kirk-mans manse or gleib can be set in feu , or long tack ; and therefore an heretor , to whom the vicars gleib was feu'd , though a year before this act was refus'd relief , when that land was design'd to the minister , because the feu set to him was contrary to this act ; and though the feu was set prior to this act , yet it was null , because it was not confirm'd before this act , february . . vid. obs . on act par. ja. . all such as practise witchcraft , or consult with them , are by this act punishable by death , as are also all such as pretend to have any such craft or knowledge , there-through abusing the people , from which it is observable , that such as pretend to fore-tell things to come , or to tell where things are lost , may by this act be punish'd with death , though really they have no such skill . by this act also , all sheriffs , lords of regalities , and other judges , having power to execute the same , are ordain'd to put the same in execution ; but it does not therefore follow that stewarts and bailliffs , and sheriffs , are competent thereto , and de facto , the justices only , or such as have commissions from the council , use to judge this crime , vide. crim . observ . tit. witch-craft . notour adultery is by this act declar'd punishable by death , and by the act par. ja. . that is only declar'd to be notour adultery ; where o. there are bairns , one or more procreated betwixt the adulterers . o. when they keep company , or bed together notoriously known . o. when they are suspected of adultery , and thereby gives slander to the kirk , whereupon being admonish'd to satisfie the kirk , they contemptuously refuse , and for their refusal they are excommunicate , if either of which three degrees be prov'd before the justices , the committers are punishable by death ; from which act it is to be observed ; o. that by the first act , premonition to abstain , was still to be made in all cases ; yet in neither of the two first cases here related , it is declar'd necessary ; but since it is not lawful to kill him who was premonished , and thereafter conversed , except they conversed in suspect places , gribald . de homicid . num . . it seems that in neither of these statutes , conversation should be criminal even after prohibition , except it be in suspect places . o. the justices are only declared to be judges to the notoriety of adultery ; and therefore it may be controverted , if lords of regalitie be judges competent to the cognition of it , and this seems to be restricted to the justices , because it is an arbitrary inquiry in a capital case . . this act does not exclude capital punishments in other cases of adultery , but only ordains that these three degrees shall be punish'd by death ; and since there are other cases more grievous to the party injur'd , and more scandalous to the common-wealth ; it may be argued that the punishment of death should likewise be extended to them ; as for instance , to commit frequent adulteries . this act declaring that the raising of bonds of men of war , and the rising in that manner is punishable by death , is formerly explain'd , act par. . ja. vid. crim . observ . pag. , & . and this act is ratified by the act par. ja. . by this act the building of kirk-yard-dikes , is refer'd to the lords of secret council , who are to take such course therein as they shall think fit ; but by the act par. ja. . the parochioners are ordain'd to build them to the hight of two ells. and the lords of session are ordain'd to grant letters of horning for that effect , which they use now to do . this is fully explain'd at the act par. ja. . and the first part of it was enacted formerly by act of secret council , december . and that begins , it is statute and ordained by the queen , which seems strange , seing to statute is only proper to parliaments , but acts of council do oft-times bear , statute and ordain vid. costal . de imperator . quest. . num . . this act mentions three kinds of bishops , the bishop elect , the bishop postulat , and the bishop consecrat ; a bishop elect , is he who is elected by the chapter , upon a congé d'és●ire from the king , but is not yet consecrat ; a bishop postulat , is he who was only call'd , but not elected , and cannot be elected as a minor , a bastard , &c. vid. cap. innotuit . § . habile de elect . and it is observable from this act , that both these us'd to dispone kirk-lands , or set the same in tacks , else they needed not to have been discharg'd by this act ; but though we have now bishops elect , yet we have no bishops postulat ; and these elects exercent solum ea quae sunt jurisdictionis sed non ea quae sunt ordinis . by this act notars are to be admitted only by the lords of council , that is to say , the lords of session , as de facto they now are ; and by the act of sederunt , . the lords ordain'd that yearly in november one of their number should be named by them to receive notars , who shall only receive such as are past twenty five , can write an evident in latin or english , and be prentice five years to a notar , though now they are admitted before twenty five , and without having been prentice at all . by this act , such as exerce the office without being admitted by the lords , or after they are discha●g'd by them , may be punish'd arbitrarly , and even to death ; but it has been found , that evidents subscribed by notars , once admitted , though thereafter discharg'd , are valid , they having still been habite and repute to be notars . though this act appoints that all notars shall be admitted by the king , yet now they need no letters from the king , but do depend upon the clerk of register , and his depute , the clerk to the notars . the clerks of session are by their admission as such , notars , though they be not admitted in manner mention'd in this act , and instruments under their hands in judicial acts , makes as much faith as the instrument of any notar. the act here dispensed with , is the act par. q. mary , and it is observable by this act , that when former laws have not been universally observed , no advantage is taken upon them , and this is one of these cases , in quibus communis error sacit jus . the observation in the former act holds also in this , and the act here dispensed 〈◊〉 , is the act par. queen mary . by this act it is declar'd that five or six of the principal burrows shall be call'd to the concluding peace and war , and to the laying on taxations . it may be doubted , whether by the council to which they are to be call'd , be mean'd here the parliament or privy council , and though ordinarly the parliament be call'd the kings council , and that it may seem they only should impose taxations , yet it m●y be urg'd , that by council , is here mean'd the privy council , because all the burrows must be cited to parliaments ▪ and the king and his council us'd before to lay on such general taxations ; and de facto , his majesty did so in many cases , without either parliament or general convention of estates , as in laying on the taxation , for defraying the expence of the baptism of king james the . december . . which taxation was laid on by eight earls , five bishops , and four burrows , not mentioning barons , because it seems the earls were accounted barons ; the taxation was . pounds , whereof . pounds by the spiritual estate , four thousand pounds by the barons and free-holders , and two thousand pounds by the burrows : and another taxation for defraying king james the sixth's expence , in his journey to denmark , and many other such taxations ; and this was then necessary , because taxations behov'd to be impos'd , his majesties revenue being then very mean , and to have call'd a parliament or convention , would have put the people to more expence than these necessary taxations were worth ; but now by the foresaid act par. ch. . all sums to be rais'd for maintainance of forts , or armies must be first concluded in parliament or convention of estates . and now the king has a considerable revenue by the excise , for defraying those small necessities , for which the council then impos'd ; and it is certain in the general , that all countreys should supply the monarch with means to defray the expence of the government , vid. arnis . de jur . majestatis in bona privatorum . vid act par. ja. . by this act the making privie conventions or assemblies within burghs , to put on armour , or display banners , &c. without licence from the soveraign , are punishable by death . observ. o. it seems that meer convocations or assemblies , are not per se , punishable by death , without putting on armour , or displaying banners . observ. o. that naked-assistance at such tumults with a batton , was not found by the justices to infer death , in anno . and i conceive that though a previous design were prov'd ; yet the assistance with a batton would not be sufficient , since the act requires putting on armour , or cloathing themselves with weapons , which imports hostile vveapons , for neither of these can be verifi'd in a batton , and penal statutes are not to be extended ; but yet the appearing with a batton is sufficient to punish arbitrarly , such as assist at tumults , this act confiscating ship and coals , wherein coals are transported , is in desuetude , but is not expresly abrogated by any law ; and though at first , licences for transporting coals were necessary ; yet now even these licences are in desuetude , we having now discovered more coals than serves our nation . this act confiscating beeff and mutton , that comes to mercat without skin and birn , is still in observance , and was made for discovery of theft , for the skin being upon the beast that is kill'd , does bear all marks whereby it may be known ; and for the same reason in the southern shires , the meaner sort who kill any beasts , are oblig'd to keep their ears , and if the flesh be found where the ears cannot be produc'd , it is commonly look'd upon in these countreys as a point of dittay ; not only must the beasts be brought to the mercat with their skins , according to this act , but by acts of burrows , the skins that are brought to the mercat , must not be scor'd nor holl'd , which fleshers did before negligently ; nor must the haslock be pull'd that being the best part of the vvool ; and by the acts of the convention of burrows , made at the desire of the conservator , the skins of beasts within this kingdom did rise in value a third more than , when they were carried beyond sea. qeen mary , parliament . by the second act par. ja. . which is the act here related to ; the kings lawful age was declar'd to be twenty one years ; but it seems , that because it was left dubious by that act , whether the year twenty one was to be inceptus , or completus when begun or ended ; therefore by this act it is declar'd to be twenty one years compleat , and the word compleat , is twice repeated . and it seems that before this act , even the year it self was debateable ; for in the act par. ja. . it is said that the king after his perfect age of twenty five years , ratifies , &c. by an edict of charl. the fifth of france , anno . their kings are declar'd majors , & hors de tutelle , at their age of fourteen . in this act all confirmations of kirk-lands , not confirmed by king or pope , before the year . ( at which time the reformation begun ) were declar'd null ; and by this act confirmations from rome , after that year are discharg'd , and the queens confirmations are declar'd equivalent to the popes ; and i find that by act of secret council , september . . the sending to rome for such confirmations is by proclamation discharg'd under the pain of barratry . k. james vi. parliament i. queen mary being queen during her life , appoints the earl of murray to be regent , and his election is confirmed by this act , and it is declared to last till the kings age of seventeen , at which time it is declar'd , that he shall enter to the exercise of the government ; i find amongst the un-printed acts , subjoyn'd to this parliament , a resignation of the crown made by her , which it seems was necessary , she being soveraign during her life , as the king is during his life . observ. she calls the earl of murray brother , though he was her natural brother , which was conceal'd ob honorem , but ineptly and though the earl of murray is here call'd the kings cousine , yet he should have been call'd his uncle : nor are uncles properly cousines ; but i think this was because all earls who are counsellors are call'd cousines and counsellors ; but yet if he had been to have been call'd a counseller , for this cause he should have been call'd cousin and counseller . i have also seen a commission to one of the kings natural sons in england , wherein he was call'd our cousin . it is observable , that sometimes the acts of this parliament bear , to be by our soveraign lord , my lord regent and the three estates , as the , , and . which is not well exprest , for the estates and regent had no power to make acts , and therefore the rest bear better , our soveraign lord , with the advice and consent of his clearest regent and three estates . nota , the parliaments saying my lord regent , seems very ill grammar , for it should have been the lord regent . those acts confirm , and relate to former acts past in the parliament , holden by queen mary , august . . and yet we find no such parliament ; but the true answer to this is , as appears by spotswoods history , that the lords of the congregation having met in anno . and having past those acts , abolishing the popish religion , many of the members of that pretended parliament protested , that this meeting was no parliament , because there was none there to re-present the queen , nor the king of france her husband , whereupon sir james sandilands was sent over to procure a ratification of these acts , which being deny'd , the same acts are here ratifi'd by the earl of murray , when he came to be regent , as if they had been past in a lawful parliament . for understanding of this act , and the nature of patronages , it is fit to know that the right of patronage is a power of nomination granted to him who either was master of the ground whereupon a kirk was built , or who doted any thing to the maintainance of it , or who did build a church , to present one to serve the cure thereat , in all which cases he is accounted patron , and may present a person to be minister , or to any other benefice , and that only if he reserve such a power to himself in his mortification , for hope in his lesser practiques , is of opinion that reservation is necessary , and the reason is , because jus patronatus est servitus libertati ecclesiae imposita , and therefore is not to be allow'd , except the same was adjected at first to the mortification , molin . ad reg. de infirm . the first mention of patronages is by st. panlin . about the year . and justinian i find mentions the novel . . patronages in scotland are either laick or ecclesiastick ; all patronages are accounted ecclesiastick , which either belong to ecclesiastick persons , or which have flowed from the king ( though by infeftment ) since the reformation , in so far as concerns these benefices , wherein the king succeeds in place of the pope , who before the reformation , was accounted universal patron ; laick , patronages are such as have been disponed before the reformation by his majesty , and these pass by infeftment , or have been founded by laick persons since , and these must be now obtained by a signature from his majesty , even by such as either contribute , dotem , sundum , edisicationem . the words of the concession are , his majesty grants advocationem , donationem & jus patronatus ecclesiae de , &c. it is expedient to know the differences betwixt the old laick patronages , and these which are dispon'd by the king since the reformation , because by the act of annexation , july . all kirk-lands , are annexed to the crown , and an exception is always made of lands which pertains to the benefices of laick patronages , which exception is only extended to laick patronages , which were lawfully established before the reformation ; which is also conform to the canon law , by which the pope may prejudge an ecclesiastick patronage , but cannot a laick , bevg . de union . beneff . § . . num . . after one is prefer'd by the patron , he hath only jus ad rem , but his collation and institution which is given him by the church-man , to whom the presentation is directed , gives him jus in re ; but if the benefice to which the patron presents be a benefice without cure , that is to say , having no care of souls , as provestries , prebendries , &c. eo casu , there needs no collation or institution , december . . l. lugtoun con . edmiston . the patron must present one within six moneths after he comes to know the vacancy , else the presentation pro eâ vice , belongs to the church jure devoluto ; in which we agree with the customes of normandie , as in many other things , but molineus does more rationally conclude , ad reg. de infir . resig . num . . that the bishop does confer jure proprio , after elapsing of these six moneths , because all churches of his diocess sunt in illius ordinatione ; so that substracto per lapsum hunc jure patronatus quod huic juri derogabat , redit ad suam naturam quod probatur ex c. . &c. . extr. de suplend . negl . praelat . and yet when the arch-bishop presents upon the bishops failȝure , he does it only jure devoluto nam inter utrumque est gradus jurisdictionis quae ab inferiori puta episcopo post elapsum tempus legitimum devolvitur ad superiorem puta archi-episcopum sed patronus nullum facit jurisdictionis gradum ; but if the presbytrie refuse to admit a qualified minister presented by the patron , then the patron may retain the whole fruits of the benefice in his own hands , act par. ja. . this retention is likewise allowed by the act par. ja. . but whereas by the former act , the presentation jure devoluto fell to the presbytries by the last act it falls to the bishop ; but though by these acts it be lawful to the patron to retain the vacand stipends , or fruits of the benefice in his own hand , yet it may be doubted , if he may apply them to his own use , for these are not only different effects , but it seems that this being contrary to the nature of things sacred , and to the principles of the canon law , he cannot , for though by cap. in quibusdam de paen . cap. de elect . patrons had the custody of their own churches when they vacked ; yet the fruits of all vacant churches were to be reserved for the future intranti , futu● ro clerico cap. . extr. ne sede vacant . and though at first kings , and then all patrons pretended to the intrometting with the fruits of their churches , especially in britain , as malch . westmonst . observes in the year . yet alexander . by the cap. . extr. de off . jud. ord . appointed , that even procurators should be appointed for intrometting with these fruits during the vacancy quod patroni laici curam tantummodo & defensionem suarum ecclesiarum haberent non etiam potestatem ullam in rebus quas iis donarunt vid. can . noverunt . quest . notwithstanding of which canons hostiensis , and others , except such cases , wherein by the foundation , or by a singular priviledge , or by prescription the contrary is introduced , and molineus asserts , that all laick patrons may appoint administrators , and gather up the rents , though they cannot fructus ecclesiarum vacantium in usus ●uos converteresed futuro clerico reservare vel utili●er in ecclesias impendere ; and therefore it seems , that the parliament having only allow'd laick patrons to retain these stipends during the vacancy , they can only apply them to a pious use , but can in no case appropriat them to themselves ; for as such an appropriation would be sacrilegious , so it would be sufficient for preserving the patrons right , that he might bestow them upon such pious uses as he pleased ; but since the act par. ch. . and the act of the third session of that parliament , appoint all vacand stipends to be imploy'd for universities , and other pious uses , and that there are several exceptions there made , and yet none in favours of laick patrons , i see not why the rents of laick patronages fall not likewise under the collection of vacand stipends , the laick patrons having been re-presented in that parliament , and so consenting to this act , especially seing the said act declares that the benefices of vacand kirks , should during the vacancy be imploy'd upon pious uses , and the collectors of vacand stipends , have alwise been in use to collect these . selden in his treatise of tithes , asserts that the right of investiture , was at first reserv'd by lay patrons in the foundations , and that the gleib and tithes were at every vacation confer'd by the patrons to the new incumbents , by some simbole or ceremony , not differing from our seasines ; and it is probable that for some ages after charles martels reign it was so , because tithes were then transmitted by laical infeudations ; and i have seen several rights of this nature in the chartularies of our abbacies ; and though afterwards this was condemn'd by many councils , yet kings reserv'd to themselves the vacant fruits of bishopricks , as being founders and patrons of these benefices ; and with us this clause , reserving to the patrons power to retain these stipends during the vacancy , seems a vestige of their old pretension ; but i shall examine all this very fully in my treatise of tithes . if the bishop refuse to admit one presented by the patron , then recourse must be to the arch-bishop , and if he likewise give not redress , then the council will give letters of horning to charge the ordinary to receive the person presented ; and by that act the bishop may refuse to admit a person , who hath not reserv'd to himself a sufficient maintenance in setting back-tacks of his personage to the patron , which paction is accounted simoniacal , and the lords of session declar'd only judges competent thereto , though by the ch. lib. . r. m. patronages are declar'd to belong to the ecclesiastick jurisdiction , and the said paction is probable by the parties oath , albeit regulariter nemo tenetur jurare in suam tur●itudinem by the act par. ja. . it is appointed that the bishop shall not refuse to admit any qualifi'd minister , who hath been once admitted and receiv'd a minister ; by which it is clear that the bishop is not oblig'd to receive an expectant , who is ●ot an actual minister , and the reason is , because non constat , if he be yet qualified , and the bishop cannot be obliged to enter him , and consequently is not oblig'd to accept his presentation . by the canon law four moneths were allow'd only to a laick patron , and fix to an ecclesiastick ; this was our law before this act , as is clear by the cap. r. mai. lib. . and there was good reason it should have been so , for the constitution concerning it , c. . ext. de suplend . negl . prael . is written episcop● st. andreae in scotiâ ; and this is cited as our law , by le roy de jure patron . c. . and in case of the patrons negligence , a gradation was allow'd from inferiors to superiors , till it ended in the pope . by that law likewise , a laick patron might vary in his presentation ; but an ecclesiastick person could not ; and if an ecclesiastick patron presented a person that was unworthy , he lost the right of his presentation pro ea vice ; but a laick patron did not : and by our law , if the patron present one that is unfit , he may present another , and a third , providing all his presentations end within six moneths , for the presenting one within six moneths interrupts not so , as that he may thereafter present another within other six moneths , as some think , except his not admitting be occasioned by the bishop , who cannot seek a jus devolutum , by his own fault , by the act par. ja. . the gradations then allow'd , were from the ordinary to the super-intendant , and provincial-assembly , and from them to the general-assembly . where there are more patrons , they have right to present per vices , and he who hath been in possession of presenting trina vice , that is to say , the three last times successivly , without interruption , hath the only right of presentation in possessorio , in a competition with the other patrons pro ea vice , without prejudice to the rest to declare their right for the future , as accords ; and by some it is alleadged , that presentations trina vice ex decessu incumbentis , excludes all other rights etiam in petitorio , but this is not our law. doctor forbes in his treaty of simony , exclaims extreamly against this act of parliament , for allowing the incumbent to set tacks , reserving to himself a sufficient maintainance , and he urges violently , that this act allows rather simony , than accuses it . it may be argu'd that this act debars not such of the royal line as have right to succeed to the crown , for this relates only to a coronation , and the coronation it self is not necessary , coronatio enim magis est ad ostentationem quam ad necessitatem , nec ideo rex est quia coronatur , sed coronatur quia rex est oldrad . consil. . num . . balbus . lib. de coronat . pag. . nor do we read that any kings were crowned , except joash , in scripture , and clovis king of france was the first that was crowned ; nor are any kings of spain crowned to this day , neither is a coronation oath requisite , sisenandus being the first who in the tolletan council gave such an oath amongst the christians , as trajan was the first among the heathen emperors , gregory was the first of our kings , who anno . gave the first coronation oath , having embraced the christian faith , in which he was very zealous , swore to preserve it ; but this oath was not made to the people , for they were not present , but to god ; nor could he , as blackwood observes , apol. pro regib . c. . bind his successors , quia par in parem non habet imperium , nor could he bind himself for them to the people , quia cliens jurat domino non dominus clienti , tit . de formâ fidelitatis , lib. . feud . likeas it may be said that this act being made in the king's minority , and being prejudicial to the right of blood in his successors , it falls under his revocation , made par. . cap. . whereby he expresly revocks every thing which might hurt the priviledge of the crown , which this act would do , if kings were thereby debarr'd from succession , for differing in religion from their subjects : this is contrary to the confession of faith , which tyes us to obedience to our king , though an heretick ; and since private subjects are not debarr'd upon this account from their property , the king ought not to be debarr'd from the exercise of his government , which is his property , and that kings cannot be debarr'd by a statute , is clear by all the doctors , in can. qui jura distinct . aecurs . in l. princeps ff . de legibus , l. . de natal . restit . l ▪ jura sanguinis , ff . de reg. jur. sed naturalia instit . de jure naturali forma juramenti quod praestant reges in coronatione per gloss. . in cap. fin . de eccles. aedif . est quod jurat . se regni sui jura illibata conservaturum , vid. ant corset . de potest . reg. pars . num . . some are also of opinion , but injustly , that coronation is to a king the same thing that investiture is to a subject , and therefore as heirs may continue the possession of their predecessors before the infeftment , but cannot sell , excamb , or do any other deads of property till he be infeft , so though a king before he be crowned may do these things that are necessary for present administration , yet he cannot hold parliaments , dispone upon annexed property , and do any other deeds which require the exercise of the royal power , till he be actually crowned : and whereas this act ordains that all future kings shall take this oath at their coronation and the recept of their princely power , which implyes that they should take this oath before they can administrat : it seems that this implyes a contradiction , for they must administrat in appointing the coronation , and ordering all things thereto relating ; and our king did govern long ere he was crowned ; but these words are exegetick only of the coronation , and by them is meant the recept of his authority in the coronation . this act is ratified by the act , par. ja. . vid. act . par. . ch. . it is fit to know , that whatsoever of the thirds was not assign'd to ministers , did appertain to the king ; and it was called superplus , whereof there was yearly a book made , which altered , and was more or less , according to the assignation to the ministers , and according to the superplus-books , the kings collector did charge for the superplus for the king's use , and with it also the omitted benefices , which the prelats and beneficed persons omitted in the up-giving of their rentals , and also for common kirk , and friers lands , which also with the thirds were appointed for the uses aforesaid . the rent of the thirds for the king's use , is altogether extinguished , partly by restitution of bishops , who have right to their own thirds , and partly by erection of abbacies and priories , in which the thirds are discharg'd in favours of the lords of erection , they planting the kirks . likewise in parliament , . and . and in our late parliaments there was commission granted by the parliament for planting of kirks , which has made the old book of the assignations of ministers stipends , and yearly plat thereof , to be out of use . many of these books of assumption are still preserv'd , and they are very useful for clearing what the old rentals of benefices were , so that it may be known whether benefices be set with di●●●nution of the rental . for the better understanding this act , it is fit to know ▪ that a provost with us , is that which praepositus is in the canon law , praepositura est dignitas , quando est collegiata alias non fed. de sen. consil. . alia ergo est jur. can. praepositura collegiata , alia non collegiata ; but with us , where there was a colledge kirk , it was govern'd by a provost , and prebends ; and generally it was institute for divine service ; but there are colledges institute for instructing of youth , as the old colledge of st. andrews , which is governed by a provost . a provost is in our law no prelat , and therefore tacks set by him are null , without consent of the patron , july . hope tit . kirk ; but è contra , the patron may gift prebendaries without consent of the provost , or prebends , except it be otherwayes provided by the foundation . the collegiat kirks , provostries , prebendaries , having been founded by noblemen , for their own ease and advantage , they retain still a greater power over them than over any other benefices , and therefore by this act the patrons of these may provide them to bursers or others , notwithstanding of the foundation , which is ratified by the act. par. ja. . and by the act , sess. par. ch. vid. observ . on that act. fornication is now punish'd only by the kirk session , and this act is not exactly observed , for the offenders now only pay an arbitrary fine , and stand upon the stool of repentance . this act and the next are explained in my criminal treatise , tit. incest . the melting down of any money already coined within the kingdom , under the pains here exprest , is punish'd with us , because our coyn , being as fine as our plate , it would be thus melted down , and so the stock of the money would be impoverished ; and as the act , par. . ja. . observes , it would waste and minish by translation in the fire ; but the question being agitated , whether forreign coyn may be melted for bullion ; it was urg'd , that by this act no gold nor money already coyn'd within this realm was to be melted ; for by the said act , no gold nor money that bears form , and is printed , should be melted : but to reconcile these , the answer is , that if money be once allow'd to be current here by direct allowance , as by proclamation , it is not thereafter to be melted down ; and so it was decided in the lord hattons case , feb. . though the lords of session are not judges competent to reduce sentences past in parliament , as the more soveraign judicature , yet they are judges competent to reduce rights confirmed in parliaments , whereby the confirmation falls in consequence , quia confirmatio nihil novi juris tribuit , vid. march. . bishop of dunkell contra the lord balmerinoch . this act against forbidden weapons is explained by me in my criminal treatise . tit. . vid. the criminal treatise . tit . falshood . this act was to supply the nullities which could have been objected against such rights by the court of rome , who pretended to the only right of bestowing church-benefices , so that our separation from the church of rome was first authorized by the parliament in the year , . vid. crim. tit . theft : but it is now fit to observe , that when any-man cryes for help against thieves , all who are desired are obliged to concur with the owners of the goods , under the pain to be holden partakers of the theft , which huy and cry with us was called quiritatio by the romans , by the greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , vid l. . & . cod. de his qui lat . & l. . ff . de serv. fugitiv . although by our law pactions for gifts , or rights to accresce to private men , though not actually as yet fallen to them , are valid ; and thus it has been found , that a man may renounce or s●ll haereditatem futuram ; yet by this act a gift of escheat , when a party shall be denounced , is declared not to be valid , because this may occasion the person whose escheat is so gifted , to be denounced viis & modis , and this proceeds upon the same reason that the civil law discharges such deeds , quae praebent votum captandae mortis alienae , and by the canon law a benefice cannot be promised or bestowed when the same shall happen to vaik , nec confirmatur sequenti vacatione col●atio , c. proposuit , de con . preb . ca. . de preb . in . & argumento hujus legis , it seems that the survivances of offices should be null by the same parity of reason , for these preclude the king from his free gift , and are the occasion of snares : likeas , such gifts by our law and style should express modum vacandi , which cannot be done where there is no vacation ; and though we have no express statute , yet●by our practice , which observes styles as statutes , if a gift express not modum vacandi , it will be null ; so a gift of escheat not mentioning the horning whereupon it proceeded , was not sustained , though a horning year and day before the date of the gift was libell'd on in the declarator , and though the gift was past the king 's own hand at court , where hornings could not be got , november . welston contra stuart . for if this had been sustain'd no horning had ever been exprest thereafter , but the donatar had still choos'd out one of the meanest debts , since he is bound to pay the debt in the horning by his gift . though this act requires that seasins within burgh should be subscrived by the clerk , and given by the bailie of the burgh , yet the lords sustain'd a seasine of lands within burgh given by the sheriff and sheriff-clerk , where there were no magistrats or town . clerk in office at the time that the seasine was given , july , . thomson contra mackitrick . this is one of the instances that , necessitas non habet legem , vid. act , par. ch. . this act was but temporary , and so is useless now . this act is ratified by the act , par. ch. . and the reason why maltmen are discharg'd to have a deacon , is , because at their meetings they might easily conspire to set a price upon the victual , and upon the ale and beer at their pleasure , and force the gentlemen to sell at any rates . it may seem strange that this act made by q. mary should be insert here , but that parliament holden upon the day of april , . is not at all printed , and therefore it has been thought fit to insert this act in favours of the reform'd religion amongst her sons acts , and to let it continue in her name , because it might clear that her majesty had consented thereto in her own reign . this act bears an acknowledgment of the queens deriving her authority royal from god , which has been insert by our reformers , to show their abhorrency of their opinion , who think that our monarchs derive their power from the people . there is no such parliament as that here mention'd to be held upon the of december , . and therefore the act is here renew'd , but it was needless to have made a special act for allowing this to be printed ; for both these acts and might and should have been one , vid. obs . on this act in my crim. tit. treason . king james the sixth , parliament . by this act it is clear that commissions for regents of the kingdom were then subscrived , whereas they are now superscrived ; and were then past under the privy seal ( as all factories , assignations , or other private rights granted by the king are as yet ) but now all such publick trusts are past under the great seal . nota , what was then a regent is now a commissioner , which word is but late , and the regent was then called protector . the first commissioner mention'd in our laws is the earl of montrose , for the parliament . but that inscription speaks nothing of a commission under the great seal , as all subsequent inscriptions do from the year . and downwards . many acts in this and the ensuing parliament bear , with advice of the regent , three estates , and hail body of the parliament , which words , the hail parliament , seems superfluous , for the king and the three estates are the hail parliament . but this was probably inserted either to show the unanimity of the parliament , or to include the officers of state , because they are not comprehended under any of the three estates , and this may be adduc'd to redargue their opinion , who think that the officers of state did not sit in parliament till the parliament . nor do they yet sit as such in the parliament of england . for i find them marked in the sederunts very anciently , but differently , for though now they are called , and are also marked down in the sederunts after the lord barons , and are therefore called lords , yet sometimes the sederunt adds , after the burghs , together with the officers of state ; and the sederunt of the par. bear ▪ that the kings majesty , and officers of state declare the parliament to run , and ordain the articles to meet . it is fit to know that all alienations and dispositions made by persons who were thereafter forfeited for crimes of treason , are null , if they be made post commissum crimen , though they be made before sentence or declarator , and that though it may be pretended that in some latent crimes of treason , such as where treason is inferr'd for concealing and not revealing treason , the subjects could not know the committers guilt , and so might bargain with them , or take rights from them ; but yet such heretable rights are declar'd null because the king having feued out his lands , he is not obliged to acknowledge any singular successors , except their rights were confirm'd , & sibi imputent , who did not confirm . this act is ratified by the act , par. ja. . and all former practiques contrary thereto are rescinded , which clause in that ratification was necessary , because as sinclair observes in his old practiques there had been several decisions past in favours of the earl of mortouns creditors , sustaining rights made by the earl of mortoun , who was after years latent guilt convict for concealing the design of murthering the earl of lennox queen maries husband . as these acts strike against heretable rights made by forfeited persons , so by the act , par. ja. . all bonds , obligations , factories , pensions and assignations granted by forfeited persons , are declared null , except these rights be confirmed by the king , or authorized by a decreet of the judge before the citing of the persons forfeited ; from which act it may be inferr'd , arg. legis , that such rights granted post commissum crimen , but before citation are valid , though not confirmed by a decreet , if they were granted for true debts prior to the committing of the crime , since this act runs only against fraudulent dispositions ; as also , for the same reason it may be urg'd , that where such personal rights are granted meerly to defraud the fisk , they would be null , though confirmed as said is ; for else a man being to commit the crime of treason , might purposely dispone his moveables to prejudge the fisk. nota , that such moveable rights confirmed as said is , will only be a ground for diligence against the forefaulted persons moveables , even as if the saids moveables had fallen to the king by single escheat , but they will not be a ground of diligence against a forefaulted persons real estate . nota , that as gifts of forefaulted lands can only be past under the great seal , so the forefaulted persons moveables should be regularly gifted under the privy seal , being as to the king , the same way of transmission , that an assignation is to a privat party , but in the earl of argil's case , it was found that the moveables of the forefaulted person might be likewise transmitted under the great seals . though by this act the superiors forefaulture does not prejudge the vassals who are innocent , yet this act is expresly abrogated by the act par. ja. . and by our law the vassals rights are null , except they be confirmed , or unless he has originally consented to them , or unless the feus be set in the terms of the act par. ja. . from this act it may be urg'd , that since by a special law , vassals of persons forefaulted in this parliament , are secured , notwithstanding of the forefaulting of their superiors ; yet therefore regulariter the sub-vassals right falls to the king by the forefaulture of his superior , or his own forefaulture , and that not as caduciary for then it would only fall to him with the burden of all rights granted by the vassal : but it falls to the king qua superior , so that he is not obliged to acknowledge any rights , except they be confirmed by himself ; this was debated in the case of general dalȝel contra lady caldwall . nota , the said act par. ja. . appoints this act to be delet out of the records of parliament , and this has been design'd oft-times to prevent our taking abrogated acts , for acts in force , but yet they are still printed ; and some think this necessary , because men argue oft from abrogated acts , as from this act in the said case of the lady caldwal . all monks with us were called friers from the french word , frere , which signifies a brother . the religious women were called , nunnes , from the latin word , nonna , which signifies a sacred virgin. the lands holding of friers or nuns , are by this act declared to hold of the king , and all the lands of monks and nuns are by the act par. ja. . annexed to the crown , quoad their temporality , and though thereafter many of these benefices were erected in favours of laick persons ; yet by the act par. ch. . the superiority of all lands belonging to abbacies , priories , and other benefices belong to the king. this act is explain'd in the act . and is drawn back to all rights made even prior to this act , by the act par. ja. . which is a singular instance of drawing back acts prior to the dates . these acts are explain'd in the observations upon the third parliament of queen mary . king james the sixth , parl. . these acts of this parliament are explain'd in my criminal treatise , tit . heresie . nota , that by the act , arch-bishops , &c. were to be punished , being found negligent by the general assembly of the kirk , the bishops before the year . being but titular bishops , and subject to the general assembly , and were to be deprived by them , as is clear also by the act of this parliament . by the act it is also observable that all the church-men were then only to give their oath , for acknowledging and recognoscing his majesty and his authority ; the oath of supremacy having come in only by the act par. ja. . by this act also , non-residence is declared unlawful , and is yet a cause of deprivation , except it be dispensed with , the habilis modus whereof is by a letter from the king. by the act par. q. mary , the minister was to have the parson or vicars manse , or so much thereof as should be sufficient for him ; and no kirk mans manse or gleib could be feu'd , yet an heretor to whom a vicars gleib was feu'd a year before that act , was allow'd repetition , feb. . . nota. this decision is otherwise related by mistake in the observ . on the said act. the manse comes from the latin word , manere , vid. seldens history of tithes , pag. . by it we understand the ministers dwelling-house , and if the parson or vicar had a dwelling-house or manse , it belonged to the minister , but if there was none of these , no other house could be design'd , though it stood within the precincts of an abbacy , february . minister of innerkeithing contra john keir . if there be no such parson or vicars manse , the heretors must build one by the act of parliament . but thereafter by the act sess. par. ch. . the value is declar'd to be from merks to pounds , so that the minister may build a manse to himself , and he or his executors will get repetition of what he bestows in building , not exceeding pounds ; but if the minister build only to the value of merks , he will not have action against the parochioners for more , though not exceeding pounds , upon pretence that he might have built to that value , january . . charters contra the parochioners of curry : where it was also found , that the reparation or building of the manse , affects not singular successors , and is not debitum sundi . by that act likewise it was found , that since manses are ordained to be built by the heretors , that therefore liferenters are not lyable , which decision may be very dangerous to ministers , since it may oftimes disappoint , or at least for many years suspend their relief ; as for instance , if a father should denude himself of his estate , in favours of his son an infant , reserving only his own liferent , and it may be doubted whether such liferenters per reservationem , may not be lookt upon as heretors in this , as they are in some other cases ; and yet though liferenters were not bound to build manses , yet they were found lyable to repair them , these being but minores impensae , which required to be presently done ; but neither heretors nor liferenters will be oblig'd to pay what is to be bestow'd upon building or repairing , nor to stent themselves for that effect , if they have materials of their own . it has been also found that manses are to be built and repaired where they were burnt or wasted casu fortuito . a gleib is that portion of land that is to belong to the minister , gleba terrae , or a little piece land , and is by this act to comprehend four aikers of arable land , or soums grass , where there is no arable land , act par. ja. . these four aikers are to be design'd out of lands formerly belonging to the parson or vicar ; and if there be none such , they are to be design'd out of abbots , prioresses , bishop , friers , or any other kirk-land lying within the bounds of the paroch , act par. ja. . which order is exactly to be observed in the way set down by this act , as dury observes , july . halyburton contra paterson ; yet i find that bishops lands were design'd before abbots lands , because that bishops have greater interest in the cure ; and albeit it may seem that the designing the most ewest or nearest lands to the manse for a gleib be in favours of the minister , and for his ease ; yet the lordsfound a designation null at the instance of the heretor , whose lands were designed , because there were other lands nearer to the manse , for else any heretors lands within the paroch might be designed for a manse out of prejudice . by the act par. ja. . it is ordained , that ministers who are provided to churchs , where there was no parson or vicar formerly , such as cathedral kirks , or abbacies , shall have a sufficient manse within the precinct of the cathedral or abbay , except the heretors of the precinct provide them to as good a manse , and as commodious . these designations are to be expede according to this act , by the arch-bishop , bishop , super-intendent , or commissioner who shall give their testimonial , how he and two of the parochioners have design'd such four aikers , presently possest by such a man ; upon which designation , with a supplication from the minister , the lords of session are ordain'd to grant letters of horning upon ten days , which is renew'd by the act sess. par. ch. . by which it is also appointed , that such designations of manses shall be by such ministers as the bishop shall appoint , and two or three of the discreetest heretors . by this act benefic'd persons being year and day at the horn lose their benefices , which fall under their liferent-escheat ; but it may be doubted , whether these benefices should fall to the patrons of the benefices , as other lands fall to superiors , to compense their want of a vassal , especialy seing where kirks vaik through the ordinars not accepting of a presentation , the vacand stipends are declar'd to remain with the patron ; or whether these benefices ought to belong to universities , and such as have right to vacand stipends ? or whether they ought to belong to his majesty , and to be transmissable immediatly by gifts in exchequer , as other liferenters are ? and this last is most conform to our law. though it appears by this and other acts , and by our progresses of writs , that the pope us'd to confirm rights made of church lands ; yet that was never necessary by any positive law with us , and feus even of kirk-lands , prior to the reformation , were and are valid , without any such confirmation ; but because about the time of the reformation , which was the . of march . benefic'd persons did dilapidat their benefices ; therefore by the act par. . it was declar'd that all feus not confirmed by the king or pope before that time were null . at this time there were two opposit parliaments sitting , one for the king at striviling or stirling by the earl of ●ennox ; as regent , and another for the queen at edinburgh , and therefore this act ratifies all that was done by the parliament for the king , and annuls all that was done by the other , vide melvils memoirs pag. . vid. observ . on act par. ja. . by this act excommunicat persons should be denunc'd rebels at the instance of the kings advocat , or procurators for the kirk ; but now the kings advocat is procurator for the kirk , after this denunciation their liferent-escheat falls to the king , and all simulat gifts of them are null , act par. ja. . and the excommunicat persons and their tennents are lyable for the rents in solidum , but the payment of the one frees the other ; nor will the defence of fructus percepti & consumpti , for the maintaining of their lives , defend the excommunicat person , as to bygones , the reason whereof is , not because if this could defend quoad bygones , it should defend quoad the future , and so the act of parliament would be evacuat , as is alleadg'd in dury , june . . but the true reason is because the excommunicat person cannot be bonâ fide possessor , since he is so frequently cited . by this act the arch-bishop or bishop may appoint persons for taxing the parochioners , for repairing of churches , if the parochioners elected to tax , refuse , upon which act the lords are ordain'd to grant letters of horning , which is extended to the repairing of kirk-yard-dykes , by the act par. ja. . but it may seem reasonable that the patron should repair the church , since the care of the edifice belongs to him , & ejus est incommodum cujus est commodum , yet our law burdens not the patron , but the parochioners because they get the advantage in it of the word and sacraments ; for which reason also the canon law burdened them in the last place , if there were not a fund for that effect , or if fructus residui ex beneficio , were not sufficient , vid. paul. de citad . de jur . patr . art . . but for this reason , all who are parochioners should be lyable to repair ; and yet the heretors are only lyable , and it would seem that these heretors should be first lyable , who have bought in their own teinds , since they have most advantage by the benefice , the rents of which benefice were by the canon law burdened with these reparations . by this act also , if any intromet with the stones or timber of a demolish'd church , the bishops decreet is equivalent to a decreet of the lords of session , but this is in desuetude . by this act also the parsons of the paroch should furnish bread and wine to the communion , how oft the same shall be administrated , and it seems that by the word , parson , should be mean'd either rector ecclesiae , for he is called the parson , or all the persons who are parochioners , and which seems reasonable , because they partake of the sacraments ; and yet heretors are only lyable , . it is clear from these word , that what is due for communion elements should only be due when the communion is given , but yet heretors are lyable yearly , though the communion be not given , but it should be then given to the poor in that case , and not to the minister . king james the sixth , parliament . from the narrative of this act it is observable that the reformation from popery first authorized in parliament in august ▪ which observation may conduce to clear many things , both in relation to dates and others which depend upon the reformation . by the canon law there could be no divorce upon separation , because marriage is a sacrament , and so could not be dissolved but by death ; but all protestants allow a divorce in case of wilful diversion , and therefore by this act if persons absent themselves , and will not cohabite for four years , they may be cited to adhere , and if divorce follow , the wife loses her tocher , & donationes propter nuptias , and if the husband be the person who diverts the wife , will by the same parity of reason get her conjunct-see , and every thing else to which she could have had right ●f her husband had died , march , . lady manderstoun contra rentoun ; and by our law the party injured has liberty to marry after such divorces . the canon law requires ten years diversion , though this act requires only four years , c. . extrav . qui filii , vid. ritors , de disser , jur. civ . & canon . l. . c. . but even in that case they grant no divorcement , but only separationem quoad thorum & mensam : as to the four years prescrived by this act , it may be doubted whether they should run from the date of the citation only , or from the time of the withdrawing or desertion , and it would appear that since the act of parliament sayes , that if they remain in their malicious obstinacy for the space of four years ; therefore the four years should run only from the date of the refusal , either by citation , or at least by being required ; and yet the commissars ordinarly make them run from the date of the withdrawing and desertion simply , though neither cited nor required ; and though it would seem by this act that four years should interveen before the decreet of adherence , yet the commissars will grant a decreet of adherence upon a years desertion , or less , if it can be proven to be malicious , or design'd , for they think it is enough that four years run before the decreet of divorce . since the act of parliament requires malicious desertion to preceed the divorce , it may be doubted whether citations at the peer and shore of leith to those that are out of the countrey , or at the dwelling house to these that are within the countrey be sufficient , since they may be so cited without being malicious deserters ; and it were hard that a man being taken with pirats or robbers , or necessarily absent without knowing of any such citation , should for years absence lose his wife ; and though in the romish church where there is no dissolution of the marriage this might be sufficient , since upon his return he might recover his own wife , yet it is most dangerous with us , and though these citations be sufficient in other cases , yet there is no parity of reason for their being sufficient here , where malice is required , and where the loss is irreparable . it may be also doubted if a wife remaining in her husbands house , but refusing him all access to her , may be said to have diverted , and i conceive she may , for all the reasons in the one case conclude against the other . the form of process here set down , seems to be borrowed from the saxon law , related by s●edvin . ad tit . instit. de nupt . par. . de divert . & harprech . ad part . . de nupt . num . . & seq . and lest this process may proceed from collusion , by the husbands being desirous to divert upon design to obtain a divorce : therefore by our law the pursuer is obliged to swear that there is no such collusion . in place of letters in the four forms mentioned in this act , letters of horning are now summarly granted on all commissars decreets , act . par. . ja. . as also on the decreets of sheriffs , stewards a●ts , bailies , &c. act . par. and act par. ja. . for of old horning being under the sessions signet , 〈◊〉 only granted on decreets of the lords . this act is in desuetude , for salt may now be lawfully transported , but then we had not enough to serve the countrey . by this act every cowper is to put his own mark upon his own barrel ; but by the act , par. ja. . there are staples appointed for salmond ▪ where a gadge and mark is to be kept . this act relates to the time wherein grange kept the castle of edinburgh for the queen . king iames sixth , parliament . by this act ministers gleibs are not to pay teind , which is extended by the act par. . ja. . so far that ministers gleibs are thereby to be free from all impositions whatsoever , and it was found the of june , . burnet contra gib , that not only gle●bs of kirks establish'd by law were to be free , but even gleibs of chappels where there was divine service ordinarily ; and this priviledge of being free from teinds was to be extended not only to ministers gleibs , whilst they were possess'd by the ministers themselves , but that even the gleibs of vicars were to be free from teinds , when come in the hands of laicks , except it could be alleadg'd that within these years bypast these laicks had payed teinds for these gleibs , albeit this act of parliament be only conceived personally in favours of ministers , but not really in favours of parsons or vicars manses , july , . earl of queensberry contra dowglass . this act is conform to the reform'd churches abroad , vid. carpz . jus consist . by this act the lords are ordain'd to direct letters of horning at the chancellors and bishops instances , for charging the havers of writs belonging to hospitals summarly to produce them , and the clerk of the bills having refused to pass a bill upon this act , as being in desuetude , and as having been at first but temporary , because it ordains a report to be made betwixt and pasch next , yet the lords ordain'd such letters to be granted , and found the act neither temporary , nor in desuetude , january . hospital of northberwick . vid. observ . on the act , par. ja. . and on the act , par. jam. . this act is explain'd in the and acts par. ja. . though by this act it is declared only that in the competition betwixt such as have obtained confirmations from the king , the last right first confirmed shall be preferr'd , yet this holds also in rights , holden of other superiors , because if the right be given to be holden of the superior , & a me , it is no compleat right till it be confirmed , and the first compleat right is to be preferr'd . nota , from this act that the lords of exchequer ought not to refuse to grant confirmations , & de praxi , if they refuse , the kings vassals protest that their refusal shall not prejudge his right . but i find that where many creditors were confirmed in one day , the lords preferr'd them according to their diligence , and there having taken seasine , and not according to the date of presenting the signatures , since neither were negligent , nor had used precipitation , for they shun'd to determine that the exchequer had not preferr'd or brought in all justly , for that were to make the two courts interfeer , december , . mill contra pasoules ; but in the competition betwixt two confirmations , the lords found that the first who had past the seals was to be preferr'd , and that the preference of the confirmation was to be judged by the passing the seals , and not by the date of the signature , since it is not the signature , but the charter that preferrs , because a charter first past the seals , though upon a posterior signature , will be preferr'd as the more compleat diligence , the seal being in place of the king's subscription , and consequently the date of the charter is not still to be looked to , since the charter bears still the date of the signature , and the date of the passing of the seals is proven in our law by an attestation under the hand of the keeper of the seal ; for though that attestation may seem to be the testimony of only one witness , yet it is actus officii , and the minut-book is a sufficient check upon his attestation , february , , clackmannan contra earl wigtoun . it is also observable from this act that albeit the keepers of the seals are discharged to pass double confirmations of rights of the same lands , yet de praxi the exchequer and seals pass very frequently such double rights periculo petentis , and though where the obtainer of the first right cannot instantly exclude the second , as by clearing that the granter was denuded , and so the second right was null . there may be some pretext for granting such double rights , periculo petentis , the exchequer not being judges competent to the competition of double rights , yet where the first can clearly and instantly exclude the second , there is no reason for passing the second , for by passing such double rights , the first is put to the necessity of a reduction , since no right once passed under the great seal can be annulled by way of exception , but only by way of reduction ; and since the second right , though null , may be the foundation of a prescription , and will establish a full right in the obtainer , if he continue years in possession . this act prohibiting flesh to be transported in ships , except in so far as is necessary for victualing the ships , is now in desuetude . king iames the sixth , parliament . it is observable that in this act is said , that our soveraign lord has declared and granted jurisdiction to the kirk , which consists in the preaching of the word , the correction of manners , and the administration of sacraments , which inferrs that ecclesiasticks have no temporal jurisdiction save from the king , which the canons have also acknowledged , as shall be clear'd in the act concerning the supremacy : but they are acknowledg'd to have had an ecclesiastick jurisdiction , for the act bears , has declared , and this ecclesiastick jurisdiction is declar'd to consist in preaching , correction of manners , and administration of sacraments . this act discharges gaming and drinking in ale-houses on the sabbath , and is considered in the act . par. . ja. . though such young noblemen or gentlemen as go abroad , need not now licences from the council , nor to make application to the bishop or superintendent within dayes after their return , yet if the council suspect that they are like to change their religion , they use to cite the parents , and to force them to bring home their children , or else to imprison or fine them as they see cause . this act was renewed by a proclamation of council , january , . by this act the labourer is to require him who has right to the teinds , to come and teind within dayes after the shearing , by making premonition on three sabbath dayes after the shearing , which is by the act , par. . ja. . restricted to two sabbaths ; and thereafter by the act , par. . ja. . it is appointed that the teinding beat three several times , viz. the in-field at one time , the bear at another time , and the out-field corn at a third time , and that dayes interveen after each compleat shearing ; but all this is innovated by the form set down very fully , act , par. . ja. . which last act is now in observance , and being fully consider'd needs no further explication . vid. crim . pract . tit . idle beggers , and observ . on the act sess par. ch. . where this act is ratifi'd and enlarg'd ; in this act excellent overtures are set down for punishment of vagabounds , and these who flee from their masters service , who by this act are appointed to be burnt in the ear , and scourg'd for the first fault , and to suffer death for the second ; so far can the repeating of a crime highten its punishment , even in mean crimes : analogical to this act is the tit. ff . de fugitivis , where likewise many excellent overtures are propos'd . albeit by this act , all the hornings are to be registrated in the sheriff-books of the shire ; where the rebel lives : yet by the act par. ja. . in case the sheriff refuse to registrat the same , it is sufficient that they be registrated in the general register ; but if the horning be for a criminal cause , it must be registrated in the books of adjournal , act par. ja. . observ. o. that horning against witnesses need not be registrated at all , nor can witnesses escheats fall upon such denunciations , because it were hard to put the pursuer to so much expenses , or to make an escheat fall for a negligent contumacy . observ. o. that denunciations at the mercat cross of the shire where the rebel dwells , should only debar rebels , ab agendo , and not denunciations at the mercat cross of edinburgh , as was found january . . blair contra blair ; and even these defenders who are denunced at the head burgh of the shire , cannot be debarr'd from proponing that which requires their personal presence , nor are their creditors or assigneys debar'd from pursuing . observ. o. though by this act the thesaurer has power to intromet with the rebels goods , and may raise letters for that effect , which were call'd letters of intromission ; yet now escheats must be gifted , and the donatar must raise summons of general declarator thereupon , wherein it must be try'd , if the rebel was lawfully denunc'd ; and after general declarator , he must have a decreet of special declarator , which is in effect only a decreet for payment , though it be abusively call'd a special declarator ; and the former letters of intromission are justly found not to be legal now . the affixing a roll of the rebels names here mentioned , is in desuetude , except as to fanaticks , and these who pay not the kings publick dues . some doubts concerning this act are explain'd in the act par. ja. . this act is explain'd , crim. pract . tit . libels . by this act the pains of breaking law-burrows , is to be divided equally betwixt the king and the party injur'd ; and the reason of this is , because the king is injur'd by the breaking of the law-burrows ; the charge of law-burrows being in his majesties name ; and though ordinarly the party charged finds caution of law-burrows ; yet if after the charge any prejudice be done , the party charged is lyable , because the charge is contemn'd , july . . semple contra cuninghame . the civil action whereby this breach of law-burrows is pursu'd , is call'd an action of contravention , and must because of this act of parliament , be rais'd at the kings advocat's instance , as well as at the instance of the party injur'd , and the pursuers title is the charge , if no caution be found , or the extract of the bond of cautionry , if caution be found ; the ordinary deeds whereby contravention is infer'd , are beating or stricking the party to whom the lawburrows is found , or his servants , except the servants or tennents were beat upon a special account , no ways relating to the master ; which speciality must be proven , or else it s presum'd to have been on the masters account ; and for the same reason it is , that though the stile of letters of law-burrows bear , that the complainer , his men , tennents and servants , &c. shall be skaithless in their persons , lands , heretages , goods and gear ; yet the taking of two horse from the pursuers tennents , was not sustained to be a contravention , because that was not done on the masters account , nor was the tennent himself pursuer , january . . grant contra grant. nor was for the same cause , the breaking up the tennents house , and taking some goods out of his chest , found a contravention , february . . lindsay contra denniston . but since it was not a contravention , because the master was not concerned in the injury as these decisions bear , i see not how the tennents concourse could have altered the case , quoad the contravention , though in both cases the tennent may pursue damnage and interest . all lawyers are clear , that there must be clear grounds of injury alleadg'd , and therefore feeding bestial upon controverted lands , is not sufficient , december . . but in mutual contraventions upon that head ; the lords allow'd both parties to turn their libel in a molestation , and granted commission to examine witnesses hinc inde , january . . rouchlay contra wood. nor would the lords find that pasturing upon waste high-land-ground , should infer contravention , except it had been done by the masters command , or frequent herding to his knowledge , july . . earl of airly contra m cintosh . but yet if deeds of violence be done , even upon debateable lands , that will infer contravention , such as the hoching of oxen. this animus injuriandi is so necessary , that deeds done by drunken-men , are by many lawyers thought not to infer a contravention , christin . tit. . art. . and the adulterating the pursuers wife , will not infer a contravention , because this is not done animo injuriandi , but animo libidinoso christin . art. . he likewise thinks , that threatning real injuries is sufficient , and threatning is a great breach of the peace , especially when it is by a man who uses minas prosequi , but verbal injuries , per se , are not thought sufficient by lawyers , nor have we any decision sustaining a contravention on that head . since by this act the king and the party have different interests , therefore imprisonment or paying of a fine to the king by prior sentence , will not exclude a pursuit of contravention at the parties instance , march . . futhie contra carmichael , and january penult , . johnston contra laird of westnisbit . and certainly that decision related by hope tit . contravention forrest contra turnbul ; where it was found that the kings advocat could not insist alone in a contravention , if the party injur'd discharged the deed , though after the intenting of the cause , is an illegal decision ; for seing the king is injur'd crimine fractae pacis , and that by this act the king has right to the half of the penalty , and had formerly right to all by the act par. ja. . the party cannot discharge the kings part . contravention is a penal action , even at the privat parties instance ; and therefore titulus coloratus , will defend against it , and thus a contravention being libelled , as infer'd from the casting of a ditch , whereby the pursuers land was overflow'd . the lords found that a consent from the pursuers father , though he was but liferenter , did defend against that action , january last . l. weyms contra l. gairntilly , without prejudice to pursue an action of damnage and interest ; to which the lords turned this libel , without necessity of a new process . and this action is likewise elided for the same reason , by subsequent dissimulation ; and therefore a pursuit of contravention , founded upon cutting of trees in the pursuers wood , was elided by the same pursuers granting licence thereafter to the same defenders to cut in the same wood ; which posterior licence the lords found did infer a presumptive remission , january . . denniston contra lindsay . nor is this contravention infer'd by injuries , done upon provocation or self-defence , but though provocation seems to be good against the provocker , yet it seems not to be good against the king ; and it may be doubted whether the penalties of the acts of parliament may be sought , by and attour the damnage and interest , or if the damnage is to be a part of the penalty . hope observes from the narrative of this act , that as only landed men can be judges in perambulations , so landed men ought only to be received witnesses in heretable debates ; but this observation holds not in our practique , which allows any habile witnesses in perambulations , and all other heretable debates . by this act all heretable obligations , or writs of importance , are to be subscriv'd , and seal'd before two famous witnesses , if the parties can write , or by two famous notars , before four famous witnesses , if they cannot write . observ. o. that sealing is not necessary , but subscription is sufficient in parties , and is not necessary in witnesses by this act , though it be requisit by the act par. ch. . even in witnesses also ; and though the sealing be only remitted in papers to be registrated by the act par. ja. . yet it is not necessary in any writ by our present custom . observ. o. that in our practice ; all writs exceeding an hundred pounds , are interpreted to be writs of importance , and so to need witnesses , january ult , . but if any sum be to be annually pay'd , that writ whereby it is to be pay'd , requires witnesses , though never so small , because yearly prestations may arise to a considerable sum , july . . and though sums above pounds , require writ ; yet intromission with victual or any thing else , probable by witnesses , as all other things consisting in facto are ; as also , intromission with uncoyn'd money or silver in mass , is probable by witnesses , though exceeding pounds : but promises & nuda emissio verborum , though for less sums than pounds , are only probable by writ , because by standers may mistake the position and force of words , january . . douchar con . brown. observ. o. this act is only to be extended to such things as require writ , ex sua natura ; and to which writ uses to be adhibit for merchant-bargains made in mercats , do not require w●●t , and so are probable by witnesses ; for men use not , nor cannot adhibit writ in such cases ; nor are witnesses requisit in discharges granted to tennents by the masters , because of their rusticity , and the smalness of the sums : nor are witnesses requisit in contracts of marriage , upon which marriage has followed , nam notorietas facti habetur pro testibus , july . . breidie contra breidie . but it may be doubted whether this holds in strangers , such as are third parties ; and i think they are not oblig'd to pay the tocher , though it certainly holds in the man and wife themselves who contract ; and though it hold not in third parties , who are meer strangers ; yet it should hold in the father , when he obligeth himself to pay the tocher , where there is a tripartite contract subscriv'd by many parties , they are in place of witnesses to one another , all parties having subscriv'd , july . . forret contra veitch . and a writ having the substantials filled up with the granters own hand , is equivalent to its being subscriv'd by witnesses , january . . vans contra malloch . observ. o. though the sum exceed an hundred pounds ; yet if the pursuer restrict his pursuit to an hundred pounds , it is probable by vvitnesses , july . . wallace con . muir . vvhere the parties cannot write , two notars and four vvitnesses are required by this act ; but yet a merchants mark is sustained , if it can be prov'd , that he us'd to subscrive so , february . . brown contra johnston . but this is only sustain'd amongst merchants , and to facilitat commerce : but it seems that in law , no such mark should be sustain'd , except where the writ has witnesses also . subscription also by the initial letters of the subscrivers name , is sustain'd , if the subscrivers be prov'd to have still subscrived so , these instrumentary vvitnesses are presum'd to have been chosen by consent , and therefore sons , servants , &c. may be vvitnesses ; and it may be doubted if vvomen may be vvitnesses in vvrits ; but it is still sit to choose disinterrested vvitnesses , for if the granters own relations be witnesses , and one of two of them deny his subscription , the writ will be reduc'd as null , though not improven as false , as was found in nimmo's case . these vvitnesses are by this act to be design'd by their special dwelling , or some evident token , by which they may be known , as to which . observ. o. that though designation by the dwelling-place , be declar'd sufficient by this act , yet if that designation be too general , as that the witness is in-dweller in edinburgh , and that there be many of that name there : or the person cannot be known by that designation . the lords will ordain them to be more particularly condescended on , even by an assigney , who may pretend that he is not oblig'd to know who the witnesses were , but that it was sufficient for him to see that the bond had witnesses , but yet that the witness was servitor to the earl of southesk , though the earl had more servants of that name , february . . observ. . that though the act say that the writ shall be null , if the witnesses be not design'd in the writ ; yet the lords will allow the pursuer to design the witnesses if they be insert , though the witnesses so designed be dead , and many years have interveened since the writing of the paper , but in that case they will ordain the designation to be astructed per comparationem literarum , and an oath in supplement , july , . colvil contra the executors of the lord colvil ; but if the writ mention no witnesses , the lords will not allow the pursuer to condescend who were witnesses , and to design these witnesses , jan. . magistrats of contra the earl of finlator . all which holds only in cases arising from writs prior to the act , par. . ch. . by which act witnesses must be subscriving and design'd , else the writ is null . i find this whole act was verbatim made in france at moulins , anno . and has been brought in here very shortly after , viz. . there is a learned commentary writ upon it by bosellus , borderius , which may be very useful in our practice . i find also that by the edicts in flanders , nothing can be proven by witnesses above pounds , vid. stockman . decis . . by this act , spuilȝies , ejections , and others of that nature prescrive in years . o●s . . that though the action of spuilȝie and ejection prescrive quoad the specialities indulged by the law to these actions , which are , that violent profits will be granted , and that if the pursuer prove that the spuilȝie or ejection were committed , he may tax his own dammages per juramentum in litem , yet if the pursuer restrict his action to wrongous intromission , or re-possession , he may pursue for the same at any time within years , march , , . inglis contra kirkwood . observ. . that from these words in the act , and others of the like nature , the lords have found that an action of intrusion prescrives within years , february , . as also , that an action for demolishing of a miln , or an action intented for the dammage and interest sustained in ryving out a common moor , and generally all such actions as arise from violence , and inferr upon that account extraordinary dammages , do prescrive within years , quoad the extraordiness of the dammage . observ. . that nothing but a formal pursuit of spuilȝie interrupts this prescription , and therefore an action of oppression and depredation intented before the justices , was not found sufficient to interrupt this prescription , though that was a more exuberant conclusion , and so included spuilȝie as a lesser , and the justices are judges ordinar also ; and by this act it is enough to pursue before the judge ordinar , february , . master of rae contra dumbeath . actions of removing prescrive so ( if not pursued within three years ) that there must be a new warning before any removing can be intented , and the lords have found that these three years are to be computed from the time to which the warning is made , but not from the date of the warning . by this act all actions for house-mails , mens ordinar servants fees , merchant compts , and other like debts prescrive in three years . observ. · that these actions are not absolutely extinguished by the prescription , but after three years they become probable only by writ , or oath of the defender , whereas if they had been pursued within three years , the debt was probable by witnesses , and this act is founded as i think upon the presumption that men would not suffer such debts to ly over for longer than three years , without taking an obligation for them in writ , and the presumption lyes for their being yearly pay'd , and that which was praesumptio hominis , is after the current of three years made here praesumptio juris & de jure & lex statuit super prasumpto . observ. . these words , or other the like debts , that are not founded upon written obligations are dangerous , as all such general clauses are , which make the people unsecure , and the judges arbitrary ; and though one would think that maills and duties of lands ought to prescrive as soon as any of these , since it is not presumeable that these would be suffer'd to be unpay'd , yet it was found they did not prescrive in three years , january , . ross contra fleming . by this act house-mails , &c. prescrive , if they be not pursu'd within years , and therefore the libel for such debts is not relevant , except it be expresly libell'd that such duties were owing , and are yet resting unpayed , and consequently the tennent may depone that he possest but that he payed , which quality is receivable , and yet if the tennent depone simply that he possest and forgot to adject the quality , the lords would not sustain it to be adjected ex intervallo , at the advising of the cause ; or in a suspension or reduction , unless the tennent could prove that the master would not suffer the quality to be receiv'd , or would offer to prove payment by the masters oath . observ. . it may be doubted whether this act ordaining merchant accompts to prescrive in years , doth reach to compts owing to strangers , for they seem not oblig'd to know our law , and this would ruin all commerce & locus contractus semper attendendus . but it was found that this act does extend to all merchant goods , as well when sold in gross as by retail . it may be doubted whether these two last acts run against minors , since it is provided expresly that prescriptions against spuilzies and ejections shall not run against them , which shows that if this had been design'd in the other prescriptions , the same clause had been renew'd , since it was under consideration , and so seems not to have been forgot only , and there seems to be some reason for this , since minors are prejudg'd by spuilȝies and ejections , and so prescriptions in these should not run against them , but in removings the hazard is only that a new warning must be used , and in other the like debts , the only loss is that the debt cannot be prov'd by witnesses after three years , and so since these prescriptions did little hurt to minors , it was not necessary to stop their course . it is also observable , that though all these prescriptions run in years ▪ yet if actions be once intented , they stop the prescriptions , and thereafter spuilȝies , removings , or aliments , &c. do not prescrive in less time than years , as all other debts do ; and till then violent profits are due , or the like debts may be prov'd , as if the action had been pursu'd within years , january , . herring contra ramsay : as also by our late decisions , if the pursuer has continued to employ a merchant the currency of that compt , and trust will preclude the prescription , so that many former years preceeding the three last may be craved , though this act ordains all merchant compts to prescrive within that time , but if a bond be taken for these posterior years , it is thought that cannot be called a current compt , and it may be debated whether in law one or two articles will make a current compt , and if it do , there may be many wayes taken to elude this act , vid. december , . somer●el contra the executors of muirhead . this currency extends to brewers compts of furnishing , november , . wilson contra ferguson ▪ ( vid. sand. lib ▪ . decis . tit. . ) though it was alleadg'd that albeit it should hold in merchant compts where there are discharges taken , and where a compt book adminiculats the recept , yet it ought not to be consider'd in furnishing of ale , where neither of these are observ'd ; and yet this currency was not respected in servants fee● , for these same reasons , and because a servants fee is alter'd at the masters discretion , february , . ross contra mr. salton . vid. crim. obs. tit. forestallers , and tit. . it may be doubted whether this act that gives power to the sheriffs and other judges , to throw down cruives and yairs , ought to be extended to dykes built over waters , or a part of the water , for making a dam to a miln . o. vvhether sheriffs or lords of regality , &c. may execute this commission for their own advantage , and where they themselves are the parties grieved , since that were sibi jus dic●re , and they would probably be partial , whereas they may get others to execute the same . this act discharging exportation of coals is now in desuetude . this act fining such as propone unjust exceptions , or lose the pley within burgh , for the use of the poor , is conform to that title in the civil law , instit . de panis temere litigantium ; for there can be nothing so absurd and unjust , as that men should not at least have their true expenses upon oath ▪ whereas we use to modifie little or nothing , even where there is not the least colour for a pursuit , or defence , and this i think a great iniquity in all judges who are guilty of it . vid. instit . de paen ▪ temere litigantium . by this act the lords of session are ordain'd to distribute justice without respect to any privat writing impetrat from his majesty , and by this his majesty is freed from importunity , and his people from unjustice . this was formerly statuted by king david . cap. . & cap. . and by the . cap. statut. . rob. . judges are ordain'd to judge secundum leges antiquas ; and in the civil law , per l. . & . c. si contr . jus vel util . publ . & per novel . . cap. . and in the canon law , cap. . de rescript . this same law is also in france , and is learnedly treated by rebuff . ad constitut . reg. tit . de rescript . and plutarch commends antiochus for having made a law in these same terms ; but though the former statute of king david warrands the judge not to respect that command , but to indorse and send back the warrand , and not execute the unjust command , which is by the . cap. of the same statutes extended so , that they are not oblig'd to delay justice upon any such privat warrand ; yet i find by § . . cap. . of these same statutes , that the king may discharge or prohibite a judge to proceed in the case of perambulation , for certain causes ; for reconciling which statutes , it must be answered , that the king cannot either simpliciter discharge a perambulation ; nor any other process , but that he may discharge it for weighty causes , relating to the publick , to which all privat interests must cede even as he may remit crimes for such causes , though these be of greater consequence , or rather that the king may discharge perambulations , because the publick peace is oftimes concerned in these , since there used to be ordinarly great convocations at such perambulations ; and therefore the justice general was of old only judge competent to perambulations . upon march . . the queen regent appears in the session and declares that the lords should proceed to do justice , notwithstanding of any letter or order from her , which is marked in the books of sederunt . observ. . that before this act the council us'd frequently to discharge the lords of session , to proceed in judging privat causes , whereof many examples are to be seen in hopes larger practiques , and an instance of it is to be found in the act of this parliament ; but that custom is here discharg'd , and as yet the council uses frequently to discharge the justices to proceed . and notwithstanding of this act , i find in the registers of council , . king james revocks in two several cases , gifts granted by himself , and discharges the lords of session , to sustain action upon them . observ. o. that the lords are also allowed to proceed , not only to decide , but also to cause execute their sentences , notwithstanding of such privat writings , charge or command , so that the privy council cannot suspend the lords sentences , neither by an act of council , nor yet by letters under the signet ; but yet the privy council , by vertue of their late commissions , are allowed , and do usually grant protections , whereby the executions of the lords sentences are oftimes stopt . in so far as this act discharges the lords of session to take buds or bribes , i have explain'd the same , crim . pract . pag. . observ. o. that the lords are allow'd to reject any person whom the king presents to them to be a lord , if he be not qualifi'd and of good fame ; and therefore the lords us●d when the king presented any person to be a lord ( which was by a letter direct to the session , wherein the king did nominat him a lord ) to name some of their number to examine him . but now the form of tryal is more severe , and is set down in his letter direct by his majesty in anno . whereby they are immediatly after pleading to resume the debate , and to give their opinion first in a cause debated in praesentia , and to sit with the ordinary in the outter-house , and to report some causes there debated , and to give their own opinion , with the reasons thereof . observ. o. that by the first institution of the session , the president was still an ecclesiastick person , and of the dignity of a prelat , as this act says ; and yet i see no such article in the first institution ; but however , that is here dispensed with for the future ; for by the act parl. ja. . it is only said , that the session shall consist of fourteen persons , the one half spiritual , and the other temporal , with a president . by this act the tenor of letters of horning , and of the executions thereof , cannot be proven by witnesses ; the reason whereof i conceive to be not only , because upon such letters , mens escheat and liferent may fall , and that were of too great importance to be proven by witnesses , since our law does not allow any debt above an hundred pounds to be proven by witnesses ; but because witnesses can neither know nor remember the exact tenor of all the formalities of executions and stampings thereof ; and so strict are the lords in the observation of this act , that after the horning and executions were registrat , they would not allow the messenger to add the word , three oyesses , in his executions , though he offered to prove that there were truly three oyesses , and was content to bide by the execution so amended , and that the executions did bear the words , thee oyesses , which wanted but the letter r , to make the oyesses ▪ three oyesses , vid. july . . sir john keith contra sir george johnston ; and july . . stev●●son contra innes . it may be 〈◊〉 whether the tenor of such letter● may be proven , if there 〈…〉 other adminicles in writ , since even papers of the greatest ●mportance may be thus proven by witnesses , and there is no paper whereof the tenor may not be proven , nor is the proving of a tenor here discharged , and if the letters of horning and executions be registrat , the registration takes both off the suspicion of falshood , and makes the witnesses who are to depone know what solemnities were used ; but yet it will never appear by the registrat extract , whether the executions were stamped , and yet this point being sacti , may likewise seem to be probable by witnesses who saw the same stamped . in the case betwixt boyd and malloch , december . . the lords inclined to think , that even executions of hornings being once perfected by writ , and thereafter lost , might have their tenor proven , though by this act it would not be originally proven , that letters of horning were execute , but they were all clear that this act was siricti juris , and did not extend to executions of comprizings ; and therefore they found that the tenor of such executions might be proven . nota , that a registrat extract will not stop a certification when a horning and its executions are call'd for , but the principal must be produc'd . the parliament having ordain'd that the witnesses to be used for proving the tenor of the executions should be led in the lords own presence . it may be urg'd argumento ●ujus legis , that witnesses for proving of all tenors , should be led in praesentia , and which is very reasonable , because proving of tenors is nobilis officij , & altissimae in daginis . it is likewise observable in this case , that though the parliament made an act for regulating that point for the future ; yet they left the decision of the case depending to the common law. it is fit to know that there being a staple appointed where all staple goods to be brought from scotland , are declared free of all custome laid upon imported goods , which was a very great favour . it was therefore very just that no merchant should have liberty to enjoy the priviledges of the said staple , except he would give his oath of obedience to the king , and pay his entry in that incorporation . this and the subsequent act are still in observance , and the conservator uses to raise general letters against such as break the same , by warrand from the council who are the ordinary judges in these cases , except where matter of privat right falls in . king james the sixth , parliament . by the old canons all ordinations were null wherein the persons ordain'd was not intitled to a certain church , can-sanctorum distinct . . and thence it was that all ministeria vaga , wherein a man was ordain'd a minister , without respect to any particular church or charge , were discharg'd by our church , though in the lateran council thereafter the ordination was allow'd , but the bishop who ordain'd was oblig'd to aliment the church-man ordain'd , without a suitable living . by this act paroches are to be design'd and circumscrib'd , and every paroch to have its own stipend and pastor , but this quota was not determin'd till the commission of surrender of teinds in anno . determin'd that the lowest proportion of a ministers stipend should be chalders of victual , or merks , which act is thereafter ratified by the act of the par. . it is also provided by this act , that all kirks annext to bishopricks be provided to ministers , and when the title of any prelacy is conferr'd on any , that the said stipend be reserv'd , the reason whereof was , that the pope us'd to unite parochs and benefices to bishopricks , upon pretext of the meanness of bishopricks ; and therefore in the beginning of the reformation , when titular bishops were made , it was thought just that these parochs should be again provided with special ministers . we call him a titular who has the title of a benefice , & qui est in titulo , and thus the seculars who had right to the teinds due formerly to the church , are call'd the titulars of the teinds , and by the old canons it is clear ; that quaedam beneficia a titulo pendent quaedam a reditu , and these tithes are in the ecclesiastick history said to have had their origine , either ab intitulatione in codicem & matriculam cujuslibet ecclesiae un de intitulari dicebantur in canon . sanctorum , distinct . . or from the old custome of fixing upon the altars or churches the titles of these who were presented to it : some also think that most offices in the church had their denominations from the offices in the state and army , there being an analogy inter militiam armatam & coelestem , and that there were titulars allow'd in the one as in the other , vid. bengaeum de titulis beneficiorum , cap. . it is clear by the said canon . sanctorum distinct . . that singula beneficia certo loco & ministerio circumscripta erant , as in this act of parliament . by this act it is not lawful for any who are provided to benefices under prelacies , to dilapidat their benefices . that is to say ; to set them with diminution of the rental which they payed at their entry ; and if the minister contraveen , he is to be deprived , and the right to be null . but by the act , par. ja. . all rights made by prelats with diminution of the rental , are null , and the conversion of victual payable to them into money , below the worth , is by that act declared a diminution ; they are also thereby ordained to find caution not to dilapidat the benefices . likeas by the act par. ja. . the dismembering any part of the benefice , is declared a species of diminution , and so null . it has been justly doubted whether a bishop obtaining certification in an improbation whereby the land returned to the bishoprick might thereafter dispone these lands by a new right ; and it has been decided that this was no dilapidation , if given for the same rental or feu duty they payed before the act . for such certifications being fr●quent , and the design of these certifications being only to force the feuers to produce , it were hard to extend them , especially since the design of these acts is only to hinder the beneficed persons to diminish the rental and value of them the time of their entry , january , . bishop of caithness contra his vassals . it seems that there is eadem ratio for sustaining rights by the successor of that beneficed person who obtained the certification , though it may be alledg'd against him that he is oblidg'd to leave the benefice in as good a condition as he found it : it may be alledg'd that the same reason should sustain rights made by beneficed persons who have obtained reduction , ob non solutum canonem . these acts are so comprehensive , that the act par. ja. , seems unnecessary . by this act if any man was rob'd by any of a clan , he may kill or arrest any of that clan , if it be found by a legal tryal that the clan'd man who did the injury , was harbour'd amongst the clan , after the injury was committed ; but though this seems as just as letters of reprysal are , yet it is now in desuetude justly , for crimina suos tenent authores . these two sumptuary laws are in desuetude ; but in the act , a case is observable , wherein even the kings licence for transporting wool is not to be respected , but is to be esteemed surreptitious . this act seems strangely insert here , since popery was abolisht long before this act. vid. observ . on act par. ja. . by this act all actions of deforcement , and breaking of arrestment , are ordain'd to be summarly discust by the lords without delay , and therefore they might have been excepted from the order of the roll set down in the late act of regulations , but yet they are not , for they must abide the order of the roll , as other actions , and all the priviledge that they have quoad this , is that , they come in upon six days warning , and need not be continued , that is to say , they have but one diet. it is fit to know that these actions may be pursu'd civily or criminally , and the punishment is confiscation of moveables , and an arbitrary punishment of their person . observ. . that the creditors injur'd by the breaking of the arrestment , are to be prefer'd to the fisk , the reasons whereof was , that it seem'd unjust that a creditor doing diligence , for his own debt should be disappointed by his own diligence , as he would certainly be , if when he had pursu'd , and prevail'd in his action for breaking of arrestment , that the parties escheat falling by this diligence , the king should be prefer'd to the user of the diligence , and we see likewise in all such cases the party offended is still prefer'd to the fisk ; and thus where parties are at the horn for a civil debt , the donatar of the escheat is still lyable for the debt : and in theft by act of parliament , the party injured is prefer'd to the fisk , but it seems strange , why by this act the gift of escheat is declar'd null if it be not expresly burdened with the creditors debt . it might seem more convenient that the gift should rather have been burdened with it , as in other cases . observ. . though by this act it be declar'd that the debt shall be pay'd out of the offenders moveables , yet that does not hinder the party offended to do diligence against the offenders real estate , for what sums the lords shall modifie . observ. . that arrestments may be made , not only in the hands of these who owe any thing to the debitor ; but arrestments may be even made in the debitors own hands , which though it may seem strange , yet it is done to the effect , that if the debitor shall be found to have alienated any of his moveables so arrested after the arrestment is laid on , he may be pursu'd for breaking of arrestment , and punished conform to this act. these arrestments are used in the same sence , and are execute in the same way that we use them , and all this subject is very well treated by christin . tit. . ad leges mechlin . argent tit. des arrest . . by the civil law prodigals ( under which name were comprehended all such as manag'd not well their affairs ) got curators only by a judge ; but with us they are interdicted ( and their interdicters are their curators ) and that either judicially , or by consent , but though it may seem that if a man interdict himself , he cannot reduce that interdiction , because he has consented ; nor yet should obligations granted by him , be sustained , though he be thereafter found by the lords to have been provident since the publication did put all in mala fide , to contract with him ; yet papers granted by him will be sustain'd on that head , and even the interdiction it self will be reduc'd as contrary to natural liberty , the granter being mentis compos & rei suae satis providus ; and there having no precognition preceeded , december . . gerhan contra hay . february ● . . forbes contra forbes , which leaves the people in great uncertainty ; and it seems much better that voluntar interdictions were absolutely taken away ; though i believe voluntar interdictions have been introduc'd amongst us for preservation of ancient families ( for they extend not to secure moveables , or against personal execution ) and it was found that many weak persons would consent to a voluntar restraint , who would not compear judicially to be restrained ; and the letters of publication passing upon a bill by deliverance of the lords of session , seems to be a kind of interposing of the authority of a judge , and so to make the voluntar interdiction a judicial interdiction : but the narrative of this act confesses that interdictions upon consent , are beyond the first design of the law. it is observable , o. that interdictions need not be intimated to the party interdicted , or execute against him , december . . seaton contra elleis . though inhibitions must be execute against the person inhibited ; the reason of which difference is , because the person interdicted having consented , there needs no intimation be made to him . obs. o. the stile in all such letters , is ordinarly the rule of all decisions upon them ; and yet interdictions were found not to annul moveable bonds , though the letters did discharge the granting such bonds , and that because interdictions do naturally strick only against alienation of heretage ; our law thinking moveables of lesser importance , or else because that would stop commerce , and straiten too much the person interdicted , july . . bruce contra forbes . june . . cranford contra hamilton . and though an inhibition did expresly discharge the granting of renunciations ; yet a renunciation of a wodset was not reduc'd , as granted after inhibition , since the wodset was prior , and so the renunciation by the person inhibited , depended upon a prior obligation , july . . elleis contra keith . but by a late act of sederunt , the of february . it is declar'd , that if the user of an inhibition shall intimat to the person who has right to the reversion , that the wodsetter or annualrenter stands inhibited at their instance , and shall produce the said inhibition , duly registrated at the time when he intimats , that then the renunciation , or grant of redemption , though proceeding upon true payment , shall not be sustained without citing the inhibiter . there were no formal inhibitions in the civil law , but the doctors speak of a prohibitio alienationis equivalent thereto , m●vius de arrest . c. . num . . arrestari possunt res mo●iles imm●bilium supervacan●um est arrestum cum loco moveri non possunt ejus tamen vice quoad illas obtinet prohibitio alienationis quae impetrari solet a judice quoties justus metus est ne alienando debitor deteriorem reddat petitoris causam essicitque ut non ●iat alienatio ipsius rei & num . . judex ob aequitatem talem inhibitionem decernere debet & num . . pro arresto habetur in immobilibus interdictio usus corum , so that interdictions and inhibitions are a resemblance , if not a species of arrestments , and i think with maevius , that the word comes from the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 placitum incorruptum vel inviolatum , because by all these remedies the obtainers rights are preserv'd inviolable . inhibitions have their origine from the canon law , whereby if the secular judge did interpose in any thing that was ecclesiastick , the ecclesiastick judge did inhibite him to proceed : and inhibitions are mentioned , cap. causam ext. qui sil . sint legit . cap. tuam ext. de ord . cognit . and with us they were first used in the matter of teinds in the same sense ; but now the word is extended to letters , whereby the judge inhibits debitors to sell in prejudice of creditors . the publication of interdictions comes not from the canon law , but from the french , where it is necessary that they be published in paraeciâ & mercatu , as with us , vid. argent . tit . des mineurs , art. . where he likewise determines , that if a third party knew of the interdiction , either by being a witness , or by a privat intimation made to himself , that any right made to him would be null ; with us also the raising of an inhibition upon a bond of interdiction was found equivalent to a publication ; the design of the letters of publication being only to put the lieges in malâ side , november , . stewart contra hay of gourdie , where it was likewi●e found that the person interdicted might after interdiction sell his land notwithstanding thereof to a third party , if the bargain was profitable , and that without the consent of the interdicters : but in that case the bond of interdiction was many years kept up , and the inhibition thereupon was never execute till about the very time the communing begun for sale of the interdicted persons lands . observ. . that albeit all inhibitions and interdictions are to be registrated by this act within days ; yet inhibitions for teinds need not to be registrat , for an inhibitions for teinds is but in effect a summonds or warrand discharging the party to lead , but not discharging third parties to buy , and so needs not be registrated . obs. . that though by this act they are to be null if they be not registrat in the sheriffs register , yet by act par. ja. . it is sufficient to registrat them in the registers of stewards , or lords of regalitie within which they dwell ; and now they may be registrat in the general register at edinburgh , which is not here mention'd , because it was not extant the time of this act and registration in the general register at edinburgh , is allow'd by the act par. . ja , . observ. . whereas this act appoints them to be registrat within days after the publication ; it is doubted whether the day whereupon the letters were execute , or registrat , is to be numbered amongst the days . but by the late decisions it is found sufficient that either of these days be free . nota , inhibitions prescrive from the last execution , but not from the date of the registration , for actions might have been intented upon them before registration , february , . lutesoot contra glencorse . this act appointing such as are absent from the convention of burrows to be fyn'd , and that upon their acts the lords of session grant letters of horning , &c. is in observance , except in so far as these letters are ordain'd to pass at the instance of the burgh of edinburgh , for by an unprinted act of parliament , . execution is allow'd to pass at the instance of the agent of the burrows , and the letters are now still raised in his name . this act ordains the burrows to be cited to their general convention by a missive bill , but this is now done by a missive letter , in which the chief articles on which they are to treat , are exprest , to the end they may consult on them with their constituents , and these are call'd the heads of the missive , but this excludes them not from consulting on new emergents , which could not have been foreseen . that part of this act which discharges the conducting and fraughting any strangers to the isles , under the pain of tinsel of life , lands , or goods , is in desuetude . by this act lords of regality , and magistrats of burrows are appointed to set prices upon all stuffs , but that part of the act appointing such magistrats and judges as are negligent herein to be punished at justice airs , or courts , is not now observed ; and yet that would not defend such as might be pannel'd upon this account ; for the negligence of judges should not defend them , seeing that would invite them to be negligent : this act appointing the shooters with guns to be punished , is not in desuetude , but is seldome put in execution ; and it was thought that fowlers had prescrived an exemption against it , shooting being their trade , and their design is not lyable to these suspitions for which the carrying guns is discharged by this act , but yet since by a proclamation june , . fowlers are discharged to use guns , and setting dogs , it seems this favourable construction ceases , and the bearing such prohibited weapons is still sustained as the aggravation of other crimes , but is not so sustain'd as that it takes off the strength of a defence that would be otherwise relevant ; and thus nicolson being pannel'd for murther , june , . alledg'd that whilst he was strugling his gun went off , without any accession of his , which defence of his was sustain'd , though it was reply'd , that carrying of guns was unlawful in a person of his quality , and so versabatur in illicito & exillicito nunquam exculpatio . though this act prohibits the carrying nolt and sheep out of the countrey , yet it is now allowed , and they pay custome to his majesty , for though before the countrey was fully laboured and plenished with these , it was fit to keep them in the countrey . yet now the countrey would be too much burden'd with them if they were not exported . by this act whosoever renders the king's castles for money , are made lyable to repetition , and it is declared that their heirs shall be lyable , which last is the speciality for which this act was necessary , since the persons who received the money were thereby lyable to restore , and yet before this act heirs were not lyable by our law , since the crime was extinguished by death , and thus in crimine repetundarum repetitio ad haeredes extendit , l. . ff . h. t. na● turpe lucrum ab haeredibus extorqueri debet licet crimina morte extinguantur , l. . ff . de calum . that mixing of wines is justly by this act made criminal , and declared a point of dittay , and this is by carpzov , tit. fals. and other lawyers declared to be a species of falshood , and to be punishable as such . king james the sixth , parliament . by this act as by all the acts of this parliament , king james endeavoured to curb the insolence of such ministers as being dissatisfied with episcopacy , became very seditious and turbulent ; for at this time spotswood's history tells us , that there being a convention of estates holden by king james , the ministers of edinburgh , and others desired that nothing might pass concerning the church , till they were heard ; and mr. pont , protested against the proclamation of these acts , and by this act such as decline the kings council , and refuse to be judged by them in any matter whatsoever , of whatever degree or function they be , are declared guilty of treason . this act was occasioned by their frequent declining of the council , upon pretext that the council were not judges competent in prima instantia , to what was preached by ministers , and particularly by mr. andrew meldrums declinator ; and upon this act mr. james gutherie was convict of treason , for declining the king and his council at stirling in anno . and was execute therefore in anno . this opinion the presbyterians did borrow from the romi●h church , who make ecclesiastick persons only judges in the first instance , to what is spoke or written by church-men , and after they have found them guilty , then they deliver them over brachio seculari ; for understanding these exemptions that are claim'd by church-men from the civil jurisdiction of laicks ; it is fit to know that the king , deut. chap. . vers . . is commanded to write the law , and that david , solomon , joash and others did reform the priests and others serving at the altar , and judg'd their misdemeanours , in imitation of whom constantin the great ; theodosiu , and the first christian emperours did regulat the clergy , and judge crimes till arcudius and honorius , did by an express law , ordain quoties de religione agitur episcopos judicare , caeteras vero causas qua ad ordinarios cognitores vel ad usum publici juris pertinent legibus oporlet audiri , which were just marches betwixt the secular and civil powers : but justinian at the instance of menna , patriarch of constantinople , did in the thirteenth year of his reign , by his . novel . ordain that church-men should be only conveenable in civil cases before their bishops ; and as to criminal cases , that they should be only conveenable before their bishops in ecclesiastick crimes , civil crimes being cognosced by the judge as formerly . from these beginnings did arise the vast pretensions of church-men , whereby they endeavoured to decline the civil judge in all cases , as well civil as criminal , in the first instance , and to that hight that panor in . c. novit . . decret . greg. de judiciis & in c. causam . decret . greg. qui filii sint legit , asserts that both the jurisdictions spiritual and temporal belongs to the pope , which was first check'd by peter cogniers , the learn'd advocat of philip . king of france . it is declar'd by the . act par. ja. . that this act shall not prejudge the spiritual office-bearers , as to the power of excommunication , collation , or other essential church-censures . this act declaring that such as shall impugn the authority of the three estates , or shall seek or procure the innovations or diminution of their power or authority , to be treason , was occasioned by such as endeavoured at that time to exclude bishops from the parliament , of which they were , and are the third estate , and it is observable , both by the narrative and statutory part of this act , that the designing to exclude one of the three estates , was the chief design of the act , though such as impugn the power of the parliament in general , so far as relates to cases spiritual , do likewise commit treason ; and as in the former act , the controverting of the power of the council , is declared treason ; so in this act , the controverting the power of the parliament , is much more treasonable ; and yet it is controverted , whether the denying any branch of the parliaments power be treasonable , such as is the quarrelling the power or constitution of the articles ; or whether the subjects may appeal from the session to the parliament ? or if the parliament has power to reduce their sentences past in foro ? in all which , the parliaments authority may be alleadg'd not to be controverted ; but the question seems to reach only to the controverting , its fundamental powers , and if such cases as these were treasonable , the people might be discouraged to enquire even into what were otherways lawful ; and whatever may be said against such debaits , when they are meerly factious , and officiously mov'd , and prosecuted by such as have no interest ; yet such debates in parliament may be alleadged not treasonable by the act par. ja. . and the votes of parliament are likewise by this act declar'd to be free votes . as to all which , i shall only say that these and such cases , are to be detertermin'd by the respective circumstances ; and therefore it is still safer , not to approach too near those rocks , on which we may splite . this act declares the convocating all councils , conventions or assemblies , civil or ecclesiastick , to be punishable by the pains enacted against such as convocat the kings lieges , and it was occasioned by the unlawful church-assemblies , holden at that time in opposition to episcopacy , and by the act par. ch. . this act is ratified , and all such convocations declared punishable , though it be pretended by such as hold them , that they design nothing but the good of king and kingdom ; which declaration was there made to condemn the false pretences of our late rebellion . it is observable from this act , that the being once or twice drunk , is not a sufficient reason for deprivation of a minister ▪ for the act requires common drunkenness , and deprives ebriosum sed non ebrium . observ. o. that though this act say , that none residence for the space of four sabbaths , without the allowance of the ordinary shall be cause of deprivation ; yet though there be no express allowance , the none-residence will be no reason of deprivation , if the reason was sufficient , and the ordinary could not be had , as the common law decides in this case . none-residence is a cause of deprivation by the canon law , decret . greg. de praeb . cap. . and franciscus forrensis has writ a learn'd treatise , proving the necessity of residence to be juris divini . the civil law had formerly required residence from church-men , nov. . cap. . & . cap. . except where they had liberty from the emperour , and thus with us the king only may dispense with none-residence . observ. o. that plurality of benefices having cure , is a sufficient reason of deprivation , which is consonant to cap. adhaec . . de praebend ; but exception is made , where one is not able to entertain the incumbent , vid. alphons . hoieda de compatibilitate beneficiorum . the pope might dispense , so now may the king. observ. o. that by this act commissioners to be appointed by the king , are to have power of depriving ministers , which is abrogated by the first act par. ja. . though this act declares that ministers who exerce , or officiat as notars , shall be depriv'd , yet it does not expresly annul the writ ; and therefore a contract of marriage subscrived by a minister in place of a notar , was the of july . hassington con , bartilme sustained , though it was found that the ministers was thereby deprivable . this act discharging ministers to be judges , was made to exclude mr. pont , who was then lord of the session : for after the reformation , ministers came in place of the ecclesiastick lords , and though they pretend now that bishops should not sit in civil judicatures , yet they desir'd to be there . by this act the uttering of slanderous and un-true speeches , to the contempt of his majesty , his councils proceedings , and progenitors , is declar'd punishable , as leasing-making ; and leasing-making is punished with tinsel of life and goods , by the act par. ja. . vid. act par. ja. . vid. etiam tit . cod. si quis imperatori maledixerit : for such slanderous speeches , the party is sometimes only banish'd or scourg'd , as tweedie was , march . . but one fleeming was hang'd for saying that he wish'd the king would shoot to dead , may . . spo●eswood relates that this act was occasioned by pamphlets and preachings after gourie's execution . observ. o. that all the subjects are discharg'd to medle in his highnesses affairs , or in the affairs of his estate , that is to say , to make inquiry curiously into what his majesty , or his council does , for that is presum'd to be done malo animo : and in all ages such curiosity has been punish'd . thus augustus kill'd panarus vel●ti curiosum sueton. cap. . and plut. l. de curios . observes that the locrenses fin'd such curious persons , vid. langl . l. semestr . c. . who treats on these crimes learnedly . by this act , no sentence of forfalture for treason , committed against the king and his estate , can be quarrelled upon nullity of process , till the crime for which the forefalture was led be pardoned . observ. . that since this act speaks only of crimes committed against the king and his estate , it has been doubted , whether this act can be extended to treason , meerly committed against the kings person ; for by the kings estate is ordinarly mean'd his prerogative and majesty . observ. . that that part of the act which discharges advocats to plead , or consult for any person , who stands forefalted , is abrogated , act , and act par. ja. . but yet none use to plead for forefalted persons , till they get a licence from the judge before whom the tryal is to be . there was a commission granted to consider what nullities could be objected against swintons forfalture , and it was alleadg'd that the decreet was null by intrinsick nullities , in substantial points , and so the commissioners might proceed , since this act was only to be interpreted of formalities , and alleadg'd nullities , which could not be instantly prov'd , or did not appear by the decreet it self , yet they would not proceed , because the forefalture was not , nor could be purg'd , and the crime was notour . this act declaring all remissions for slaughter , fire raising , and other odious crimes to be null , is suitable to stat. dav. . cap. . and act . par. . ja. . but this act is thought temporary , as is likewise act par. ja. . and notwithstanding of these acts , his majesties remissions for such crimes has been oft sustain'd , vid. crim . pract . tit. remissions . this act is in desuetude , for his majesties guards are paid out of the excise ; and i find this act formerly establish'd by an act of council . this act is fully explained , crim . tit . murder . by this act decreets of the lords of session are discharged to be suspended without consignation , but this being in desuetude , it is by the regulations , article . appointed , that decreets in foro shall not be suspended without consignation , or by the whole lords in time of session , or by three lords in time of vacance . it may be doubted what this act means , in appointing letters of poynding , as well as horning to pass , not only for liquid sums , but where the execution consists in facto , since poynding can only be for a liquid sum. to which it may be answer'd , that the meaning of the words are , that poynding may be allow'd , though the obligation was not originally for a liquid sum , but ad factum praestandum ; but it is necessary in that case , that the effect should be thereafter liquidat by a sentence , else there could be no commensuration , and so no poynding ; and yet i cannot deny but the clause is ill exprest . this act appointing that the defender shall find caution to enter the justice-court , but in sober manner , is now in desuetude , there being no such clause either in the letters , or any such caution found , but though the justices allows some friends to enter the pannel with the defender , yet these must be very few , and disarmed . this act appointing that salmond , herring , and white fish shall be only sold at the staple here related is in desuetude , and though the town of aberdene has their own gadges of salmond conform to this act , yet the town of edinburgh pretend a right to be the sole gadgers of salmond in all scotland , by vertue of a gift from king charles the first , which gift the town of aberdene have suspended upon this act ; and this act in so far as it appoints herring and white fish to be brought to leith , and crail , is expresly abrogated by the act , par. ja. . this act is explained in the observations upon the act , par. ja. . king iames the sixth , parliament . this act was introduced to correct an ill custome which had crept in at the reformation , whereby the popish prelate finding that they were to be put out , did demit their benefices in favours of these with whom they entered in a compact , and by vertue of which compact they reserved to themselves their own liferents ; likeas , according to the c●●on law , si quis resignaverit beneficium retentis sibi fructibus pro per si ne non valet resignatio nam decet quod ipse qui altari servit de altari ; vivat , cap. cum secundum de prab . and in reason it must be concluded that the benefices must be ill served when these who resign reserve their own liferent , for he who serves will have nothing in that case , and he who serves not ought to have nothing : therefore by this act all such compacts are declared null , and it is declared , that for the future all rights to be made to prelacies shall be null , except the places be vacant by decease , forfalture , or simple dimission of him who possest the same formerly ; nor doth the king now accept of any dimission or resignation in favours of any other party , for that is a real invasion upon his royal power , by which he dispones upon all offices according to his free will. when persons are forfeited , they or their children use to abstract the evidents of their land , and therefore by the first part of this act , it is declared that the king or his donatar shall have right to all lands , &c. peaceably possessed by the forefeited person , for the space of years preceeding the forfeiture . observ. . that this priviledge holds only in cases of treason , but not where his majesty comes to have right by any other title , and it may be debated if this should hold where the forfeiture proceeds upon all the laws whereby any crime is ordained to be punished as treason , but it is not declared to be treason , such as theft in landed men , &c. for it would appear that this priviledge was only granted where the crime is declared to be treason ; but yet since these crimes are punished as treason , this act should extend even to these , for the presumptions inductive of this act , viz ▪ that they will abstract their evidents , holds even in this case , and it cannot be deny'd but these persons are forfeited as traitors . observ. . that this right introduced in favours of the king , seem to be only presumptive , so that if any party should show a back-band from the forfeited person who was years in possession , the person to whom the same was granted , or any who could instruct a better right , might pretend to exclude the donatar , even as a church-man who was decennalis & triennalis possessor , might be excluded upon a better right , or by proving that the church-man possessed only by a tolerance , but yet this presumption may be answered to be juris & de jure , and so to exclude all better rights , & sibi imputent , who having such rights , suffered the forfeited person for years to possess without any interruption , and if such competitions were allow'd , the king 's right might be eluded by an hundred contrivances ; and though this act may seem to be useless now , since the registration of writs , which hinders writs to be abstracted , yet that was repelled and last of july , . earl of southesk against the marquess of huntley ; but by the act , par. . ja. . it is declared that extracts of rights , either disponed or confirmed by his majesty shall be valid , though the principles cannot be produced , and yet if king and parliament pleased , this act might suffer some correction , because his majesty is much better secur'd now by registrations than he was at the making of this act. observ. . that since this act appoints this quinquennial possession to be proven only by the retour of an inquest , it was therefore well found that it could not be proven by exception , june , . home contra tennents of kello and home . yet though there be not a retour already made , the lords will superceed extracting that betwixt and such a time the quinquennial possession may be retoured , as was found in that case . observ. . that the possession condescended on in the act is where the forfeited persons were years in possession by labouring the same with their own goods , setting the same to tennents , or uplifting the mails and duties , so that it would seem that these kinds of possessions are requisite in this case , and that the act of parliament hath required them , because they are palpable ; and therefore civil possession per constitutum , by reservation , receiving of annualrent from principal or cautioners , not relative to the infeftment of annualrent , but to the bond or otherwayes seen not sufficient by the words of this act , observ. . that since this act is founded upon uninterrupted possession of the forfeited person , that therefore where there are interruptions ; this holds not , and thus it was found that the raising of an inhibition was a sufficient interruption , july , . earl of southesk con , morquess of huntly . by the second part of this act it is appointed that where the forfeited person was in possession of lands , tacks , or teinds , &c. the time of the forfeiture , albeit he had not been in possession years preceeding the process or sentence of the forfaulter , yet the assize must retour what the rebel did possess the very time of the process or sentence , and the king or his donatar , is to be entered thereto summarly , and cannot be removed for the space of years , that in the mean time he may search and seek after the rebels rights , for he cannot be presum'd to know quo jure the rebel possest ; and albeit it may seem both by reason and by this act , that this should only hold where ●acks or previous possession , though somewhat shorter than years , by vertue of a right , could be proven , yet the lords found that this part of the act holds even where no right could be shown , if the forfaulted person was in possession , though for never so short a time ; and it being alledged that these years in this last part of the act should be counted from the time of the forfaulter , and not from the time that the donatar enters to possession , for else he might by lying out prejudge the creditors . the lords found that if the rents were extant , he had right thereto from the date of the forfaulture , though prior to his possession , january , . home contra the tennents of kello : but that case being a competition betwixt the donatar and an appryzer from the rebel , the lords found the donatar might summarly redeem the appryzer , and enter in possession , ibidem . the reason upon which this act is founded , is , that when any person raises a multiple poynding , the party who is troubled by many who pretend right , ought to be secur'd when he pays to that person who prevails nam res judicata pro veritate habetur , and he payes authore praetore , and though minors have by the civil law and ours , a double remedy , if their tutors and curators suffer a decreet to pass against them for not compearance , viz. that he may either reduce the sentence , or pursue the curators for damnage and interest , in suffering the decreet for no compearance to go against them ; yet in this act it is declar'd , that if a major who compeats with a minor in a multiple poynding , be prefer'd to the minor , because of the minors not compearance in that case , the minor has only action against his tutors and curators , but cannot reduce the decreet of preference , but if the minor have no curators , it is declar'd he shall be restor'd as accords of the law , that is to say , he may reduce the decreet , since in this case he has no other remedy , but if the decreet of preference be quarrellable for any error in the execution , or if the party absent can show a necessary reason for his absence , then the decreet is quarrellable , either by majors or minors ; yet the lords found that payment bona fide , conform to this act , does secure the payer , not only against the principal competers , but against their assigneys , november . weir contra the earl of callender ; but it has been debated whether the party who has been prejudg'd by the decreet of multiple poynding , may be repon'd against the same , by way of suspension ; or if a reduction be necessary , and it has been found , february . watson contra sympson , that a decreet of multiple poynding , obtain'd against the party , could not be taken away without reduction at the parties instance ; nor was a suspension at the tennents instance sufficient , because the narrative of this act bears expresly that the parties used to crave to be reponed , by intenting reduction ; and that the party who obtains the decreet , is by the statutory part only oblig'd to answer in the second instance , which the lords found to be by way of reduction ; and from that decision it is very clear , that these words , the second instance in all statutes , are only interpret by the lords , to be mean'd of reduction , and not of suspension . observ. o. that the party absent will not be prejudg'd , if he have a necessary cause of his absence ; for it were unjust to punish a man for what was not in his power ; and yet by this reservation , he who gets payment is still unsecure ; but he who pays by vertue of the decreet before reduction be intented , can never be call'd in question . observ. o. that the party prefer'd in the multiple poynding , is only thereby secure , as to the bygone profits which are paid , and so in effect facit tantum fructus consumptos suos ; and if the sums be extant , unpaid to the party so prefer'd , he who had the best right before the decreet of multiple poinding , will still be prefer'd ; and it seems by the words of the act , that if the profits themselves be extant , the best right will be prefer'd ; for the words are , nor yet shall have any right to the bygone profits intrometted with . this is by the act par. ja. . declared only to be extended to such actions of multiple poinding , as were intented after this act was made . the first part of this act dispensing with the not sealing of such papers as are to be registrat , is explain'd in the act par. ja. . and whereas this act declares , that a seasine is sufficient , if subscriv'd before one notar , and a reasonable number of witnesses , that reasonable number is understood to be two , though by a vulgar error it is believed , that a seasine requires four witnesses ; and now by constant custom , four witnesses are always adhibit in seasines , and by the act par. ch. . their subscriptions are necessary . by this act it is appointed , that all kirk-lands set in feu-ferm should be confirmed by the king , else they are null by way of exception . observ. o. that though the narrative of this act bears , that all feus and long tacks set since the year . should have been confirmed ; yet the body of the act does not declare , that long tacks need to be confirm'd ; vid. manticam de ambig . convent . lib. . tit. . and balfour relates decisions bearing , that tacks for three nineteen years are esteem'd as alienations , and so should be confirm'd . observ. o. this act declares , that of old all kirk-lands should have been confirmed by king or pope ; yet the act par. ja. . seems to insinuat , that neither confirmation of pope or king was necessary , but that the kings consent was sufficient ; and that therefore the act does statute , that no right can be quarrelled for want of confirmation , where the king has consented under the privy seal ; but that the kings confirmation was necessary of old , is clear , r. m. lib. . c. . and the reason there given is , quia corum terrae sunt de eleemosyna domini regis , and being presum'd to have been given by the kings , for praying for them , they should not be appropriat to another use , without their consent . observ. o. that only feus of kirk-lands are ordain'd to be confirm'd ; and therefore the lords inclin'd to think that feus of salmond fishings set by church-men , were not null , though not confirm'd , and january . . rentoun contra feuers of coldinghame . the lords found that gifts of an office of forrestry , granted by kirkmen , needed not be confirmed , these not being properly feus of kirk-lands , ibid. this act appoints that all money and victual assign'd to the captains of the kings castles , and whereof they have been in possession for five years , shall remain with them unquestionably , and this is like the quinquennial possession given to the king in cases of forefalture . nota , that the king has a duty paid to him in exchequer , called the castle wards , so call'd , because they are paid in forwarding or keeping his castles , and he has no right to them , but constant payment , conform to the exchequer rolls ; and therefore yearly the sheriffs are charg'd with them , and they get letters of relief , and it was found in a case betwixt the sheriff of haddingtoun and sir john nisbet , january . . that the said sir john had not prescriv'd an exemption as to these castle wards , neither against the king , nor sheriff , though he had paid none for fourty years , since there were letters of relief yearly granted . o. it was alleadg'd , that his lands of dirletoun having come once in the kings hands , by forefalture , and his majesty having of new given them out , that servitude was thereby extinguish'd since res sua nemini servit , but was repell'd ; because the king did of new only dispone the said lands , as when they fall in his hands by the forefalture . king iames sixth , parliament . mr. nicol dalgleish , and some other presbyterian ministers , having reproached the king and his government , this act declaring slanderous speeches and writs , punishable by death , as sedition was made , and is more fully explain'd in the act par. ja. . and in my crim . pract . tit . injuries . observ. o. sedition is a name that receives different punishments , according to its different degrees of guilt ; and therefore where it is destructive of the kings authority immediatly and designedly , it is punishable by death , as here , though l. . c. de seditiosis ; the punishment of these , qui ejusmodi voces emiserunt , is more moderat ; and as that law well observes words spoke in civitatibus & tumultuosis clamoribus , are more punishable than the same expressions would be , if spoken in private places , or without tumult ; but yet by this act , such seditious speeches , whether spoken privately , or publickly , are punishable by death . observ. o that when his majesties advocat designs not to pursue the authors of such speeches to the death , he libels only that the pannel did speak or write what tends to reproach or slander his majesties person , or to misconstruct his proceedings , but not that they actually did so , and in that case the guilt infers only an arbitrary punishment according to the circumstances that attend the same . observ. o. that though by this act the depraving his majesties laws and acts of parliament , is declared punishable by death as sedition ; yet all misconstructing acts of parliament , is not so punishable ; and thus , though a sheriff or other judge would misinterpret a law , so as to make it infer a higher mulct or penalty than the law design'd , that could not infer sedition or death , though it be likewise punishable ; but the design of this act is , to declare the depraving and misconstructing of laws , so as thereby to reproach the king or government to be sedition , and spotswood tells us , pag. . that this act was made for punishing these ministers who had declaim'd against the acts of the former immediat parliament , as destructive to their discipline . upon this act the lord balmerino was found guilty in december . for having dispersed a petition that reflected upon the government ; in which process , it being fully debated that dolus malus should be found in such cases , where the design of defaming makes only the crime ; this was repelled , because where the words may of their own nature , move dislike of , and sedition against the government , the design needs not be proved ; for if the people be irritate , the author ought to be punished , and this law considers the effect , and not the design , and he ought to blame himself , who meddles in matters of government without his sphere . it was likewise alledged in this process , that a petition to the king himself , could not be interpret a misconstructing ; but this was also repell'd , because both by the common law and ours , it has been found , that great affronts have been put upon the government , by way of supplication . upon this act also , francis tennent was found guilty in anno . and mr. thomas ross , in anno . and the earl of argile , both in the year . and . observ. o. that in this act mention is made of raising dislike betwixt his highness , his nobility and loving subjects ; which word nobility was expresly put in by the lord hamilton and other noblemen , who then turned out captain james steuart , against whom this act was partly designed , whereas in the act par. ja. . made the year before , by the said captain james's influence , against slanderers , there is no mention made of the nobility , as is observed by mr. robert macgil , in balmerino's process . this act discharging all dilapidations of benefices , runs only in the words of the act , against such as dilapidat benefices , that are at his majesties presentation ; but yet de praxi , no benefices that are even at the presentation of laick patrons , or ecclesiastick subjects can be dilapidated . dilapidations of benefices were formerly discharg'd by the act par. ja. . but to elude that act , benefic'd persons us'd not to give down any of the bolls payable to the benefice , but to convert these bolls in money , and to make these who were lyable in payment , only lyable in very small prices , and therefore such conversions are discharg'd by this act ; but it may be alleadg'd , that where the conversion is for less than the present price , as victual now gives , it is unlawful since that conversion was unnecessary , and the benefic'd person is prejudg'd , because if no such conversion had been made , he had got the bolls presently , which could have maintained him better than the small prices , which these bolls were worth the time of the conversion ; and yet by our decisions , the price that the bolls gave the time of the conversion , are only considered , because both parties took their hazard , and the price mentioned in the conversion , is presum'd to be the full price , except it could be proven that the victual gave then greater prices for in antiquis , there can be no other probation , vid. observ . upon the said act par. ja. . by this act all leagues and bonds made amongst his majesties subjects , without his consent , are discharg'd . observ. o. that though the rubrick bears , that all such bonds and leagues are null ; yet they are not expresly annulled in the body of this act , but they are expresly annull'd by the act sess. par. ch. . observ. so . that the punishment is not here exprest , but in general , under the pain of being holden as movers of sedition , and punished with all rigour ; nor is it more special in the foresaid act ch. . which i admire ; but yet i think that such bonds and leagues are punishable by death from the words , all rigour , which may be very well extended to death , especially in subjecto capaci , as sedition is , for certainly some seditions may be punish'd with death , as we see in the first act of this parliament , and by this same act , such leagues are declar'd to be against all law and allegiance . likeas by the act par. ch. . the subjects are discharg'd to take or renew the covenant , which is a bond or league , upon their highest peril , and i wish the act had determined what was the highest peril , for generally lawyers do not extend such statutes to death . i find that the nobility and others having enter'd into bonds amongst themselves , whereupon his majesty was surpriz'd at ruthven , there are several acts of council , and particularly a proclamation , issu'd out in april . discharging all such bonds so enter'd into , and that none enter into such bonds for the future , and that gave occasion to this act , which says , that these bonds have given occasion to a great part of the troubles that have occurr'd since ; the certification in that proclamation , is under the pain of being repute favourers and partakers with the conspirators against his highness majesty . the act here related to is the act par. queen mary , but that act properly extends only to bonds of man-rent , but not to bonds of combination , as this does , so that this act should rather have been founded on the act par. ja. . there is in that proclamation , and this act , exception made of bonds enter'd into with the kings consent , which was added , because the nobility and estates at the kings desire , entered in a league and bond for preservation of religion , which is registrat in the council book , june . but this bond is subscribed by very few of every estate . by this act charges super inquirendis are discharged , but it is a mistake to think that by that act , the king or other judges cannot examine men without a formal process , for the design of that act is only to discharge the denuncing men rebels upon such charges without previous tryal , and yet if the chief officers of state , or at least four of them concur , it would seem that by that act , even such charges are yet lawful , and where the king or magistrat has previous informations of crimes latent , it were against the interest of the common-wealth , that they should not be allowed to clear these by particular interrogators . it was urg'd from this part of the act , that no man could legally be imprisoned , even by a warrand under the kings own hand , and that this was very just in it self , since as liberty is very precious , and the best part of property , it was sit to secure it so , as that none could take it away , but these who will be answerable , and the king could not in law be made answerable ; and therefore it was justly by this act appointed , that no man could be imprisoned by any letter , even under the kings own hand , except it were subscrived by the officers of state , who should be answerable ; to which it was answered by his majesties advocat , that this act did not debar the king from granting such privat warrands under his own hand , for there might be some cases which he could impart to none of his officers of state , as for instance , if all his officers were upon a plot against him , or if the crime were the being upon a plot with a forraign state , which the king were not yet in a condition to resent , though he might justly apprehend his subjects who were in accession to it ; but the design of this part of the act was only to discharge the passing ordinary letters in common course under the signet , except in this method , and it might be much rather retorted , that since only letters under the signet , are discharged to be past , except in this method ; therefore privat warrands from the king himself , are not discharged , for if the king and parliament had designed any such thing , they would have expresly discharged all warrands under the kings hand , which is not done in this act , and it is clear by the act par. ja. . that the king may give warrands out of his own mouth , to apprehend rebels , or others whom magistrats are obliged to apprehend . i find also that this act was past formerly in the privy council the of june , this year , . and there the act bears , to have been made to prevent the obtaining of unformal letters at the importunity and malice of privat persons , which clearly evinces that it was not design'd to preclude the king from securing such persons who he had reason to believe were obnoxious to the government . it is observed in the acts of sederunt , that the king june , . by his letter ordain'd several advocats to be imprison'd indicta causa . by the second part of this act writers to the signet are ordain'd to keep the old style unalter'd , for arguments brought from style are a great part of our fundamental law , and in all our decisions argumentum a stylo is still very strong , as from the wills of inhibitions , interdictions , from the forms of the chancery , &c. and yet in some cases this argument is not concluding , and thus gifts of single escheat bear all moveables present and to come , and ye● they give only right to what moveables the rebels have or shall possess within a year after rebellion ; and though by the style of gifts of wards the relief is discharged , yet that discharge will not be valid . as also , the style of inhibitions and interdictions bears a prohibition to alienat either heretage or moveables , and yet it extendeth only to heretage . stilus curiae is by justinian call'd forma & observantia , whence comes our word , form of process ; stilus & consuetudo fori vel judicii pro lege observari d●bet , l. . § . in honorar . de var. & extraord . cog . vid. v●et . de stat. sect. . c. . observ. that though by this act every writer should write his name upon the back of the signature which he writes , which doubtless was introduced , to the end that every writer might be answerable for his errors in style or otherwise ; yet if at the passing of the signature in exchequer , the writer subscribes his name , the signature will be sustain'd , which was found necessary , though it was alledg'd that this act was in desuetude , as to this point , for it was found not to be in desuetude . this act explains the act , par. ja. . and dispenses with a part of it , and that is the act to which this act relates , though it be not expresly cited . this act appointing licences to be null , except they be subscrived by the comptroller , is so far innovated , that they must now be subscrived by the thesaurer and thesaurer-depute , who are come in place of the comptroller . by this act , sheriffs , stewards , magistrats of burghs , and others , are ordain'd to apprehend notorious thieves , and if they refuse they may be pursued criminally , as partakers of their guilt ▪ or civilly for the payment of their debt , and generally all these are lyable if they refuse to apprehend any rebel for civil debts : but it may be doubted , . if any judge be oblig'd to apprehend a man at the desire of any person who cannot instruct the person whom he takes to be a rebel , by producing letters of caption , as he must do in civil cas●s , and what makes a thief a notorious thief to this effect , . if meer negligence in not apprehending these notorious thieves be sufficient to found a criminal pursuit against the refuser , as partaker , nor have i seen this sustain'd ; but if any person shall contribute actively to a thiefs escape , he is punishable as art and part , but with a lesser punishment , vid. clar. quaest. . num . . & bart· ad l. furti , ff . de furto ait spem datam ad evadendum dici auxilium ad committendum . nota , by this act all who are present and able to apprehend , are oblig'd to assist in taking thieves , or if they refuse they are to be repute partakers with them ; and though they may be punish'd with some small mulct , yet the certification here set down is in desuetude as to them , vid. tit . duels crim. observ. num . idem est facere , & non prohibere cum possis ; and as the law presumes , every man guilty who wil not concur to punish what all men hate so much , and that they would concur if they favour'd not the guilt ; so this assistance is so profitable for the common-wealth , that such as deny it are criminal , but that which is considerable in this act is , that if any clann'd man rob any peaceable subject , and if the sheriff , or steward , &c. refuse to assist him , not only is the sheriff , &c. lyable ; but further , it is declared lawful to them who have their goods stollen and rest to apprehend and intromet with the goods of the offender , or any other of the said clann , and retain them till compt and reckoning ; and though it would seem that this taking or retaining by privat authority , is not allowable till the sheriff be required to give satisfaction , and refuse ; yet in the case moor contra mefadrick , novemb . . it was found that these were separate clauses , and that a person pursued for a spuilȝie , might propone relevantly that the pursuer being a notorious robber , or holden and repute so , had rob'd him of as much , and so he might justly have seiz'd upon the like quantity of the pursuers goods , though he had not first required the sheriff to repair him ; nor was this act found to be innovat by the act , par. . ja. . which appoints a new method for goods taken away by clann'd men. here is a revocation of the king's property in general , but i find in the registers of council , that upon the of march . the king revocks all rights made by him of the abbacie of dumfermling , which revocation is made with the consent of the privy council , though ordinarly revocations are made by the consent of the parliament . by this act the nearest agnat , that is to say , the nearest of the fathers side should be curator to fools , idiots , and furious persons . observ. . that this act is extended to deaf and dumb persons , to whom likewise the nearest agnat is to be tutor , and though their tutors and curators are to be served by this act , yet if the nearest agnat omit , or is uncapable to serve , there is place for a dative ; nor doth this act exclude the father from leaving tutors in his testament to such idiots , and furious persons , as are within the years of tutory , as he may do to other children : and craig observes that if the furious person , or idiot have lands , the superior will be preferr'd to the nearest agnat ; but in this i differ from craig , for the agnat will be preferr'd to the tutory of these , as he will be to the tutory of minors , and superiors have by this act dispens'd with their feudal interest , if they had any . observ. . this act relates to the common law , by which the curators are called curatores legitimi ; but by that law , as by ours , if there be no agnats extant , the judge gives a dative , who is preferr'd to all other nearest of kin , vid. tit. ff . de curat . furios : and the agnats by that law , as by ours , are preferr'd according to the same degree as they would succeed , which is most just , since the law does prefer them to the custody of the estate , because of their hope of succession , and therefore it may be doubted where there are three brothers , whereof one is furious , if his estate be conquest , whether the elder brother will be preferr'd to be his tutor , because conquest ascends ; but i incline to think that the heir of line is still to be tutor of law. observ. . that this law appointing the nearest agnat to be tutor , holds only where there is not a legal administrator , and therefore if a wife who is an heretrix become furious , the husband and not the nearest agnat will be her tutor ; and though papinian thought the husband should not be tutor , l. . ff . de curat . furios . yet the customs of other nations agree with ours , perez . num . . h. t. vid. act . par. . jam. . observ. . though this act equiparats the tutors of fools , idiots , and furious persons , to other tutors of law , allow'd to minors , yet there seems this difference betwixt them , that tutors of law to minors must serve within year and day from the time they are in capacity to serve , but the nearest agnat may serve himself tutor of law to an idiot or furious person at any time , and when he is so serv'd he will be preferr'd to a tutor dative , though the lords will authorize that tutor dative to exerce till a tutor of law be served , the exchequer being in use in the interim to grant datives , as the lords of session are to grant curators ad lites , january , . stuart contra spreul ; and though in that case the pupil was not then declared idiot or furious by an inquest , and so there could not be a tutor of law ; yet it seems that albeit there had been a previous declarator , and so the tutor of law had been negligent , the decision had been the same , and the reason is , because this act prefers the agnats ; and yet it decides not , quid juris , if they enter not ; and what if the next agnat require the nearest agnat to enter , and he refuse quo casu , either it must be said that albeit the exchequer make him tutor dative , yet he is not properly tutor or curator , but only a curator ad lites , or else if he be once properly tutor , the next agnat cannot thereafter serve himself , nam tutorem habenti tutor non datur , vid. observ . on the act , par. i. . it is to be observ'd from this act , that laws ought not to be extended ad praeterita , but only ad futura ; and as the act sayes most reasonably , subjects cannot observe what is not yet made ; and not only so , but argumento hujus legis , it may be concluded that processes are to be decided according to the laws that were made before the process was intented , though the law be made before the decision in the process , which is very observable : a notable instance may be seen in act . par. . ja. . where the parliament makes an act upon occasion of a process depending before the session , to be a rule in like cases for the future , but leaves the case depending to be decided as they think just . vid. observ. on act p. ch. . it is by this act appointed that no signatures or other writs shall be pr●sented to his majesty but by his ordinary officers , to whose office the same properly belongs . and it appears by the registers of council , that this act was a part of the remedy of that complaint mentioned in the act of this parliament . observ. . that by officers here are mean't officers of state , for none else can present signatures , and though a general major or a president be his majesties officers , they cannot present signatures , and yet any officer of state may present promiscuously any signature , though it would seem by these words , by his majesties ordinary officers , and to whose office the same properly belongs , that every officer of state may not promiscuously offer , but that the thesaurer or thesaurer-depute can only present papers relative to the thesaury , the justice-clerk to the justice court , &c. observ. . that though any officer of state may present signatures , yet by the act sess. par. ch. . any officer who presents such papers is obliged to send the registrat docket to the secretary , to the end his majesty be so informed as that he may not grant double rights . king james the sixth , parliament . by this act the king 's lawful age is declared to be years compleat , which act was made to prevent a debate that had fallen out in france a little before that time , where the parliament of paris had declared that the french king was not major till he had compleated the last year of his minority , whereas the parliament of rouen had declared him to be of lawful age , when he had begun the last year of his minority , nam in favorabilibus annus inceptus habetur pro completo ; and though minors may revocke deeds done at any time before the last moment of their minority , and that minoritas computatur de momento in momentum ; yet it is advantagious for a king to enter upon the government of his kingdom as soon as can be . and though this be the age for reducing of deeds done by them , they have another majority in relation to the government , for we find that josias entered upon the government at years , and solomon at . cicero philip. . tells us , that the kings of macedon entered very early , and in anno . the kings of france were declared to be majors and capable of the government at . but by the commission of regency set down in the act . par. . ja. . the regency is declared to continue till . at which time the king is to take upon him the government ; but yet king james took it upon him sooner ; nor do i find any particular time limiting the king as to this point , and therefore there may be many doubts amongst us whether the king or the governour should be obeyed betwixt the kings ages of and . but before no pupil is thought fit by law for administration ; and it may be strongly urg'd that is the legal age , for why was the commissions insert , it being only a temporary right , and such use not to be insert amongst our laws . by our law minority runs in all persons to the last moment of years ; whereas by the civil law , it runs till years compleat ; and in this our king differs not from others , but because by the act par. ja. . our kings were declared to be in minority till years , therefore by the act par. q. mary . years of age compleat , was declared to be the perfect age of our queens ; and by this act it is declar'd to be the perfect and lawful age of our kings . it were to be wished , that for proving the age of all minors , there were authentick registers appointed , as in other nations , and in some parts of our own , since for want of this , true probation of their birth perisheth , and false probation is adduced . observ. . that by this act , the receipting persons of the romish religion , is not simply made criminal , except they did reset them for three days together , or at three several times , knowing that they were such , which may be urg'd in all cases of intercommuning , and resetting of rebels , and yet in other cases once and short intercommuning is sufficient to infer a crime . observ. . that by the act par. ja. . the resetting excommunicat papists , or traffecting jesuits for three nights together , or three nights at several times , is made sufficient to infer that they knew they were such per presumptionem juris & de jure , nor could the knowledge of their being such be otherways proven , and if it had been necessary to prove their knowledge , the law might have been easily eluded by industrious ignorance ; and by that act likewise , the third fault is declared punishable as ●reason ; and because the punishment was so great , it was just the presumptions whereby it was to be infer'd should be strong . though by this act only the sellers and dispersers of erroneous books , are to be punished at our soveraign lords will , and such books to be burnt ; yet by our practise , the bringers home of crucifixes , popish-beads , &c. are to be used in the same way ; and though there is only warrand here given to a minister and magistrats of burgh to seize , and burn such books ; yet magistrats use frequently to seize without a minister , and sheriffs and other officers do likewise seize , but since burning seems to be an extraordinary power , and so not to be assum'd without a special statute . i think that no officers , save magistrats of burghs , with the concourse of a minister can burn· the reason why ministers benefices under prelacies , are declared to be free of the first fruits , and fifth penny of their benefices , is because in time of popery , the first years fruits of every benefice were due to the pope , and are call'd by the canonists annata , against which several councils have made large , but ineffectual representations , and the fifth penny was payable to the king , and though this act discharges only the exaction of these in benefices under prelacies , yet now even prelacies are free from these exactions in scotland , though in england the first fruits belong still to the king. though the priests were free from subsidies amongst the aegyptians , genes . . vers . . and that l. placet c. de sacr. eccles. nihil extraordinarium abhinc superinductumve ab ecclesia slagitetur ; yet this was only as to tiths , and things meerly spiritual , but the lands of the church were lyable to impositions , laid on for the common defence of the countrey , and therefore the canonists , ad c. . de immun . eccles. give as a rule , that in bonis ecclesiasticis ut cleri●●s in patrimonialibus ut laicos tractandos , and such was this fifth penny here mentioned ; and with us ministers stipends , but not bishops lands , are now ordinarly freed from impositions . observ. . that though such as invade ministers for the causes therein exprimed , viz. for seeking their stipend ; or because the minister inflicted church-censures upon them , or any other forged quarrel , are to be punished with all rigour ; yet if they invade them upon any account , that is not ecclesiastick or premeditat , as in an accidental scufle , they are only in these cases punishable as for wrongs done to other subjects . observ. . since the act appoints that they may be punished with all rigour , and the tinsel of their moveables ; it is clear that such invaders may be punish'd likewise personally , besides the confiscation of their moveables ; yet the words , with all rigour , should not be extended to death ; but by the act sess. par. ch. . the assaulting the lives of ministers , or the robbing of their houses , is declar'd punishable by death ; and by the act sess. of the said par. the parochioners are made lyable for the outrages done to ministers , if the actors cannot be got . observ. . from these words , that they may be punished at the instance of the minister , or any other that will pursue ; this crime is made so far crimen publicum , that it may be pursu'd per quemlibet ex populo , though he be not otherways interested . observ. . that this act being only against invaders of ministers , it is extended to invaders of bishops , and all such as have power to administer the sacraments , act par. char. . in which act there are many other extensions of this law. the popish clergy had right to lands that were mortifi'd to , or bought by them , and to teinds which belonged to them as church-men ; the teinds were call'd the spirituality of their benefices , because they belonged to them as church-men , and the rest was all comprehended under the designation of the temporality of their benefices , and upon the abrogation of popery , the king did begin to erect some of the temporality of their benefices in lordships , which he dispon'd to several noblemen , who were most active in the reformation ; or to these whom he resolv'd to oblige by their interest , to be active in it , and these were called ●ords of erection ; but thereafter the parliament resolving to fix a constant rent to our kings , thereby to preclude the necessity of taxes , and to ingage future kings not to return to popery , they annext the temporality of all the church-lands , and benefices to the crown by this act. observ. . the reason whereupon this act is founded , is , that the former kings having mortifi'd a great part of their revenue to church-men , and having thereby impoverish'd themselves and their people , it was therefore just , that the ends for which these mortifications were made , being declar'd unlawful , the benefices should return ; by this reason such mortifications as were made by privat families , should have returned to them ; whereas here all returns to the king : but in law these religious houses being demolish'd , all ought to have fallen in to the king ; for qua nullius sunt ea sunt domini regis ; and these were such , for they belonged not to the old proprietars , since they were once dispon'd ; nor to these houses , since they were extinguished , and that being found a false religion , what belong'd to it , did by the law fall under confiscation . observ. . though all benefices belonging to arch-bishops or bishops , are by this act annexed , yet they are restored by the act par. ja. . and though all benefices belonging to chapters are annexed , yet these are restored by the act par. ja. . observ. . from these words in the clause of annexation , viz. all and sundry common-lands bruiked by chapters of cathedral kirks , or whereof they have been in possession as commonty ; that possession in church-lands , is very often repute a sufficient right , and to be loco tituli , for understanding whereof , it is fit to know , that both before and after the reformation , a churh-man being in possession by the space of seven years , though without a title , has the benefit of a possessory judgement , so that his right cannot be quarrelled without reduction ; nor needs he produce a title , as laicks are oblig'd to do in possessory judgements , july . . earl of hume contra the laird of rislaw . and if he be thirteen years in possession , that possession is to him in place of a title , for by a rule of the chancery ( as we believe ) docennalis & triennalis possessio habetur protitulo ; though i find no such rule in the roman chancery , but yet these thirteen years induce only a presumptive title , which does not exclude the true proprietar , if he can instruct that the benefic'd person possessed either by a redeemable right , and produce the reversion , as was found in the case of francis kinloch , contra the bishop of dumblane , july . or by a precarious right , as was found in the case of a minister , who had casten peits for thirteen years by tolerance from the heretor , and though there be no difficulty where the right mortifi'd does expresly bear , that it is redeemable or precarious ; yet in absolute rights , there is greater doubt whether after thirteen years they can be qualifi'd by correspective obligations . the reason of this priviledge given to church men , is , that they being imploy'd in divine matters , are ignorant and careless of their right , especially since their rights are not to descend to their own heirs . it is fit here to take notice that by a vulgar error triennalis possessio was thought to give the benefit of a possessory judgement , march , . marshal contra the laird of drumkilbo , and decennalis of a petitory , and thus did they interpret the former rule . at the reformation also the popish clergy did either send their foundations to rome , or did by collusion with the laicks interested , or in hatred of the reformed clergy , destroy their rights ; and therefore by an act of sederunt december . it is declared that ten years possession before the reformation , or after the reformation , should be a sufficient right either to church-men , or to the king 's coming in their place , by vertue of this act , and conform thereto the lords decided july . laird of kerss against reid . observ. . that because the romish clergy were put from their benefices , therefore they are by this act freed from any warrandice they had given for church lands dispon'd by them ; and by the act of the same parliament , what is here statuted as to the warrandice of lands , is there extended to tacks , pensions , and assignations , and so these two acts are not absolutely co-incident , and the last unnecessary , as they would seem to be , and though this was done in majorem cautelam , yet by the common law they would not have been liable in warrandice , since no man is liable in warrandice where the eviction proceeded upon a supervenient statute , for no man can warrand against a supervenient law. observ. . that notwithstanding that the church-lands are annexed , yet there is a dissolution in the same act , warranding his majesty to feu any of the saids church-lands during his own time . observ. . that though by this act all prior dispositions made of church-lands by his majesty to lords of erection are excepted from the annexation , yet the superiority of all the erections both before and after that act , are annexed to the crown , by the act par. ch. . observ. . that the spirituality of benefices , viz. their right to the teinds is expresly declared not to be annexed , but to remain with church-men as formerly ; for though by the act par. ja. . it be said that the teinds of dumfermi●●g are annexed to the crown after the form of the act of annexation , . by which all the teinds of the remanent kirk-lands and prelacies of the kingdome are annexed ; yet that clause is only insert by mistake in my judgement , for that is not the design of the act. where stock and teind are promiscuously feued , it is declared by this act that his majesty remains superior both as to stock and teind , the church-men having only right to the tenth penny of the feu-duty , the other nine belonging to his majesty for the temporality being only annex'd to the crown , and the teinds being reserv'd to the church , it was very just that where a duty was payable out of church-lands , cum decimis inclusis , the king should only have right to a ninth part of that duty , and the tenth should belong to the church-man or titular , in contemplation of the teinds ; but still decimae inclusae are so fully exempted from all ecclesiastick payments , that though there be not sufficiency of teinds in the paroch , yet decimae inclusae are never burden'd with the payment of ministers stipends , though ministers stipends be the constant burden of all teinds ; and for the same reason it was found january . that no valuation could be led of land feued , cum decimis inclusis , and not confirmed before this act , and that laicks might prescrive a right to them , but not to other teinds , which shews that decimae inclusae are never lookt upon as teinds . for understanding the origine and nature of decimae inclusae with us , it is fit to know that by the canon law the parson or incumbent and the paroch church were founded in the right of all the greater tithes , called decimae praediales , and that it was not lawful for any man to abstract their teinds from it , cap. de decimis . quest. . and albeit the popes did pretend that since the bishops had the management of the teinds , they as universal bishops might by their supereminent transcendent right appropriat them to the use of monastries , monks being the best of the poor , and teinds being naturally burden'd with the maintainance of the poor ; yet our king's who in all the tract of our parliaments own'd their own regalia , and the episcopal order against the invasions of the popes , did by the act , par. . ja. . declare it a point of dittay , that is to say , criminal for any man , to take a right of teinds from any , save the parson , vicar , or their farmers , so far they acknowledg'd the parochial churches to be founded in their right to the predial teinds . notwithstanding whereof , the popes to get the monks to depend immediatly upon them , did grant to those monks , exemptions from payment of tiths , for they as well as others paid to the parson or incumbent , till pope paschal the d granted those exemptions , but these exemptions did thereafter so far diminish the provision of the parson ( very many lands , being either mortifi'd to them , or bought in by them ) that theodosius and other emperours were forc'd to make laws against exorbitant mortifications ; and pope adrian was forc'd to limit the exemptions to four religious orders , cistertians , hospitalers , templars , and knights of st. john ; still allowing all of them exemptions for their novalia or lands , first cultivated by themselves ; but pope innocent the third , in the lateran council , thereafter ordain'd , that even these four orders should pay tiths for what lands they should acquire after that time ; which i , the rather observe , because it has been decided by our session , july . , thomas crawford contra prestoun grange ; that lords of erection succeeding in place of the cistertian monks , should be free from tiths , as the monks were without adverting whether these lands for which exemption was pleaded , were bestow'd on their monastries , after the year . and it seems that this exemption should not be allow'd to these monastries , since they were not allow'd to the temple-lands with us , and that such priviledges are due to neither , because this was a personal priviledge given to the monks , as the poor , and so should not descend to the lords of erection . the monks being thus masters of many tiths , feu'd out their lands and tiths promiscuously , for the encouragement of the labourers , who have alwayes thought it a loss and a slavery to wait till their tiths be drawn . laicks also enjoy'd tiths , and alienated them as their own heretage , for many ages together , it being generally believ'd , as selden contends , that the tiths were not due to church-men , they having right only to a maintainance , jure divino ; though others ascrive these laical infeudations to a corruption begun by charles martel king of france , who to gratifie and pay such as were to assist him in the holy war , dispon'd to them the tiths consentientibus episcopis , who knew that if the saracens prevail'd , religion would be destroy'd , and he promising to restore them ; but after this time it is undenyable that de facto , teinds were dispon'd to , and by laicks , till the lateran council . in which the canon was made , prohibemus ne laici decimas cum animarum suarum periculo detinentes in alios laicos possint aliquo modo transferre . si quis vero perceperit & ecclesiae non reddiderit christiana sepultura privetur ; but yet before that time , laical infeudations were discharg'd , per concilium turon : . though we in this nation consider only the discharge , in the lateran council . it remains clear from these informations , that our decimae inclusae , are in effect the same with the decimae infeudatae in the canon law , and these are call'd decimae inclusae , where the stock and teinds were never separated , but were feu'd joyntly before the lateran council ; but yet it seems that all decimae infeudatae , are not esteem'd inclusae with us ; for in a case betwixt monimusk and pitfoddels , teinds were found not to have the priviledge of decimae inclusae , though transmitted by infestments , and call'd decimae inclusae , because there was separat a reddendo , paid for the teind and stock , and so it could be known to be different from the stock , albeit it was contended that decimae inclusae and infeudatae , were pares termini , and a different reddendo did not evince that the teinds had ever been separated from the stock , but only that there was a different duty , as is in lands of the same holding oftimes , and it may in general seem strange , why we should add , since the lateran council , for that council did find that laicks before that time were incapable of any right to teinds ; and therefore all feus of teinds , whether before the lateran council or after , should be null , and this error it seems has been occasion'd by our concluding , that because laicks were declar'd uncapable of them by that act , therefore they were capable of them before it ; and yet with us a laick cannot prescrive teinds , because he is not capable of them ; and balsour tells us a decision wherein not only alienations of teinds , but even tacks of teinds for three nineteen years , were accounted alienations , and so null , for else discharging alienations might have been eluded by setting long tacks : but now teinds pass by infestments , as the stocks does , since the surrender , and his majesties decreet thereupon , wherein every man may buy his own teinds , and so may set as long tacks of them as he pleases , or feu them out cum decimis inclusis . but it may be alledg'd this tenth part payable to the ecclesiastick person for teinds , may be made liable to ministers stipends , since this tenth part must be constructed as teinds , and so should be lyable to all the burdens of teinds ; but to this it is answer'd , that these decimae inclusae are consider'd as a part of the stock , and so no more liable to ministers stipends than the stock is ; this division of the feu-duty doth not alter the nature of the decimae inclusae , but is only insert to regulate the way of payment of the feu-duty , even as if after a feu granted of stock and teind promiscuously for a feu-duty , the church-man should dispone nine parts of the feu-duty , and reserve only the tenth to himself , that tenth part could not be liable to ministers stipends . . since this act by the death of the titular both temporality and spirituality came in his majesties hands , and so were dispon'd to the lords of erection , and return'd to them without this distinction of nine or tenth parts . though by this act teinds are declared the spirituality of benefices , yet they may be sold , and are appointed now to be sold by the parliament . and the heretors are to be infest in them as in their other lands , which seems inconsistent with their being the spirituality of benefices , and the patrimony of the church ; but it may be answer'd , that they are even in that case burden'd with payment of ministers stipends till they be competently provided . observ. . by this act all lands and others mortified to colledges , are excepted from the annexation , and the reason is , because kirk-lands remain still to be such , albeit they be mortifi'd to colledges , feb. . tock contra the parochiners of achtergoven , and therefore it was necessary to except them . maisons dieu , or hospitals are also excepted , and maisons dieu are hospitals dedicated to the honour of god , it is a french word signifying the house of god ; the canon law calls them domus dei , and makes them hospitals . observ. . pensions likewise out of church-benefices are excepted , if they be authorized either by decreets , or possession , but possession of a part is repute possession of the whole ; and by the act par. ja. . this act is ratified , and it is declared that all pensions out of the spirituality or temporality , neither clad with decreet nor possession in the prelats lifetime who dispon'd the same before this act of annnexation , shall be null , but if they be clad with possession in manner foresaid , they are valid against singular successors , though pensions granted by laicks are not valid , albeit they be clad with possession prior to the singular successors right , as was found the of december , . clappertoun con . the lady ednem ; but by the act par. ja. . pensions granted by church-men should contain the particular names of tennents and duties , vid. observ . on the act of this parl. observ. . by this act it is declared that the bailie or steward of the regality shall have the same power he had before to repledge from the sheriff , or justice-general , in case he hath prevented the justice-general by apprehending or citing the person before he be apprehended or cited by the justices , but if the justices have prevented , as said is , then the bailie of the regality , or steward , shall not have power to repledge , but he may sit with the justice-general if he pleases , so that in effect by this act there is this difference betwixt the ecclesiastick and laick regalities , that there is a right of repledging competent to the laick regalities , whereas ecclesiastick regalities have not this priviledge except they prevent the justices , but otherwise the bailie of regality may only sit with them ; the reason of which difference is , that the regalities having been only granted in favours of the religious houses , which were supprest , the regalities became extinguish'd with them , and his majesty having ex gratia only reserved their offices to the lords of erection , he thought that they were abundantly gratified by this new concession , without allowing them the power to exclude his own justices , in case of prevention ; and this was also a favour to the lieges in not troubling them with two courts , nor were the lords of regality much prejudg'd , for by this same act they retain the whole right to the escheats and fines , even of these who are condemned by the justices . observ. . that the parliament has been so careful of the vassals and feuers of kirk-lands , that because the king who is declared superior by this act of all these lands was a more powerful opposite : therefore by a clause in this act it is provided that the king shall not quarrel their rights to these kirk-lands , save by improbation , or by a reduction only for a diminution of the old penny-mail , de liquido ad liquidum , that is to say , that though such rights may be quarrelled as granted with diminution of the rental , or by unlawful conversion , yet no diminution shall reduce their feus , except where the diminution is of old rentals , because about the time of the reformation feus were granted for high feu-duties , and these being renewed again for less than were once payed , the feu might have been question'd , because though the feu-duty was less than was once payed , yet it was not below the old rental , de liquido in liquidum , as if five merks were taken when ten was of old payed , without consideration of conversions , so that though ten merks were taken in the feu quarrelled in place of ten bolls , that would be no relevant reason of reduction , and since by the act of parliament , . erections are annex't to the crown : the lords found that the lords of erection cannot now pursue reductions or improbations of their vassals kirk-lands , and that his majesties advocat could not insist in any such actions , except he had an express warrand from the king , though it would appear that this act is a sufficient warrand to pursue improbations or reductions for diminution in the terms of this act , of june , . laird of prestoun contra nathaniel ebred . observ. . that lands belonging to the benefices of laick patronages , are excepted also from this annexation , by which are meant only such laick patronages , as were lawfully establisht before the reformation , and not such as were dispon'd by the king to laicks , and to which he had right , as coming in place of the pope , who was universal patron in dubio , before the reformation , for these are still accounted ecclesiastick patronages , since they were so originally , and so ought not to have been excepted from this act , but whether all the other patronages , which belonged formerly to monasteries , were annexed to the crown by this act , was fully debated , november . in the case of steuart contra the laird of watertoun ; and that they were annexed , was urg'd , because by the first words of this act , the abbacies , &c. and all profits , emoluments , whatsoever belonging to them were annexed , and there being nothing that the king and parliament was more concerned in , than to have the patronages depend upon the crown , thereby to prevent the influence that schismatick privat patrons might have ; it was most reasonable to think , that when all things belonging to monasteries , were annex'd , these should have been annex'd . likeas , sir thomas hope among other rights crav'd to be reduc'd , crav'd likewise that all the rights made to the lords of erection of the patronages belonging formerly to monasteries , should be reduc'd as contrary to this act , upon which reduction the lords of erection did submit their rights to these patronages , and in the kings determimination upon that submission , his majesty determined that the lords of erection should have only right to the converted prices of their own feu mails , and feu ferms of their superiorities , &c. it was likewise there contended , that the saids patronages were likewise annexed by the and acts of the first parliament ch. . to which it was answered , that patronages were never annexed as parts and pendicles , but where it was design'd they should be annexed , they were still annexed per expressum , as in the annexation of the abbacy of dumfermling , act par. ja. . and it were absurd to think , that since the foresaid general clause did annex things of the meanest consequence , such as service of tennents , &c. that it would have omitted things of so great consequence , as were the patronages of many monasteries ; nor did any of the leiges who had right to such ecclesiastick patronages from the king , crave ever a dissolution of them in parliament , which certainly they would have done , if they had looked upon them as annex'd , nor were they annexed by the and acts par. ch. . because these acts do not mention patronages per expressum , nor can they be comprehended under the general word , pertinents , exprest in these acts , for the reasons foresaids , and to evidence that his majesty had determined nothing as to the patronages belonging to the lords of erection , his majesty does in the parliament act ch. . express these words , likeas , also the the remanent points of our said commission anent the patronage of kirks , &c. are not yet begun to be treated ; therefore , &c. this debate came not to a decision . what the condition of our teinds is since this act , shal be treated fully in my treatise of teinds , as also whether the obligation of paying teinds proceeds from the moral , judicial or common law is not agreed to , but the most ordinary opinion is , that they are due to church men , before any positive law , and the quota . of tenths proceeds from positive law , and d. thomas part . . quaest. . makes the tenth to be due , because as all digits under ten , are imperfect , and do tend to ten as their perfection ; so man being naturally lost , we pay our tiths to these ministers by whom our perfection comes ; and thus some school-men conclude , that tiths flow from the moral law , in so far as they are a necessary maintainance for ministers , from the judicial law , in so far as concerns the number of ten , and cerimonial in so far as concerns the foresaid typicals , nor can it be deny'd that abraham paid teinds ( before any positive law ( to melchisedeck , though the learned selden interprets this place only to be the tenths of what was taken by the war , and that from josephus and from heb. cap. . v. . and the greek word there us'd , does properly signifie spoils , call'd by sulpitius severus decimam praedae but yet i see not why that alleadg'd custom among the jews , of giving the tithes of their spoils , could have proceeded from any other ground , than that which was common to all tithes , nor can i believe selden , who asserts that tithes were not paid in the primitive church , till the days of st. augustin , and s. ambrose , for if we do not controvert the truth of all authority , we will find the payment of tithes much older . teinds were likewise accounted spirituality by the canonists , vid. rebuff . quaest. . num . . how these teinds came to belong to monastries , may be doubted , since naturally the curats of the respective parochs , are founded in jure communi quoad the right to their predial teinds , so that they need not prove their right thereto , and this was very just , because they having the cure of souls ought likewise to have had that which was given as an encouragement of that cure ; and though to this the ordinary answer be , that the pope who had only right to alienat such teinds , did use to give them to monastries , nam licet ille jus divinum tollere non potest tamen modificare potest , yet i conceive that our kings , and even our laicks , with the consent of our kings , did think they could bestow the teinds belonging to these kirks , whereof they were patrons upon religious houses , whereof i have seen very many instances in our old charters , one whereof , i shall set down for an example , alexander dei gratia rex scotorum , &c. sciant tam posteri quam praesentes nos concessisse , &c. deo & ecclesiae sanctae mariae de dryburgh ecclesiam de lanarch ( now lanerk ) cum terris , & decimis & omnibus rebus juste ad illam pertinentibus . item , how the other church-lands became first to belong to monastries , i shall god-willing clear in an express treatise concerning kirk-lands and teinds . this act is explain'd in the former revocations , only here the fees , and pensions granted to the officers of the crown are excepted from this revocation , and the officers of the crown are declar'd to be the thesaurer , secretary , the collector ( which office is since joyn'd to the thesaurer ) the justice , that is to say , the justice-general , justice-clerk , advocat , master of requests , clerk of register , and the director of the chancellary , the director of the rols is but his deput : the order wherein they are set down , makes the advocat to preceed the register , and though the justice clerk be named before the advocat , yet that is only because in all this enumeration , these of one court , are still set together , and therefore the justice , justice clerk , and their deputs , are still set together ; but it would appear that the justice-general should by this preceed both the register and advocat ; but by ch. . his revocation , which is the act of his first parliament , the register and advocat are rank'd before the justice and justice-clerk , & posteriora derogant prioribus . nota , the privy-seal and thesaurer-deput , are not here marked , though they be both officers of the crown ; the precedency amongst the present officers of state , was by act of council , february . . thus determined , lord chancellor , lord thesaurer , lord privy-seal , lord secretary , lord register , lord advocat , lord justice-clerk , lord thesaurer-deput , by act of parliament , . the president of session was then , and not till then ordain'd to preceed the register , advocat and thesaurer-deput , and the register and advocat then were ordain'd to preceed the thesaurer-deput . by this act of revocation , all the exceptions in any former acts are likewise revocked ; but under this part of the revocation , do not fall the exceptions in the former act of annexation , for king james was then major , and though he had not been major , yet these exceptions being made by a publick law , it may be said that publick laws cannot be taken away by a revocation ; for the revocation is but a privat act of the kings , whereby his majesty secures himself against privat deeds done by himself in his minority , but not against what he consented to as publick laws . by the last clause of this act it is provided , that his majesty shall not be prejudged by suffering any party to possess any lands , or others fallen under the revocation , but that his majesty may put his hand thereto at any time , but any obstacle , by the first part of which clause it is not meant that prescription shall not be valid against the king , but only that the possessors shall not have the benefit of a possessory judgement ; and by the last clause it appears that our king 's having revock'd , they needed not intent reductions ex capite minoritatis , but may brevi manu intromet with what falls under revocation , even as they may do in their annex't property ; for this same clause is like to that contain'd in the annexation , ja. . par. . cap. . and which is repeated in all the other acts of annexation : see observ. upon that act ; but it is more reasonable to think that the king needs no reduction , because he must prove lesion in case of reductions ex capite minoritatis ; but the king needs prove nothing in the case of annexation , yet our king is still in use to pursue reductions , and not summarly to dispossess these who have right . whilst our parliaments grew very factious in the time of q. mary , the popish and protestant party contending who should prevail in parliament , the popish clergy , who were very numerous in parliament , since all the bishops and miter'd abbots did sit there as church-men , each of them who had lands and heretage craved two votes , one as church-men , and another as barons : to prevent which for the future , this act was made , discharging any of the three estates to take upon him the office of all the three estates , or any two of them , but the following words are not so clear , viz. that every man shall only occupy the place of that self same estate wherein he lives , and of which he takes the style , which was designed to keep barons who could not get themselves chosen to represent their shires from being chosen as burgesses of parliament , though they were provosts , or magistrats , as they then ordinarily were ; and by it also a burgess who is ordinarily so design'd , may be debarr'd from being chosen as a baron of a shire : this act was long in desuetude , but of late by acts of burrows all burgesses are discharged from electing gentlemen , to represent them in parliament , under the pains specified in these acts ; for they found that gentlemen did not adhere to , nor understand the true interest of burghs ; and the king found that none desired to be so elected , except such as had private designs , albeit upon the other hand ▪ it is represented that this is the way for burgesses to have their interest maintain'd by lawyers or able states-men , either of which they may choose ; and the people of england , who are very jealous of their priviledges do choose such , by which likewayes their parliament is so considerable , and their laws are made by so judicious lawyers . but by an act of the par. ch. . it is determin'd that only actual trading merchants can represent burghs-royal in parliament ; and that act was founded upon an express decision of the session . the unlaws for absents from parliaments here set down are pounds for every earl , pounds for every lord , pounds for every prelat , and merks for every burgh , but there is no penalty appointed for barons , and i think that they are comprehended under the word lords , for the lords and barons make but one state of parliament , and laird is but a corruption of the word lord ; of old pounds only was the unlaw or amerciament , as is to be seen by the preface of all the acts of parliament , which bears ordinarly these words , alii vero quasi per contumaciam se absentaverunt quorum nomina patent in rotulis sectarum quorum quisque adjudicabitur in amerciamento decem librarum . this act appointing every state of parliament to have three apparels , conform to a pattern to be made , was not made that every man might have three several habits , but to the end each distinct estate might have a special habit , and yet barons nor burgesses have as yet no distinct habit for parliament . for understanding this act appointing the number of the lords of articles in every state to be equal , and that the most shall not exceed ten , nor the least be fewer nor six , it is fit to know that by the act , sess. par. . ch. . the lords of the articles are ordained to be elected and constitute in manner following , viz. the clergy choose of the nobility , the nobility of the clergy , and these sixteen so elected , or such of them as are present do choose barons , and burgesses , to whom are added the officers of estate , and the chancellor presides : and the articles being so constitute , do prepare laws , acts , and overtures , and orders all things remitted to them by the parliament . by the act , par. . ja. . no advocat could plead in reductions of forfaulters without a licence , which is abrogated by this act ; but because this act gave leave only to persons accused before the parliament to have advocats without licence , therefore by the act of this parliament advocats are ordained to plead in all criminal cases , and they do so upon supplications . this craving a licence was founded upon act , par. ja. · vid. crim . observ . tit . advocats . this act is fully cleared , crim . observ . tit. jurisdiction of the parliament . in this act the king promises to do nothing that may prejudge the liberty of voting and reasoning , but yet if any person should offer to argue what is down-right treason , this act would not defend him , for by voting and reasoning jointly may be inferred that that reasoning is only allowed , which relates to a stated case , and to be put to the vote , and nothing that is treasonable will be allowed to be stated in order to a vote . this act discharging all contention for priority of place , relates only to parliament , and the disturbance thereof , but by a decreet of ranking , in anno . his majesty having ranked the nobility , has commanded them to observe the precedency there assigned in all places , and that under the pain of being punishable as contemners of his authority . though by this act all actions of molestations are ordained to be pursued before inferiour judges , as being naturally but actions for cognoscing of marches , where the controversie being facti , can best be understood upon the place , yet now such actions are ordinarlie pursued before the lords , because there is a declarator joyned with the molestation , for the pursuer libels , that though such lands be his property , yet he is molested in the possession thereof ; and the reason of this invasion is , because declarators of property , as all other actions concerning double rights , can only be pursued before the lords of session . the form prescribed to molestations by this act , is , that the lords shall direct letters to the inferiour judges upon dayes warning , who shall continue their courts from dayes to dayes , and these inferiour judges having discust the points of law , they shall choose an assize , the most part whereof shall have ploughs of land , or merks of yearly rent in the same or neighbouring parochs , if there be mutual pursuits , the judge shall discuss both together , and choose an assize out of the assizes cited by either party equally , and the odd-man to be choos'd by cavil ; if the judge ordinar be suspect , the lords shall grant commission by their own act , or by a commission under the testimony of the great seal to unsuspect judges . this form is still almost in observance , only the lords in dubious cases grant advocations to themselves where the judge is suspect , and after the cause is debated , the lords ordain the ground to be visited by some of their own number , or grant commissions to others , if the lands ly very remote , but these commissions under the testimony of the great seal are absolutely in desuetude . if the most part of the inquest be not clear , the lords find that in that case the cause should be advocat to them as the supream court , and they will judge according to the probation already taken , or will grant warrand to cite new witnesses , as they did july , . walstoun contra cheislie . though this act appoints the inquest to be chosen of landed-men , having ploughs , or merks , and that in or near the paroch where the contraverted land lies , yet the verdict will be sustained though they have not so much and though they dwell not in that paroch , albeit there be such in the paroch . this was formerly appointed §· . c. . lib. . r. m. where such cognitions are appointed to be per fideles homines de viceneto . and skeen there observes , that perambulations differ from molestations , in that perambulations are petitory judgements , and concern property , but molestations are only possessory judgements , though both tend to the tryal of marches . nota , that by the last clause of this act , the members of the colledge of justice are exeemed from tryal before inferiour courts , which was formerly granted in removings , p. . c. . queen m. and is here extended to all causes according to old accustomed use ; and though it was alleadg'd that thir last words were restrictive , and so the members of the colledge of justice could not advocat their causes from inferiour courts , except in such cases only as they could prove old use and wont ; yet these words are found exegetick , and to be equivalent , as if the act had said , because of old accustomed use , granting them that priviledge , and this was very reasonable , for since they are oblig'd to attend the lords , and their clients , the citing them before inferiour courts had been inconsistent with both . the action of molestation is the same with us , that finium regundorum was by the civil law , and what can stop perambulations in our law , are set down , statut. david . cap. . where amongst other things , it is observ'd , that a minor is not oblig'd to defend in perambulations , and this is the only place in our written law , where that old maxime is to be found , minor non tenetur placitare de hareditate paternâ ; and yet it seems that a molestation being declar'd by this act to be judicium possessorium , a minor should be oblig'd to defend in this , as he is in all other possessory judgements ; but the reason of this exception in molestations , seems to be , because ordinarly molestations resolve in declarators of property , or are joyn'd with them . by this act the defender is indefinitly to pay the expence of the obtainer of the decreet , at the modification of the judge , vid. act par. . ja. . but though this act be general , yet statutum quod disponit simpliciter ut victus victori in expensas sit condemnandus , hunc sensum admittit , si non habuerit justam litigandi causam , hic quippe sensus juri communi est conformis & rationi conveniens , voet. de statut. sect. . cap. . . by the first part of this act the lords of session are made judges to the interpretation of the act of oblivion ; whereas by the act par. q. m. several particular persons were named for that effect . there is an unprinted act , saying , that because several of the lords were dead , and that because many legal actions arose upon the indemnity , therefore this act was necessary . by the second part of this act , nine lords of session are sufficient to be a quorum , and which is now observ'd , though by the act par. ja. . ten lords with the chancellor or president at the first institution , were necessary to make a quorum . this act is fully explain'd in the act par. queen m. except in so far as concerns the obligation laid by this act upon the notars , to bring their prothecals to the lords of session , and which are to be kept by the clerk register and his deputs ; these prothecals are the book , wherein notars set down the breviats of what instruments they take , & protocollum est memorialis tabellionis scriptura qua in codice aliquo gestus acti substantia breviter adnotatur vid. gloss . in novel . . de tabel . the reason why they are ordain'd to be brought to the register , is , that false papers may be hereby try'd , and lost papers may be made up , for if an instrument be lost , the person in whose favours it was at first made , may raise an action before the lords , craving that it may be made up out of the notars prothecal , and this being nobilis officii , cannot be done before inferiour courts , vid. act par. ja. . upon the of february . the lord register contra sir william primerose it was found that the registers deput , called the clerk for the notars was deprivable , for not calling in the prothecals of deceassed notars , by the space of five years , to which the lords found him actually oblig'd , though it was alleadg'd , that by these acts he was only oblig'd to receive the prothecals , when they were brought in , but not to call for them , nor was it possible for him to know when notars dy'd , and therefore by this act , sheriffs , &c. are ordain'd to acquaint him of the death of notars , within their jurisdictions , for it was urg'd that the obligation to bring in the prothecals , being committed to this clerk , and he being only intrusted with it , the act would be elusory , if he were not oblig'd to do diligence , since none else could do it , and he might easily inform himself , at least once a year . it was also debated , that by this act the clerk to the notars was oblig'd to understand sufficiently the office of notary , though it was answer'd that he was no further oblig'd than to draw a bill for their admission , and the clerks of the session are not oblig'd to understand the civil law , which they are oblig'd to minut . messengers being grown too numerous , therefore by this act they are restricted to . comprehending the seventeen heraulds , macers and pursevants in that number ; which number is here divided amongst the shires , but the number is now increas'd contrary to this act , and to the great loss of the people . the lyon is constituted by this act sole judge to the faults committed by messengers , and to their cautioners , whom they find for their good behaviour at their entry ; which power is ratifi'd by the act par. ja. . and the lyon with his brethren heraulds are declar'd judges to all the malversations of messengers in their offices by the act sess. par. ch. . by which act , though the malversation of the messenger be punishable by the lyon ; yet he has not power thereby to determine upon the damnages done to privat parties by messengers , and to determine against the messenger or his cautioner , for the sums for which the messenger should have us'd execution , albeit the lyon has privat ratifications from the parliament , with this priviledge , vide june . . heriot contra corbet . by this act all supersederies are discharg'd , for protections against execution of the law were so call'd then . this act is renew'd , act par. ja. . by which the granter is declared lyable for the debt , and by the act par. ch. . these acts are ratifi'd ; and because the last act related only to the session , therefore the privy council , session , commissioners of justiciary , and exchequer , are declar'd lyable , if they grant protections , except to such as are cited to answer before them ; and so the act protects not pursuers , for they are not summon'd ; and if pursuers were protected , any man might raise a summons and thereby grant himself a protection ; but yet if the interest of the common-wealth require that a crime be prosecuted ; i think they may after inquiry , secure the pursuer during the dependence ; for though his majesties advocat may pursue without an informer , yet an informer helps much . albeit that act discharges the granting protections , and makes the granters lyable ; yet the contemners of the protection are punish'd ; and a writer to the signet was suspended in november . for causing apprehend a person , notwithstanding of the lords protection ; albeit it was there alleadg'd , that though protections might be granted by the lords , upon depending processes , yet these protections could not extend to secure them against delivering of papers , which are in their own power ; and though a protection granted by the king for debt , does not secure against things that are in the receivers own power , as exhibition of papers , &c. yet if either the king or the lords grant expresly protections against all cases whatsoever , then it will secure even against such exhibitions , until the same be expresly re-called , though it seems that by that act , judicatures have only power to grant protections to such as are cited before them , during the time wherein they may come and return to obey the judicature , in cases wherein their personal presence is necessary for the administration of justice , not exceeding a month in all . it is also clear , that even the defender may be apprehended , if he get not a protection , for this act does not protect , but is only a warrand for granting one . and there is lately an act appointing protections that pass under the kings hand , to pass the great seal , per saltum . the council to prevent the granting of protections , whereby the privat interest of the subjects was so much destroy'd , and the execution of law eluded , did by an act in january . and signed by all of them , declare that whoever voted to any such protections , should be lyable to the debt ; to elide which , they thereafter changing the name of protections , granted licences to persons to stay in the countrey free from all execution , and therefore the king by his letter in july . did discharge the council to grant any licences or protections , except conform to these his laws ; and the act par ch. . ordains all such licences , protections , &c. to be sign'd , and the signers to be lyable , &c. it may be likewise doubted , whether the commission of the kirk can grant protections , since there is only allowance by this act granted to the privy council , session , exchequer and justice court , but since the act par. ch. declares that the acts , decreets and ordinances of that commission shall have the strength of the acts and decreets of parliament , they are really a commission of parliament : and therefore as the parliament can grant protections , so can they , especially since without this they cannot exerce well the jurisdiction intrusted to them by the parliament , and it seems inherent in all courts , that they should be able to protect all whom they cite ; and it is clear by this act , that the supream courts of scotland have power before this act of parliament to grant protections : for this act reserves only their former power , but grants them no new power . these protections are thought the same with the induciae moratoriae , granted by the civil law l. . c. de precibus imperator . &c. which are not valid by that law , nisi idonea fideijussio super debiti solutione praebeatur . but i think these to be rather suspensions , and that cautioners in suspensions with us arose from this . this act anent teinding of corns is explain'd fully in act par. ja. . by this act he who accuses another for treason , and proves not , commits treason . observ. this is only in case of malicious accusation ; for the act says , that malicious accusers , &c. and therefore if the pursuer had probable grounds for his accusation , he seems not to incur the hazard of this act. observ. . that though the act says , whoever accuses ; yet the kings advocat runs no such hazard , for he accuses ratione officii ; but to prevent this , he gets alwayes in treason a warrand from the king or council , upon reading the depositions of the witnesses , taken by way of precognition , or else he has an informer , who finds caution to insist , sub poena talionis . observ. . that the pursuer is only lyable , if the party calumniat be call'd , accus'd , and acquit , therefore the accuser repenting and not insisting , it seems that he will not be lyable in this pain ; but for not insisting , he will be only lyable in the sum under which he has found caution , and possibly in poenam arbitrariam , if malice appear ; and yet it may be urg'd that he should be lyable to the pain of treason , since not insisting was the pursuers fault , and no man ought to have advantage by his own fault , nam qui dolo desiit p●ssidere pro possessore habetur . dub●●atur , if this act extends to such as pursue only statutory treason , and sure it does not , if they pursue not the same as treason , though upon the event it may prove so . it may also be doubted if a witness who has deponed against a man in a previous tryal , as guilty of treason , and thereafter depons he knows nothing of it , commits treason : for this wrongs the party as much as an accusation ; yet if this deposition was not emitted ultroneously , but on a citation , it cannot be call'd an accusation , nor punisht as such ; but it seems punishable by death , by l . in prin . ff . ad l. cor. de fals . landed men convict of theft , reiff , or reset , commit treason . it may be doubted if an appearand heir be punishable in that case as a landed man ; or if a person once a landed man , but denuded , be lyable . though landed men may be thus punished as traitors , yet they are ordinarly pursu'd for single theft , and the kings advocat does restrict his libel to ordinary theft . but because it may be punishable as treason , therefore the lords advocate thefts against landed men , though the libel bear only single theft . the murthering any person who is under the trust , power , or assurance of the slayer , commits treason . assurance is extended to such as we have invited to our house ▪ or such as we are under trysting and capitulation with . this act is likewayes extended to husbands killing wives , bairns , servants , & e contra . this act determining what is usury , is explained in my criminal pract. tit. usury , this act declares that such as exact other customs from the people than what is warranted by express law , or express warrand , or immemorial possession , shall be punished as oppressors . it is thought that possession for years is equivalent to immemorial possession , and warrands such exactions , by prescriptions . ships transporting victual are confiscated , and the masters and clerks imprisonable during pleasure . this is now abrogated , for it is lawful to transport corn even without a warrand from the exchequer , except where the same is discharged by special proclamation because of dearth . this act discharging the eating of flesh in lentron is in desuetude , tho till of late eating of flesh was discharged without a previous warrand under the hand of the clerks of the privy council . this act appointing the slayers of deer , cunnings , & . to be punished as thieves , is explained crim . pract . tit. theft , num . . because the people were oft times mistaken in executing their brieves legally , through the difference arising from several jurisdictions , therefore some places are here appointed to prevent mistake , and a general is subjoined , appointing brieves to be executed either at the head burghs of shires , or stewartries , or where brieves were most usually served . from which last words it may be observed , that executions are sufficient , though they be not at the real head burghs , if they be at the place where they used to be executed ; and thus executions at dunce were sustained for the shire of berwick , though greenlaw was really the head burgh by the erection ; and executions of a warning were sustained though not at the right paroch church within which the lands lay , since it was executed at the place at which warnings used to be executed , january , . the earl of argile contra george campbel ; so far the presumption of habite and repute prevails even over truth . by this act the granter of a woodset is declared not to be prejudged by his negligence , though he suffer an ecclesiastick quietly to intrude , and to continue long , yea even years in the possession of laick patronages to which he has right , because during the none-redemption the woodsetter did not look upon himself as heretor . the reason of this act has certainly been because church-men possessing per decennalen ▪ & triennalem possess●onem prescrived a right , and the act seems to imply , that because the granter of the woodset was not valens agere whilst the woodset stood , therefore his negligence should not prejudge him ; but i conceive that church-men now prescriving a right by years peaceable possession will exclude all the rights of laick heretors , as well when the lands ( to which the laick patronage is annext ) are woodset as other wayes . for understanding ecclesiastical pensions , it is fit to know , that of old when the present incumbent was sickly , the synods allow'd him to resign his benefice , reserving to himself a pension or portion out of it , as is clear by balsamon ad synodum ephesinam ; but thereafter the pope having reserv'd to himself the power of burdening benefices with penesions , men did by simony impetrat from the see of rome immoderat and causless pensions , though it was pretended that there could regularly no pension be granted but for one of three reasons : . the favour of the resigner of a benefice , that he might after the resignation live suitably to the character he once bore . . that when two benefices were excamb'd , the greater benefice might be burden'd with a pension in favours of the lesser . . when there was any debate concerning the benefice , it was lawful to burden the same with a pension . but notwithstanding of this , pensions increased so far as to be complain'd of as a harvest without sowing ; and our law did take very much pains to lessen pensions , and by the act of k. ja. . his first parliament , in the black acts which is not now re-printed , the king reserved to himself the cognition of pensions obtain'd at rome . and by the act of the par. k. ja. . it is appointed that no pension be purchased out of any benefice without consent of the possessor , which was very just in it self , and was made to exclude the popes power , who pretended that he could arbitrarily impose any pension he pleas'd , as is clear by gigas de pensionibus ecclesiasticis , quaest. . by this act it is declar'd that the principal gift of pension being improven , all confirmations and decreets following thereon shall fall in consequence . by the act of this parliament it is likewise appointed that pensions shall not be prejudg'd by the act of annexation , they being lawfully authoriz'd by decreets , or possession , and therefore by the act , par. . ja. . it is ordain'd that all pensions not authorized by decreet , or possession in the lifetime of the prelat , alledg'd disponer thereof , shall be null ; and by the canon law pensions imposed upon benefices of cure , extinguuntur morte gravantis ; but the reason given by this act is , because such pensions not so confirmed in the granters lifetime , are null of the law , and may be presum'd to be false . another reason that may be given is , because the incumbent having no power over the benefice but during his life , it were unjust that any burden granted by him should last longer than his life , and if it lasted longer it would prejudge very much the care of souls , because the burden of a pension would discourage the intrant ; and the reason why it is presum'd to be forg'd is because it is very probable that if it had been a true pension it had been own'd during the lifetime of the granter . by the act , par. . ja. . all pensions and dispositions out of the temporalities of vacant benefices since the act of annexation , are declar'd to be null , which shews that pensions were never consider'd as solid and unquarrellable rights . observ. . though this act appoints the exchequer to sit till the last of august , yet it sits sometimes no longer than the last of july ; and it being doubted whether the king could notwithstanding of this act of parliament ordain the exchequer compts to begin upon the first of march ; it was resolv'd that could not be done , because by this act of parliament the not compting till the first of july , was introduced in favours of the subjects , who are by this act liable to no compt till july , and so the king could not anticipat the obligation , by making them compt in march , this being rather matter of property than of government . observ. . that denunciations at the mercat cross of edinburgh against such as do not compt in exchequer , they being thereto lyable , are equivalent , as if the denunciation had been at the head burgh of the shire ; but yet i conceive escheats would not fall upon such denunciations , because no escheats fall by denunciations upon general letters ; but it is alleadg'd that escheats may now fall upon such denunciattons by the act ses. par. . ch. . where this act is renew'd , and such denunciations are there declared to be equivalent to charges and denunciations personally , and at their dwelling house , and head burgh of the shire , and that as to all intents and purposes ; and by that act such letters and executions may be registrated either in the general register of hornings , or in the thesaurers register , albeit generally all letters of horning ought to be registrated in the particular register of the shire , act par. . ja. . or in the general register . this act is explained in the act par. ja. . execution by this act may pass at the kings instance against high. landers and borderers , ubi non patet tutus accessus , upon citation at the head burgh of the next quiet shire . though this act was only in favours of executions at the king's instance , which seems to be a priviledge ob bonum publicum , yet by a late custome dispensations are granted upon common bills by the lords , to cite at any mans instance , though it was not proven that there was not tutus accessus , and therefore the lords did by act of sederunt discharge the granting of such priviledges upon common bills , and ordained that something should be adduced for proving that there was not tutus accessus , and that such warrands should only be granted in praesentia , june , , mepherson against mccleud . per clem . . de judic . & clem . . de sor . compet . citatio potest fieri per edictum ubi locus non est securus , vid. marant . de jud . part . . num . . where he observes well that these edictal citations being so prejudicial , cannot be granted by inferiour judges ; and thus if any person be to be cited , as out of the countrey , at the peer of leith , this cannot be done before inferiour courts , without letters of supplement from the lords . by this act the comptroller is lyable for the chamberlains whom himself nominats , but he is only lyable for diligence against heretable chamberlains , because he names them not . the thesaurer is lyable in the same manner as the comptroller was , though the thesaurer be not here nam'd , because the thesaurer is now in place of the comptroller . but it may be doubted if a person who is repute solvent , and was really so , were nominated , a chamberlain proving afterwards insolvent , will make the thesaurer lyable . by this act rentals set by the king , not bearing heirs , are not extended to heirs , but resolve in naked liferents , though regularly qui sibi providet & haeredibus providisse videtur . nota , that our law has thought that this needed an act of parliament ; and therefore in other cases , where there is no statute it would seem that rights granted to a man , should regularly extend to his heirs , arg . hujus legis . observ. . though this act mention only rentals set by the king , yet the rentals set by subjects , are not extended to heirs , except heirs be therein-mentioned ; and though a rental mention heirs indefinitly , yet it will only extend to the first heir , and will neither be accounted null for want of an ish , nor be extended to all heirs , for then it would be equivalent to an heretable right . this act discharges the disponing of the kings casualties in great , as the casualties of a whole countrey , which is most reasonable ; and therefore all gifts of regalities may be quarrell'd as null , because in them all the escheats are dispon'd ; and though this act discharges the giving away of casualties arising from any one crime , yet this objection was repelled against the gift of usury in which were given away all the profits arising to the king by usury . all pecunial pains are ordain'd to be taken up according to the rate the money gave when the fine was impos'd , or else the fine is to be augmented , according to the augmentation of the money ; and this act was reasonable , because it was not just that delinquents should get advantage by not payment ; and it was necessary , because without this act , fines , as all other debts , might be pay'd according to the current money , at the time the same fell due . the pain of negligent sheriff-clerks is tinsel of their moveables , and the principal sheriffs are to pay pounds for them , besides the damnages of parties . observ. . that in the time of this act , sheriffs had the nomination of their own clerks ; but now since the sheriff-clerks are nominated by , and depend upon the secretary , it is not just that the sheriff should be fineable for the fault of the clerk. observ. . that though by this act the sheriff-clerk is oblig'd to send an inventar of all the registrat hornings yearly to the thesaurer , yet this is in desuetude . this act is in desuetude as to the price to be taken by messengers , but they still find caution to the lyon at their admission , de fideli administratione . relief is a duty due by the vassal to the superiour at his entry , for relieving his fee out of the superiours hands . by this act it is appointed , that when this casualty arises to the king , it may not be compounded for , but that all that is due be taken ; and the true avail is a years retour-duty in ward-lands , and the double of the feu-duty in feu-lands . hope tells us , that though a gift of non-entry contain the relief , yet the donatar will not have right thereto , because such is the custom of exchequer , as he says ; but i think that the true reason is , because this act discharges this casualty to be gifted . when ere the vassal takes out a precept from the exchequer , for infesting himself , he is lyable for the relief ; and the sheriff may be charg'd therefore , conform to the responde book : or the party may be summarly charg'd for it by this act , and the ground may be also poynded for it , as de●itum fundi , when a party gets a precept , the servants of the chancery write down respondebit vicecomes de , &c ▪ or respondebit any judge to whom the precept is direct , and that is call'd the responde here mention'd , by which responde-book , the sheriffs and their deputes are charg'd yearly in exchequer . by this act the sheriff did count for all escheats yearly , for then he might have intrometted summarly , and had letters of intro●ission ; but now he is not countable , nor oblig'd to intromet , but the escheats are gifted to donatars . by this act all commissions for judging crimes , are ordain'd to pass the quarter-seal : but now commissions are granted by the council without any seal ; and though this act discharges justly the granting commissions for judging slaughter , ordaining that crime to be judg'd only by the justices ; yet now the council uses to grant commissions even for judging slaughter , murder , witchcraft , and all such crimes . but though the council may grant such commissions for judging these crimes , when they fall in under general commissions , that are granted by the council ; yet i see not how they can grant commissions contrary to this act , for judging slaughter in special . observ. . that all commissions of the justiciary should be under the quarter-seal , to the end as this act of parliament observes , there may be a responde made thereupon ; and yet the council now uses to grant commissions , which have no other warrand but a paper subscriv'd by themselves , and not by way of signature , as is here ordain'd , and the great fault that is committed in granting these commissions , is that the process is never ordain'd to be returned to the justice-clerk , to the end that both it may be known , whether the processes be legal , and that it may be known what is due to the king , for which the responde mentioned in this act was to be made , vid. observ . on act par. ja. . observ. . from these words of the act , that no commission be granted to proceed in slaughter , but that the justice-general and his deputs proceed thereupon . it uses to be urged that a council of war cannot be a sufficient warrand for souldiers to judge murders , and other crimes committed by any of their number against countrey-men , these not being military crimes , but being crimes that should be tryed by our fundamental law in the justice-court , where the people have a double security , both by learn'd judges , and an inquest of neighbours , and a kings advocat to be careful of the probation ; and it may as well be pretended that they may judge their own souldiers in civil cases ; and that they may judge a countrey man when he kills a souldier , vid. crim. pract . tit. jurisdiction of justices over souldiers ; and the council ordain'd burr a drummer to be delivered up to the justice court for killing a woman , though he had suffered two councils of war , november . . but to clear this , the king by his letter to the council , has declar'd that souldiers are only to be be try'd for military crimes by a counsel of war , and that for ordinary crimes they shall be judg'd by the justices , &c. as parties may pursue crimes without concourse of the kings advocat ; so by this act the king may pursue without an informer , ad vindictam publicam . this act ordains that no rests be allow'd to the thesaurer exceeding pounds a year , but that he shall compt for what is above this sum , so that he may do diligence therefore as accords , but this is not observ'd . the second part of this act ordains that the king be not prejudg'd by general ratifications in parliament ; for though ratifications cannot prejudge third parties ; yet they might have prejudg'd the king who past them , if his majesties interest had not been secur'd by this act. though this act discharges all continuation of justice-courts , and ordains the justices to proceed , notwithstanding of such precepts ; yet both king and council use to command the justices to continue their diets , though this act was objected in the process for william halyburton's murder , june . but it is necessary that in such cases the king should be inform'd by the justices , what is to be said on both sides , before they continue such diets in process , at the instance of privat parties , for the king and the party having different interests , and it being declar'd by act of parliament , that the party may pursue without the king. it seems very reasonable that the parties process should not be stopt upon surreptitious warrands , without acquainting the king. i find in the council register , july that because his majesty had been troubled by the importunity of such as desir'd not to be try'd before the justice-airs , but at particular diets , whereby they eschewed ordinarly all punishment ; that therefore his majesty does in council , statute and ordain ( this is oftimes the stile in acts of council , as well as in acts of parliament ) that the justices shall proceed , without respect to such warrands ; and it seems that that act of council has given occasion to this act of parliament ; and generally many acts of parliament have been at first acts of council , which shews likewise what power the king has in his council of this nation . this act appointing that sheriffs should yearly give in the names of their deputs and clerks to the lords of session , and find caution in the books of council , is in desuetude , as to both the parts , for they neither find caution , nor give in the names of their deputs ; but de jure , i think letters of horning may be direct upon this act for both effects , it being most reasonable that the lords of session should know whether the deputs be able , and this caution would keep them in awe and secure the people , if they do injustice . the caution requir'd by this act is burgesses , indwellers in edinburgh caution burgeoise , as the french call the best caution . by this act the form of holding justice-airs is set down , but it is to be found more fully in the iter justiciarii , and upon the word justice-air , de verb. signif . and so needs not be repeated ; but there are some things fit to be observ'd , because innovated . observ. . that commissions of justiciary are to be under the testimonial of the great-seal by this act , but now they are always under the great-seal , when granted by the king ; but seldom or never under the quarter-seal , which is call'd the testimonial of the great-seat , and when they are granted by the council , they are only sign'd by a quorum , but under no seal . observ. . that albeit the steuartries or bailliries be here appointed to come to the head burrows of the shire , where dittay is to be taken up ; yet it has been found , that the council may ordain them to come to other places for the publick conveniency , when the diets are so short that the justice clerk cannot stay at every shire , and thus the constabulary of hadingtoun was ordain'd to give up dittay at edinburgh . obser● . . that albeit by the old form , pannels were to be cited to justice-airs upon fourty dayes iter. just. num . . yet now they use to cite upon fifteen or more dayes , and then as now , they are not cited peremptorly to one day , as in ordinary justice-courts , but to any one of the days in which the court is to sit in that place , to which they are cited , and all the pannels are called every day at that place , and if they compear at any one of the dayes , they are not declar'd fugitives . at the first day of justice-airs , all who are call'd must find caution to appear at all the diets of the justice-airs , which some complain of . albeit by the form of our old bri●ve , and the constant practique , only millers , brewers , smiths , and officers of courts were cited to give up dittay upon oath , because it was presum'd that the best intelligence is to be had from such publick persons ; yet the cou●cil did lately ordain that noblemen and gentlemen should likewise be oblig'd to give up dittay , because the crime being treason , and art and part thereof ; it was presum'd that they should understand the same better than mean people ; and for detecting of so great a crime , persons of all qualities should concur ; and the former custom was not exclusive of calling persons of quality . likeas by the . act par. ja. . the king is to call the lords and head-men of the parts of his realm , and to take dittay of them ( id est by them ) of notour trespassers . by this act hoghers or slayers of horse , destroyers of plough-graith , growing corns , &c. are punish'd as thieves to the death , vid. crim . pract . tit. theft . observ. . that this act proves theft to be capital by our law , though we have no express law for making theft capital generally . observ. . that it may well be doubted , whether cutting of corn , &c. in landed-men is treason , since it would seem to be so ; for by this act it is declar'd punishable as theft , and theft in landed-men is by the act of this parliament declar'd to be treason ; but yet i conceive that these statutory thefts are not punishable as treason , since that were but fictio fictionis & duae fictiones non cadunt in idem subjectum . likeas the punishment is dedetermin'd here to be the punishment of simple theft , viz. death , whereas if the law had design'd forfalture , it would have nam'd forfalture here , as in the former act. it has been doubted upon this act , whether the cutting of corns sowen by a strang●● ▪ who had no right , was a crime in the heretor , who may pretend that satum cedit solo ; and it is thought that if the heretor suffer'd a stranger to possess for any considerable time , he could not have cut them down summarly , no more than he could have removed that stranger summarly from his possession , though unjust . these acts are explain'd crim . pract . tit. deforcement , vid. act par. ja. . and statut. will. cap. . v. . it appears by this act , that letters of lawburrows were of old granted by several clerks ; and by this all caution for law-burrows is ordain'd to be found to the justice-clerk , which was indeed most reasonable , because bodily harm is there dreaded , and the preventing of that should belong to the justice-court ; but now the council , session , and criminal court have the power of causing parties find caution for lawburrows , but the act in so far as it discharges lawburrows to be granted against complices in the general , is yet in observance , and very justly , for it was not fit to leave it arbitrary to the parties to charge any they pleased . though this act appoints all courts to be fenc'd at eleven of of the clock in the forenoon , yet it does not irritat and annul all courts holden at any other hour , and courts are ordinarly held at other hours , but it may be doubted , whether a party cited to a peremptory diet , and staying till twelve of the clock , and taking instruments thereon , could be unlawed in the afternoon , for absence ; but if the court once sit , parties are obliged to attend . though this act appoints the expences of parties accus'd and acquitted to be modifi'd by the justice-clerk and his deputs , yet they are now only modifiable in full court by the justices : but it is doubted , whether the justices can modifie expences , where the defenders are absent , since the only certification against absents , is that they shall be denunc'd rebels ; but yet the modifying expences , seems to be the necessary result of all processes , and that inest officio judicis ; it is also doubted , whether the justices can ex intervallo , modifie expences , none having been sought the time that the letters were brought back , and the party declar'd fugitive , and the justices are in use to do both , but the case has not been yet fully debated . by this act the roll of assizers was to be given by the party accuser , or a notar in his name ; but now by the third article of the regulations , for the justice-court , the assizers are nam'd , and the list subscriv'd by the justices , for it was thought too severe that the kings advocat , or the party accuser should have the naming of the assizers . by this act customers passing customable goods for gratitude , are to be try'd criminally , and their moveables to be escheated in case they be convicted . observ. . that the kings servants are only to be punish'd in case they transgress for money , so that negligence is not punishable except it be gross ; but yet if customers should wittingly and willingly pass goods for friends or relations , i think it would be punishable by a fine : and since the stealing of customs is theft , this connivance in strict law seems a theft-bute , or accession to theft . observ. . though this act declares this accession punishable in a justice-air , yet the exchequer and council do also punish the same by arbitrary punishments . this act is explain'd fully crim . pract . tit . assizes ; but it is fit to add that his majesty having written a letter in anno . desiring the justices to examine witnesses in treason , when the council requir'd them , at any time before insisting in the process , to the end his majesties advocat might know how to libel , and to prevent the absolving of rebels , who were truly guilty by the mistake of citing the wrong witnesses ; it was alleadg'd that the desire of that letter was contrary to this act , ordaining all probation to be receiv'd only in presence of the pannel . . that this would ingage witnesses to adhere to the depositions that might be elicited from them by the too great zeal of his majesties servants , or the influence of others . to which it was answer'd , that as to the first , the depositions to be taken in that previous tryal , were not to be made use of to the assize , which was all that was discharg'd by this statute . as to the second , it was not to be imagin'd that the judges , to whom only this was to be intrusted , would prejudge any pannel , or be corrupted by any influence ; and before the witnesses depon'd these depositions should be destroy'd , so that the witnesses could be under no apprehensions upon that account , and the people were in a better condition by this letter than formerly , for it was securer to trust previous examinations to the judges than to the kings advocat who did alwayes examine alone formerly , and this would prevent unjust trouble , when there were no witnesses who could depone against the persons accus'd through error or malice . this act is also explain'd in the title assizes : but it is fit to add that blair and others being convict of error for assoilȝying some traitors wrongously , and their escheats being gifted , they rais'd a reduction of the gift , as founded upon a verdict that was null by this act , in so far as the kings advocat had spoke with the assyzers after they were inclos'd , which reason was repell'd , because the justices had declar'd that the advocat had only spoke to the assyzers in their presence , when the assyzers were desiring to be solv'd of some doubts which was ordinary and allowable , december . . it may be also doubted whether such verdicts can be reduceable , for though the act declare that the assizers may assoilȝe , if any speak to them , yet if they and the justices proceed , it seems not quarrellable , or at least before the session ; for i remember that the justices having declar'd a bond of glenkindies forefaulted , for not producing some witnesses against himself ; the lords declar'd that the justice-court being a supream court , their acts and sentences were not quarrellable before the session , queritur , if both these may not be quarrell'd before the parliament ; and i think they can not , except the decreets of the session can . this and the following acts to the end of this parliament were made for quieting the borders and highlands , as to which the same courses are to be taken , though now the borders are governed by a commission of both kingdoms , so they are not put to find caution as they were by these acts ; but the acts here set down are generally observ'd as to the highlands still , except in so far as i shall here observe upon the respective acts. observ. . though this act appoints that the first day of every moneth shall be appointed for hearing complaints concerning the borders and highlands , yet that is in desuetude as to both . observ. . that , that part of the act ordaining a special register to be made for borders and highlands , is in observance , quoad the highlands by a late act of his majesties privy council . by this act all the lands-lords contain'd in this roll , are ordain'd to find caution , which roll is subjoin'd to the acts of this parliament , but that roll is now very much alter'd , for many others are now ordain'd to find caution , who are not therein specifi'd ; but are now in the proclamations of council , march . . &c. because the heretors mention'd in the acts of parliament , are often extinct , and the lands for which they were to be bound , are dispon'd to others . and whereas by these acts , these landlords and chiefs of clans were ordain'd to produce their delinquents before the justice or his deputs , they are now to produce them before the council , or else to pay the debt , which are great arguments to prove that in matters of government de facto we consider more the reason , than the letter of the law. though this and the act of this parliament , which is coincident with this may seem severe , because the innocent is bound for the guilty , yet necessity and publick interest has introduc'd these laws by the same reason that in england the paroch is lyable for the robberies committed therein betwixt sun and sun , and thus these who have power of jurisdiction from the emperour , are lyable , vias publicas a latronibus purgare gail ▪ observ . . lib. . vid. etiam , l. . l. congruit , ult . ff . de officio praesidis . it has been doubted whether the council could in other cases not warranted by express acts of parliament oblige the subjects to give bond to live peaceably conform to law , and particulary that their tennents should not keep conventicles , but should go to church , and pay pound sterling for every conventicle kept upon their ground , or should present their delinquents ; and it was alleadg'd that the council cannot , because regularly one man is not lyable for another mans crime , nor can this inversion of property and natural liberty be introduced by a lesse power than a parliament , nor had acts of parliament in this case been necessary , if the king and council could have done the same by their own authority ; but yet since the king has by express act of parliament the same power here that any prince or potentat has in any other kingdoms , and that government belongs to him as property does to us , nor can the peace be secured otherwayes than by allowing him to take all courses for securing the peace , and preventing disorders , that therefore this joyned with the practice of the council is a sufficient warrand for exacting such bonds , the practice of our king and council being the best interpreter of the prerogative , especially where the things for which band is to be taken , are not contrary to express law ; and it is implyed in the nature of alledgiance that land-lords should entertain none but such as will live regularly , and if they transgressed , the master could not in common law thereafter recept them without being lyable , as we see in spuilȝies ; or if the king pleased he might denounce the transgressors rebels , and so might put the master in mala fide , and though there be no such particular laws warranding the taking of such bonds , yet it will appear by many instances in this book , that laws are extended de casu in casum , and thus this power seems inherent in the crown ; likeas the matter of property is sufficiently secured by the alternative foresaid , of either presenting or paying the damnage , which alternative seems to be founded upon the same principle of justice , with actiones noxales mentioned in the civil law , domino damnato permittitur aut litis aestimationem sufferre aut ipsum servum noxae dedere , vid. tit. . lib. . institut . i find many instances in the registers of council , wherein the subjects are charg'd to secure the peace , under the pain of treason , as in the case of the lord yester . bond 's given by cautioners for broken men , do oblige the heirs and successors of the cautioners , though they be not mentioned in the band. observ. . in law he who obligeth himself to pay a sum , obligeth his heirs ; for as in law qui sibi providet & haeredibus providet sic qui se obligat & haeredes obligat , and therefore a man having bound himself and his heirs male , it was found that the creditor was not thereby excluded from pursuing the heirs female , or any other heirs , but that he was only bound to discuss first the heirs who were specially named in the obligation , february , . blair contra anderson ; but yet obligations for performing a deed , such as to present a thief , are of their own nature personal , and therefore this act was necessary . the taking of surety from chief of clanns doth not loose the obligation taken from land-lords , & e contra , and the reason why this act seemed necessary , was , because this seemed to be an innovation , and it seemed not just that both the chiefs and land-lords should be lyable , since they could not both have absolute command over the person to be presented ; but yet this act was most suitable to law , since novatio non praesumitur nisi ubi hoc expresse actum est , l. ult . cod. de nov. and the tennents in the high-lands are influenced both by chiefs and land-lords ; but to make this law more just , the council gives action of a relief against the lands-lord , if the lands-lord harbour , or to the lands-lord against the chief , if the chief recept him . by this act if goods be taken away by any clann'd man and recept in the country of their chief , for the space of hours to his knowledge , the chief shall be lyable in solidum for all the goods taken away , though there were but very few of his men present , as was found in a case pursued by francis irwing against glenurchie before the council ; all such chiefs being lyable in solidum , and not pro ratâ only for the wrongs committed by their clanns . by this act no magistrat may keep a thief , or malefactor in arms with him , albeit he pretend he is his prisoner , but he must de●ain him in a closs house , both because squalor carceris is a part of the punishment due to malefactors , and because if this were allow'd , magistrats might by collusion suffer malefactors to enjoy their liberty . is explained crim. pr. tit . theft . this act ordaining masters to present their tennents upon the kings closs valentines ( or orders in little papers like valentines ) is observ'd in the whole registers of council . these two acts discharging the borderers of scotland to marry with the borderers of england , or to labour their lands , are abrogated by the union . by this act the land-lord doing diligence by obtaining decreet of removing , using horning , and doing all other things that was in his power after the fact comes to his knowledge , is no further lyable . nota , by this act the land-lord must be put in mala fide by intimation of his tennents crime . . dubitatur whether this priviledge should not likewise extend to chiefs of clanns , since they have less interest in the delinquents then the land-lords . by the act of this parliament , such as committed slaughter , mutilation , or other hurt upon thieves , are not lyable : but by this act an indemnity is likewise granted to such as raise fire against them , that being there forgot . this act is explained in the observations upon the act of this same parliament . by this act the burrows pay the sixth part of the impositions of scotland , which is yet in observance , and because of this burden they have the only priviledge of trading , and therefore they justly pretended that their priviledge of trading could not be communicable to the burghs of barony and regality , who bore no part in this burden . nota , that though by this act the taxation of the burrows is not to be altered , that is only mean't of the part which is to be born by the burrows in general ; for notwithstanding of this act the convention of burrows do alter the taxation of any particular burgh according as the number of burghs increaseth , or according as any particular burgh grows unable ; and they divide this sixth part amongst themselves according to the total of pound scots , which is the imaginary standard or assis , and each burgh pay accordingly , some being valu'd at ss . some at ss . &c. and if any burgh resign its priviledges , they must also resign in favours of the burghs royal their common good , after which resignation , and not otherwayes , their proportion is divided amongst the rest ; for it were unjust that they should retain their common good which was to pay the proportion of publick burden , and yet be free from the burden it self . by this act a burgh selling any part of their freedom without consent of his highness and his three estates , loses their whole freedome . observ. . that the reason given by this act is , because they as vassals cannot sell without consent of the king their superiour , and so this seems to be a kind of recognition , and it would have appeared reasonable that therefore the king's consent might have seem'd sufficient , because he is only superior ; but the reason why by this act the parliaments consent is declared necessary , seems to be , because burghs-royal bears a part of the taxation of the kingdom , and so alienating any part of their freedom , they seem to lessen the subject-matter out of which the taxation is payed . obseev . . it may be doubted whether a posterior confirmation or ratification by the parliament will be a sufficient consent . obsrrv. . that magistrats and council cannot alienat the priviledges of a burgh , and therefore alienations made by them would not infer this forfaulture or recognition , and therefore all the inhabitants behoved to be cited by touck of drum to such alienations as they were per sonitum campanae , in the civil law , tit . cod. de venditione bon. civit. by this act the parliament having referred to the king to determine who should represent the barons ( which shews what great deference our predecessors had to their king ) his majesty determines that none but such free barons as are free-holders , holding of the king , and residing within the shire , shall represent the shire ; but by an act of parliamant , . it was declared that such as are free barons might elect or be elected , though they were not actual residenters , and that notwithstanding of this act which is thereby abrogated as to that point , and most reasonably , for their interest in the shire ceases not by their not residence ; and conform to this act the convention decided in all elections , june . nota , all elections are to be subscrived by six barons at least , and though in controverted elections these who have six will be preferr'd to these who have five , and if neither of the competitions have six , a new election will be order'd , because both are unlawful ; yet if all the barons were cited , and fewer than five were only present , a commission by these five may seem sufficient , because the absence of barons should not prejudge the shire ; yet in the convention . many inclin'd to think that a new election should be order'd in that case , because of this act , and that that shire ought not to have a vote who would not send legal commissions . though by this act the missives for calling parliaments or conventions ( which are here called general councils ) should be directed to such as were the last commissioners , in place of the sheriffs , yet now they are ordinarly directed to the sheriffs , and sometimes to any the king pleases , as in the parliament , . by this act the commissioners are to be choos'd at michaelmass head court , and failing thereof at any other time the free-holders meet , or when his majesty requires them ; and therefore it may be doubted if every shire are obliged to choose at michaelmass , since that seems to be ordered here , and the other dyets are only ordered to be failing of that head court : but yet many shires in scotland use not to choose at michaelmass , but delay elections till they be required . though by this act the names of such as are elected are ordained to be notified in writ to the director of the chancery by the commissioners of the last year , yet that is not now in observance , since his majesty uses no more to call parliaments and conventions by precepts out of the chancery , but by general proclamations . it is to be remembred that where there are elections at michaelmass , the shire cannot choose of new , as was found in the convention . in the case of the shire of perth , and ordinarly the proclamations bear as it did there , that the shire should choose where they had not formerly chosen at michaelmass , and so these elections were made without warrand ; but it may be doubted whether such elections would be invalid if the proclamations mention'd nothing , as to this point it was there alledged that the shire might make a new election , because the commissioners then chosen were denuded , and were become no barons ; to which it was answered , that this should have been represented to the council , who would have ordered a new election , but the shire could not proceed to elect by their own authority contrary to the proclamation . though this act has adjusted the weights and measures of the whole nation , and ordain'd the linlithgow furlot to be the standart as to that measure ; yet it is expresly provided by this act that if any persons be founded by infestment , tack , or contract , in a different measure , that measure contain'd in their private right should stand , but should be proportioned to the linlithgow measure , without prejudice to either party , that is to say , they should have right to the old measure fully , but it should be payed according to the new measures ; as for instance , the boll of galloway being six furlots , the master should have six furlots payed in to him , which exception was most just , because of the intrins●ck value of the lands to which the old tacks , &c. were proportion'd , but yet the lords sustain'd in milns a moulter , though much greater than the ordinary fourth part of a peek , because of constant possession , and found that this act did not extend to milns , since therein different measures are used according to the proportion of the service , nor was this act ever observ'd in any part of scotland as to milns . in conjunct-fees and life-rents also , the husband being oblig'd to provide the wife to particular lands , which he obliges himself to make worth so many chalders of victual , it has been found that he is oblig'd to make them worth so many chalders , according to the measure of the countrey where the land lyes , because his own rent is so payed ; and ministers in galloway , and other places where great measures are used , will get their stipends according to these measures ; the reason of all which i conceive to be , that these measures were made greater at first , because of the insufficiency of the victual of these countreys , and so the greatness of the measure does only equal the intrinsick value . this act having fallen in desuetude as to the linlithgow measure , is again renewed by the act , par. ja. . and many wish that corn were now sold by the weight , and not by measure , weight being the only sure rule of the intrinsick worth of corn ; but this being propon'd in the par. . the overture was rejected by a vote . vide observ . on act par. . k. ja. . supra . king james the sixth , parliament . for understanding this act it is fit to know that upon the of may . the presbyterian party taking advantage of the kings being engag'd against bothwel ▪ and in other difficulties , they held a general assembly at edinburgh , wherein they drew up several articles to be presented to the king and parliament , whereof spotswood names only four : . that the acts . against the discipline of the church , should be abrogated , and the present discipline establish'd . . that the act of annexation should be abrogated , and the patrimony of the church restor'd . . that abbots and priors , &c. nor none having commission from them should vote in parliament , as representing the church . . that the land should be purg'd of blood. the king rejected the second and third , but in complyance with the first article he did , because of his present difficulties , as spotswood observes , allow the present church discipline by general assemblies , synods , and presbyteries ; but yet he does not here expresly abrogat episcopacy , only the presentations are not ordain'd to be directed to them , but to presbyteries ; which presentations are again restor'd to arch-bishops and bishops by the act par. ja. . and spotswood tells us , that severals of the bishops possest even then by their titulars . episcopacy war again restor'd , so that the bishops did sit in parliament , by the act par. ja. . but they were not fully restor'd to their spiritual jurisdiction , till the act par. ja. . but in that act , this act is not abrogated , as it would certainly have been , if this act had abrogated episcopacy ; but this act is abrogated by the act par. ja. . by this act the collation and deprivation of ministers is declared to belong to the church jure divino ; but these words , or any siklike essential censures , having warrand from the word of god , are too general and may be abused . this act is now abrogated totally in all its heads , clauses and articles , by the act sess. par. ch. . which seems too general ; for though this act establishes presbytery , yet there are many clauses in it in favours of the protestant religion , and to which no answer can be made , but that , what this act has establish'd in favours of the protestant religion , was formerly establish'd by other acts , but the truth is , these acts are not so full as this . pettie in his history tells us , that by the seventh article of the foresaid assembly , it was desired that tacks set by the depos'd ministers should not stand : but by this act it is only declar'd that when ministers are depriv'd , their deprivation excludes them , tam ab officio quam beneficio , which has been doubted , because suspensions are only ab officio . by this act though the persons be depriv'd , yet it is declar'd that their deprivation shall not be prejudicial to tacks lawfully set by them before their deprivation , and the lords do expone the word lawfully so , as to extend to the setter himself , so that his successors can only quarrel these rights upon such reasons as the setter himself could have quarrelled them , vid. hopes major pract. tit. kirk . this act is explain'd by the act par. ja. . by this act the woman divorc'd for the crime of adultery committed by her , cannot dispone her estate to her adulterer , if she marry him , or to the children procreat of that pretended marriage , which has been introduc'd , not only as a punishment of the adultery when committed , but to discourage any from committing adultery , upon hopes that their children might succeed to their estates with whom they committed adultery , which is conform to the canon law , by which non licet eam ducere in uxorem quam quis polluit adulterio , and by the civil law , that woman could not institute that servant her heir with whom she had committed adultery , inst. de haered . instit . in princip . these marriages are likewise declar'd null by the . act par. ja. . vid. crim . pract . tit. adultery , pag. ● . though regularly liferent-escheats do not fall while after year and day ; yet such as commit slaughter within kirks , or kirk-yards , and the resetters of them , lose their liferent-escheat immediatly after declarator , and this liferent falls to the king , though in other cases liferents fall to the superiour , of whom the respective lands hold . it was usual to mortifie to abbacies , formal and established patronages of kirks , which were formally erected in parsonages , and to these the monks presented parsons , and were only in place of patrons ; at other times tiends were mortified and given to them ; and after the reformation , though tiends were declared the patrimony of the church by the act of annexation ; yet thereafter the lords of erection did prevail , by their importunity with the king , to erect these tiends in rectories , or parsonages , whereof the patronage was given to the lord of erection ; but there can be nothing so unjust or illegal as these patronages were ; and therefore by this act , the parliament finding this abuse was growing , did declare that all erections of kirk-lands , and teinds in temporal lordships and livings , to the prejudice of the kirk , and hurt of his majesties estate , and priviledge of his crown , were null , which is founded upon excellent reason ; for such erections of tiends were extreamly to the prejudice of the church ; tiends being clearly by former laws , declared to be the spirituality , and so the patrimony of the church ; . laicks having power to present whom they pleased , such erections did much hurt the church , since it gave to laicks the power of presenting . . it is too well known that such as are presented by these patrons , do ordinarly grant tacks in favours of the patron , and to his behove , which has been always lookt upon , as not only simony , but as most prejudicial to the interest of the church , making the ministry despicable , and tempting them to ill shifts , and discouraging worthy and honest men from seeking such slavish benefices , and therefore the church has been always an enemy to such impropriations , even when made in favours of religious monasteries ; for pope alexander anno cap. avaritiae . extra . de praebendis , says , intelleximus quod in ecclesiis vestris pensiones percipere consuevistis & antiquos reditus minorastis ideo mandamus ut antiquos reditus cum consensu archiepiscopi ad integritatem pristinam revocetis : and therefore the same pope alexander in the lateran council , made a canon against this abuse , which was seconded by pope clement the . cap. sicut extra ▪ de suplen . neglig . praelat . and by clement the fourth , in anno : cap. suscepti d● praebend . in . but this was perfected by clement the fifth , cap. constitut . de jure patronatus in clementin , where it is appointed that si certa portio ( called constantly in the canon law congrua portio ) non fue●●t ●ssignata per presentantem tune in paenam praesentantium ad dioces●●●● ipsos potestas hujusmo●● assignationis devolvatur . and since there was so great hazard in putting these presentations in the hands of monastries , what may be expected from laicks ? these erections likewise of new patronages , are extreamly disadvantagious to the people , because one gentleman has thereby right to force a minister upon all the other ancient and great heretors of the paroch . likeas , by being patron , he comes to have interest in all their teinds ; and since the great design of the submission and surrender , was , that every man might have right to his own teinds , this could never have been fully done , except the patronages had been surrendered , for the patron still would be in effect titular , by getting tacks . likeas , by the submission , as in the beginning of it , they submit , as having , or pretending right to the parsonage , vicarage , or patronage of kirks pertaining to the erections , so in the words of the submission , they submit how they may be denuded in his majesties favours omni halili modo , of all and sundry tiends , which they have of any other mens lands , by whatsoever right or title they possess the same ; and because his majesty will take into his princely consideration , what satisfaction they shall have for their tacks , rights , and patronages , according as his majesty shall find the validity thereof . therefore they submit , and his majesty considers in the decreet-arbitral , all the patronages as submitted ; and the reason why he determines nothing , especially for the patronages , is , because considering all the erection together , he determines satisfaction for that which is the true pecuniary interest , nor needed the act of parliament express patronages , because it only expresses these things , for which a pecuniary interest was to be given ; or these rights which were to be salved , but patronages was neither of these : but the act having annexed all the superiorities of kirk-lands , and pertinents thereof , pertaining to whatsoever abbacy , &c. according to the tenor of his majesties general determination , and the conditions therein exprest , it has thereby annexed all the patronages , and it is observable , that though reservations are made , yet there is no reservation of patronages . nota , that the kings advocat in his summonds of reduction , calls for all rights of patronages per expressum , and then sayes , and true it is that the said kirk-lands , and others libelled were annext to the crown by the act of parliament . this act is explain'd crim. pract . tit. heresie , num . . this act regulating the thirds of benefices is now in desuetude . observ. . that mercats are by this act only discharged on sunday in the countrey , and not in burghs royal , for this act is declar'd to be without prejudice of the liberties of burghs royal ; but this discharge is extended to all , act par. ja. . observ. . from the words , not being the mercat day of the next burgh , that even the parliament would grant no liberty to hold fairs in prejudice of fairs granted formerly to other burghs ; and upon this principle of common equity , & ne quid siat in aemulationem vicini . the lords reduced a fair granted to glenbervie by the king , because it was upon the same day that his majesty had granted a fair formerly to glensarquhar , and within a mile of the other : and another granted to the earl of aboyn , because upon the same day , and within a mile of an old fair at birse , though it was alleadged that the river of dee was here interjected , which by its great torrents about michaelmass , stopt all the north from coming to the fair , and frits . de nundinis treating this question , confesses that a fair cannot be said to be in aemulationem vicini , where the reason why it was granted , could be attributed to any publick good , or utility . it was also urg'd , that the granting fairs being a meer gratuitous concession , the king could not be bound up from granting a new fair ; and thus we see that the king erects new burghs royal within a mile of other burghs , and erects the suburbs of towns to be burghs of barony , albeit these may be said to be in aemulationem alterius ; and really they are very prejudicial , nor can that maxime hold any where , save in privat deeds done by one neighbour to another , principally in prejudice of another , but yet that burghs cannot be erected in prejudice of other burghs , and what may be said to be granted in prejudice of other burghs , and how far this general may extend , is to be seen in fritsius de nundinis . observ. . it has been urg'd that as by this act , these who had mercats upon sunday , may hold them upon a week day ; so if any person indite a court , and cite to a day then lawful , though that day be thereafter declared a holy-day , yet the persons thereto cited are bound to appear the next lawful day , even where the diets are peremptory . by this excellent act sheriffs and other judges ordinar are commanded to search rebels , not only within their own jurisdiction , but to advertise the sheriffs of the four halfs about , and that under the same pains that the traitors or rebels themselves incur ; and the recovering decreets is not sufficient , but they must seek , follow , pursue and present them to justice . this act is but ill observed , though most necessary and reasonable ; and by the act sess. par. ch. . it is declared , that not only by law , but by 〈…〉 and duty of their office , sheriffs , stuarts , and 〈◊〉 of regalities are obliged to put the laws in execution against the contemners of his majesties authority , as his proper officers . by this act the lyon and his brethren heraulds , are ordain'd to 〈◊〉 the whole arms , and as to this part , i have explain'd it in my book of herauldy . by this act also letters of treason are ordain'd to be executed by heraulds or pursevants , bearing their coats of arms , or macers ; which solemnities were found only necessary in execution of letters , that is to say , summonds of treason , but not in the execution of inditements of treason , december . . and the reason of the difference seems to be , because ●cts of parliament are stricti juris , nor can an inditement be c●ll'd letters of treason . likeas , the reason of these solemnities in executing of letters of treason , is , that the people may take notice who are cited for treason , as the weightin ss thereof requires , which are the words of the act , but inditem●nts being only given to such as are in prison , there needs no solemn●y ; and yet for the more security , inditements of treason are also executed against prisoners by a herauld . that part of the act which relates to the deprivation of messengers is formerly explain'd , act par. ja. . only it may be observ'd , that though the lyon by this act is ordain'd to deprive messengers by advice of the lords of session ; yet he uses to deprive them by his own authority , and in his own court , and though he publishes the deprivation at the m●reat cross ; yet executions after that publication have been sustain'd , if the messenger , after that publication was habite , and repute a messenger , november . . stenart contra hay . and though it may be alleadged that this publication should put the lieges in mala side , as well as the publication of interdictions and inhibitions ; yet the answer is , that there are publick registers in these cases which may inform these who are to transact , which cannot clear them as to the deprivation of messengers . though this act appoints that the justice-clerk or his deputs , shall within six days after criminal letters are returned , deliver the names of the persons denunced , with a brief note of the cause of their denunciation to the thesaurer ; as also , the names of such as are unlawed for absence from assizes ; yet this is not now in observance , all that is observed now being only , that upon a command from the thesaury ; these lists are given in so , that this act is rather forgot than in desuetude . by the last part of this act , all commissions of justiciary , for longer space than the particular affair for which it is granted , are discharged ; and therefore by this act it would appear , that commissions for justiciary , granted for a year , or any definite time , and not for a particular business , are null . it is likewise appointed by this clause , that such as procure commissions of justiciary , shall find caution to re-produce the process , and to pay that part of the commodity , which by the commission is destinated for the kings use , which is most rational , because this would likewise oblige these who get the commission to do justice , knowing that the process may be revis'd , when it is lying in publica custodia , that is to say , in the books of adjournal , for such processes ought to be brought back , and are usually registrated there ; but this is oftimes neglected , and it was debated in the case , turnbul against the lord cranstoun , july . that the tenor of a decreet of forfalture , pronunced upon a commission granted to the earl of dumbar , could not be proven , except the process were produced , whereupon it proceeded , conform to this act , since all that the witnesses could prove , was , that they had seen such a decreet , which is not sufficient , for else an unjust decreet of forefalture might be pronunced and lost , to the end the tenor thereof might be proven without any possibility of quarrelling the vvarrands , whereupon it proceeded . it may be doubted what is meant by that part of the commodity which belongs to the king ; and i conceive that when such commissions of justiciary are granted , the whole escheat belongs to the king , and the commissioners have only right to their necessary expence tanquam mandatarii , except a particular quota be condescended on in their commission , though some are of opinion that these commissioners have right to the same quota's that sheriffs have , since they are sheriffs in that part , by this act the comptrollers consent is requisit in all infeftments of feu-ferm or confirmations of the kings proper lands ; and though there be no comptroller now , yet the consent of the commissioners of the thesaury , or thesaurer , if he were , supplies the same . hence it is that this act appoints all feu-ferms and confirmations to pass the comptrollers register , which is likewise ratifi'd by the act par. ja. . it is sit to know that the thesaurer and comptroller had different registers , but now there is but one clerk to all the exchequer , who is called the thesaurers clerk , and he keeps but one register , each volumn whereof is divided in two parts , the one whereof contains only gifts that pass the exchequer , and the other , all other signatures of confirmation , &c. beasts found in his majesties forrests or parks , may be brevi manu , intrometted with , vid. act par. ja. . but since forrests are not now fenc'd , it seems unreasonable that a beast straying should be escheated , though where beasts are designedly driven into a forrest , it deserves punishment , and this act seems only to speak of fenced forrests , for it says , parks , or forrests ; and it requires advertisement , before beasts even found in these , can be escheat , vid. argent . tit. des assize , where this matter is fully treated . all english goods may be searched for , and if they be not sealed by the customers , may be confiscated , which act being put in practice at edinburgh , in anno . occasioned a great tumult , and the act was alleadged to be in desuetude . the word selling in this act is wrong printed in the last impression , for it should be sealing . nota , this act ratifies only an act of privy council , which ordained formerly confiscation ; and this shews how great the kings power was of old in the matter of trade , vide act par. ja. . which renews again this act. vid. last act par. ch. . this act is temporary , but from it , it is observable , that as the king may , as superiour , call for production of any vassals rights and infeftments , in a reduction or improbation , and even by way of exhibition , which is conform to the feudal law , and to c. . quon . attach . so the king may by act of parliament , sometime call for production of all the rights of his vassals of kirk-lands together , as in this act , or of all the rights of any particular place , as of the isles act p. i. . and i think the king might have call'd for them without this act , by proclamation , and albeit it be said , c. . quon . attach . that the vassal shall only be oblig'd to shew his evidents once in his life to the king ; this is not now observ'd , and the true meaning of it is only design'd against too frequent troubling of the liedges , which as no calumniousness , is never to be presumed in the king , or his officers . this act appoints lords of the session not to be admitted till they be twenty five years of age , which agrees with the law of france , langlei sem●str : c. . and with that of venice , contar. l. . c. . whereas of old , the romans admitted no senators till thirty five , which augustus retrenched till thirty , sweton . c. . vid. . act par. ja. . but that part of the act appointing that none shall be admitted lords , but such as have a thousand merks of rent , or twenty chalders of victual , is not now strictly observ'd , though this was an act to prevent the temptation of bribing , and that parties injur'd by them may have somewhat , out of which they may expect reparation , si judex litem suam secerit . the antedating of warrands of signatures is here punished , by the punishment of falshood and treason , three parts to the king , and the fourth to the party griev'd ; from which it may be argued , that where no party is grieved , the punishment cannot be infer'd , especially seing in that case it is presumeable there was no dolus , or fraud , vid. cap. . statut. robert . though reversions be strictissimi iuris ( which was the ratio dubitandi in this act ) and albeit the contract bear , that there shall be no redemption , without payment of more than ten for every hundred , as annualrent : yet it is here declared , that ten for the hundred shall be sufficient , and now six of the hundred will be sufficient , though this act does not generally say , that the consignation of the ordinary annualrent shall be sufficient . this act is explained in the act par. ja. . by this act , generally all unlawful and impossible conditions in contracts , or obligations amongst privat parties , are discharg'd in general , which is conform to the civil law ; by which impossible conditions adjected in testaments , are held as not adjected , or mentioned , but annul not that part of the testament , to which they are adjected , § . . ins●●t . de haer●d ins●it . but in contracts , the adjecting of an impossible clause do●s annul the obligation it self , l. . de verb. obliga . l. . de oblig . & act. and the reason of this difference is , because the law presumes , that where men adject impossible conditions in contracts , they are not serious , and they resolve not to oblige themselves ; but it is to be presumed , that all men being serious in their testaments , the adjecting of such conditions did proceed from a mistake . conditio turpis , and unlawful conditions are judg'd in law as impossible , l. . de cond . inst . and yet in this act the obligation subsists in contracts ; and the impossible , or unlawful conditions thereto adjected , and not the contract it self , are irritated and declared null ; but the particular that gave occasion to this general part of the statute , was that some persons did declare by a clause in the bonds which they took , that it should be lawful to them to charge their debitor at the mercat cross of edinburgh , and not personally , and that too upon so short a time as the party charged could not know , so that their escheat fell , and they lost personam standi in judicio , without knowing , or b●ing able to know their danger ; which clause is declared unlawful and impossible : and yet it may be alleadged this is not unjust , for when a man lends his money to one living in zeatland , or the remote isles , and the debitor suffers the day of payment to elapse ; it seems unreasonable , that for debts which may be very small , he should be oblig'd to send to these remote and dangerous parts , to charge the debitor personally , and the debitor may constitute a procurator at edinburgh to pay , & sibi imputet , that he did not pay , and it is presumed , that at edinburgh , which is communis patria , every man hath a procurator , else citations at the peer and shore of lieth upon sixty dayes , where the man is in the indies , were as unlawful as this is , and the performance as impossible . notwithstanding of this act , i find that a charge of horning upon six days , by a consent in the clause of registration , was sustained , though the person denunced offered to prove that he could not obey the charge , he living in so remote a place , january . meldrum contra tolquhon : and though by this act it be appointed ▪ that the denunciations upon such unlawful obligations shall be null , and that the users shall be oblig'd to denunce , and charge of new , according to the custom of the realm ; yet i see not how this can be , for the clause of registration insert , being upon six dayes , or a shorter time , cannot be a sufficient warrand , to charge upon more dayes , and so that new charge would want a warrand , except this act of parliament shall be said to be the warrand thereof . notwithstanding of this act , appointing all executions to be subscribed ; yet in inferiour courts , verbal executions are oft sustained . though the word executions is not derived from pure latin , or roman custom ; yet it seems founded on l. . ff . de re jud. and is derived to us from the french , who have , and do always use it in the sense we do , vid. argent . tit. des executions . vid. act par. ja. . by this act it is justly ordain'd that compensation be received , if instantly verified by writ , or oath of party before sentence , but that it be not at all received after sentence , by way of suspension or reduction , so that the only remedy in that case , is to pursue the debt as accords : which act is extended to decreets of the session , as well where the decreets are in absence , as where they are in foro , july . . wright contra sheil : such respect is given to the decreet of the lords ; but yet if contumacy be purg'd , it is thought that compensation may be received by way of reduction , had ▪ december . and generally compensation is received against decreets in absence , before inferiour courts : june . . earl marischal contra bray . though by the civil law compensatio tollit debitum ipso jure , and so that it may seem that this exception is still receivable any way , even as the exception of payment , which is receivable against decreets of the session in absence ; yet even by the civil law compensatio debet opponi , because it is facti , and so sibi imputet , the debitor that compeared not to propone it , i find this act is in terminis , observed in holland , vid. neostad . decis . . the intrometters with escheat goods as well as the donatar are oblig'd to pay the debt contained in the horning , whereupon the gift proceeds . observ. . that though generally the donatar is only thought lyable in this case , yet all intrometters with any part , though never so small , are lyable , and this is a kind of vitious intromission , which makes the intrometter lyable in solidum , and not in quantum lucratur . observ. . that the donatar will not be found lyable till after general declarator , because it is only general declarator that puts the donatar in the rebels place , as spotswood observes , march ▪ . but if the donatar delay to pursue a declarator , i think his negligence should not prejudge a creditor , for the same reason also , a donatar is not lyable if the horning be null , except he has intrometted ; but if he has intrometted , res non est integra , and so his offering to renunce the gift , will not be sufficient , march . fletcher contra kid. it hath likewise been found that the donatar will not be subject in payment of annualrent , due after denunciation , because the act appoints him only to be lyable for the debt contained in the horning , and this annualrent is due only after the horning , march . . fletcher contra kid , but this decision may be doubted , since he being by the act lyable for the debt accessorium sequitur principale ; and if the debitor had got the escheat himself , he had gotten payment of all . observ. . that this act appoints letters to be direct against the donatar , and intrometters , for payment upon six dayes . by this act such as reset , supply , or intercommune with declared traitors or rebels , are declared lyable in the same pains , for the which they are forefalted , or put to the horn ; and it is ordained that all the subjects are lyable to search , seek , take , or apprehend them , till they be out of the shire where they live , and to intimat to the next magistrat , to whose bounds they have chased them . item , if any vagabounds or suspect persons come to the shire , every man is obliged to advertise some magistrate . observ. . that here the subjects are obliged , without being desired by the magistrate , to search for , and apprehend rebels , and so the objection against the bond appointed by the council , january . wherein it was asserted , that no present subject was bound to take , or search for rebels , was a most illegal objection , expresly contrary , not only to this act , but to the true interest of the common-wealth , which obliges every man to do his utmost endeavour to keep the countrey quiet : nor can there be any thing more reasonable than that these who enter in a society shall promote the good of the society , by all possible means , and that these who have the protection of the law , should persecute all such as oppose it ; and this duty to the king , in taking such as are rebels to him , seems to be implyed in the very nature of our allegiance . but it may be argued , that this should only be extended to such as are traitors , or at least to such as are intercommuned , which is contrary to the express words of this act , whereby all men are discharged to reset traitors , or rebels , contemnantly remaining at the horn , so that the resetting all who remain at the horn , is here punished ; and this act being designed , as the act bears , as a further addition to the former law , must be extended against all rebels , for the common law did formerly reach this far against the resetting of traitors , and intercommuned persons , vid. act par. ja. . and whereas it may be pretended , that this act obliges only the lieges to assist magistrats in taking such persons . it is answered , that that was sufficiently secured by former laws , and this act obliges all the lieges simply . by this excellent act , it is provided that all gifts of escheat taken simulatly , either by the rebel himself , or by others , to the behove of the rebel , shall be null , for else the falling of their escheat would be no punishment to rebels , nor discouragement from rebellion . this simulation may be prov'd , either directly by the oath of the donatar , or may be inferred from presumptions , as all other frauds and simulations are , since the design of fraud and dissimulation , being to palli●t and cover a cheat , if presumptions were not sustained to astruct the simulation , it could never be discovered . the first presumption is , that the gift is granted to the children of the rebel , and if the children be unforis familiat , it is concluded to be a simulat gift presumptione juris ; and yet if a child in familia , have a peculium of his own . it may be alleadg'd that his father as administrator , being debitor to him , he has taken his escheat in his sons name for his security , but though the children be forisfamiliat ; yet by this act of parliament , there lyes presumptio juris against them , if this rebel continue in possession ; and therefore the children must prove that they have it for an onerous cause , and thus is to be understood that decision of dury , march . . lord keith contra denbolm ; where it was found that no contingency of blood , no not the being a son , was sufficient to infer simulation ; but if this were sustained simply , as ordinarly it is , then creditors may be easily cheated , and the donatar might still continue to have the advantage of the escheat , though not the possession of the goods . likas , by this act of parliament , it is expresly provided that the thesaurer may intromet with the goods , if they be in the possession of the rebel , his wife , or bairns , which shews that the parliament lookt upon this as a presumption to infer fraud . the second presumption is , that the gift was exped upon the expence of the rebel , though the donatar was creditor , except in so far as the donatar made use of the gift , being creditor for his own security , march . . and if yet the creditor was only creditor , by buying of land from the rebel , and knew that there was a prior right granted to another person . the lords declared that his gift should not prejudge that prior right , june . and if the rebel did once take the gift blank , though he thereafter filled up a lawful creditors name therein , the rebel procuring the gift so upon his own expence , this will infer it to be simulat , and extinguish the right , though the donatar was truely a lawful creditor , december . . lantoun contra scot. by which it may be concluded , that though originally the rebel may exped a gift upon his own expences , for the behove of a lawful creditor , where the rebel takes the gift himself , and thereafter fills up a lawful creditors name , that will not make it reconvalesce , nam quod ab initio vitiosum est tractu temporis non potest convalescere . that the gift was past upon the rebels expence , is probable per membra curiae ( viz. ) the servants of exchequer , and keepers of the seals , except the donatar has made faith at the passing of the gift , that it was truely to his own behove , the simulation having been then suspected , because he who sought the gift was the rebels son , december . . and generally , if the donatar in fortification of his gift and debt , offer to make faith that the gift is truly to his own behove , this would be sustained to purge any presumptions of simulation , december . . the third presumption is the rebels retaining possession , but how long possession would be sufficient to infer this simulation , is in arbitrio judicis , for the suffering the rebel to remain some time in possession is no presumption , even against a son , since the donatar must have some time to pursue , and recover decreets , but if the donatar suffer him to continue very long , this is presumptio juris & de jure , for though there were no simulation in the the case ; yet the negligence of the first donatar would make place for a second , and even the donators suffering the rebel to possess three years , has been found to be presumptio juris , for inferring simulation , june . oliphant contra oliphant . there is a title in the civil law de collusione detegenda , which though it run there only against collusion inter dominos & servos , yet the whole matter of collusion is there treated by the doctors , and it is defin'd to be sub specie litis lusus , vide barthol . ca●oll . de simulationibus , where this subject is fully treated . by the last clause in this act , it is provided that the thesaurer , or his deputs , may cause secure the houses of the committers of the crimes , upon the expences of the readiest of the escheat goods , that is like that annotatio bonorum , allow'd by the civil law , in criminals against absents ; and though the act of parliament specifies only that this may be done in crimes , yet i conceive that all rebellion is comprehended under the word crimes ; for in all cases , even for civil rebellion , not only may the thesaurer seal till caution be found , but even the lords of session will , upon a bill , allow the sealing of the rebels goods at the donatars instance , till caution be found . wilful setting of fire in coal-he●ghs is treason , vid. crim . pract . tit. fire-raising . this act is explain'd crim . pract . tit. beggars and vagabonds . this act against forestalling , is fully explain'd , crim . pract . tit . forestallers . tais act punishing the carriers of wool , nolt , and sheep into england , by escheating the transgressors moveables , is not abrogated by the union of the crowns , the nations being still distinct . this act against deforcers is explain'd , crim . pract . tit . deforcement . this act is explain'd , crim . pract , tit . art and part , num . . this act declaring that none but actual burgesses shall traffick , is fully explain'd , act sess. par. ch. . by this act all manner of persons , inhabitants of burghs , exercing any manner of traffick , or having change therin , shall bear stent ; which act was found not to extend to indwellers , though they have the benefit of the mercats , and had never any other residence but within burgh , and have the benefit of seats in the kirks , and so should at least pay contribution for the ministers stipend , january . . town of alerdene contra lesk . and by the act par. ja. . all such as have an hundred pounds of yearly rent , may be stented ; but by act of that parliament , they are only to be stented according to the value of what rent they have within that burgh , and not according to what they are worth else-where ; but it may seem that by the act , all who have an hundred pound to spend , ought to be stented ; that therefore indwellers are to be stented , though they have not an hundred pound of rent in house-mail , or trade , for the act sayes , if they may spend , and not if they have ; and therefore that the persons who come in accidentally to live in town , should not pay ; yet if they have no other constant dwelling , save in burgh , that in that case they ought to pay , because it is just , all subjects should bear some burden , and they bear none else-where , to which nothing can be answered , but that the act ordains only such to be stented , as have rents and livings copulative . observ. that by this act one of every craft is to be exeemed , as his majesties servant , from all taxation , watching , and warding , such as the kings tailȝour , his smith , &c. and yet this act does not exeem them actually , but only allows his majesty to exeem , if he pleases , so that except these be actually exeemed by their gift , this act will not exeem them . this priviledge is renew'd , act par. ja. . and his majesty by his gifts to his work-men , declares them to be exeem'd , conform to these acts , whereupon the council in anno . did find they should not be stented ; and all these priviledges are again ratifi'd in the parliament , . but there being a declarator rais'd of these priviledges before the lords of session in anno . it was objected , first , that because these acts being made in favours of the kings servants , whilst our kings liv'd in scotland , and they actually ty'd to service , the saids acts should not now take place , but should cease with the service , whereupon they are sounded . . though wrights , masons , &c. who are actually at present ty'd to serve , may plead this priviledge , yet the same cannot be crav'd by the kings barbers , shoe-makers , &c. who never serve . . the said exemption could extend no further than to the value of the imployment they had from the king ; but if the kings smith , &c. have from the people , the imployment that other poor smiths should have , it were not just that he should be exeem'd , which were to make them pay the value of the impositions that should be put upon him . . that these laws could not exeem from paying , for their other trades ; so that if the kings mason be likewise a vintner , he should pay for his gain in that trade . . these acts of parliament could only free from watching , and warding , which are inconsistent with personal attendence , but should not be extended to stents and impositions , which were not usual before these acts , since the general words of laws are ordinarly restricted to what ordinarly happens in the time . though these exemptions could secure against impositions laid on by the town , yet they cannot secure against impositions laid on in parliament by voluntar offers , made by the subjects themselves , in which those trads-men must be considered as voluntary offerers , as well as others , since they are re-presented in parliament as well as others : and in which act , colledges and hospitals are only exeem'd , and not they ; this debate is as yet come to no decision . by this act the crafts-men living in suburbs of free and royal burrows , are discharg'd to work , and their work declared con●●●●able ; but this act is not extended to suburbs , that are erected in a burgh of barony , for these are priviledged by their erection , and are not meer suburbs , but distinct jurisdictions , july . . and there is a decreet arbitral betwixt edinburgh and the suburbs , wherein there is a liberty allow'd to these who live in their suburbs , to work to strangers , but not to towns-men . this act of parliament has likewise been extended , not only to suburbs , but to all who were within the liberties and priviledges of burrows royal , though the saids places be not properly suburbs , and that the act of parliament discharges only the exercise of such crafts in suburbs adjacent to the saids burrows , july . . town of stirling contra polmais , whose tennents and trads-men in saint ninians lived a mile from the town of stirling , vid. etiam , durie march . . and the reason of this decision was , because such un-free men as live within the priviledges , do as well abstract the trade of the inhabitants , as those who live within the suburbs . it may be doubted whether , since this act of parliament allows only the provost and bailies , or the officers to intromet with , and escheat the materials so wrought , if therefore the crafts-men within towns may intromet , they being neither named in this allowance ; and because they are too interested to have had this power committed to them . it may be also doubted whether , though they may escheat the goods , when they are actually taken , if they may by vertue of this act , pursue the un-free-men ; for though there be no such warrand in this act ; yet it seems that without they have this allowance , the priviledge granted by the act , would be useless , since it would put them to keep more servants to catch the inbringers , then the priviledge deserves . vid. nota's on act par. . ja. . & crim . pract . tit. remissions . this act discharging the transporting of skins forth of the realm , under pain of confiscation , is still in force , and was introduc'd to encourage our own manufactors ; these skins when carry'd out , being wrought by strangers into several useful commodities , and sold back to our selves at great rates ; though this act discharges only the carrying out of calf-skins , hudrons , and kid-skins , yet by the act par. ja. . this is extended to all other skins ; and though by this act , the confiscation is to be for his majesties use , yet by that act , the half belongs to the apprehender . observ. . not only the transporting , but even the packing and pielling is found to be a sufficient ground of confiscation ; for packing and pielling is presumptione juris , concluded to be in order to transportation ; but it is not presumptio juris & de jure , since to elide the confiscation , it is sufficient to alleadge that the skins were packed and pielled , in order only to an inward transportation from one place of the kingdom to another . observ. . that by the act par. ch. . the exportation of all wild beasts skins , and shorlings , are expresly discharg'd ; and by shorlings are meant , skins which have the wool pluckt off , and comes from the word shearing ; but by that act , power is given to the exchequer to give licences for exporting of skins as they shall find cause ; and though the power to grant such licences , may seem to cast loose all these acts , it being very presumable that they would be purchast for money ; yet that was thought necessary , because if our trades-men knew that no skins could be exported , they would lessen the price as they pleas'd , and sometimes the trads-men cannot make use of all the skins in the nation , and skins are a considerable part of some mens rent ; nor should the exchequer give licences in any other case . this act renews the act par. queen mary , discharging all persons to stop the way to free-burrows , or sea ports , under the pain of being pursu'd as oppressors , and allows the lords of session to pursue the contraveeners summarly without any assize ; which act was necessary , because all actions of molestations , such as this , was formerly ordain'd to be try'd by assizes , and before inferiour judges , act par. ja. . from which act these tryals are excepted , because of their great importance , and that they require present expedition ; for which cause the civil law allow'd several interdicts against stopers of high-ways , vid. tit . . l. . ff . . by the act par. ch. . all high-wayes to mercat towns are ordain'd to be twenty foot of measure , and the justices of peace are ordered to see the high-wayes made to have that latitude at least : and by the civil law , via privata debet esse octo pedum in porrectum & . pedum in ansractum l. viae latitudo ff . de servit . prae . rusticorum via autem publica seu consularis tam lata esse debet ut currus obvii sibi invicem cedere possint coepol . de servit . rusticis , cap. . i find this law for securing the high-wayes to ●oyal burrows was very old in france , argentorat , pag. . where he very well observes that ita fit ut itinera quae ab agris paroecii● aut pagis in●hoantur l●●et in mercatum ducant publica dici non debea●● cum a mercatu ad mer●atum non ducant ut hoc textu sed e●si ab ur●ibus inci●iunt nec tamen in urbes aut alios mercatus ducant publica hac quidem lege non sunt . i find always that ways leading to burghs had a particular priviledge , by the civil law. this act allows the admiral no more jurisdiction than he exercised before the death of king ja. . notwithstanding of any specialities contained in their infeftments , and it may be doubted whether the admiral is to prove when he is challenged , that that for which he is challenged , was exercised by his predecessors in the time of king ja. . or if such as challenge the admiral , are to prove what was the custom then . but the admirals jurisdiction is now fully clear'd by the act par. . ch. . this act is explain'd , act concerning provestries . ch. par. sess. act . king james the sixth , parliament . this act discharging mercats and fairs on the sabbath-day , was made at the desire of the general assembly , as our history observes , vid. spotswoods history of the reformation . this act appointing such as contemn the decreets of the kirk , to be denunced rebels , is still in force , though it relates only to the decreets of presbyteries , and presbyterian judicatures , and though these be now abrogated . this act is formerly explain'd in the act par. ja. . it may be doubted whether this priviledge granted to ministers , freeing their stipends of all impositions can be taken from them by conventions of states , since conventions cannot derogat from acts of parliament , and they can only offer their own money , but cannot make laws ; and yet the convention . did burden ministers stipends with the imposition then laid on . it is observable from this act , that some crimes which are not capital of their own nature , become capital by reiteration , though many civilians doubt of this point , and yet crescente malitia crescere debet paena , l. . c. de servis fugit & plus punitur qui saepius deliquit , l. . § . . c. ad l. jul. de vi pub . by this act the pains of such as find caution to answer in criminal dyets , and report criminal letters , for law borrows are hightned , every earl or lord two thousand pounds ; every great baron a thousand pounds ; every free-holder a thousand merks ; every feuar five hundred merks , and these are called in our present stile , the pains of the new act of parliament . observ. . that it has been debated from this act , whether this caution should be found according to the quality of the pursuer or the defender ; as for instance , if an earl were pursuing a feuar , should he find caution according to the sum specifi'd for an earl , or for a feuar , and it was found that caution should be found for five hundred merks only , according to the condition of the defender . observ. . the quality of a burges is not here specifi'd , and if he hold land burgage , he is de praxi considered as a free holder , else he is considered as an un-landed gentleman , and if he holds feu of the burgh , he is considered as a feuar . observ. . the unlaw of such as compear not at the first justice air , is to be twenty pounds , that is to say , the master who presents not his tennents , is to pay twenty pounds over and above all other punishments , which is relative to the act par. ja. . and is there explain'd . vid. supra obs . on ja. par. act . ja. par. act . ja. par. act . this act annexing all annualrents payable to prelacies , to the crown , is abrogated , in so far as concerns bishops , by the act restoring bishops in anno . nota , that such customers and searchers as cheat the customs , are only punishable by deprivation , and escheat of their moveables ; and therefore it seems that they are mistaken who think that such may be punished by death , this being an extraordinary theft , both as to the value , the preparative , and the ordinary punishment not excluded . it may be likewise doubted , whether such as enter in compacts with customers and searchers , to defraud the customs , may be punished by the same punishment , because they are art and part . remissions are , notwithstanding of this act , past without previous letters of slayns , or consents from the parties , but the party may get an assythment , albeit the remission be past , all remissions are at present registrated in the thesaurers register , conform to this act , and in the secretaries register also , as all papers are that pass his majesties hand . though this includes the members of the colledge of justice in the priviledges granted to the colledge of justice with the senators ▪ yet of late by the act sess. par. ch. . freedom from impositions is renew'd to the senators only , vid. obs . on that act , where it is debated , that though advocats be not there mention'd , yet they are not thereby excluded . it would seem by the narrative of this act , that all patronages gifted after this act , should be discharged ; and yet the act discharges only such as are granted without the consent of the benefic'd persons ; nor can i see how these patronages should have been declar'd null , for want of the benefic'd persons consent , since the benefi●'d person being once provided , the kings disponing the right of patronage , could not prejudge them who were already entered ; though the act says , that these rights were granted to the great hazard of the persons provided , for they being once entered , no posterior right could prejudge them , and declarators upon prior rights might have prejudg'd them however ; but it seems that the reason why the consent of the living incumbent is requisite , is , because it is presumable that he would , and could inform truly to whom the patronage belong'd , and in all church benefices , when dispon'd , either the demission , resignation , or consent of church-men , has been thought requisite . the statutory part of this act was wrong printed in skeens impression , for whereas it sayes , that all such rights , where the beneficod person was alive , and their consent had , and obtained thereto , shall be null : it should have said , not had and obtained thereto ; but this is helped in the last impression . vid. crim. pract. tit. murder . but it is fit to add , that this act ordaining such as strick , or hurt a man within the kings palace , to be punished with death , is consonant to praetor cum l. sequen . ff . de injuriis . vide etiam l. . § . . ad leg . juliam de adulteriis ; and to the law of nations , fritz . de palatiis principum cap. . where he cites as the law of scotland , cap. . stat. will. by which , he who draws a knife in the kings court , is to be struck through the hand , and he that draws blood is to lose the hand , and he that kills any man is to pay twenty nine cows to the king , and to assyth the party ; which certainly is meant of a slaughter committed , where the killer should not die , as in accidental slaughters , or slaughter committed in self-defence , for otherwise that statute had been ridiculous , as it is now obsolet and innovated by this act of parliament ; and yet i think , that even by this act of parliament , he who stricks any man in self-defence , would not die ; and if the king be absent , some think that statuts punishing offenders within the palace , extend not to such cases , as placa . l. . ●pit . delict . cap. . though menochius does extend those statutes , even to that case ; but to prevent this debate , this act , bears expresly the king's palace where his highness makes his residence for the time , and it expresses the inner-gate , to cut off the ordinary debates , de consiniis palatii . though this crime may be pursu'd criminally , yet the lords may take a precognition of it , to the end it may be known how far they will remit the same to be punished by the criminal judges , in so far as concerns the stricking any man in their presence , as in sir john hay's ease and sibbalds . vid. crim , pract. tit. remissions vid. supra observ . on act par. ja. . it would seem by the narrative , that only such writs as were not written by notars and common clerks , who are notourly known , should have been declar'd null for want of the writers name ; and yet the statutory part declares all writs to be null , without exception , which want the writers name . observ. . this act is not by the lords found to annul seasines , and other acts of office , written by common-clerks and notars , though the writers name be not design'd in them , but only writs amongst privat parties , june . . observ. . that though the writers name be not condescended on , yet the lords will allow the user of the writ to condescend who was the writer ; and though this act of parliament appoints that , before the inserting of the witnesses ; yet if it be insert in any place , it is sufficient : and though the act appoints that it shall condescend upon the vvriters name , particular remaining place , and diocy ; yet diocies are now only condescended on , in instruments of notars ; but still there must be some designation beside the name and sir-name , such as a. b. servitor to such a man , which is sufficient ; and if there be moe of one sir-name , who where servitors at that time , yet is not the user of the vvrit oblig'd to condescend which of the servants it was , but he who offers to improve the said vvrit , must relevantly alleadge that of the date of that bond , he whose servant the vvriter is design'd to be , had no servant at that time who did write such a hand ; and for proving of this , must produce the hand-writs of all these servants at that time , february . . kirk-hill contra ketlestoun . it was debated upon this act , whether the lands of duncow , though here annexed by a publick law , were sufficiently annexed , so as to exclude the earl of nithisdale , who pretended that a year before this act he had a valid right , under the great-seal from the king , and so could not be prejudg'd by a posterior annexation , which behov'd to be salvo jure quoad him : to which it was reply'd , that this annexation being by a publick law , was not of the nature of ratifications , which were salvo jure ; and such acts of annexation were in effect the kings charter , and being granted by a publick act of parliament , in favours both of king and people , they could not be taken away , but by another act of parliament , & sibi imputet , he who had the prior right , and compeared not at the time of this publick law , and objected it ; but now after so many years , the king had at least prescrived a right , by vertue of this act , this case was not decided , but the lords inclined to think that there was a great difference betwixt original annexations , where special lands were annexed , as falling in the kings hands by a special forefalture , or other cause which they thought could not be quarrelled by the session , or other inferiour judicatory ; and general acts where lands formerly annext , are only repeated , such as this is , in which lands belonging to privat parties , may be by mistake repeated . nota , the lands of duncow , annexed by this act , came to the king upon forefalture of robert lord boyd , anno . before this act , decreets pronunced by magistrates within towns could not be the ground of a charge of horning , till a decreet conform had been first obtained before the lords ; but by this act , letters of horning are summarly appointed to be granted upon such decreets . it is observable , that though this act says , that letters of horning shall be granted upon the decreets of burrows in the same way as upon the commissars precepts ; yet it would seem that commissars had no such priviledge at the time of granting this act ; for that priviledge is only granted them by the act par. ja. . to which nothing can be answered , but that commissars had that priviledge , even at the time of this act de praxi , though de jure it was only granted them by that act for their further security . vid. act . par. ja. . this act giving the king twenty shilling of custom of every tunn of imported beer , is explained in the observations upon the act sess. par. ch. . it is observable , that by this act the dean of gild is founded in the power of judging all cases betwixt merchant and merchant , and is here declar'd to be the most competent judge , because the most knowing judge in such cases , and declar'd to have the same power that the like judges have in france and flanders , and in france such cases are judg'd by these who are call'd les consuls des marchants . the lords have found that according to this act , the dean of gilds court is a soveraign court in suo genere , and not subordinat to the towns court , july . . and they use to advocat causes from the admiral , to the dean of gild's court , upon this act , it being declar'd that he is judge to all actions betwixt merchant and mariner , though it be alleadg'd by the admiral , that these general words should be restricted by the nature of the respective jurisdictions , and so the dean of gild should be only judge competent betwixt merchant and mariner , in cases which fall out at land , but not at sea. the act related to here is the act parl. ja. . it is observable from this act , that it is there declar'd in geneneral , that acts of parliament should only in reason and equity extend ad futura , for regulating future cases ; for though declaratory acts may oft-times extend ad praeterita ; yet statutory acts should only extend ad futura . this act differs not one word from the act of this same parliament , and has been only repeated here by mistake . before this act , such as were at seid with one another , us'd ordinarly to fight together upon the street of edinburgh , and us'd to beat the magistrates , or their officers when they came to red them , and that truly gave rise to this act , though the narrative here bears only , that several persons used to deforce the magistrates in their execution of their own , or the councils decreets . by the act it is declar'd , that whosoever disobeys , or opposes the command of the provost and baillies of edinburgh , when they are executing the kings commands , or letters from the secret council , or session , or the ordinances of their own burgh , shall be punished as committers of deforcement , as seditious and perturbers of the common well . it has been found that naked assistance at such tumults , without arms , is not punishable by death , though a person be killed in the tumult , december . but convocation at all such tumults with arms , is punishable by death , if a person be murdered , as was found , september . . and the acting any thing , either by word or deed , was found to infer death . observ. that the using fire-weapons within town is discharged by this act ; and long weapons , that is to say , halbards , picks &c. are only allow'd , lest innocent persons passing on the street might be kill'd , but yet if souldiers shoot in defence of their prisoners on the streets , they are not punishable ; and this act was found not to militat against the kings granting commissions to the magistrates of edinburgh , to raise a company with fire-locks within town ; for the act discharges only fire-locks without the kings consent , and a commission implys his consent . the act here related to is the act par. ja. . this act is explain'd in the act par. ja. . vid. obs. on the act par. ja. . the abbacy of dumsermling was dispon'd by ja. . in a morning gift to queen ann. this lawyers call morganeticum ; and king charles the first was infeft in these lands , as heir to his mother . observ. that this confirmation was under the great seal , and under the seals and subscriptions of the states . king iames the sixth , parl. . this act seems very ill conceived , for it appears that wilful hearers of mass shall be executed to the death , how soon they shall be found guilty , or declared fugitive , since no man by our law dies upon his being denunced fugitive , except in the case of treason ; and wilful hearing of mass is not treason , even by this act. observ. . that as this act is conceiv'd , the wilful hearing , or concealing , is punishable by death , either by conviction , or being denunced fugitive before the justice-general , or the lords of privy council . observ. . that wilful hearers are only punishable , and the word wilful was added , because many go to the mass out of curiosity , or may be present by accident , and in all things that concern religion , special heresie owning and continuing , makes the crime ubi haerent dogmatibus suis ; and therefore the defender may purge himself by his oath as to his intention , which cannot be otherwayes proven ; and a fortiori , i think this should hold with these that are present at conventicles , either in fields or houses , since these are less crimes ; for they being men of known good principles , may go to get intelligence , or from curiosity , but it is safer to intimat this previously to some of the kings servants . observ. . it is generally observ'd , that all these acts concerning the mass , were of design ill conceiv'd by chancellors setons influence , as is reported , and that by them this crime can never be prov'd , since it can only be prov'd , per socios criminis , and these cannot be admitted witnesses ; but this is a mistake , for there may be many present out of curiosity , or the apprehenders may be witnesses , and even such as were present upon design in criminibus occultis , may be received ; since when law allows any thing , it must allow the means by which it can be prov'd ; and in heresie , less probation is sufficient , than in other crimes , clarus § heresie , num . . by this act the liferent-escheats of papists being denunced , are declar'd to belong to the king , though ordinarly the liferents fall to the respective superiours ; this is again renew'd to the king , act the same parliament . all erections of annexed property of the temporalities of benefices , are here declared null , except as to the lands excepted in the act of annexation , . which it seems must be understood , even though dissolution proceeded ; for otherwayes there needed not an act of parliament , since all dispositions of annexed property without dissolution , are ipso jure null ; but thereafter all such erections are for quieting the minds of his majesties good subjects secured and confirm'd at the restauration of bishops , act par. ja. . common kirks are such as belong in common to all the dignities of a chapter , and whereof each of them had a part of the stipend ; to which common kirks the chapter did not present as patron , but did nominat and collate ; upon the first suppression of popery they were to be conferr'd to ministers as ordinary benefices ; and the king , or such as had right from him , became patron , as coming in place of the popish clergy : and by this act they are ordain'd to be presented by the ordinary patrons to ministers who shall serve the cure ; and the reason is , because there was not then chapters : but by the act par. ja. . the saids chapters are likewise restor'd to whatsoever teinds , &c. which pertain'd of old to the chapters in common . this act ordaining the escheats and liferents of excommunicated persons to be null , if granted to their near relations , seems supers●uous , because the same was formerly statuted in general by the act par. ja. . nor find i any difference betwixt the two acts , save that the escheats of other rebels are by that act declared null , if purchas'd by their friends , or well-willers ; and this act declares only the escheats of excommunicated persons null , if granted to their bairns , or conjunct persons , so that it seems the escheat of an excommunicated person could not be declared null , though gifted to a confident person , since a confident person and a conjunct are different , for blood only makes conjunct persons , but trust makes confident persons . vid. observ . on act par. ja. . though by this act , when manses and gleibs are design'd out of church-lands only , the rest of the heretors of kirk-lands are to contribute for the relief of him , out of whose lands the designation is made ; yet this was extended in anno . by act of parliament , for the relief of these , out of whose temporal lands designations were made , who were therein to be reliev'd by the heretors of other temporal lands . i find that lands mortifi'd to colledges cease not thereby to be kirk-lands ; and therefore were found lyable to relief as other kirk-lands by this act , february . . but dury observes there , as the reason of the decision , that these kirk-lands were feu'd by the colledge for a small feu-duty ; and therefore it was more just that they should have been lyable to relief , as other kirk-lands ; and so it may be yet doubted , it kirk lands mortifi'd to colledges , and remaining with them , would be lyable to this relief . by this act no ●enesie'd person under a prelat , may set longer tacks than for years , and a bishop is allow'd to set tacks of his tiends for years , and an inferiour prelat for his life-time , and years thereafter , act par. ja. . but because some thought that that act did abrogat this act , as if prelats needed not the consent of the patron to such tacks for nineteen years , or five years respective ; therefore it is expresly declar'd by act par. ja. . and even these and all other tacks shall be null , if they be set for longer than three years , without consent of the patron , and that the act par. . did still presuppose the consent of the patron , though it was not there exprest , which was most just , for since it is the patrons interest ▪ that the cure be well administrat , and that he may get an able man after the incumbents death ; it was just that nothing should have been done without his consent , and for that reason , clericus nee resignare nec permutare nec pensione onerare potest invito patrono ; as is by the canon law , for by that law , the administration belongs to the patron , nec ab ejus dispositione anferri possunt , can. rationis , . q. . and by that law he was to be alimented out of the rents of the benefice , if he fell poor , and the person presented was to give his oath to the patron , for preservation of the temporals . this consent may be adhibite by the patron , either before , or after the setting of the tacks , c. . de jur patron ▪ dubitatur ; whether a patron may lawfully authorise a tack set in his own favours , since his accepting is equivalent to a consent , and he cannot be author in rem suam . though tacks set for longer space than three years be null by this act ; yet if they be set for longer time , they will be sustained , if the tacks-men restrict them to three years allanerly , july . . johnstoun contrà howdoun , even as though a bond wanting witnesses be null , if the same exceed an hundred pounds , yet it will be valid if restricted to an hundred pounds , and this seems to be received with us as a general principle in the interpretation of all statutes , both as to time and sums ; and therefore though by the act par. ja. . tacks of the rents of burghs be declar'd null , if set for longer space than three years , yet by the same reason , they should be sustained , if restricted to three years . these acts are explain'd in the act par. ja. . the design of this act has been , as i conceive , to secure such as had intrometted with the kings annex'd property summarly , by vertue of the act par. ja. . because it is probable the warrand granted by that act ; was thought dubious , and somewhat severe in the analogy of law , vid. observ . upon that act. a provost is in our law no prelat ; and therefore tacks sett by him are null , without consent of the patron , hope tit. kirks . this dissolution of the kings annex'd property has several specialities in it , as that it shall not extend to the setting in feu-ferm of castles , forrests , coal-heughs , and offices , &c. but that these shall remain inseparably annex'd to the crown ; and from this it may be observ'd , that to this day , all castles , palaces , woods , parks , forrests , pastures , coal-heughs , and offices , are to remain inseparably with the crown ; and therefore except they be expresly dissolved , they fall not under dissolution : this part of the act is renewed by the act par. ja. . this dissolution is likewise only in favours of kindly tennents , and ancient possessors , and of such as should pay their composition betwixt and the first of august , . this act is explain'd , crim. pract. tit. injuries , num . . by this act the duty granted by the states to the king upon wines , is to be charg'd for by letters of horning ; and i find by act of council , february . . that a commission is granted to the kings master-housholds , to break up the doors of such merchants , as refus'd to let the kings servants taste their wines , to the end they might chuse the best for the kings own use , but this certainly presupposed that the king would pay for the wines . from this and many other acts , it is observable that the parliament may , and does by a general law , annul rights granted to privat persons , without calling them , and without the hazard of the act salvo , though any one privat mans right cannot be declar'd null by the parliament , without citing him . by this excellent act , a horning or escheat following thereupon , cannot be taken away , and declar'd null upon acquittances and discharges , which were alleadg'd to be prior to the horning , so that the escheat could not fall , the debt being pay'd , except the producer of the discharge make faith that it is of a true date , because such discharges with ante dates , use to be granted by the creditor when himself is paid . it has been doubted whether assigneys be bound to swear in this case , but since this is factum alienum , which they are not oblig'd to know ; and if this be necessary , the cedent by refusing to swear , may destroy the assigney ; but yet the act of parliament obliges indefinitly the producer of the discharge to swear , and so it seems whether he be cedent or assigney , he is still bound , since his oath is solemnly requir'd by act of parliament , quaeritur , whether it can be remitted to quakers , anabaptists , &c. who think swearing unlawful . this act giving many priviledges to the kings forrests , seems not communicable to all forrests , though it be pretended that all forrests are the kings forrests , it having been very ordinary to erect forrests in privat mens lands , in imitation of the kings forrests ; but because these erections of forrests were very prejudicial to neighbours , since they might fine their neighbours , and poind their beasts ; therefore the lords of the session did in july . give their opinion to the lords of exchequer , that all such new erections should be stopt ; and it appears to me very clearly , that all forrests are not the kings forrests , by comparing cap. . leges forrestarum , which treats of crimes committed in the kings forrest , with cap. . which treats of the delicts committed in the forrests of barons , and wherein they are infeft , cum libera forresta . observ. . that that part of the act which ordains all that hunt within six miles to his majesties castles , vvoods , parks , or palaces , to be fin'd in an hundred pounds , is in desuetude ; and it seems then only to be observ'd , when the king himself dwells in his castles , and uses actually to hunt in his vvoods or forrests ; this act bearing , to be made for his own royal pastime , or at least this priviledge should not be continued to castles , or forrests , which the king has dispon'd to privat subjects . vid. observ . on the act par. ch. . though this act say , that the lords of session were not oblig'd to sit down till nine a clock ; yet it appears clearly , that they were oblig'd to sit down at eight by the act par. ja. . it is observable from this excellent act , that where evidents are not thought necessary to be kept , there is no reason to grant certification against them , after many years ; and therefore the lords refuse oft times to grant certification against the grounds and vvarrands of appryzings , such as executions , though they cannot be produc'd after twenty or thirty years , ex paritate rationis , though the act secures only against the not producing of procuratories , and instruments of resignation , and precepts of seas●nes ; and july . strowan contra earl of athol : this act was extended to secure against the production of the decreet of compryzing , and decreet whereupon it was led , albeit this extension seems dangerous , since thereby great estates may be carryed away by null compryzings , and small debts , which might be satisfi'd by less than a years intromission , whereas none or small prejudice can be infer'd from not producing instruments of resignations , &c. it is observable that this priviledge 〈◊〉 ●ot being oblig'd to produce such papers , is only allow'd to such as are , and were in possession for fourty years . there is likewise in this act a presumptio juris founded , that these from whom lands are appryz'd , will industriously abstract their evidents , and therefore the lords use to be very favourable in granting certification against compryzers . the act salvo jure is still subjoyn'd to parliaments , except here where it is insert in the midst of the acts of this parliament . by this act , lords of the session , advocats , clerks , writers , and their servants , nor no other member of the colledge of justice , nor no judges , clerks , &c. of inferiour courts , may take assignations to pleys , which is conform to the civil law , lib. . cod . tit . . ne liceat potentioribus patrocinium litigantibus praestare vel actiones in se transferre . nota , the right taken by them is not declar'd null , but themselves only punishable , and the reason seems to be , because when they are depriv'd from being members , the advantage they had over others , is taken away , and which advantage was the reason inductive of this act , nor should the punishment be extended beyond the cause , which is also conform to the opinion of the civilians , vid. vin select quest. jur . cap. . but it may be doubted if he who takes such assignations , should not be lyable to resound the damnages which are occasion'd by taking such an assignation , since it is a principle , that damnage is still due where the injury is done to any man against a positive law , though that law ordain not damnage and interest to be repay'd ; and in this case the taking such assignations is declar'd unlawful , and so an injury is done against a positive law. . without this the party injur'd is not repair'd ; for though the publick interest , vel vindicta publica , be repair'd by the deprivation ; yet the interest of the person les'd , which is chiefly to be considered is not . . deprivation is oft-times no punishment , and seldom a commensurable punishment ; for many members of the colledge of justice lose nothing by deprivation , and a plea may be worth a great sum , and their imployment worth nothing ; whereas damnage as it is a natural , so it is a most commensurable punishment . because this act discharges only members of the colledge of justice to buy plea's ; therefore it is still lawful for them to take assignations to plea's gratis , as a donation , july . . for as this falls not under the express prohibition of the act ; so it is no● presumable that they will be as keen in pursuing such processes , as these for which they have pay'd out money ; nor were it just to make the members of the colledge of justice incapable of their friends and relations liberality . by this act advocats servants do pretend they are members of the colledge of justice , because this act says , their servants , and other members . though this act and the rubrick discharges only the buying debateable lands , teinds , or possessions , and speaks nothing of moveables , nor even heretable bonds , mobilia , being ordinarly accounted vilioris naturae ; yet the lords do now ob paritatem rationis , extend this act to such as take assignations to moveable debts , or any other debateable rights . this act uses to be so interpreted , as to be extended only to the members of the respective courts , who take assignation , to plead before the court where they serve ; and thus if an advocat should take an assignation to a plea , depending before an inferiour court , it may be urg'd that this act should not reach them , because he has not influence before that court ; but if he should go and plead before that court , as an advocat may before any court , then the act would reach him also . item , though this act does not speak of procurators before inferiour courts , yet the word advocats , seems to comprehend them . by this act caution is to be found in actions of ejections , for the violent profits ; and though cautio juratoria , be ordinarly sustain'd , where persons cannot find other cautioners , yet it is not sustain'd in this case , july . . because this act says , that by the proponing of these defences against ejections , delays are granted ; therefore the defender , either in removings , or ejections , is not oblig'd to find caution , where the defence can be instantly verifi'd ; and although it has been doubted , whether this caution is to be found at the proponing of the defence , or at the first term assign'd by the act ; yet it is clear that the caution should be found at the first term assigned by the act , both because this act says , that the caution shall be found at the first dyet of ●itis contestation ; and because there must be some time given to find caution . nota , that in the brieves of dissasine , which was the same thing of old , that ejection is now , caution was to be found as here by the defender , quon . attach . cap. . num . . for clearing some mistake in the printing of my criminals , pag. . my meaning was , that there may be perjury in cautione juratoria , as for instance , if a person should depone that he could not find caution for the violent profits ; and yet it could be prov'd , that such a person who was very responsal , offer'd to be caution , this i think would infer perjury by this act it is appointed , that twenty dayes after the parliament is proclaim'd , and before it meet , four of every estate should meet to receive articles to be presented to the parliament , but this is now in desuetude ; for no state can now meet , except the burrows , and yet sometimes the king writs down to call whom he pleases to name to meet and consult previously , what laws are fit to be made in the future parliament . by this act also it seems that nothing can be presented in plain parliament , by any of the members of parliament , but that every thing must be first presented in the articles for eviting confusion , and this act was made use of to that purpose in the parliament , . against a proposal made then for having a commitee of grivances . to which it was then answered , that the articles being but a committee of parliament , they could not restrict their own constituents , and this act was rather directive than restrictive . this act is fully explain'd , crim . pract . tit . jurisdiction of the lords , num . . this act is explain'd , crim . pract . tit . paricide . this act is formerly explain'd , act par. ja. . where liferenters are to find caution . by this act also , a power is granted to the magistrats of burghs , to cause repair burnt and waste lands ; but yet ordinarly the magistrats of burrows use to give in petitions to the council , craving liberty to force the heretors of such burnt lands , to repair their burnt lands themselves , or else to sell their part , and when there are many small heretors concern'd , the council grants warrand to the magistrats to regulat their venditions , though i know it hath been alleadg'd that the council could not do this , because it was an inversion of property , and that this was only competent to the parliament ; and yet the council have still been in use to do so for the common good of the people , nor is any man a loser , since he may repair by himself , and if he will not , he gets his just price . this was granted to the magistrats of edinburgh in anno . publice enim interest ne civitatis aspectus deformetur & ideo constitutum est , l. . c. de jur . reipub . aream collapsam posse a fisco distrahi si proprietarius monitus eam reficere non curaverit , vid. l. . ff . de dam. insect . i have seen a decreet in anno . at the town of edinburghs instance , against several heretors , before the lords of session , for ordaining the heretors of these houses ( upon which the trone-church now stands ) to denude themselves of their right in favours of the town , ob utilitatem publicam , and to appoint four for them , and four for the town , for valuing the lands , that the price may be pay'd accordingly . but to prevent all such debates , it is appointed by the act sess. par. ch. . that the magistrats of burghs royal shall cause cite all such as pretend right to any such waste or ruinous lands , as have not been inhabited for three years , or shall be waste and not inhabited for other three years , to repair the saids lands , with certification to them that if they do not , the magistrats will cause value the same by certain persons to be chosen for that effect , and to sell the same ; which sale shall never thereafter be quarrelled : so that it appears that after this act , the privy council can grant no warrand to sell , except in the terms of this act , at the least they cannot grant any such warrand to build or sell upon any privat account , or even for beautifying the town , but the privy council has since this act , granted a warrand to force privat heretors to sell and accept their price , for making the entry to the parliament-house more large and convenient , though it it was alleadg'd that this could not otherwise be done than after three years , and in the way prescriv'd by the act of parliament , which has made no exception of any such case as this , and if the council could do this , they might as well have made the act of parliament it self ; for the power granted to magistrats by act of parliament proceeds upon the same motive of publick good. it might likewise have been alleadged that whatever the council might have done in cases of absolute necessity , as if the parliament-house had wanted an entry altogether ; yet they could not invert property meerly for the conveniency of enlarging the entry , beyond what formerly serv'd in our predecessors time . by this act chiefs of clans are not made lyable , but all land-lords and bailies are oblig'd to make their men-tennents and servants answerable to justice , and to redress the party skaithed ; which obligation is not alternative : and therefore the council in the case of leith and grant , august . did find that the land-lord was lyable for the skaith , though he should present his men . king james the sixth , parliament . by this act bishops are in effect restored to sit in parliament , though the act is cautiously conceived in favours of ministers , who shall be provided to bishopricks by the king ; but yet the bishops themselves were not restored to their jurisdictions in spiritualibus , till the act par. ja. . in anno . this act gave occasion of calling a general assembly at dundee , to whom the king proposed several overtures , and it was condescended on , that fifteen ministers should sit in parliament , because so many re-presented the church in time of popery , but remitted to a committee to consider what revenue each church-man should have for defraying that expence , and who should be elected . in this act likewise it is declar'd , that this restitution shall be without prejudice to the general and provincial assemblies , and presbyteries ; and the act of parliament here related to establishing these , is the act par ja. . it is observable that kirk-yeards have in many things in our law the same priviledge as kirks ; and therefore the killing , or wounding of men within kirks , and kirk-yeards , are punishable in the same way , act par. ja. . and the raisers of frays in kirks and kirk-yards , are punished in the same way , act par. ja. . and by the act par. ja. . fairs and mercats are prohibited to be kept within kirk-yards , as well as within the kirk : as also by the act , quon . attach . courts civil or criminal within kirks , or kirk-yards , are forbidden ; all which is conform to the canon law , cap. . de immunitate ecclesiarum & cap. h. t. in sexto decretal . by this act letters of horning are to be directed by the lords of the session , for bigging of kirk-yard-dykes , and for making stiles and entries to kirks and kirk-yards . by which last clause , it would seem also that heretors would get letters of horning against any heretor who lyes betwixt him and the kirk , to give him a sufficient way to the kirk through his land , albeit the words bear only , that there shall be sufficient stiles and entries in the saids kirk-yard-dykes : but when any thing is allowed in law , all is understood to be allowed , without which , that which is expresly allow'd cannot be useful : yet i find by a decision , june . . betwixt neils●n of carcassi● and the sheriff of gall●w●y , that the lords refus'd to grant a servitude through a privat mans lands , even for a way to the church , except the pursuer could prove immemorial possession ; and to reconcile this difference , it seems that every man must have some way to the church , but that he will not have right to any special way , if he seek the same upon the account of nearness , except he can prove immemorial possession , mornatius ad l. penult . ss . de just . & jur . shews that this law is observ'd in france , quaeritur , to whom a coal found in a church-yard , or trees growing there , will belong , whether to the heretor , the poor , or the patron , or if the trees will belong to the minister . this act declares all alienations of the annexed property to be null , except where they are set with augmentation of the rental ; and therefore to this day , there is still some small augmentation made ; but it has been doubted , whether if the charter bear an augmentation ; but yet it can be proven by the exchequer rolls , that the lands pay'd more formerly than is exprest in the new charter ; if in that case the alienation will be null , and i conceive it should ; for though the feuer may alleadge that he was in bona fide , because of the former charters ; yet seeing the hazard by this act of parliament , he ought to have looked to the exchequer rolls . i find the and the following acts till . of this parliament of king ja. , were at first statutes of session inserted in the books of sederunt , upon the of march . and here in . they are turn'd in acts of parliament , without mentioning that they had been acts of sederunt formerly , as uses to be done when the parliament ratifies such acts ; it seems that it was rather the exchequers part than the sessions , to have regulated the kings revenue and property , whereunto all the above cited acts relate ; but about this time , i find in the sederunt book , several acts ingrossed , bearing to have been made by the lords of secret council , session , and exchequer , met together , which is like the several chambers whereof the parliaments of france consist , who conveen all together when any solemn arrest , or decision is to be pronunced in purpuris , as they call it ; and these acts being declarations of what was law in relation to the kings property : it was more proper for the session to have made such acts , than for the exchequer , who raise the kings rents conform to law , but declare not what is so . this act declares that all alienations of the annext property are null , if they be set otherwise than in feu-ferm ; and therefore if any part of the annext property be dispon'd to be holden blench , or ward , the alienation is null : and i conceive the true reason to be , because originally the annext property was allow'd to be dispon'd ; for improving his majesties rent , which cannot be , except where there is a yearly rent pay'd ; and albeit sometimes the king and parliament may dissolve the annext property in order to a disposition to be made to a person who has deserv'd well of the king and estates , in which , the improving his majesties revenue is not design'd ; yet the general nature of annexations ought not to be altered upon such accidental accompts . this act annulling all rights of the kings castles , parks , coal-heughs , &c. being annext , was formerly statuted , act par. ja. . this act is fully explain'd in the act parliament , ja. . this act declares that the assize herring is a part of the annext property , and so cannot be set in tack , nor dispon'd ; assize herring is a certain measure of herring due to the king out of every boat ; and the meaning of this act is , that it cannot be set in tack without a competent duty , for it is set in tack for a just avail , and could not be well otherways collected ; but this being a casuality , it is jactus retis , and so except the duty be almost elusory , it is hard to quarrel it ; ex hoc capite , they were formerly annext by the act , par. ja. . this act discharges all offices of heretable chamberlainries , and all free gifts and discharges of the kings property ; but to cheat this act , the feuars suffer the bygones to ly unpay'd , and then obtain discharges , or else they obtain tacks of their own feu-duties for payment of a small and simulat tack-duty , call'd by the romans as . cassianus . because the annext property could not be dispon'd without dissolution ; therefore some to cheat these excellent laws , obtain'd dispositions of the feu-ferms payable to the king , for payment of a feu-duty ; and therefore these feudisirmae feudisirmarum are here discharg'd and annull'd . these acts are formerly explain'd in the act concerning the thirds of benefices , viz. ja. par. act . which are now obsolet , ministers being otherways provided . observ. that acts of parliament are to be observ'd by the lords of the session , except they be particularly abrogated in express terms , vid. gen. obs . this act is now useless , ministers being otherways provided . all vassals are oblig'd to exhibit their evidents to their superiour , not only by improbations , but in exhibitions ; though in law nemo tenetur edere instrumenta contra se ; and the reason of this speciality is , because the superiour is dominus directus , and so has a true interest in the land ; and if the vassal pretend any interest , he is oblig'd docere de titulo , to shew his interest , and to instruct the superiour in what is due to him ; and the king in our law is presum'd to be universal superiour of all lands ; and therefore may by a proclamation , or by way of action , or by a statute , as here , ordain all evidents to be produc'd betwixt and such a day ; but nothing save a statute or improbation can declare the evidents to be null , if not produc'd as here ; and since an improbation could not be universal , this statute was necessary in these times , when his majesties revenue was not established , nor known . feus are declar'd null for not payment of the feu-duty , either by the clause irritant contain'd in the infestments , declaring that if two terms run , the feu shall be null ; or by this statute declaring that if the feu-duty be unpay'd for two years together , the feu shall be null : but there is this difference betwixt irritancies upon this act , and these contained in the infestment , that the irritancy upon this act may be purg'd at the bar , but irritancies upon clauses in infestments cannot be purg'd at the bar , because they are incurr'd by paction betwixt parties , which the lords cannot alter ; for the superiour having given out the feu upon that express condition , it is not just to alter what was expresly treated amongst parties , december . . laird of pourie contra hunter . but yet i see no reason for this distinction , since this act appoints expresly that they shall be null , in the same manner as if there were a clause irritant contained in the infestment , nor do i see how the lords can alter what is so expresly introduced by a clear statute . if offer was made of the feu-duty , but refus'd , yet this will not be sustain'd when reduction is pursu'd ex hoc capite , except it be instantly offered of new at the bar ; nor will a term be allowed for purging , as was found in the former case , in which the lords also inclin'd to think that compensation will not be sustain'd to take off this irritancy ; for though compensation tollit debitum , yet there is a reverence due by the vassal , and which is considered more than the value of the feu-duty it self ; but yet if the vassal come and offer humbly to his superiour , before the term of payment , compensation of as much as is due to him in payment of the feu-duty , quaeritur , if this will not be sufficient , it may be doubted whether a minor will be restored against the not payment of his feu-duty , since it is not just that the superiour should be prejudged by the minority of his vassal , or that the nature of the feu should be thereby inverted ; and it may be also doubted whether this irritancy will be incurr'd by him who was hindred vi majori from payment , as by being taken and detained prisoner , or carryed to remote countreys , since by the feudal law in other cases , this does excuse a mora , and from all the incon●eniencies that follow upon it . . it may be doubted if this legal irritancy will be incurr'd where the charter bears another special penalty and certification , in case of the vassals failȝie in payment of his feu-duty , without substituting the same in the room of the legal one , or expresly renuncing it . . quid juris , where there are more heirs-portioners , if the failȝie of one of them will prejudge the rest , seing quoad the superiority , he is oblig'd to own none but the eldest daughter . . if an offer made of the feu-duty , not by the vassal but by a third party , will stop this caducity , seing the feudal obligation on the vassals part is a personal recognizance , and ought to be perform'd personally : and on the other hand these irritancies are unfavourable , and ought not to be extended . . quaeritur , if the vassals offering feu-duties for years yet to run , if that offer will hinder the incurring the irritancy for these years , seing a debitor may in law pay before his day come ; and what if it be such a prestation as must be performed yearly . . if the vassal will amit his feu , for not offering where he had a pretext to doubt who was his true superiour , and what he is to do in that case . so much use the lords to favour the vassal against such severe irritancies , that a retour bearing in the first part of it , an irritancy for not payment of the feu-duty si petatur tantum , they allowed the vassal to purge , though in the posterior part of the retour , these words were omitted in the clause irritant it self , february . . earl of mar contra his vassals . like to this irritancy was that of the civil law , whereby non solutio pensionis per biennium in civill emphiteusi & per triennium in emphiteusi ecclesiastica efficiebat ut emphiteuta a jure suo caderet ; by the civil law the irritancy & mora in not payment , was not purgeable , but by the canon law it was . in tacks also with us , the not payment of a tack-duty for two years or terms infers an irritancy , november . . murray contra nisbit . march . . seton of baro contra seton of pitmedden , which is also conform to the civil law , l. . ff . locati . this act is explain'd crim . pract , tit . usury . by the act par. ja. . the bearing and shooting with culverings or daggs , without the kings licence , is forbidden under the pain of losing the right hand ; and that act is here ratifi'd , and thereto is added confiscation of moveables : and by the act par. ja. . it is appointed that the contraveeners of these acts , may be pursu'd , either before the council or the criminal court , and when they are pursu'd before the council , it is provided that they shall not lose the right hand . it may be argu'd from this act , that where there are two punishments appointed by two different laws , the last is not added to the first ; but either it antiquats the first , or else either of the two can be only regularly inflicted , for else this act needed not say , s●●a that the ane pain shall not stop nor stay the other . from that act par. it may likewise be observ'd , that the secret council are not judges competent to life and limb , such as the amputation of the right hand . by the lex julia it was lawful to carry arms without rome , but not in the town , but they were every where thereafter discharg'd , tit. . lib. . c. ut armorum usus inscio principe interdictus sit . by this act is ratifi'd an act made at dundee , by the king , his nobility , council and estates , which was an act of the convention of estates , for the convention of estates ordinarly considered the matter of coinage ; nor needed that a parliament , because coinage is a part of the prerogative ; and by the estates there were mean'd some of every estate , taken by the king for advice . from this act it was urg'd in the lord hattons case , that . by this act it is clear that we had a different standard from england , which is to be eleven pennie fine . . that it was lawful to melt down current forraign coyn , because this act allows it to be us'd as bullion . nota , this is the first act that mentions the general of the mints office , as different from the rest . by this act it is clear that the convention of estates made acts also discharging the transportation of wool and the like ; and this act as to wool is again ratifi'd , but a power is allow'd to the exchequer to transport wool ( contrary to this act ) act par. sess. ch. . but even this act discharges only bypast licences , but not licence for the future , for these are allow'd even for wool by the act of this same parliament . by this act customs are declar'd to be due to his majesty of all that is brought in from forraign nations ; and by the act sess. par. ch. . the ordering and disposal of trade with forraigners , is declared to be his majesties sole prerogative ; and therefore some think his majesty may impose upon forraign commodities what he thinks convenient ; for since he may discharge the trade , if he pleases ; it seems to follow , that he may burden it as he pleases . by this act an a , b , c. of the customs is to be put upon all commodities , that is to say , a particular index of the several customs imposed upon every several commodity , is ordain'd to be made according to the letters of the alphabet , and this has varied in several ages ; the present a , b , c. being made by order of the parliament . vid. statut . david . . cap. . num . . where this priviledge as to paying of customs , is formerly declar'd ; and by the canon law this was likewise declar'd lawful to princes , vid. perez . ad lib. . c. tit . . num . . & l , . c. de jure fisci , where it is said , officialibus v●lentibus ea capere debet acquiescere . from these words of this act , albeit it cannot be deny'd that his majesty is a free prince of a soveraign power , havand al 's great liberties and prerogatives be the laws of this realm , and priviledge of his crown and diadem as any other king , prince , or potentat whatsoever : it is observable , that our kings are here acknowledged to be absolute and soveraign monarchs , as is likewise more fully declar'd by the act par. ja. . in which it is said , whom the hail estates of their bounden duty , with maist hearty and faithful affection , humbly and truly acknowledges to be soveraign monarch , absolute prince , judge and governor over all persons , estates and causes , both spiritual and temporal within his said realm : by neither of which acts , i conceive our kings are so absolute , as that they have a tyrrannick , or despotick power , but that they are so absolute , as that they have power to do every thing that is just and reasonable , though they be not thereto empowered by particular acts of parliament , and therefore they are ill subjects , and worse lawyers , who allow the king to do nothing but that for which he can shew an act of parliament ; since his being an absolute monarch implyes this innate power ; and therefore it follows by a better consequence , when any thing is contraverted , that the king may do the thing in controversie being reasonable , if his power be not as to that point restrained by a particular act of parliament . it is likwise very observable that this power of absolute monarchy does not flow from the people , but is his own right , for no act of parliament grants the king any prerogative , but only declares by way of humble acknowledgement what his prerogatives were , principibus , says tacitus , summum rerum judicium dii dederunt , subditis obsequii gloria relicta est , lib. . armal . vid. observations on the act par. ch. . where our parliament acknowledges that our kings hold their crowns from god immediatly , vid. act . par. ja. . i know some pretend that the kings power is here declar'd to be absolute only in opposition to the pope , and implyes no more but that he did not depend upon the pope ; but this is very groundless , for he is here declared absolute in relation to his laying on of customs , in which the pope is no way concern'd ; and generally the kings power in relation to ecclesiastick rights , is said , to be supream not absolute ; and in civil rights , is said to be absolute , and not supream . by this act english cloath , and all other english commodities made of wool , are forbidden , for the incouragement of our own manufactures ; but since the union this prohibition is taken off , and a great custom is only impos'd by the act par. . sess. ch. . but are thereafter upon the erecting of our manufactures , absolutely discharg'd by the act par. ch. . these acts ordaining all ships to have special cocquets , containing an inventar of the goods which they bear , and the names of the merchants and owners , are yet in observance ; but the merchants do not still make faith upon these points , as is appointed by this act : and if the keepers of the cocquet absent themselves to the prejudice of the merchant , or take more for the cocquet than the sum of fourty shilling , they are to lose their place , and repair the merchants damnage by the act par. . ch. . this act and the seven following acts , till the . are very clear and need no observation ; only by lossing of goods in these acts is meant breaking of bulk . this act is but a branch of the act. this act appointing three burghs-royal to be made , one in kintire , one in lochaber , and one in the lews , is not only not in observance , but the erection of a burgh-royal in the lews was unjustly oppos'd by the burrows in anno . upon pretext that it would communicat their priviledges to forraigners and strangers , viz. hollanders who offer'd to come and settle there ; whereas it would only have dilated and improv'd our trade , and these forraigners had presently become scottishmen . by the act par. ja. . inhibitions and interdictions are to be registrated in the sheriff-clerks registers : but by this act all letters of horning , inhibitions , interdictions , and their executions are to be registrated in the registers of the respective bailliaries , stewartries , or regalities , within which the persons dwell , against whom these executions are ; but if these persons be out of the countrey , they must be denunc'd at the mercat cross of edinburgh , and peer and shore of lieth , and not at the head burgh of the stewartry , bailliary , or regality , july . . cunninghame contra cunninghame ; and that because this act of parliament speaks only of persons dwelland within the kingdom : but it may be yet doubted , whether the single escheats of persons out of the countrey may fall upon denunciations at the mercat cros● of edinburgh , and peer and shore of lieth ? or whether liferent-escheats will fall , except the rebel be denunced at the head burgh of the shire , regality , or stewartry wherein his lands lyes ? since if he had been within the countrey , he ought to have been denunced in the respective jurisdictions within which the lands ly . albeit this act appoints all letters to be executed within regalities and stewartries ; yet if these jurisdictions have no known head burgh , the escheat will be sustained upon a denunciation at the head burgh of the shire , january . . scot contra dalmahoy . by this act all hornings , relaxations , inhibitions , and interdictions that were to be registrated in inferiour registers , are ordain'd to be presented judicially before a notar and four witnesses ; which formality is thereafter found not to be necessary , and is abrogated by the act par. ja. . vid. crim . pract . tit . theft . because the money had risen at this time to a great value , so that the same piece of money which passed formerly for one penny , was worth ten the time of this act ; therefore it is justly appointed by this act , that all the unlaws shall be raised , so that the same delict which was fined only in twelve pennies before the first of march . ( that is to say , before the first parliament of queen mary ) should be fineable in ten shilling of the money current the time of this act , gel. lib . c. . tells us that the romans were in this same manner forc'd to augment the penalties of the twelve tables , because lucius veracius , took pleasure to beat all that past him , because he was only to pay twenty five asses for every blow , according to that law. this act is explain'd crim pract . tit . beggars . from this act it is observable that he that is charg'd with lawborrows , shall be as lyable in the contravention , as if he had found caution , though he has not found caution ; it being unjust that by his contempt he should put himself in a better condition ; and it is by the same reason that an appearand heirs liferent escheat falls to his superiour in the same way , as if he had entred ; since it is unjust that the superiour should be prejudg'd by th● appearand heirs lying out . observ. . that by this act when any man finds caution , being charged with law-borrows , he who raises lawborrows has action against either principal or cautioner at his option , as in other pecunial obligations ; which words , viz. as in all other pecunial obligations , are added , because by our law , he who is a cautione● ad factum praestandum ( such as they are who become cautioners , for executors , messengers , or tutors , &c. ) is only lyable after the principal is discuss'd , because they being only cautioners for the principals performance : it must be first known , whether the principal has performed , and thus the beneficium discussionis ; that was of old competent by the civil law to all cautioners , is only competent by our law to such cautioners only as become cautioner● ad factum praestandum . this act appointing that the pains of the general bond , shall be divided betwixt the king and the party , is to be understood of the general bond of lawborrows , which is appointed by the act par. . and act par. ja. . even as the pain of special lawborrows , is to be divided betwixt the king and the party , by the act par. . ja. . for that act related only to privat lawborrows , at the instance of privat parties ; and therefore this act was necessary in the case of general lawborrows , exacted at the kings instance , for the security of all his subjects , from such as he thinks lyable to suspition . it was and is ordinary for the king and council , to charge heretors who are at feid to give bonds of assurance to one another , and that upon six hours advertisement , under the pain of rebellion , vid. the council registers , july . and which is a great instance of the kings power allow'd him by law , against those whom he has reason to suspect . the rubrick of this act is wrong , for sheriff clerk bring not their books to the exchequer , but to the lord register . by this act it is appointed that all such as are commissioners for parliament shall be authoriz'd by the subscription of a great number of the barons then present , and the subscription of the clerk of the convention , else to be null , which act was found not to be in desuetude , by a decision in the convention , july . where it was found likwise that this act extended to commissions for conventions , as well as to parliaments ; for though this act speaks only of parliaments ; yet parliaments and conventions being called the same way , the commissions should have the same solemnities , and the reason why the sheriff-clerks subscription is requisit , is , because he is the publick servant of the shire , and so it is presumable that he will mark exactly all that was done , and will not suffer counterfited subscriptions to be put to commissions , being to be lyable himself , whereas otherwise commissions may be obtruded upon the convention with false subscriptions , as was done in that same meeting ; and which dangerous falshood cannot otherwise be well fastened upon any other , since the commissioner may justly alleadge that the commission was so granted to him , and one may be chosen a commissioner who is absent , in which case he cannot know who sign'd . burrows having great freedoms and priviledges from the king , are therefore oblig'd to have sufficient prisons , for receiving such as are attached for crimes and debts ; which act was found to oblige baillies of burghs of regality , as well as burghs royal , july . . and stewarts of stewartries , june . . and these words of this act , by the sheriffs to stewarts and baillies of regality , are wrong printed , for the word to should be or ; but this act was not found to oblige baillies of a burgh of barony , march . . nor bishops baillies , march . . but the baillies of the head burghs of stewartries were thought to be oblig'd by this act of parliament to receive prisoners ; albeit the act of parliament appoints them to be presented only to stewarts and baillies of regality ; but speaks not of baillies of the head burgh of the stewartry , june . . cheap contra the baillies of falkland : where it vvas likevvise found , that the baillies keeping a rebel eight or ten dayes in a privat house , and thereafter imprisoning him , vvere not lyable super hoc medio , except he escaped by their negligence , or the insufficiency of the prison ; and it seems by the act of parliament , that these burghs are only oblig'd to have prisons , vvhich have provosts and baillies ; for the act appoints the prison to be upholden by the provost , baillies , &c. though the rubrick sayes , that prisons should be bigged within all burghs , and it may be doubted from the vvords of the act , vvhether burghs vvhich have no common-good should be lyable , especially seing magistrats are oblig'd to keep prisons for the kings use , because they have a common-good from him. if the magistrats do not receive rebels , or have not sufficient prisons , they are lyable for the debt , and that vvithout calling the principal debitor , since the magistrats are lyable ex suo delicto , and these jails are found not to be sufficient vvhich vvant cat-bands , and outward chains , because the prisoner cannot force those from vvithin , but the prison being sufficient , and sufficiently guarded , vis major , is a sufficient defence : and though this act says only , that they shall secure persons presented to them ; yet they are found to be oblig'd to search any house vvhere the rebel is said to be , july . . farquhar contra magistrates of elgin ; and though this act bears , that they shall detain all such prisoners upon their own expence , yet this is only extended to prisoners taken ob vindictam publicam , but it is indulg'd to the tolbooth of edinburgh , that they shall not be oblig'd to receive any who are offered to prison by privat parties , till the presenters find caution to aliment them . this act appoints those prisons to be made for sure imprisoning , keeping , and detaining of such prisoners as are presented , and therefore the magistrats cannot let them out , either to church , or to go about any of their affairs , hovv important soever , though vvith a keeper , since squalor carceris is thus eluded ; and therefore in such cases the magistrats must be authorized by a warrand from the secret council , or lords of the session , and that by an act of sederunt in anno . and if the rebel be suffered to escape or go abroad , the magistrats vvill not only be lyable , but they vvill get no relief from the cautioner , though they take assignation to the debt , since tenentur ex proprio delicto , and the cautioner is prejudg'd of his relief by that their delict , january . . this act is formerly explain'd in the act par. ja. . this act is formerly explain'd in the act par. ja. . since by this act all burgesses are to be stented according to their rents , and holding within burgh : it may be doubted if a burges have no actual trade , but only money owing him , by persons without the burgh , if he may be stented according to that estate , since it is no rent , nor holding in burgh ; but the answer is , that mobilia semper sequuntur personam ; and therefore he may be stented according to that money : it may be doubted if gentlemen who never had any trade , but dwell in the town very long , may be stented , though they be honorary burgesses only . item , if they can stent for ministers stipends , strangers within burgh , who are not at all burgesses ; and this act seems to imply , that inhabitants as well as burgesses , may be stented according to their estates within burgh , and that all who have advantage by the ministry should pay ministers . there are two ways of levying subsidies in scotland ; the one is by taxation , which was the old way , and which taxation was uplifted according to the retour : the other is by way of cess , in which the subsidie is uplifted according to the late valuations , wherein every mans land rent was given up , as presently possess'd . the subsidie granted by this act , is by way of taxation , and the old way of uplifting subsidies by taxations , may be fully herein seen , and which is very fit to be read upon that accompt ; and in which it is evident that the clergy pay'd the one half , including the erections ; but in anno . a proposal being made that the subsidie then offered , should be uplifted by way of cess , and not by way of taxation . these ensuing reasons were represented against that proposal , and which i have here insert , because they tend very much to the clearing many of our old laws and customs . the reasons were , . that the rule and way for uplifting taxations has in all ages been according to retours , and the taxed rolls until these late unhappy and irregular times ; from which it is humbly conceiv'd a rule and presedent ought not to be taken . it is beyond all question , this being the good old way , though it were upon no other account , ought not to be changed , the danger and inconveniency of the alteration of ancient laws and customs , being so great and obvious from the late experience of these kingdoms , that this age needeth not to be put in mind of the same , but may be a sad remembrance to posterity . . the foresaid way is only now the legal way wherein taxations can be uplifted at this time , seing the same is determined and authoriz'd by ancient and uncontroverted customs in all ages , and beyond memory , and by the law of nations , and the fundamental law of this kingdom ; ancient national custom is law , and of as great force as statute , and is the great basis and foundation of the power , and rights , and property of the prince and people , which for the most part are warranted and secured by the common law and custom , and not by express act of parliament and statute . . this way of uplifting taxations and the proportions of the same , payable by the respective estates , is designed and established by express laws and acts of parliament , so that the same cannot be altered but by a parliament , which only has power to repeal as appears by the act ja. par. . intituled , these retours should contain the old and new extent ; and the act . ja. par. . ordaining all feu-lands annex'd , and other feu-lands vvhatsomever to be retour'd , and vvhen any taxation or impost is to be rais'd , that the feuers shall be charged according to the retour ; and by the act ja. par. . ordaining his majesties property to be retour'd , and such lands as are dissolv'd and dismembered from baronies to be retour'd , and charged according to the retours , in order to the payment of taxation , and divers others , and in special all the acts of parliament concerning the granting and uplifting taxations . . whereas it is pretended by the heritors of the western shires , that their retoures are higher than in other shires , and that it should be a more equal way that the taxation should be uplifted as c●sses , according to the valuation , without respect to retours ; these gentlemen have no reason to complain , being their own deeds , procured by them , upon the verdict of their own friends and neighbours per fideles homines patriae , and according to which they have pay'd not only taxations , according to the old extent ; but his majesties casualities of none-entry , relief , and siklike , according to the new extent contain'd in the said retours , and has been also in use to uplift the like casualities from their own vassals , according to the said retoure ; that the retours should be altogether taken away , both as to old and new extent , it is conceiv'd that they will not desire , seeing if their retour should be lessened , as to the new extent , it would be an irrepairable prejudice to his majesty , as to his ordinary benefite and casualities of none-entry , relief ; and siklike a prejudice to themselves , as to the same casualities due , and payable to themselves by their vassals , and what incongruity should it be , that the same retour should be altered as to the old extent , and should be stated as to the new , and that it should be still a rule , as to their own interest and benefite , and not as to the payment of the taxation to his majesty , as it has been in all ages , it being also considered , that they cannot say that the lands are valued unjustly by their retours , and extend to more than the true value , the time of the retouring of the same , and since that time they cannot deny that they are improven for the most part above any proportion . . the interest , and consequently the way of proceeding of lawful princes ; and usurpers being so different and opposite , that as princes are patres patriae , and do cherish and intend the flourishing of their subjects ; so by the contrary , it is the interest and practice of usurpers deglubere , to squize and oppress the people , that they should not be in a capacity to shake off the yoke : it is neither the honour nor interest of the countrey to take a pattern and rise from the usurpers to overturn the ancient law of the kingdom , especially in the matter of taxations , seeing the necessity and fatal course of these times , in order to maintaining of war against his gracious majesty , and his blessed father did not only require a taxation , which was an easie burden to the people , and were chearfully granted , and oftimes offered to his majesties royal predecessors as an aid and subsidie , when their occasions did call for the same , but the usurpers were driven to exact a considerable part of every persons estate , as a constant tribute , under the notion of taxt and loan maintainance , cess and such like burdens , which cannot be remembred without horrour ; and in order to the same , to introduce a new way by valuation , whereas his majesty is to have an ordinary taxation ; and therefore there is no reason but that the same should be rais'd in that good old and ordinary way , that has ever been used in the time of his majesties father , and his royal predecessour . . the way of cess , both as to the manner and thing is so hateful to the body of the people of this kingdom , that though exhausted in a low condition , they did offer , and chearfully grant to his majesty a constant yearly taxation and annuity , during his majesties life , of pound sterling , upon consideration expresly mentioned in the said act , that his majesty had signified his royal resolution , not to raise any more cess , it cannot be expressed how great dissatisfaction and apprehension it would beget in the hearts of the people , if that unhappy way of cess should be reviv'd , under what name or notion soever , now after his majesties restitution , and that the people had just reason to think themselves secur'd by the ancient laws and custom of the kingdom , and his majesties gracious resolution so recently and solemnly expressed by his majesties late commissioner in parliament , and recorded in a printed act , being the of his majesties late parliament , and first session thereof . . the western shires , being only five , and the remnant shires who plead for the good old way , according to the ancient laws of the kingdom , being five times more , it is humbly represented , that the interest and number of so many other shires should weigh down the pretences and desires of so few shires , for a novation contrary to the law and liberty of the kingdom ; it being also considered , that though the loyalty of some noblemen and gentlemen within the said western shires , be above all exception , and be more eminent , that there are so few of sound principles there , yet to speak modestly , the generality of the inhabitants of these shires has not been so forward to desire or promote his majesties restitution and interest , that now after his majesties happy re-establishment , they should obtain what they could never effectuate in any time , and should be gratifi'd to the prejudice of other shires of undoubted and constant loyalty , and the overturning the ancient law , and way of the kingdom . . as to the pretence of inequality in the old way , it is to be considered , that though an arithmetical proportion and exactness is not to be expected in any way ; yet there is more reason to presume for the justice and equity of a legal way , venerable for antiquity , warranted by express laws and immemorial custom , which for any thing known , had its beginning in the time of freedom , and has been continued in the best , most peaceable and pureest times , notwithstanding any endeavours to the contrary , than for a way contriv'd and hatch'd in the heart and fury of trouble and distempers , and brought forth and obtruded upon the countrey with so much partiality and factiousness , that it is well known that the shires , and persons who were in opposition to his majesty , had so great and prevalent interest for the time , that the valuations , both as to the quota of shires , and proportions and rents of private persons were carry'd on by the instruments and commissioners , most inequally to the advantage of their party , and the evident prejudice and pressure of whole shires , and all persons who were sincere , or had the least affection for the royal interest . . by the common and feudal law and law of the kingdom , where the heir of the vassal dieth , not entered , the superiour during the none-entry , has right to the duties of the land holden of him , and when the heir of ward-lands doth enter , the superiour hath right to the duties for a year , under the notion of relief , which in both these cases of relief and non-entry , are payable according to retoures and the new extent ; if the old way of retoures should be altered in relation to the payment of taxations , why not in order to none-entries and relief , so that they should be payed , not according to retour but valuations , there being no reason that the saids casualities are not exacted in rigour : but the ancient law and custom for retoures . how dangerous the preparative may be , if the way of retoures should be altered , even to those who are for novations , and what combustion and disorder it may occasion in the contrary , it is so apparent , that it needs not to be represented . . whereas it is pretended that the lords and others of the clergy , will have prejudice by the old way , both as to their own proportion , and the proportion of the vassals , and that they are in another condition than formerly , by reason that their rents are impaired by valuations and ministers stipends , it is humbly conceived with all tenderness and respect to the reverend clergy , that whatever others for their own interest , do suggest under pretence of theirs . the lords of the clergy and others , will not decline to contribute , and be taxt for his majesties service , as the other estates , and as to the pretended way of paying taxation according to the valuations in these late times , they cannot be taxed in that way , because the rents of the bishops being for the most part in these times of usurpation , mortified to universities and other pious uses , they were not valued , nor lyable to cess and such like burdens ; it must then follow , that either they must be taxed in the old way , or else not at all as to the proportion of the clergie , it is designed by all the laws concerning taxations , and it is not higher than it was at any time , since taxations were granted to his majesties predecessors ; and it is to be observ'd in all acts of parliament concerning taxations . the lords of the clergie do in the first place , before the rest of the estates , make a chearful offer of the same proportion without any grudging , and though there needs no reason to be given for clear law and practice ; yet that the said proportion is defin'd , and settled upon good reason , it is obvious , seing the same is impos'd in order , both to their spirituality , consisting in tiths , and their temporality consisting in lands and others ; and it is known that the tiths are more than the fourth part of the rent of scotland : and temporalities and church-lands will extend to a considerable part of scotland , at least to a fourth part . the clergie having their benefices and living , not in property , as the other estates , but of his majesties immediat favour and grant , and for their lifetime ; so that it is not strange , that upon the considerations foresaid they pay'd such a proportion of the taxation ; the case is not altered upon the account of valuations and ministers stipends , that course for valuation of tiends , and augmentation of stipends being procured , and taken at the earnest desire of the reverend bishops and clergy ; so that it ought not to be represented , as being to their prejudice ; and de facto , the reverend bishops and m●nisters , have no prejudice by that course , by reason the bishops and ministers , and benefic'd persons ( who ought only to be looked upon as clergie ) are secur'd by divers provisions contained in the acts of parliament anent the valuation of tiths , and in special , that what they were in possession of actually and really the time of the submission , made by them , should remain with them in quantitate & qualitate , unpr●judged by any valuation , so that the valuation and augmentation of stipends being only in relation to , and affecting the spirituality and tiends ; the case neither is , nor can be altered as to the clergie , they being secured by the saids provisions , and the burden of augmentation of stipends , and prejudice by valuations , doth only ly upon the lords ; and titulars of erection , and tacks-men of tiths , as the case is not altered in relation to benefic'd persons ; so stipendiary ministers cannot be prejudg'd by the good old way , seing by an act of parliament ja. par. . they are freed and exempted of all taxations and impositions , the burden of the proportion of the clergie doth not ly upon them , but for the most part upon the vassals , and tacks-men against which they have by the law a present and summar way of relief , as to the lands and temporality of the clergie , they are the same , and in the same case as in time of former taxations ; and that the vassals of erection , or of church-men , should be in better case than formerly , as to the payment of taxation , it is contrary to law and reason , seing res transit cum onere & causa ; and that lay-men acquiring lands from church-men , should have more case of taxation , as to such lands , than other church-men had , when they possessed the same , is inconsistent with law , and with the respect and priviledges belonging to that sacred order . . whereas it is pretended , that since his majesties restitution , and the said act of parliament containing his promise and resolution , not to raise any more cess : a taxation hath been pay'd to the lords of session in the way of cess , that pretence is of no weight , it being considered that the said taxation is granted , not to his majesty , but for an honorary allowance to the lords of session ; and by an act of the same parliament , wherein his majesty declar'd that no more cess should be rais'd ; so that the said act being in the same parliament , and it being an exception from the said act , firmat regulam in non exceptis , and shuts the door as to the future , upon that manner of raising of impositions . . whatever a parliament may do as to the repelling of former laws and customes , a convention of estates ( though a meetting most eminent ) has not that legislative power : and albeit the commissioners from shires has power by their commission , to offer and condescend to a taxation ; yet they have not power to alter and take away the fundamental laws and customs of the kingdom , as to the manner of uplifting of taxations , being the birth-right of the people , and which cannot be taken away but by a law made in parliament . king james the sixth , parliament . the earl of gowrie having endeavoured treasonably to murder king james the sixth , he was forefaulted in the beginning of this parliament ; and after his death , his brother and posterity were disabled to succeed , and the name of ruth●●n a●olished ; as is to be seen in the first three un-printed acts of this parliament , and a publick day of thanksgiving is appointed by this act , which is yet constantly celebrated upon the of august , which was the day upon which the murder was to be committed . the malice of the fanaticks in those times is most remarkable , who pretend that he was unjustly forefaulted , albeit the depositions of the witnesses are yet extant , whereby the traiterous d●sign of having contriv'd , and accordingly attempted to kill that excellent king , is prov'd by his own relations , and many eminent witnesses of intire reputation . it is also observable , that witnesses of old , in processes before the parliament , were only led before the articles , and repeated in parliament . item , that the summons was still in latin , & sub testimonio magni sigilli , they were at the instance of the justices , and of the kings advocat ; and the summons in all such cases were still rais'd before the parliament did sit , for our parliaments sat very short time , and so they err who think that such processes can only be rais'd by a warrand from the articles , though that be ordinary now . and now likewise the summons is in scots , and under the signet only . the earl of gowrie being forefaulted , his lands are by this act annex'd to the crown ; and though by the former acts of annexation , lordships and baronies were only in general annexed ; yet here all the particular baronies of the lordship , and all tenements of the lordship are expressed , with all the pertinents thereto belonging , which are here specially enumerated , and amongst the pertinents , patronages are enumerated , which shews that patronages in our law , are comprehended under the word pertinents , which is also clear by the author of the book , call'd the parsons law. see more of this in the notes on act par. ja. . the regalities and heretable offices belonging to gowrie , are likewise supprest expresly , and the saids lands erected in a stewartry ; for a regality is properly the erection of lands holding of subjects ; and a stewartry is only in lands , which are the kings property . this act is explain'd in the act par. ja. . and that is the act related to in this statute . by this act , invading or pursuing any of his highness session , secret council , or officers , it being verifi'd that they were pursu'd , or invaded for doing his highness service , is declar'd punishable by death , and upon this act mr. james mitchel was hang'd for invading the bishop of saint andrews ; in which process it was upon debate found , that the pursuing and invading for doing his highness service , was sufficiently proven by presumptions , except the pannel could have condescended upon another reason which provockt him to the attempt , arising from private quarrel or grudge , and that because it is impossible to imagine that the design of the invader can be otherwise prov'n , that being an occult and latent act of the mind . by the civil law , the invading a counsellor was treason , for sayes the emperour , sunt pars corporis nostri , l. . c. ad l. jul. maj. it may be questioned from this act , : who are to be call'd the kings officers ? . if the invading them when they are out of the kingdom , or suspended , or when they are only nam'd , and not yet admitted to their place , will infer the punishment of this act. . if these words in the narrative of this statute , that they are oft quarrelled without any just cause , will excuse the invader , if he can show that he was truly wrong'd by that party , either in voting , or deciding against him , or otherwayes , scipio gentilis in his books , de conjurationibus adversus principes explains the l. . cod . ad l. jul . majest . and shews how far the invading of the kings counsellours is treason . sir francis bacons observes that an act of this tenour was made at the suggestion of the chancellor , in the reign of henry . because of the danger the chancellour was then in from the courtiours , drowning the envy of it in a general law ; and i am sure that was also our case , for our chancellour was in ill terms then with our nobility , but their conspiring was made a crime ; whereas with us invading is necessary . this act is explained in the act par. ja. . this act is formerly explain'd in the act par. ja. . this act discharging herring to be carried abroad before michaelmas , under the pain of confiscation , is now innovated by the priviledges granted to the fishing company , and that very justly , for the sooner herring be carryed abroad , they give the better price : and though there were not herring enough taken to serve the countrey the time of this act , which was the reason of the prohibition ; yet now there are , sufficiently for serving both the countrey and strangers . though the slaying salmond in forbidden times , be theft by this act , yet none has ever been pursu'd capitally therefore , but the same is only punish'd as a penal statute by an arbitrary punishment . the reason why the rivers of tweed and annand are excepted from this act , is , because the killing fish upon them prejudges only the english fishing : but after the union of the two kingdoms , this exception as to these two rivers , is also taken away by the act par. ja. . this act declaring the provocker and provocked in duels to be punishable by death , is explain'd , crim. pract . tit . duels : and since fighting duels is only declared death by this act , it appears that naked provocation is not capital ; but yet even the sending of cartals may be arbitrarly punished by the privy council : but fighting is capital , though no killing follow : and fighting by rencounter may be punished as a duel , though there was no formal cartal ; for by this law all single combats are declared punishable by death , vid. crim . pract . tit . duels : this act was renewed by a strict act of secret council , in anno . this act is explained in the act . par. ja. . by this act it is declared that the negligence of the kings officers , in pursuing or defending a cause , shall not prejudge the king : and therefor competent and omitted , is never received against the king , though it be against private parties ; and by this act it would appear that the king may propone a nullity of a decreet obtained against him , even in foro before the lords of session , by way of exception or suspension , without a formal reduction ; but yet prescription runs against the king , notwithstanding that it may be alleadged , that by this act he cannot be prejudged by the negligence of his officers , in not pursuing , since prescription is a general remedy introduced for the final quiet , both of king and people ; and as to heretage it is introduced by an act posteriour to this act , wherein there is no exception made in favours of the king ; but the act introducing prescription of moveables is prior to this act , and so it may be the more doubted , whether prescription of moveables runs against the king , since by this posteriour act it is declared , that the negligence of his officers in not pursuing , shall not prejudge him , nor is there so great hazard to the lieges in their moveables , as in their heritage . the transporting or in-bringing of forbidden or un ▪ customed goods , that is to say , goods that should pay custom , without paying custom is punishable , not only by forefaulture of the goods , but by confiscation of the in-bringers whole goods moveable ; albeit by the civil law , ea res tantum in commissum cadit quam quis non est professus ; by which law the naked entry , or sola possessio , was sufficient to defend against the forefaulture & imputandum est publicano qui non exegerit , perez . tit . c. de vect . num . . both by that law and ours , the customers may recover the goods un-entered , even from singular successors who have bought the same , bona fide , for a competent price ; and in that law , error excus'd from confiscation : but in that case it exacted double custom , perez , ibid. i have not observed any mans moveables escheated upon this act. this act fining such as will not communicat once a year , when he is thereto desired by his pastor , is ill observed , but not in desuetude , and therefore was renewed by proclamation in january . observ. that the having rancour against their neighbour , is declar'd no relevant excuse ; and justly , because it is a fault , and so should be no defence , & argumento hujus legis , a fanatick having prejudice at his minister , even though reasonable , is no legal defence , for he should still hear . observ. . though this act say , that no other excuse whatsoever shall defend ; yet certainly inability to travel , madness , &c. will defend , and general words are still to be understood , in subjecto capaci . this act is explain'd , crim . pract . tit . heresie . this act is explained , crim . pract . tit . beggars and vagabonds . this act is explained , crim . pract . tit . adultery . this act is but a temporary commission . this act against slaughter of wild-fowl , is renewed by an act of privy council , june . . years , whereby masters of the game are appointed for putting these acts in execution ; though by this act the sheriffs , stewarts , and the kings ordinary magistrats , have a particular commission of justiciary for this effect ; and it was questioned in the time , how the council could take away a right establisht in them by the parliament ? by this act , the killing of mure pouts is discharg'd before the third of july , and partridge pouts before the eight of september ; and by that proclamation , mure pouts are allow'd to be kill'd after the first of july , and heath pouts after the first of august , and partridge and quail after the first of september ; and whereas by the act par. ja. . no partridges , plovers , black-cocks , &c. are to be kill'd till august ; this proclamation allows them to be killed from the first of july . this act ordaining all english cloath to be seal'd by a seal , the form whereof is here condescended on , was thought to have been in desuetude : but now found not to be so in anno . at which time it was found , that the customers might enter the shops , and seal or confiscat what was not so seal'd . this sealing was formerly appointed by the act par. ja. . this act appoints , that no letters of horning shall be direct against persons dwelling on the other side of dee , upon shorter space than fifteen dayes ; which act was found only to be extended to actions before the privy council , but not to charges before any other court ; because the narrative of this act sayes , that severals of the lieges were drawn in inconveniencies by charges before his majesty and his council ; though the rubrick and statutory part be general ; and though the reason , whereupon this is inferred , extends to all charges , as well as charges before the council . such as invade any of his majesties subjects within a mile to the place of his highness residence , or whoever resort thereto , armed with jacks , or corslets under their coats , are to be imprisoned for a year , and punishable by an arbitrary fine . observ. that the attrocity of the crime is much hightned from the circumstance of place , as well as time ; as is likewise clear by the act par. ja. . it may be doubted , whether this act can be extended against such as invade strangers ? since the act sayes only , such as invade subjects ; since the invading of strangers is more attrocious in it self , than the invading of subjects , the crime being there aggredged by the breach of hospitality . it may be likewise doubted , how long a time of residence by the king makes the invaders punishable ? and it would appear that if the invasion be not within a mile of that which is known to be the place of the kings ordinary residence , that then it must be proven , that the invader did reside there for the time . by this act sheriff-courts should be kept in the middle of the shire , for the ease of the people ; but this is not observ'd . of old pledges were taken in the borders , that is to say , one man entered himself prisoner for another , and bound himself for his appearance , person for person ; but now the peace is secured by sureties or cautioners , who , if they present not the person for whom they are bound , that very hour they forefault their bonds , nor is the presenting the prisoner afterwards sufficient ; which speciality has been found necessary in border sureties . these pledges were distributed of old amongst the nobility and gentry , who were to be answerable for them , because we wanted then many and sure prisons ; and because they were unwilling to receive these pledges ; therefore this act obliges them to receive , and keep such pledges , under the pain of two thousand merks . it may be doubted ; if pledges may not be taken in other crimes as well , as these relating to the borders and highlands , argumento hujus legis , since this may tend much to the quieting of the countrey ; and if the nobility may not be forc'd to keep these , for prisons may be often so full , that prisoners cannot otherwayes be kept ; and by many acts of secret council , the nobility was before this statute oblig'd to keep pledges . by the common law , obsides or pledges could only be granted , ex causa publica , sed non ex privata , bald. in l. ob aes , c. de obl . & act , but it seems that pledges , though for criminal causes , could not bind themselves to corporal punishment , quia nemo est dominus suorum membrorum licet aliter obtineat de consuetudine , ob bonum publicum , bald. in tit . de pace constant. § . damna in finè . king james the sixth , parliament . there have been two commissions granted for considering of an union betwixt this kingdom and england , one in this year . and another in anno . betwixt which there are only these two differences ; that in this act the names of the commissioners are set down , and they had no other commission but the act of parliament ; but in the other commission . the persons were nominated by his majesty , under his great seal ; the nomination being refer'd to the king by that act of parliament . the second difference is , that in this commission . their power is limited with this provision , viz. not derogating any wayes from any fundamental laws , ancient priviledges , offices , rights , dignities , and liberties of this kingdom : but the other has no such exception ; and yet it may be doubted , whether by vertue of the last commission , those who were commissionated , could have derogated by their treaty , from any of our fundamental laws , ancient priviledges , offices and dignities ? that the parliament of scotland could not consent to an union of parliaments , though all its members were admitted , without at least consulting the shires and burghs , which the respective members of parliament represent , may be thus urg'd ; all nations considering the frailty of their representatives , and that some ages and generations do too easily quite , what is fit and necessary for securing their liberty ; have therefore thought fit to declare some fundamentals to be above the reach of their power ; and that parliaments cannot overturn fundamentals , seems clear , not only , because these were not fundamentals , if they could be overturn'd , that being the true difference betwixt fundamental and other laws ; but if a parliament should enslave their kingdom to a forraigner , the people might by a subsequent election disown the perfidie ; or if two of three estates should by plurality exclude the third , surely their exclusion would be null ; and that the constitution of a parliament is a fundamental , appears not only from the nature and weight of that priviledge ; but likewise from this commission , anno . wherein it is call'd fundamental , and looked upon as unalterable ; nor is it imaginable , how the parliament cannot invert the constitution of one estate , and yet can invert and alter the constitution of the whole : and by our statutes it is declared treason , to endeavour to lessen the power of the three estates of parliament ; and it cannot be said , that their power is not lessened , when they cannot make one act or statute by their own authority , or when others have more interest in , and influence upon their determinations , than they themselves have ; and when , from being absolute , they become subject to another ; and a parliament has but some such power over the people , as the magistrats and council have over a burgh ; for the parliament is but the great council of the people and kingdom ; and it is most certain , that the magistrats and council of a city or town , could not consent to incorporat with another town , and consent to the eversion of their own , without the full consent of their people whom they govern. commissioners for shires and burghs , are the same with us that procuratores universitatis are in the civil law ; and procurators etiam cum libera , could not alienat the rights of their constituents , without a special mandat for that effect , l. procuratori ff . de procurat . nor can they exchange nor transact upon what belongs to their constituents ( which is our case exactly ) l. mandato generali ff . de procurat . and if we consider the commission whereby they sit in parliament , we will find it does only empower them to represent in parliament their constituents in every thing , which shall be advantagious for them : from which commissions i argue , first , that this is but mandatum generale ; for it empowers them only in general terms and bears no warrand to treat with england , of an union of m●onarchies or parliaments , & generali mandato etiam cum libera ea veniunt quae sunt de consuetudine , l. quod s●no l. § . qui assidua ff . de aedidit . edict . & non comprehendit ea quae sunt usui regionis repugnantia ; it empowers not such as have it to do things extraordinary , and which , it is probable , the constituents would not allow , l. ut si filius ff . de donationibus , l. indebitum ff . decondict indebit & cap. generali de reg . jur . in sexto ; but in such cases , as lawyers observe , and reason teaches , the constituent is to be consulted , and a special mandat is required ; as is clear by the laws above-cited . our commissioners for shires and burghs , sit by vertue of commissions , and as they need a warrand to sit , so cannot they exceed it when they sit , and are not arbitrary ; nor could the parliament of scotland , as now constituted , resign their parliamentary power over to the council ; nor does their commission empower them to ordain , that there shall be no future parliaments ; and when they exceed their commissions , they are no more members of parliament , and therefore what they do , is null . . by these commissions , the commissioners for shires and burghs , are only empowered to represent them in the parliament of scotland ; which presupposeth that there must be a parliament , and consequently that they cannot exstinguish , or innovat the constitution of the parliament of scotland ; for how can they represent the shires and burghs in a parliament , which is not ; and certainly the parliament of scotland can be said to be no more , when they make but a part of the parliament of great-britain ; for scotland cannot be called britain , nor a part of a parliament cannot be called a parliament , no more than the commissioners for the north of scotland , can be called the parliament of scotland ; but how our commissioners could sit in the parliament of great-britain , by vertue of their former commissions , i see not ? and therefore it seems to be both fit and just , that the commissioners of shires and burrows should be sent home to their respective constituents , to crave their advice and consent , in so weighty and comprehensive an affair , nam quod omnes tangit ab omnibus debet approbari . it may be likewise contended that this great determination of uniting both parliaments , requires at least the full assent of the members of both parliaments ; and that though the parliament had power to alter its own fundamentals ; yet if any one dissent , the union of both parliaments must stop ; for both in law and reason , the power of making laws , and the right to retain or resign priviledges , are two different things ; the one is a legislative power , which is regulated by plurality of voices ; the other is founded upon dominion or property , and is not subject to suffrage , no more than other properties are ; for as every member has right , so his right cannot be taken away from him without his own consent ; though all these who are in the society with him should renounce what is theirs , in re pari melior est conditio prohibentis , & in re communi nemo dominorum jure quicquam sacere potest invito altero l. sabinus , ait . ff . com . divid . thus if the members of a society were by law free from impositions , though all the society , save one , should submit to pay , yet plurality would not in that case oblige the refuser , and if all who had interest in a commonty , should condescend to resign their right therein in favours of another , yet if one were refractory , that one would not be prejudged by the consent of all the remanent partners ; whence it seems consequential , that as the parliament cannot debar any member from sitting in parliament , so that if one member by advice from his constituents , oppose the union of parliaments , it could not be carry'd by plurality ; for what ever reason militats why plurality should not oversway in the one , does likewise militat in the other ; and if the right of every member is given as the cause why , he cannot be debar'd from sitting ; why should not the same right empower him much more to stop the total alteration of the parliament ? even as a man cannot be debar'd from using a commonty . it will likewise operat , that the commonty cannot be altered in its nature , without his consent ; and the right of these who sit in parliament , is as much prejudg'd , by extinguishing the being of a parliament , as by debarring them from sitting , or voicing in it . our shires and burghs have right to be represented in no parliament , save that of scotland ; and therefore if the commissioners had power to overturn the being of the parliament of scotland , they could have debar'd our shires and burghs from being re-presented in the parliament of great-britain , seing they could pretend no right to sit there ; so that it seems , either plurality of voices may exclude any particular member , and may retrinch that member : or else by the same reason , no plurality can establish an vnion of both parliaments ; and if our parliament could by plurality of voices , overturn the fundamentals , and destroy the very being of our parliament ; how shall it be possible to secure our parliament , when it is joyn'd in with the parliament of england , into one parliament of great-britain , so as that the parliament of great-britain , may not by the plurality of voices , likewise overturn any fundamentals that shall be condescended on ; but that the fundamental constitution , and priviledges of parliament , are not subject to suffrage , and cannot be abrogated , nor innovated , without the universal consent of all its members and commissioners , may be clear likewise from many instances , for it is most certain that the parliament , as now constitute , could not by any statute ordain , that there should be no more parliaments , or resign over their parliamentary power in the hands of the council ; nor could they transmit the power they possess , in favours of their own heirs , or exclude any of the three estates ; and sure if fundamentals be not subject to plurality of voices ; the power of uniting of parliaments , and suppressing of monarchies is not , for these comprehend all other priviledges and fundamentals ; and if the priviledges of one of the three estates cannot be altered by plurality ; i see not how the priviledges of all the three can be ; and we have seen parliaments in the last age do such irregular things , that the succeeding parliaments have been forc'd , not only to abrogat their laws , but even to find that they had exceeded their power , which implyes that it was not arbitrary . king iames the sixth , parl. . this act declares his majesties royal prerogative by way of acknowledgement , without any new concession in these words , they all in a voluntar , humble , faithful , and united heart , acknowledge his majesties soveraign authority , princely power , royal prerogative , and priviledge of his crown , over all estates , persons and causes ; and confirms to his majesty his imperial power , and whatever soveraign authority any of his predecessors had , and casses annuls and abrogates all , any way done to the prejudice of his authority any manner o● way ; so that it seems that all former acts of parliament , lessening any way the royal power , are hereby abrogated . by this act likewise , the estates of parliament promise to maintain , defend , and advance the life , honour , soveraign authority , prerogative royal , and priviledge of his crown , with their lives , lands and goods , to the outmost of their power : but because this act was too general ; therefore by the , , , and . acts of the first parliament , charles the second , his majesties royal prerogatives in the choice of the officers of state , counsellours and judges , in calling and dissolving of parliaments , and making of laws , in making of peace and war , and ordering the militia , &c. are expresly acknowledged and ratified : and by the second act of the second session , of the first parliament , all endeavours to restrain his royal person , to depose or suspend him , and all endeavours tending thereto , are declared treasonable ; and all stirring up of the people , to the hatred or dis●ike of his royal prerogative , are punishable in manner therein mentioned : and by the act of the sess. of the par. ch. . his majesty is declared by his prerogative royal , to have the only power of ordering all trade with forraigners . nota , this is the first act that mentions the word prerogative , which was formerly call'd the priviledge of the crown ; and therefore this act mentions both the old and the new words , by asserting his majesties prerogative , and priviledge of the crown . by this act bishops are not so much restored to their offices , as it is declar'd that it was never mean'd by his majesty , that the estate of bishops was to be suppressed : their sitting in parliament , being by this act declar'd , to be one of the fundamentals of the nation : but by this act , their benefices are only restored to them , which were much impaired : and though by the act , par. ja. . general and synodal assemblies , and presbytries , are thereby ratifi'd ; yet episcopacy is not thereby abrogated expresly . by this act , the king is declar'd to be soveraign monarch , absolute prince , judge , and governour , over all persons , estates , and causes , both spiritual and temporal , within this realm : and by the act , par. ch. . it is asserted and declared , that his majesty hath the supream authority , and supremacy over all persons and in all causes ecclesiastical within this his kingdom , and that by vertue thereof , the ordering and disposal of the external government and policy of the church , doth properly belong to his majesty , and his successors , as an inherent right to the crown : and that his majesty and his successors , may settle , enact , and emit such constitutions , acts , and orders , concerning the administration of the external government of the church , and the persons employed in the same , and concerning all ecclesiastical meetings therein , as they in their royal wisdom shall think fit . there having been great debates about the wording this part of the act ; some members of parliament , pressing to have it without any restriction , and others , though very loyal , pressing it might be restricted to the calling and dissolving of ecclesiastick meetings , and external government only : lightoun bishop of dumblane , was at last trusted by the commissioner , who has drawn it very cautiously for the church ; though our blinded fanaticks think otherwise ; for , first , it is founded upon the former old statute ; and after repeating that statute , it is said , it is therefore enacted , to shew that it was not design'd , that this act should exceed the former and old supremacy . . the prerogative is restricted to government ; and not only so , but to the external government ; and even as to this external government , the king has only the ordering , and d●sposal of it ; and the administration of it by the next clause ; so that the doctrine of the church , nor the internal part of the government falls not at all under the kings power , by vertue of his supremacy ; that is to say , he can neither admit , nor depose , nor administrat sacraments ; though he may discharge a bishop or minister to preach ; and this is that which was allow'd by the primitive church to their emperours : thus constantine , that great and first christian emperour , is approv'd by all the fathers , for setling thus the marches , betwixt the ecclesiastick and civil jurisdiction , euseb. lib. . de vit . constant. vos quidem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; eorum quae intus in ecclesia sunt agenda ego vero 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 eorum quae extra sunt episcopus sum a deo constitutus ; and that the administration of the sacraments , and these other things quae intus sunt , belong not to the civil magistrat , is acknowledg'd by the act par. ja. . wherein it is acknowledg'd , that the jurisdiction of the kirk consists in the preaching of the word , the correction of manners , and the administration of the sacraments : in which act , three things are observable ; . that the act tells they derive their jurisdiction from the king , which is as to the external part ; for no man can think they derive their power of administrating the sacraments from the king ; though from him they derive the faculty of having the external face of a church , without which , that could not be enjoy'd . . though the church has the correction of manners , yet the king may regulat these , as we see in the very next act , for keeping the sabbath ; and which seems to have been made the next act to this , for to clear the meaning of that part of this act. . though the preaching of the word is declar'd to be a part of the ecclesiastick jurisdiction ; yet that relates only to the matters of faith , to be preach'd ; as to which , ministers are to be judg'd by church judicatures ; but if they preach what encroaches on the secular power , they are to be judg'd by the king , and those deriving power from him , conform to the act par. ja. . this supremacy in cases ecclesiastick seems to have been ever the proper right of secular princes ; and haedeus the great canonist . repet . in cap. novit . de jud . num . though a roman catholick does acknowledge , that nemini dubium est quin ▪ in primitiva ecclesia de rebus & personis ecclesiasticis jus dixerint ; which will very clearly appear to any who will read the first thirteen titles , of the first book of justinians codex ; in which he ordains amongst other things , vim legum obtinere ecclesiasticos canones a quatuor synodis nicena constantinopolitana prima ephesina prima & chalcedonensi expositos & confirmatos ; and i find that the supremacy is in england thus established , under the reign of henry the eighth , that the king and his heirs and successors , should be taken and accepted as the only supream head on earth , of the church of england , and should have and enjoy , annexed to the imperial crown of that realm , as well the title and stile thereof , as all honours , dignities , preheminencies , jurisdictions , &c. to the said dignity of supream head belonging . in this act the bishops are not restored to benefices , that are not of cure , but to these which have a particular cure ; and therefore his majesty confirms all dispositions , or other rights made of abbacies , priories , or other benefices , not being bishopricks made or confi●med at , or before july . they paying the greslum appointed by that act , to the bishop within year and day . there is likewise reserved by this act , all feus lawfully set and confirmed before the act of annexation , which was in the year foresaid ; and all patronages of kirks ( pertaining formerly to them ) disponed by the lawful titular ; and the kings majesty , and ratifi'd in parliament , which extends , as well to the patronages of mensal kirks , as of kirks which are of the bishops presentation , march . . and albeit regulariter confirmatio nihil novi juris tribuit ; yet hoc casu supplet omnes alios desectus ; for by the former practique it is found , that alienations of patronages , even of mensal kirks , are valide , if made as said is , by the lawful titular ; though not made by him , with the consent of the most part of the chapter ; for this act requires that it be made by the lawful titular , but there is no mention therein of the consent of the chapter . by the act of annexation in anno . the whole superiorities of all kirk-lands being annexed to the crown , it was therefore necessary that by this act , they should have been restored , but they are not restored expresly to these ; but it is alleadged that they have right to them by the act par. ch. . but yet in that act it is only said , that what is statute anent the kings being superior to vassals of erections , shall be but prejudice to bishops and their chapters , of their rights to their superiorities , which is only a reservation , but is no express restitution of them to these superiorities . this act anent the dilapidation of bishopricks , is formerly explained in the general nature of dilapidations , in the act par. ja. . and act par. ja. . and as to what concerns chapters , it shall be explained in the act parliament ja. . when a person is forefaulted , he may be in law restored two wayes , viz. either by way of justice , when the sentence of forefaulture is found to be unjust : or by way of grace , when the sentence is just ; but the person forefaulted , or his posterity is restored ; which distinction we have from the civil law , that allows a distinction , inter restitutionem per modum justitiae & per modum gratiae . the difference betwixt these restitutions by this act of parliament , is , that the person that is restored by way of grace , has not by his restitution , right to any part of the forefaulted lands , and others disponed in favours of third parties : but such as are restored by way of justice , will thereby have right to their own lands , though dispon'd to third parties , for onerous causes , as was found in the disposition of the lands of mugdock , formerly belonging to the marquess of montrose , and disponed by the parliament for onerous causes to argile : as also , these who are restored by way of justice , will have right even to repeat the sums of money , which formerly belonged to them , though assigned to third parties for onerous causes : and albeit those sums were first ordained to be pay'd in to the thesaurie , and precepts only drawn upon the thesaurie , in favours of these third parties , as was found in the earl of branfords case against the earl of callender and others ; though this restitution of money seems much harder than that of lands , since money is res sungibilis : and singular successors are not oblig'd to know to whom the same belonged . a process having also been intented against the earl of argile in the parliament . for reducing his heretable offices , as granted since the act par. ja. . it was answered , that these heretable offices were dispon'd to the family before that act ; and it being reply'd , that the first right was extinguished by the forefaulture , and the restitution being only by way of grace , was to take effect only from the date ; nor was it more sufficient against the king , than if the king had granted them originally at that time ; in which case they would have been quarrallable on that act ; and yet de praxi , the king restores to titles of honour , as of the first date . by the act par. . ja. . the king succeeding to lands by forefaulture , has right to whatever the forefaulted person was five years in possession of before the forefaulture , because it is presumed , that the forefaulted person will abstract the evidents ; and therefore upon the same presumption , it is likewise appointed by this act , that the production of extracts out of the register , shall satisfie the production in improbations against the king in forefaulted lands ; whereas other singular successors rights will be improven , if the originals be not produced , vide notata upon the said act . the excellent narrative of this act is copied out of l. . § . . ff . de justitia & jure . this act is explained in the act par. ja. . which is that act that is here rescinded , though it be not here cited . by this act it is appointed , that where there is no arrable ground in the paroch , the minister shall have sixteen soums grass in place of the four aikers , which are allow'd to him for his gleib : and by the act par. sess. ch. . it is ordain'd , that the minister shall have grass for one horse and two kine , over and above his gleib ; and therefore it was doubted , if where the former gleib did extend to more than would be grass for two kine and an horse , above the four aikers , the ministers might seek that grass , and the lords found they might ; albeit it seems that if this were just , the minister might also seek grass for a horse , and two kine , even where he had sixteen soums grass , by this act , february . . parochioners of banchry contra their minister . this act is but temporary . this act appointing letters of horning to pass upon sheriff , stewart , and baillies decreet , without a decreet conform , before the lords , is explain'd in the act. par. ja. . and because these acts gave only warrand for raising letters of horning upon such decreets ; therefore warrand is likewise given for raising letters of poynding upon all such decreets , by the act par. ch. . which shews that express acts are us'd even where there is paritas rationis ; and they are useful , ob majorem evidentiam . by this act all persons are discharg'd from receiving any colziars , salters , or coal-bearers , without sufficient testimonials from their masters ; but though this act appoints the coalȝiars , coal-bearers , and salters , to be punished as thieves ; yet none ever died upon this act : but the ordinary action , both against them and their resetters , is before the privy council ; and the act only says , they shall be repute as thieves , and punished in their bodies . this act is extended to drawers of water in coal-heughs : and the fees of coalȝiars are discharged to exceed twenty merks by the act sess. par. ch. . though this act only discharges all persons within the kingdom to hire other mens coalȝiars , &c. yet it was justly thought , that the prohibition of it extended to all such as had right to coal or salt here by tack or otherwise , though themselves dwell not within the kingdom , and it seems that the council might hinder forraigners to carry away our coalȝiars , and salters , though they cannot punish them for so doing . by this act likewise , a power and commission is given to all masters and owners of coal-heughs and panns , to apprehend all vagabonds and sturdie beggars , and put them to labour ; and it has been resolved , that tacks-men of coal-heughs and pans , has the same priviledge , though they cannot properly be call'd masters and owners , except the words be allow'd to be extended to temporary rights : but since this priviledge is chiefly real , and not personal , & in rem scriptum ; therefore it seem● reasonable , that whoever have the power of the coal-heughs , should likewise have this priviledge , which is granted upon their account . the council thought argumento hujus legis , that masters of one manufactory , could not have action against others of the same manufactory , for resetting their servant , who had run away from them , and to whom they had learn'd their trade : and yet i have seen action granted in the council against heretors , who had entized away other mens fishers , and the parity of reason seems to reach to such as work in lead-mines . this condition of coalȝiars and salters by our law , makes them to be like to the addicti glebae & adscriptitii , mentioned in the common law. this act is explain'd formerly in the act par. ja. . by this act men are discharg'd to lay lint in their own lochs , since thereby fish is destroy'd , and the water becomes noxious to neighbours ; and thus property is in many things restricted , for the good of the common-wealth ; there being nothing more consequential to property than that , quilibet potest jure suo uti modo principaliter hoc non faciat in aemulationem alterius : but it seems that only the parliament can restrain this exercise of property , else this act had been needless : and therefore when the laird of haining offered to drain his own loch ; it was justly debated , whether the fishers upon tweed could hinder him , because the water that run in from the loch to tweed , prejudged their fishings : but that which made the case there more debateable , was , that publick rivers and salmond fishings , are of their own nature priviledg'd . it may be likewise debated , whether paritas rationis should extend this act , against such as lay stinking hides , or other such noysom things in their loches or burns ; and the laying any such things in the loch of lochlevin , is specially declar'd punishable by the act par. ch. . vide quaestiones medico legales pauli zacchej , lib. . tit. . where he condemns what is here discharg'd as noxious , both to man and beast . by this act the vassals who hold blench of his majesty , are only lyable in their blench-duties , if they be required allanerly ; and these blench-duties cannot be converted into money by the exchequer . observ. . it is declared by this act that blench-duties are not to be any burden , or yearly duty , by their own nature , but only an acknowledgement , or recognizance , if they be requir'd allanerly : and yet by our law , in lands holding blench of a subject , we thus distinguish , viz. either the charter bears , si petatur tantum , and then the blench-duty cannot be required beyond the year , in which it was due : or else the blench-charter bears not this clause ; and then either the blench duties are such as are of a yearly growth , as wax , pepper , &c. and these can only be crav'd within the year : or else they are things of some intrinsick value , and not of an annual growth ; such as silver , spurs , &c. and they may be pursued for at any time within fourty years : nor can any annual prestations , such as carriages , be acclaimed , after elapsing of the respective years , wherein they were due by the tack , or otherwayes , january penult . but though a vassals charter , who holds of the king , bear , si petatur tantum ; yet the exchequer by an act , does tax the price , and pursue for these , and for annual growths , albeit they have not been crav'd within the year , for which i can give no other reason , but that the negligence of the kings officers cannot prejudge the king : but how can the act of exchequer alter the nature of the holding , which is an express contract betwixt the king and his vassals ; and it may be alleadged , that by act of exchequer , it may be as well declar'd that prescription shall not run against the king , for this is a species of prescription ; but especially since it is declar'd by this act , that they shall not pay , notwithstanding of any act of exchequer past , or to come : nor does the act anent the negligence of the kings officers , abrogat this act , as it ought to have done . the advocats protestation in the end of this act seems to be in-intelligible ; for how can blench-duties be conform to the kings estate and dignity : some interpret this act , as if it only prohibited the conversion of the blench-duty into money , in the body of the charter ; but does not hinder the exchequers valuing of it : others to reconcile the present practice with this act , make a distinction betwixt holdings in blanco , and in alba firma ; as if the first being an inconsiderable duty , as a rose , or a penny , may not be converted to money ; but the other affording some profit , such as gilt-spurs , gloves , a pound of pepper , &c. may be valued by the exchequer . this act quadrats with tit. . lib. . cod. theodos. this act is formerly explain'd in the act par. . ja. . by this act , all such as convocat ▪ or assemble themselves within burgh , without licence of the provost and baillies , are declar'd to be guilty of faction and sedition ; and it has been doubted , whether keepers of conventicles within burgh may be punishable by this act ; for though there be a specifick punishment appointed for conventicles ; yet since this and o●her laws , by which conventicles may be punished , in specifick and particular cases , are not abrogated expresly : it is therefore alleadged that they are not abrogated , conform to the general rule set down in the act par. . ja. . observ. . it may be doubted whether , since this act runs in the general against convocations within burgh , if this act should not as well extend to burghs of barony , and burghs of regality , as to burghs royal , since the word burgh comprehends all ; and the reason inductive of this act , viz. the quenching convocations extends likewise to all ; and when the parliament designed to extend their acts only to burghs royal , they were particularly exprest , as is to be seen in the immediat foregoing act : and albeit it may be urg'd , that this act speaks of provost and baillies , yet this must be interpreted applicando singula singulis ; for there are many burghs royal , as well as burghs of regality and barony , that want provosts . observ. . that though this act ordains only such as obey not their magistrates and officers , to be fined ; yet if the inhabitants of any town refuse to obey any officers in the kings name , such as captains , &c. they may be fined . observ. . this act appoints that it shall be proclaim'd at all the mercat crosses of the saids burghs ; albeit by the act par. ja. . all acts of parliament are only to be published at the mercat cross of edinburgh ; but this act being posterior , and special , derogats from that general law ; and this was specially appointed , because of the special interest of the burrows . observ. . it is observable that this act proposes no punishment for towns , where the magistrats do not their duty to oppose tumults against the government ; yet the town of lanerk was fin'd for not pursuing those who burnt the test at their cross , anno . and privat burgesses pay a proportion of such fines , though they were not required by their magistrates , because it is their duty to concur when they see such tumults ; and magistrats are oftimes unable to require concurrence . the lands of huntingtoun and strabrand are dissolved to be set in blench farm , in favours of the earl of montrose ; and it was necessary that there should be a particular warrand for setting the lands in blench-farms ; because by the act par. . ja. . the annext property can only be dissolved , for setting lands in feu-farm , vid. observ . on that act. it is likewise observable by this act , that because this dissolution was to be made in favours of the earl of montrose , then commissioner . it is mentioned that there is a particular warrand for dissolving the same . king james the sixth , parliament . this act against sayers and wilful hearers of mass , is explain'd , crim . pract . tit . heresie . nota , by this act the resetters of such are fineable , as non-communicants ; and the act by which these are fined , is not here cited , but it is the act par. ja. . this act against the users of false weights and measures , whose whole goods are to be confiscated ; is explain'd , crim . pract . tit . falshood . this act is explain'd , crim . pract . tit . theft . this act empowers the bishop of saint-andrews to choose seven within his diocie , to be his constant chapter ; which was formerly resolved upon by the act par. ja. . though the power of choosing them was not given to that bishop expresly : but thereafter by the act par. ja. . the benefices whose incumbents are to make up that chapter , are particularly condescended on in that act. king james sixth , parliament . such as sent pedagogues abroad with their children , without a testificat from the bishop of the diocie , where the pedagogue lately made his residence , are fineable by this act ; and though this act is thought only to strick against children of popish parents ; yet it is general , and stricks against all his majesties subjects , of what religion or opinion soever ; and though they use to call these governours , and not pedagogues : yet that will not defend against this act , for pedagogue was the only term then in use . this act stricks only against the children of popish parents , who are hereby ordain'd to find caution to the lords of privy council , that they shall not intertain their children abroad , when they know them to be popishly inclined ; and by vertue of this act , the lord semple and others , were oblig'd in anno . to recal their children out of doway ; and this act was renewed by proclamation of council , january . by this act it is ordain'd that such as are excommunicated , for not professing the true religion , shall neither directly , nor indirectly possess their estates ; and by vertue of this act , it was found upon the of june . that those excommunicated persons , are not so much as bona fide possessores ; but that by vertue of this act , they are oblig'd to refound all their own bygone rents , possessed by them before citation or sentence , they only getting defalcation of seed , t●ends , and servants fees : which are ordinarly defalked in the computation of multures , and all other intromissions . in time of popery , every bishop had his own official , or commissar ; but in the year . queen mary by a signature , superscrived with her own hand , did institute this court at edinburgh , appointing four commissars to sit there , and to judge in divorces , and to reduce the decreets of inferiour commissars , which is ratified in parliament . . by which also they are appointed to judge in all actions concerning benefices granted by the queen . they were at first nominated by the queen , and were called , judices reg●i ; but after her demission , they were nominated by the lords of session , as is clear by the books of sederunt : and even in this act , the present commissars were to continue , they getting testimonials of their sufficiency from the lords of the session , and severals of them were at once lords of the session and commissars , as appears by the books of sederunt ; upon the restitution of bishops , the commissars who then were , did submit ; and this act seems to have proceeded upon a submission betwixt the bishops and commissars , the of june , the day before the parliament sat down , whereupon decreet was pronounced the of june , containing the foresaid reservation of the commissars offices , and in the case of the new provisions , the commissars are the only submitters ; and yet there are annuities decerned to the clerk , to the former of testaments , quot-masters and others ; and there is a form prescrived anent the procedure in divorcements , betwixt the parties in other commissariots , who are not worth a certain sum , which hath no foundation in the act , nor seems to be seconded by practice ; the decreet is registrated , january . . relative to the decreet , wherein the arch-bishops and bishops of galloway and orknay are subscrivers for themselves , and taking burden for the remnant bishops , and their successors , there is a contract the of november . and march . . entered into amongst the bishops ▪ for the relief of the arch-bishops , or either of them , for payment of their respective proportions to the arch-bishop , who shall happen to be distressed for the sallary , the arch-bishops by the contract , being bound conjunctly and severally to the commissars , the whole proportion of relief due by glasgow to saint-andrews , is the double of the contribution to the lords , and sallary due to the two youngest commissars , and the relief due by saint-andrews to glasgow , is the double of his contribution , and the sallary due by him to the two eldest commissars : by which it appears , that before this decreet , the commissars had sallaries ; the obligement in favours of the members of court , of the commissariot of edinburgh , whereby the bishops are obliged to compel the members of their court , to pay certain sums to the members of the court of edinburgh , during their lifetime , is not renewed in the contract : in this contract the obligements upon the part of the commissars ; are general , relative to their duty to their superiours , and fidelity in administration of justice , according to the practique and injunctions , the observation of the decreet arbitral , and articles , by which it is ruled , subscriv'd by arbiters and overs-men , which is not extant ; there is no penalty adjected , neither are the commissars subscriving . the commissars and many of the bishops being dead , who were alive the time of the decreet arbitral , the bishops especially ; the succeeding bishops refused to pay the sallary to the succeeding commissars ; whereupon they pursued john , then arch-bishop of saint andrews , who ▪ the time of the decreet and contract , was arch-bishop of glasgow , and james arch-bishop of glasgow , who then was bishop of orknay , as the only two alive , who were burden-takers by the submission for the rest , and decreet followed , february . . against the arch-bishop of saint-andrews , who , the time of the contract , was arch-bishop of glasgow , and was bound conjunctly and severally with saint-andrews ; the arch-bishop for his relief upon the contract , being distressed upon the decreet , pursued adam bishop of dumblain , who was created bishop since the contract , and thereupon defended himself , as free of the obligement of relief : as likewise , that the sallary was not due to the then commissars , it being due to their predecessors , the submitters allanerly , which was repell'd , and the bishop decerned , february . eodem . in respect the charge and pains was perpetual upon the commissars part , and the benefite perpetual to the bishops , and they having the confirmation of the great testaments ; and the word allanerly was found only to exclude the heirs of the then commissars , but not their successors in office ; the point being clear'd as said is , the commissars thought it more just that every bishop should be lyable for his own part ; and therefore all the bishops are pursued , wherein the same defences are again repell'd , and they decerned , march . eodem : and the . of july . there is a new decreet obtained in favours of the commissars and their successors against the bishops and their successors , containing a declarator , that it was a constant fee , payable in all time coming , this was in absence ; the decreet against saint-andrews , dated the of february . is not extant , unless in the register ; but it is narrated , and founded upon in the decreet , at the instance of saint-andrews against dumblain ; upon the decreet in march against the bishops , there are letters rais'd , dated the last of march , givand warrand to charge the bishops , to pay their proportion of the sallary , and to find burgesses of edinburgh cautioners , within fifteen dayes ; that in all time coming , they shall pay their proportions , conform to a deliverance of the lords , shown to them , founded upon the damnage that the commissars would sustain in evacuating their sallaries , by charging and denuncing the bishops yearly , in the several remotest corners of the kingdom ; the deliverance is not extant . there are other letters directed against them the first of april . for payment only ; so that both the remedies are used : there are likewise letters directed for finding a sufficient burges cautioner , dated the sixteenth of february . the ninth of july . there is an ratification in parliament , in favours of the commissars , declaring the rent , patrimony , and estates of the bishops to be lyable to them for their sallaries ; and there is a reservation in favours of the commissars ; in the restitution of the bishops , there is a decreet against the representatives of arch-bishop fairfowl , wherein the whole defences against the commissars right are repell'd : but by the said decreet , the disparity betwixt the provision of a sallary , in favours of the commissars , and in favours of the other members of court , by the decreet arbitral , is not sufficiently clear'd ; for the decreet , as to the members of court , was null , it being beyond the terms of the submission , which was only in favours of the commissars : and as to the members of court , the decreet infers no special direct obligement upon the bishops ; but only that they are oblig'd to compel their members of court to pay these certain sums to the members of edinburgh , without any penalty , and which hath never taken effect by the decreet , or contract , the commissars had no action against the whole bishops , but only against the whole burden takers , and the arch-bishop : but by the subsequent decreets , and acts of parliament , the whole bishops , and the intrometters with their rents , are directly lyable unto them , and so their executors intrometting with the ann , or the subsequent bishops are lyable ; and that is but prejudice of the obligement in solidum , against the arch-bishop , contain'd in the contract ; by vertue whereof , saint-andrews was decern'd , and by vertue of a submission , betwixt saint-andrews and edinburgh ; edinburgh is decerned to relieve saint-andrews in the half ; and saint-andrews hath ratifi'd to him in parliament , the nomination of the whole commissars , against which , edinburgh did protest . it doth not appear how glasgow los'd his right to the nomination of two established to him by the act of parliament . there was an act for regulation of the commissariots , which took no effect ; neither is there any thing done by the lords , by vertue of the act of parliament . as to the regulation of the commissariot of edinburgh , or setling a course for the punctual and secure payment of the commissars sallary ; the whole instructions above-mentioned , related to , are to be found with the commissars of edinburgh . it is observable by this act , that the commissars of edinburgh have a twofold power ; an diocesian , whereby they confirm the testaments within the diocy of edinburgh , and exerce all power that is competent to other commissars : and another universal and transcendent , whereby they may reduce the decreets of all the other commissars in scotland : and this act founds them so absolutely in this jurisdiction ▪ that it is exclusive of the lords of the sessions power so far , that the lords cannot reduce in prima instantia , a decreet past by any inferiour commissar ; and the lords themselves did so dec●de , after full debate , dury july . though it was there alleadged , that the parliament could not diminish the power of the session , without calling them thereto ; and yet now the lords does ordinarly reduce in prima instantia , the decreets of the inferiour commissars ; which proceeds rather from the inadvertancy of the advocats , who are careless to plead it , to withdraw actions from the j●dicature whereof they are members , than that the lords do concern themselves to claim it ; but both then and now , the lords may reduce the decreets of the commissars of edinburgh , if they dec●de not rightly in th●se reductions . in this act also , bishops are empower'd to creat clerks , and procurator-fiscals ; and though in the commission , which the bishops give to commissars , they give them power to admit procurators ; yet cannot the commissars by that power , creat procurator-fiscals , but only ordinary procurators ; the fiscal remaining still at the bishops nomination , july . . the commissars books bear sedebant , where the lords books bear sederunt . king james finding that the nobility did ordinarly get their children , friends , or servants to be elected magistrates of burghs , whereby they carry'd all nominations in parliament at their pleasure ; did therefore in this act , which is intituled , act for the apparel of judges , magistrates , and kirk-men , ordain , that no man should in time coming be capable of provestrie , or other magistracie , but merchants and actual traffiquers , and habiters within the said burgh allanerly , and no others : by vertue of which act , chancellour seaton was oblig'd to demit his provestry of edinburgh : and this act is renew'd by proclamation in anno . how soon king charles came to the crown . some think , that though noblemen cannot be elected since this act ; yet the privy council may name them : and some think that this act is in desuetude : but i believe neither ; for where the council names jure d●voluto , because magistrates accept not , they come only in place of the old magistrates and council ; and therefore they can only do what these could have done , ex regula surrogatorum ; and this act having been made in favours of the king and monarchy , it cannot run in desuetude , without their consent ; and it is thought ▪ that by vertue of it , none who are lords of the session can be provosts , these being incompatible employments , and inconsistent with the design of this act , which bears to be made to hinder the dissipation of their common good , and perverting of their priviledges , which is much more easie for lords of the session , and persons in publck employment , than for others ; beside , that publick traffique and merchandising , is inconsistent with that exact distribution of justice , which is necessary in his majesties judges , vide lampridium in vita severi , as to the distinction of habits amongst magistrates . this act is explain'd , crim . pract . tit . injuries . to which i shall only now add , that not only what is destructive to the government , but what may tend to the prejudice of the government , is here punished : and this i have thought fit to observe ; because tending has been oftimes debated not to be relevant . it may be also doubted , whether speaking against the house of commons , or their resolutions , is punishable by this act , since it punishes all reproachful speeches of the people , or countrey of england ; and they are the representatives of the people ; and since these are punishable who speak against a councellour of england , much more ought they to be punish'd who speak against the house of commons . but in my opinion , this act reaches only such as speak reproachfully of their nation , countrey , and counsellours ; but the whole act ought to be abrogated by our parliament , as being past by us , in expectation that england would make such an act in their parliament , which they never did ; and upon which account it was never in observance with us . it is likewise observable , that though in our law , concealing and not revealing , is only punishable in treason ; yet by this statute , the hearing any thing spoke against the people of england , or any privy counsellour in that nation , and the not revealing , is declared to be equally punishable , with inventing such calumnies . this act is temporary as to many things ; but it is observable from it , that the using false testimonials , is punishable by death , as falshood . and the power given to the commissioners of the borders , to apprehend fugitives , and to send them , or their marks and tokens to the kings commissioner , is founded on l . ff . de fugitivis ; where limenarcha , which is our commissioners of the borders , debent inquirere in fugitivos ; and to send them with their notae ( which is our tokens ) to the next magistrats . the customs being annex'd to the crown , by the act par. ja. . they are by this act dissolved from the crown , in so far as concerns pounds yearly , to be pay'd to the lords of session , in place of quots of testaments ; and therefore the lords of the session do , conform to this act , decern summarly the tacks-men and collectors , to pay this . pounds , and ordains them to be charged with horning . by the act par. ja. . it is declar'd , that restitutions by way of grace shall not prejudge those who acquired the forefaulted persons lands , either by a lucrative , or an onerous cause ; but because , both by an inference from that , and by the principles of the common law , these who are restored by way of justice , might pretend to quarrel those , who during their forefaulture were presented to benefices , to which they were patrons , upon pretext that they were to be restor'd intirely . therefore it seems that this act has been made ; whereby it is declar'd , that such as are presented to benefices , which were at the presentation of forefaulted persons , shall not be prejudg'd by their restitution ; and which was very just , since patrons are not prejudg'd ; because it is presum'd , that the ordinary would not collate persons that were insufficient ; nor were patrons allow'd to make any advantage by the presentations ; and upon the same principle , it seems reasonable to conclude , that a minor cannot revock a presentation granted by him , with the consent of his curators , during his minority . this act ratifies an act of privy council , whereby aegyptians were commanded to depart the kingdom betwixt and the first of august thereafter , under the pain of death : but it may be justly doubted , how the council had power to make acts inferring the pain of death ? since it is a received principle in our law , as is clear by craig and others , that the secret council can make no act which may infer forefaulture of life or estate : and though by the acts , and . par. ja. . judges be ordain'd to punish aegyptians ; and that by the act par. ja. . vagabonds and aegyptians are to be employ'd in common works : yet by neither of these acts , is the pain of death to be inflicted : and therefore it was lately debated , that this act was but at best , a temporary act ; and so aegyptians could not be impannelled for their life : but yet this act has been still repute a sufficient warrand for punishing by death , such as were known , holden and repute to be aegyptians . and i find , that upon the last of july . moses schaw and others were hang'd as aegyptians ; and it is notour , that immediatly after this act sheriffs and others did hang very many , by warrand thereof ; and the act is not temporary , for it appoints them to be executed in time coming , after the first of august ; and the act has ordain'd aegyptians to be proceeded against as sorners and common thieves , who are by our law to be punish'd with death , as is clear by the narrative of this act , which bears that the council had commanded , that the sorners and common thieves , commonly call'd aegyptians , &c : should depart forth of the kingdom ; so that the council has not inflicted the pain of death upon a new crime , but has only declared , that aegyptians fell under the old crime , that was punishable by death : nor can it be deny'd , but that from this and many other acts it is clear , that the council has a power to extend and interpret statutes , even relating to life and forefaulture ; since the act appoints only such to be punishable by death , as are known , holden and repute to be aegyptians : it may be doubted , what can prove that the aegyptians pannell'd , are known , holden and repute to be such ? for which , beside the common inferences of notoriety adduc'd by mascardus and others , in probatione notorij . our law allows that such as call themselves aegyptians , or go up and down the countrey , bleaking their faces , telling fortunes , and speaking the gebrish peculiar to those people , shall be punished as aegyptians : and ordinarly his majesties advocat chooses such assizers as know the persons impannelled , to be commonly repute to be aegyptians . these who are call'd aegyptians in scotland , are call'd zigeni , tartari , bohemij , all which are remarked as idle beggars , going about oppressing the people , and cheating them by vain superstitions , and fortune tellings : of which sort of people fritschius has written a treatise , call'd , de origine zygenorum & eorum coercitione ; where are to be found , upon what pretext they were first suffered in several nations , which was , because they did assist several princes in their great difficulties , having from being vagabonds , gathered themselves under captains for that effect , but continuing after peace made , to grow insolent , they were ordain'd to be banish'd in germany , by an imperial constitution , anno . and in france , by the act of orleance , anno . . and thereafter anno . which is about the time of this act ; and in spain . . the time of this act , the secret council had a commission from the king , to receive resignations , and all the procuratories of resignations then , did still bear a power to resign in the hands of the secret council : but now resignations can only be made in his majesties own hands , or in the hands of his exchequer . this act extends to the decreets of the admiral and his deputs , the priviledge of having letters of horning granted upon them , without the necessity of a decreet conform , as was the old custom , and in this it equals the decreets of that court , with the decreets of sheriffs , and baillies of burghs : but by the act par. ch. . whereby poinding is ordain'd to be granted upon their decreets ; the parliament has forgot to extend that priviledge to the decreets of the admiral . observ. . that this act declares the admiral to be a supream judge ; and therefore it has been decided , that he may reduce the decreets of inferiour , or admiral-deputs , and that he may reduce his own decreets upon just reasons , such as noviter provenientes ad notitiam , &c. and which kind of jurisdiction is competent to no inferiour judge : and yet the lords of session do suspend and reduce his decreets also , and advocat causes from that court. observ. . that by this act the admiral is declar'd to have power of summar execution ; because strangers and sea-faring men cannot attend as others may ; and therefore it is , that such as obtain decreets before that court , may use execution thereupon within three tides . vid. observ. on the act par. . ch. . king james the sixth , parliament . his majesty held a general assembly at glasgow ; and in anno . drew up some articles to be presented to the parliament , which are set down by spoteswood , and many whereof are here confirm'd . by this act his majesties power to call assemblies , is declar'd a part of his royal prerogative , vid. act par. ja. . the bishop is to be moderator , and in his absence any whom he shall name . the bishop only can excommunicat , and with such ministers as he associats to himself , he only can depose . in this act likewise is set down a formula of the oath of supremacy . as to the manner of presenting ministers , it is formerly fully treated in the observations upon the act of the par. ja. . after king james the sixth came to the crown of england , it was necessary that the laws concerning the borders should have been alter'd by both kingdoms ; and by this act , there is a power granted to his majesties officers in england , to remand from the courts of scotland , that is to say , to require his majesties officers in scotland , to deliver up english malefactors , who had fled into scotland : and another act of the same tenor verbatim , was past in england about the same time . in place of the old wardens of the borders , there is now a commission granted under the great seals of both kingdoms , to an equal number of scots and english , who have in effect a commission of justiciary ; and it was found by the council of scotland , that they could not quarrel the decreets of the borders , because they proceeded by a warrand under the seal of both kingdoms ; but the laird of haining having charged elliot for payment of a sum , for not presenting of a thief to the commissioners of the borders , conform to a decreet of the commissioners , finding that he had forefaulted the bond , there was a bill given in to the council , craving that this case might be remitted to the commissioners of the borders , and not suspended by the session ; because , first , these decreets being pronounced by the english , as well as the scots commissioners ; the session could not be judges to what was done , by vertue of an english commission , and because they could not cite the english commissioners ; therefore they could not reduce their sentences . . the commission of the border is a criminal court , and the lords of the session are only supream judges in civils . . the border is judg'd by a law unknown to us ; and therefore since the lords of the session behov'd to consult them , though they were judges , it but multiplies processes and expences , to allow the lords to be judges in prima instantia . . if the lords were judges , all thieves , or their cautioners would offer to suspend , or reduce , which would much hinder that expeditness of tryal , which is requisit to stop thieving in the borders . . if the lords here review'd such decreets , the judges at westminster would do the like , which would be very troublesome and expensive to us : the council upon this debate recommended to the lords to remit the tryal ▪ in so far as it was criminal to the saids commissioners . by this act , remanding is only to be granted after full probation of the offences of the persons , remanded in open court● but this is now antiquated , and in desuetude ; because it was found by the commissioners of both kingdoms , to be unpracticable ; if either the names or proofs were published in open court , the persons to be remanded would flee , and the witnesses might be corrupted : therefore it was ordered by common consent , that the commissioners of either kingdom might remand privatly from the commissioners of the other kingdom ; and that the person so delated , might be immediatly seiz'd upon . this act is fully explain'd , crim . pract . tit . rapt . this act is explain'd in the observations upon the act par. . ja. . this act discharging all actions of spuilȝie committed upon the borders , prior to his majesties coming to the crown of england , is but temporary ; but from it , it may be observed , first , that the king and parliament may dispense with the privat interest of parties upon a publick account : nor does the act salvo jure , subjoyn'd to the several parliaments , prejudge or derogat from this act , upon pretext that the parties , whose interest was remitted and discharg'd , were not call'd . . in all such discharges of privat interest , and acts of grace , discharging penal statutes ; exception is still made of decreets already obtain'd ; for by the obtaining of the decreet , before that discharge , the debt becomes innovated ; and a private debt , of the nature of other private rights . by this and many other , the like observations we may see , that the reading temporary , and even abrogated acts , is not useless , since material observations may be made thereupon . this act is explained in the act par. ja. . this act ordains arch-bishops and bishops , to build and repair their houses and manses , and that the successor shall have action against the predecessors executors , who suffered them to decay , which was very just upon the same reason , that all liferenters are oblig'd praestare hanc cautionem ususructuariam : and where the houses are in decay , and repair'd by the predecessor , the next successor is to satisfie therefore , at the sight of two or three of the bishops , within the province ; providing that the satisfaction exceed not pound , if they be prelats : and merks , if they be other inferiour ministers : and by the act sess. par. ch. . this is renewed as to the maintaining of the manse ; but the heretors of the paroch , where there are no manse , are oblig'd to build manses , for ministers at the sight of the bishop , or such ministers as he shall appoint , not exceeding pounds , and not under merks ; so that in effect , a ministers manse may be as dear by that act , as a bishops manse is by this , which seems unreasonable ; but their interveening more than years betwixt the two acts , the price of things , and fees of work-men , was much increased the time of the last act. vide papon arrest . lib. . num . . & additiones num . . king iames the sixth , parl. . the presentation of bishops by kings , begun in the reign of lewes king of france , about the year . and was resign'd to the popes by philip the first ; and thereafter , by the canon law , the nomination of arch-bishops and bishops , did belong to the pope only , as the canonists affirm ; but he transfer'd this power to the chapters of cathedral churches , c. omnes . . dist . &c. fin - quaest . . and at last in france by agreement betwixt pope leo the tenth , and francis the first of france ; the nomination of prelacies was after much debate , granted to the kings of france ; though it be pretended to be a priviledge belonging to kings , in synodo aurel. quinta , as the learned pith●us has proven ; and after that concordat made in favours of francis the first . it appears that king james the fifth , who lived in the same age , and married francis the first 's daughter , did with his parliament declare , that the nomination of bishops did belong to the king of scotland , and the provision only to the pope , act par. ja. . but by this act it is declar'd , that arch bishops and bishops shall be by his majesties licence elected by the dean and chapter of their own cathedral-kirk , to which they are to be prefer'd , who being assembled by his majesties warrand , shall proceed to the election of the person named by his majesty ; and the election being testified under their seals and subscriptions , he is to get a right to his benefice under the kings great seal , and to be consecrated . it is fit to know that this warrand for meeting , is call'd with us , a conge d'eslire , which is a french word , signifying a liberty to elect. it is fit to know likewise , that with the conge d'eslire , there comes a letter from his majesty , recommending such a person , whom the dean and chapter are oblig'd to elect , by the words of this act ; and being elected , the election is recorded in the register of the chapter : in which register , all deeds done by the bishop , either for entering vassals , or granting tacks of teinds , are inserted . an extract of this election is returned to the arch-bishop of the province , and inserted in his register ; and by him transmitted to the king , who thereupon grants a patent to the person so elected , who after this is call'd bishop elect of such a see , which passes through all the seals , and by which he has right both to spirituality and temporality ; though this act says , it shall only give right to the spirituality ; this being signifi'd to his majesty by the said arch-bishop ; the king grants his royal mandat to a competent number of bishops within the province , ( which cannot be under three , by the canon . concil . nicen. ) after which there is no new gift to the temporality , as this act provides : only before his actual possession , he makes his homage either to the king personally , or to one commissionated to receive it ; of which oath and homage , no mention is made in ecclesiastick story , till the fourth counsel of toledo , anno . nota , the mandat for consecration , passes only the great seal , per saltum . it is natural to all benefices that they should be vacant before they be fill'd ; and the right should express a modus vacandi ; and therefore his majesty having sent down two conge d'eslires in january . one in favours of the bishop of edinburgh to be bishop of ross : and another in favours of the bishop of galloway , to be bishop of edinburgh ; it was advis'd that the conge d'eslire , in favours of edinburgh , should not be presented till edinburgh was vacant , by his being elected by the chapter of ross. it is observable likewise from this act , that a bishop has not right to the temporalities , till after consecration : for the act sayes , that after the consecration , his majesty is to dispone to the person elected the temporality ; and the same being past under the great seal , the bishop shall do homage , and swear obedience ; neither shall it be lawful for him who is admitted to intromet with any of the benefices , or rents of the bishoprick , until he have taken the said oath , and done the said homage . and thus the english lawyers , following , as i conceive , that notion of the common law , that episcopus est maritus ecclesiae : they say , that election is as the sollicitation ; the confirmation is the contract ; and the consecration is the consummation of the marriage : but where a bishop is translated , there needs no consecration , either by the canon law , or ours . the old forms of election was , that the king sent a visitor to oversee the election , and he return'd to the king the decree of the election , who confirm'd it by giving investiture ; and the metrapolitan was oblig'd to ordain the person elected , the investitu●e of the spirituality , was by giving a bible ; and the temporality by a ring and baton , vid. sirmund . form . lib. . formul . . and the conge d'eslire succeeded in place of these visitors . by this act the dean and members of the chapters of the cathedral-kirks within this kingdom , are restor'd to their manses , gleibs , and other patrimonies belonging to them . the chapter is to the bishop , what convents were to other prelats ; that is to say , their council , of which the dean , or decanus was the head , under the bishop . by the civil law , decanus erat ille qui defunctorum lectos seu feretrum gestabant , vid. tit. de decanis , lib. . cod. tit . . but by the canon law , decanus comes from the greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because the dean proceeded over ten canons or prebends ; and their decani especially in the cathedral churches succeeded in place of the archipresbyter ; and therefore these two are taken in the same sense , cap. ad haec . de off . archid . vide bengeum de beneficiis , pag. . and with us , deans are created by the king , he being only patron of that benefice . the chapter is call'd capitulum by the canon law ; because it is the little , or inferiour head of the diocy , and is defined to be clericorum congregatio sub uno decano in ecclesia cathedrali . a bishop in our law , nor no other dignifi'd person who hath a convent , can alienat without the consent of their convent , or the greatest part of them , beside himself , who is the disponer , in which number , minors nor absents , are not counted ; march . . if one of the chapter have two benefices , he will have two votes ; and albeit the law ordains them to be capitulariter congregati ; yet now sufficiunt eorum suffragia licet emendicata vel sevaratim impetrata , which is not only by meer custom , as craig observes ; but by law likewise , act par. . ja. . and thus an instrument of resignation of a benefice , was found sufficient , though some of the convent subscriv'd not before the date of the instrument , november . . providing alwise that none of their subscriptions be obtained after the death of the granter ; for then they cannot be said to consent , seing they are not all alive together : from which it follows likewise , that the alienation is not valid , if any of the convent , or subscrivers be dead before the rest subscrive ; where many subscrive separatly , the consent of the last is drawn back to the consent of the first , craig . pag. . and albeit craig be clear , that the consent of the chapter is requisite , tam in renovatione quam in alienatione feudi : yet by this act it is for the vassals case ordain'd , that the bishops or chapters consent is not necessary to the receiving of vassals upon composition , or otherwise ; but that the direct superiour may receive them by himself . nota , by that part of the act it seems , that though regulariter , superiours are not bound to receive singular successours : yet kirk-men being superiours are . if there be no chapter , or convent , the appending of the seal of the convent , with the kings confirmation , is sufficient , craig ibid. the arch-bishop of saint-andrews had of old , the conventual brethren of the priory of saint-andrews to be his chapter : but by the act par. ja. . power is given him ( that priory being supprest ) to choose seven to be his convent ; and ordains , that the appending of the common seal of the convent , shall be sufficient to declare their consent , without their subscription ; which act is innovat by this act , wherein a convent is particularly set down to him , but nothing spoke of the seal : and therefore the appending of the seal is yet sufficient ; for this chapter comes only in place of the seven prescrived by the first act ; and the subscriptions of these seven were not necessary , ergo , neither is the subscription of this chapter . as the consent of the chapter , or most part thereof is requisite to an alienation made by the titular , as the bishop , abbot , &c. so reciprocally the consent of the titular , and most part of the chapter is requisite to the perfiting of all rights made by any member of the said chapter , of his particular benefices , or of any benefice belonging to them in communi , which rule holds in all conventual benefices , except that of the arch-bishop of saint-andrews ; for it has been decided , that by this act , any member of that chapter therein entered , may set tacks , &c. without consent of the arch-bishop of saint-andrews , novemb. . . where these conventual benefices have patrons ; the consent of the patron is likewise required , craig . nota , that the bishop of edinburgh is by the erection of that see , in anno . made chancellour and vicar to the arch-bishop of saint-andrews , and so is the first ordinary , or single bishop ; which priviledges belong'd to the see of dunkeld ; and so the bishop of caithness has not now any suffrage in that election , because they must be but eight in this act. after the arch-bishops and bishops were restor'd , the thirds of benefices , out of which ministers were provided formerly , came to be an unfit and unproportional stock , for providing the whole ministry of the kingdom ; and therefore by this act , there is a commission granted for planting and providing of churches ; and this is the first of the many commissions which were granted by parliaments afterwards to this effect , and their decreets are to this day call'd decreets of pla● in our practice . observ. . the lowest stipend allow'd by the parliament here , is five chalders of victual , or five hundred merks : but by the act par. ch. . the lowest stipend is appointed to be eight hundred merks , or eight chalders of victual ; and the decreet whereby this is appointed , is call'd , the decreet of modification ; whereas , if the stipend be divided , and proportioned as well as modifi'd , the decreet is call'd , a decreet of locality : and this proportion is so far observ'd , that the victual so modifi'd , was found by the lords to be payable , according to the measure of the shire , where the paroch was , and not according to the measure of linlithgow , where the modifi'd stipend would not have come the length of the quantity allow'd by the act of parliament , according to the measure of linlithgow , june . . minister of dalrymple contra the earl of cassils . observ. . by this act power is granted by the parliament to the commissioners , to unite , or dis-unite kirks ; which union was likewise allow'd by the canon law , and is defin'd to be duorum vel plurium benefi●iorum cum causae cognitione a superiore & ordinar●o in perpetuum canonice sacta connexio , cap. exposuisti de praeb . so that of old , the ordinary only could unite benefices ; but now the king , as having come in place of the pope , grants this commission to unite , with the consent of parliament , but the bishop who is ordinary , and the patrons , if any be interested ▪ must be likewise call'd ; and the act par. ja. . ordains , that all persons interested in the union be consenting : by which i understand the ordinary , the patron , the incumbent , and the parochioners ; and this act appoints , that if there be moe patrons , they shall present , alternis vicibus ; and because it may be doubted who should be the first presenter ; in that case it is fit to know , that the lesser benefice is alwise to be united to the greater ; and so the greater remains still the mother , superiour , and principal church , cap. recolentes de stat . monach. and therefore it would seem that the patron of the superiour benefice , is to be the first presenter . the reason given by the canon law for uniting of benefices , are , that the rector , or parson may be the better enabled to relieve the poor , and maintain hospitality , the churches being so near other , that one person may conveniently serve the cure in both : the great poverty of the benefices united , and the fewness of the parochioners . but with us benefices are never united , but where the stipends are small , the parochs near , and the charge little , or no waters interjected ; which qualifications are left by our law to the arbitriment of the commissioners for plantation of kirks ; for none else can unite with us : but by the law of england , . car. cap. . it is lawful for the bishop of the diocess , major of any town , and the patron to unite churches , provided the churches so united , exceed not the value of a hundred pound sterling , vide petrum de perusio in tractatu unionum . observ. . that there is power granted by this commission to prorogat the tacks of tiends , when the tacks-men are burdened with augmentations . observ. . that the sentences of their commissioners are to have by this act , the authority and force of a decreet and sentence of parliament ; and therefore it is , that in our practice , the decreets of this commission can neither be reduced , nor suspended by the lords of the session , and that because of the act par. ja. . by this act no arch-bishop , bishop , or other prelat can set any tacks of their patrimony for longer space than nineteen years ; nor no inferiour benefic'd person for longer space than their own life-time , and five years thereafter , but the tacks otherwayes set , are not declar'd null , the act it self not being conceiv'd irritanter , but only the benefic'd persons , who set the tack for longer time than is express'd in this statute , are thereupon deprivable , for having contraveen'd the same ; for the parliament having declar'd that the contraveeners are deprivable , but not the tacks null . the lords conceiv'd that the punishment being under the consideration of the parliament , at the time of the making of this act ; and they having determined the punishment to be deprivation ; but not having annull'd the tacks : they thereupon concluded , that the tack could not be declared null , though set for longer time than is declar'd by this act , november . . hope contra kinnaird . observ ▪ . that by this act it is declar'd , that all tacks set for longer space than the time foresaid , shall be registrated in a book to be keep'd by the clerk-register for that effect , else to be null ; and therefore tacks , though for longer years , if they be registrated , are sufficient , hop . tit . tiends . likeas , it has been found that registration in the books of council and session , is sufficient , though it be prescriv'd here , that they be registrated in a register to be made for that peculiar use , since the clerk-register had not made such a specifick register : all which was found in the foresaid decision , novemb. . observ. . the persons allow'd to set tacks for nineteen years , are arch-bishops , bishops , and prelats : and though by the canon law , omnis honor qui ali●ui tribuitur propter administrationem est praelatura : yet by our law , he is only a prelat who has a chapter ; and therefore a tack set by a provost , is null , if it want the consent of the patron ; since prelats can only set without the consent of the patron , july . . hop . tit . kirk-men . observ. . that exception is justly made in this act of tacks , set by order from the commission of the kirk ; for in effect these are not set voluntarly , but by order from a committee of parliament , who when they grant augmentations , which burden the tacks-men , or titulars of tiends , do in recompence of that burden , prorogat their tacks , for as many years as they think fit . observ. . that even tacks for these years , are null , if they have not the consent of the patron , by the act par , ja. . observ. . that though prelates may set tacks of their patrimony for nineteen years ; yet they cannot set tacks of their casualities for longer than their life ; such as quots of testaments , &c. as is provided by the immediat subsequent act , viz. act. . observ. . that a bishop cannot set a new tack before the old tack be expir'd , as was decided in favours of the bishop of the isles against ascog ; for else the present incumbent might make the benefice useless to the successor ; and it being against the nature of benefices , that they should be set for longer time than the incumbent has right , it were most unjust to extend this . observ. . it may be doubted , if a bishop may set a tack , after he knows he is recommended to another see ; for that seems fraudulent , though it be ordinary ; and if it were allow'd , the intrant bishop would certainly find all his patrimony exhausted by such tacks ; and laicks would get very easie tacks ; for the setter knowing that he were to be remov'd , would set tacks for any duty . observ. . it may be doubted if a bishop who consented to such a tack , when himself was a member of the chapter , can quarrel such when he comes to be bishop of that same see ; for though he may pretend that he is only to consent , and not debate , or inquire ; yet this seems inconsistent with reason ; for the chapter is appointed to be quasi tutor ; and so every member is oblig'd to inquire ; and therefore as he should not have consented , if he had not conceiv'd the deed to be legal in it self , and fit for the see ; so ought he not to quarrel what he has already acknowledged to be fit . this act is formerly explain'd , act par. ja. . this act empowers the lords of the session to grant letters for charging the parochioners to meet and stent themselves , for furnishing basons and lavers for administration of the sacrament of baptism ; and cups , tables , and table-cloaths , for administration of the communion , and which is accordingly observ'd ; but though the rubrick does generally bear , furnishing of necessaries for administration of the sacraments ; yet the communion elements fall not under this act ; but when stipends are modifi'd by the commission for plantation of kirks ; there is likewise a particular sum modifi'd for the communion elements , which the minister was once found to have right to , though he do not administrat the sacrament yearly , but now it is design'd that this should be altered , and that that money should be ordain'd to be put in the poors box. by this act the nobility , or prelats are allow'd to vote by proxies , if they be lawfully excus'd . observ. . this is not allow'd to barons , nor burgesses ; because the allowance is only specifickly given to dukes , marquesses , earls , viscounts , lords , or prelats ; and yet i see no reason for the distinction ; but on the contrary , it seems more reasonable that to the end a whole shire may be represented ; that therefore they may be allow'd to deput some to vote , in case others be absent ; for though it may be answer'd that the power of proxies is unnecessary in shires , because if their members be necessarly absent , they may choose others : for to this it may be reply'd , that they cannot choose new commissioners , except in case of de●th ; whereas the shire may be much concern'd to have their proxies at any one dyet . likeas , by the act par. ja. . all free-holders are allow'd to have proxies in case of lawful absence from parliaments . it is ordinary also for the chief burrows to choose , and send an assistant to attend their commissioner . observ. . by the said act par. ja. . absents seem only to be allow'd to send their procurators for excusing their absence ; but by this act they are allow'd to reason and vote ; and therefore it may be doubted , whether a brother who cannot vote in his own brothers cause , may notwithstanding be admitted to vote for his brother as proxie for another , to whom his brother is a stranger ; since here sustinent personam extranei ; but seing the affection is the same , i think they would not be allow'd ; nor does the parliament now allow proxies in any case . it may be li●ewise doubted , if this act may be extended to conventions , since the act speaks only of parliaments ; and does not add , or other general councils , as the act par. ja. . and other acts do ; but yet the act par. ja. . allowing proxies in absence , speaks of parliaments and general councils . obs. . it is the kings advantage and interest that proxies should be allow'd ; for they are only to be allow'd by this act , where the reason of absence is warranted by the king , his commission●r , or council ; and so the king may allow proxies , or not , as he pleases , and needs never allow any to those whom he suspects ; which is also the present custom of england , as to the peers . observ. . that though letters of actourney out of the chancery , be sufficient for absence in other courts ; yet by this act , the absents must give a written warrand under their own hand . this act gives instructions to justices of peace and constables , which i● renew'd , and somewhat altered by the act par. ch. . but by this act , their decreets are ordain'd to receive execution by letters of horning and poynding ; and that no suspension shall be granted , but on consignation ; which consignation is neither appointed by the foresaid act . nor is it now in viridi observantia : and though by both the acts , they are ordain'd to proceed against cutters of green wood , slayers of red and black fish , &c. yet they are not in use to proceed in such cases ; because the act appoints , that commissions shall be granted to them for that effect ; but these commissions have never as yet been granted : though by our customes , no person can be holden as confest , except they be personally cited ; because else men might be drawn in snares , by citations at dwelling-houses ; yet here they are allow'd to be holden as confest upon the second citation at their dwelling-houses because the subject is small in justice of peace courts . this act is likewise explain'd , crim . pract . tit . justices of peace ; and is ratifi'd by the act par. ch. . where the council is allow'd to grant them , what further instructions they shall think fit . the council uses to name justices of peace , in place of such as dy ; and it being alleadg'd that all commissions for justices of peace should slow from the king immediatly , this was refused by the king , as being contrary to the constant custome of council , whom the king allows to name justices of peace . by this excellent act , such as have peaceably possessed their lands for fourty years , are secured by prescription . as to this act it is observable ; first , that prescription is only competent to such as have bruiked by vertue of heretable infeftments ; and therefore he who alleadges prescription , must alleadge an heretable title ; but though the possessor be not expresly infest ; yet if he has possessed the subject , as part and pertinent , it will be sufficient ; and therefore a salmond-fishing was found to be prescriv'd , though it was alleadg'd to be inter regalia , since the prescriver was infest cum piscationibus in general , february . . but if the prescriver be infest upon a bounded evident , it will not furnish him a valid title for prescriving , as part and pertinent , any land that is without the bounding , november . . this act is also extended to heretable offices , as to patronages , pensions , and all servitudes , though not expresly mention'd ; and though heretors and wodsetters are enumerated , sometimes as different from one another , act sess. par. ch. . yet heretage in this act comprehends wodsets , and it is even extended to long tacks ; so that it was found , that after fourty years they could not be quarrel'd , as granted without consent of the patron , july . . this want of a title likewise , and of bona fides , hinders a vassal to prescrive against his superiour , since the reddendo of that same charter , whereupon he founds his prescription , obliges him still to know his superiours right ; and by this act for the same cause , a wodset cannot prescrive , where the reversion was incorporat , in the body of his own infeftment . since this act appoints that his majesties lieges bruiking for . years , shall have right by prescription ; it may be doubted , whether prescription can run in favours of strangers , who have not been naturalized ? observ. . that these fourty years are only to run from the date of their infestments by this act ; and yet in warrandice , it is only to run from the date of the distress : but from both it is clear , that the reason is , because till then , they who have such rights , non valent agere ; and therefore the exception allow'd by the civil law of non valens agere , is allowable in ours , though it be not expressed in this act , as minority is , whereby it seems that exceptio firmat regulam in non exceptis . likeas , it was found in the earl of lauderdail's case , against the earl of tweddel , that lauderdail being forefaulted by the usurpers , prescription could not run against him during that forefaulture ; but where there is a title , prescription may run , albeit the defender was absens reipublicae causa , at the least , durst not come home in the usurpers time , for alleadg'd crimes committed against them , as was found in white-foords case , the of july . he having kill'd in holland dorislaus , one of the kings murderers , for the lords thought that he might have transferr'd his title to another , and if this reason hold it seems that absens reipublicae causa in general , is not sustainable as minority is , since these who are absent may leave procuratories to pursue their rights . it may be likewise debated , that such as are vi majore hindred from coming to pursue , as being taken by robbers , or pirats , should have the priviledge of non valentes agere , though no exception be made of them here , for though the chief design of the act be , to establish heretable rights in the persons of singular successors , who cannot know such accidents , and are secure if they find a fourty years progress : yet prescription was at first introduced , for punishing the slouth of the proprietars , amongst other reasons ; and therefore non valens agere , was allow'd by the civil law and ours . it may be also doubted , whether prescription should run against a furious , or mad man , since they are minors in the construction of law , and so are to have curators , and are less judicious oftimes than minors are ; but yet since they are not exprest here , when the law secur'd priviledg'd minors , it is presum'd they were designedly omitted ; and it were hard to know who are furious , and furiosity might continue eighty or ninety years ; or a man might feign himself mad , &c. observ. . that this act makes a difference betwixt such as are singular successors ( who must produce for the title of their prescription , not only a seasine , but a charter ) and heirs who need produce no cha●ter , but seasines , one or moe , proceeding upon retoures , or precepts of clare constat ; but because the act sayes , that they shall produce seasines , one or moe continued , or standing together for the space of fourty years ; therefore the lords found ; that seasines must be produc'd by the heir , by vertue wh●reof , he and his predecessours have bruiked for fourty years , during their being infest ; and so where the father was infest , and lived thirty nine years ; yet the son not having been infest , though he and his grand-child possessed for above . years : this seasine was not found a sufficient title for prescription , february . earl of argile contra menauchtan , and the reason is , because a seasine is but assertio notarii ; and therefore it was too lax a foundation for an heretable right ; and one seasine may be easilier forg'd than moe seasines can , and one seasine being forg'd , may be laid up in the charter-chist , so that the true proprietar could not , before the registration of seasines , know how to improve the same : and since this act requir'd no charter from heirs , it was just that it should require more seasines , to secure against falshood : but since the act appointing seasines to be registrated , the argument of easie forging is much taken off ; because the act of parliament sayes , that it is necessary to produce a charter , granted to them by their superiours and authors : it may be doubted whether the superiour is oblig'd to receive a vassal , though fourty years in possession , except he or his predecessors can shew a charter from him ; and that because , not only does the act of parliament say copulative superiours and authors ; but without this , there is no title against the superiour : and some rather think the superiour would b● excluded by this fourty years possession from his right of supe●iority . observ. . though the act require charter and seasins , yet a disposi●ion , or precept of seasin would be sufficient ▪ for many compleat rights have no charter . observ. . these fourty years run , de momento in momentum ; and therefore the prescription wanting a day , was not sustain'd , july . . though it was alleadg'd that de minimis non ●●rat pr●tor : and it would be severe to take away the old heretage of a family , for want of one day , or hour . these fourty years are tempus continuum , and not utile ; and therefore the law subduces not from the compt , those years in which judicatures were not patent ; or in which , war and pestilence hindered the proprietar to pursue , the of june . but it may be here doubted , quid juris , if judicatures were not open through war , or pestilence , for the greatest part of the whole fourty years . observ. . this prescription runs against his majesty , as well as subjects , for the act sayes expresly , that these who have possessed fourty years , shall not be troubled by his majesty , or any other , which was exprest , least 〈◊〉 it might have been alleadg'd that the negligence of his majesties officers , should not prejudge him in not pursuing , &c. which are the express words of the act par. ja. . observ. . that by this act the prescription was drawn back in favours of these who had possessed fourty years , prior to the act ; for drawing back whereof , nothing can be answered , but that this remedy was previously allow'd by the civil law ; but least the subjects might have been hereby prejudg'd , thirteen years are allow'd to run from the date of this act , so that though they had possessed fourty years before the act , they could not prescrive , except they had likewise possessed years after this act ; and though in this clause the priviledge of minority be not repeated ; and that it seems that the parliament design'd not to deduce minority out of so short a time , as . years , since having had it under consideration in the act , they excepted it not in this clause ; yet it was found that minority was to be discounted even in this case , july . observ. . that by this act it is declar'd , that except the summons be call'd and continu'd , it shall not interrupt prescription ; and it is declar'd , that the raisers of summons shall not be oblig'd to insist , except where the summons is called and continued , and the defenders of new summoned thereby : and yet the of july . elle●s contra scot. it was found , that upon a single summons , one may be forc'd to insist , which i cannot reconcile with this clause , except by restric●ing this clause meerly to the course of thirteen years here specifi'd , and generally a first summons executed , interrupts prescription , january . . and of old , the execution of a first summons did interrupt , though they bare no express relation to the summons , upon which the interruption was founded : but because there were several summons at the same parties instance ; so that the execution of one summons might be obtruded for the execution of another . it is appointed that the execution of summons shall bear express relation to the names of the pursuers , and defenders ; and it shall not be sufficient that the execution does generally relate to the summons by the act sess. par. ch. . and it had been fit , that the act had added , that the execution should bear the nature of the action deduced in the summons ; for else , where the pursuers and defenders are the same , one execution may be still obtruded for another . observ. . albeit this act appoints all rights to prescrive ; yet it was found , that heretors cannot prescrive a right of their t●●nds against titulars , except the lands were feued , cum decimis inclusis ; but that they might prescrive liberation for bygones preceeding fourty years , as in customs and feu-duties , which prescrive not ▪ quoad the right , though neglected fourty years , february . . earl panmuire contra the parochioners of inverness : vid. observations upon act par. ja. . observ. . that falshood never prescrives by our law : but whether this be in our law peculiar to that crime ; i have debated crim . pract . tit . prescription . observe also from the narrative of this act , that the registration of a paper in the publick register , is a great adminicle of approbation , for the paper must be left there : though falshood prescrives not , when the paper is produced , and the pursuer offers to improve the same : yet it may be doubted , whether when papers are only call'd for in an improbation , in order to a certification , and for trying of the defenders rights ; prescription may not be receiv'd against that presumptive falshood , wherein the writs are only declar'd to be false , fictione juris , and the true intent of such improbations , is in effect but to try the rights civily ; and so it resolves properly , but in a reduction , though that dangerous certification of presumptive falshood is adjected , ob terrorem . by the act par. ja. . summons of error prescrive within three years , in so far as concerns the punishment against these who have committed the error , who cannot be punished after three years : but yet by this act , the retour it self may be reduced at any time within twenty years : which prescription of twenty years , militats only in cases of competition , betwixt the several kinds of heirs amongst ▪ themselves ; as whether the heir of line should be prefer'd to the heir of tailȝie ; but it does not exclude the clear interest of blood ; for jura sanguinis nullo jure civili dirimi p●ssunt l. . ss . de reg. jur. and therefore an ●lder brother was found to have good interest to reduce a second brothers retour , january . . by this act , though such ret●ures may be reduced in prejudice of persons so served : yet if the person so served have dispon'd their right to singular successors , having bona fide acquired rights , as said is , they cannot be prejudg'd ▪ and in our law this is still introduced , for the good of commerce , in favours of singular successors ; for how should they know that the retour was reduceable , vid , act par. ja. . where the like priviledge is granted to singular successors of bankrupts . by this act we find that executors nominat had formerly by vertue of their office , the whole d●functs part of the executry , that is to say , the whole executry , if there was no wife or bairns ; the half where there was only a wife and no bairns ; or only bairns , and no wife : and the third , where there was a wife and bairns : but by this just act , they are only ordain'd to have a third of the defuncts part ; and there was good reason for abrogating the former custom , whereby the executor was in effect universal legatar , where there was no other legatars . albeit in reason the executor should only have had some small acknowledgement for executing the defuncts will. observ. . that albeit the narrative of this act mention only the case of strangers , who are executors nominat ; yet where a wife is nominat , she has the same interest , viz. a third of de●ds part , to which she will have right , beside her own half , or third of the moveables , as relict ; so that all are understood to be strangers in this act , except the nearest of kin , who would fall to be executors by law ; but if one of moe nearest of kin were nominat , it might be doubted what share of the moveables such an executor would have , whether he might claim a third of deads part , as executors nominat , and a separat interest as one of the nearest of kin ? it seems probable , that if there were only two nearest of kin , whereby the benefite as nearest of kin would be greater than as executors , he would only have the half , and nothing as executor ; because by this act , if the executors have a third of deads part by any other title , he is not allow'd another third by vertue of the act ; and albeit a wife have both a half , or third as relict , and a separat third as executor ; yet the relicts part is not by succession , but is her own proper interest , arising upon the dissolution of the marriage : whereas the question is here only as to deads part : but if there were moe in the same degree to the defunct than three persons , whereby the executors interest , as nearest of kin , would be less than a third ; in that case he might claim the benefit of this act ; because though the main and ordinary case considered , is of executor strangers : yet the statutory part of the act is general : and it were against reason that the nearest of kin should be in a worse condition than a stranger . observ. . that this act relates only to executors nominat ; and therefore executors dative have no more for executing the office , than their expences , which is very reasonable : for otherwayes s●●angers would frequently ingire themselves to the prejudice of the nearest of kin november . . ● ker contra ker. observ. . that notwithstanding of this act , where there is an universal legatar , the executor gets no part of the defuncts part , january . . patoun contra leishman . november . forsyth contra forsyth . observ. . that by the confirmation of the defuncts testament , the interest of the nearest of kin is ipso jure established , so that albeit the nearest of kin should immediatly decease before executing of the testament , the interest that was competent to him , is tra●smitted to his children , or nearest of kin , as was found , february . . bells contra wilkie , where the three sisters of patrick ●ell being confirm'd as executors , whereof one deceasing before executing the testament , her son did 〈◊〉 in his mothers testament , the third part that belonged to his deceased mother , for which the two surviving executors were found countable to him ; but where the nearest of kin died before the testament of the defunct was confirm'd ; it was found that the interest which would have been competent to that nearest of kin confirming was not transmitted to his executor ; but that there was place for the nearest of kin , of the first defunct , february . . forsyths contra paton : where it was also found , that a child having survived his mother , did not transmit her third to his father as a legittim ; but that the father was lyable for the third of his moveables to his wifes brother , who was her executor , and nearest of kin. there are two cases provided for in this act ; first , that liferent tacks of lands and tiends , shall not fall under single escheat , but under the liferent escheat ; and yet if the superiour , to whom that life-rent-escheat falls , go to the horn , that same liferent-escheat of the vassal will fall under the superiours single escheat ; for it is no liferent in the superiours person , for he has only right to it during his vassals lifetime , but not during his own : as also , for the same reason , if the king gi●t the liferent escheat to a donatar , it will fall under the donatars single escheat ; and if the donatar assign the same , it will fall under the assigneys single escheat , not because assignations makes that moveable which was heretable , for assignations alter not the nature of the thing assign'd ; but because the assigney has not these rights for his lifetime . the second part of this statute provides , that in case any tacks of lands or tiends , contain more lifere●ts ; the first liferent only shall fall under the liferent escheat by the first liferenters rebellon : but the remnant liferenters , or heirs , shall not be prejudged . it is fit here to observe , that if a tack be set for fifty or sixty years , yet it falls under the single escheat , for all that falls not under liferent-escheat , falls under single-escheat ; and this , nor no such number of years is a liferent , but quid juris , if a tack be set for a hundred years , which is a lifetime by express law. and since tacks were the only habile way of transmitting tiends of old , and are yet the ordinary way , it is hard that all our rights to tiends shall fall under single-escheat . by this act , all reversions , regresses , or bonds for making reversions or regresses , or assignations thereto , and all seasines are to be registrated within sixty dayes , after the date of the same ; and i find that sand. decis . fris. lib. . tit . . def . . shews that they have the same registration of hypotheques in immobilibus . observ. . this necessity of registration is only introduc'd in favours of singular successors , acquiring posterior rights ; and therefore the nullity of not registration , was not sustain'd at the instance of one who had no standing right in his person , march . . nor is this nullity sustain'd in favours of the disponer , or his heirs , for quoad them , these rights are valid without registration ; nor was it sustained at the instance of the son ▪ who got the estate dispon'd to him by his father , with power to the father to burden it with a sum , since this son was found to be no third party , february . . and for the same reason it was found , that the superiours seasine was not quarrellable by the vassal : this necessity of registration being only introduc'd in favours of such as have posteriour , heretable rights , june . . observ. . it is thought that the sixty dayes , within which seasins are to be registrated , are so to be counted only , that either the day upon which the writs are dated , or the day on which they are registrated , must be free . observ. . that since the act sayes , that these seasins and others shall be registrated in the places designed in this act ; that therefore it may be doubted , whether when lands ly within different shires , but are united , if in that case they are to be registrated in the shire where the place lyes , at which seasine is to be taken by the charter of union , or at all the places where the lands ly . observ. . though this act appoints renunciations , and grants of redemption to be registrated : yet the lords found , that orders of redemption fall not under this act , and need not be registrated , july . . but yet they found , that an infestment of annualrent could not be taken away by discharges granted by the debitor , nor by compensation of his debts , in prejudice of a singular successor , who had right to the said annualrent ; and that because , first , the design of this act appears by the narrative , to be made for security of buyers ; and buyers could not be secured , if such latent wayes of extinction were allowed . . an infeftment of annualrent is constituted by a seasine , which must be registrated ; and therefore it cannot be taken away , but by a renunciation , or some paper which must be registrated . . by the act par. . ch. . instruments of resignation , ad remanentiam , whereby rights are taken away , are by the same argument ordained to be registrated in the same way that seasins are . . though by this act there be not express mention of rights of annualrents ; yet they are comprehended under the word wodsets ; for an infeftment of annualrent is but in effect a wodset of the rents ; and though this act is only urg'd against such as annalȝie their lands ; and that it was urg'd , that an infeftment of annualrent was not an alienation of lands , but rather a servitude upon them ; yet this is a mistake , for an infeftment of annualrent is an alienation , else it could not infer recognition , as without doubt it does . as also they found , that renunciations of annualrents , which were holden of the disponer , are sufficient without any resignation , ad remanentiam ; though it was alleadg'd , that as a charter without a seasine cannot constitute an annualrent ; so neither can a personal renunciation , without an instrument of resignation extinguish it ; but because this act ordains these renunciations to be registrated ; therefore they are valid against singular success●rs , else why should they be registrated , january . . mcclelland contra mushat . since this act of parliament requires that all seasines , renunciation ; of wodsets , &c. shall be registrated , i think the booking of them is necessary : nor is it sufficient ( as some pretend ) that they are produ●'d , and ma●ked by the clerk ; because ( as they say ) the lieges can do no more , and they ought not to be punish'd for the clerks negligence ; for if this were sufficient , no singular successor could be secure , and the producer may pursue the clerk if he book them not , since the act of parliament requires actual registration . by this act all grants of redemption are to be registrated , for securing singular successors ; but seing the using an order of redemption , with a declarator thereupon , will evacuat the wodset , even as to a singular successor ; and yet he cannot know whether there be such an order used , and declarator obtain'd , it not being requisite that either of these should be registrated ; it seems that singular successors are yet unsecure : as also , since if a person obtain a decreet against him to whom he sold his land , decerning him to grant him a reversion , conform to his promise , this will be valid against a singular successor ( though the promise was not ) and yet the singular successor cannot know this decreet , nor needs it be registrated ; and therefore this register seems yet no sufficient , and adequat remedy in wodsets . observ. . that by this act it is provided , that seasins and reversions therein contained , given by provost and baillies of burgage lands needs not be registrated , neither in burgh nor shire , as was decided july . . and that seasins of lands in leith need not be registrated , though it be no burgh royal , july . . the reason of which exception was founded upon the exactness of town clerks , and the constant custom thereof , booking how soon the seasin is granted ; and so far are seasins within burgh exeem'd from such solemnities , that the lords sustain'd a seasin within town , being subscribed by the town clerk , though there was no vestige of it in the towns register , nor the notars protocal , and was latent for many years , june . . and thus singular successors were not sufficiently secur'd by this statute within burghs , for though town clerks use to registrat , yet there being no necessity upon them to registrat , and the seasin not being annulled for not registration ; it follows clearly that there is no security ; and therefore by the act par. ch. . this is alter'd , and the necessity of registration is thereby extended to seasins within burgh , and to all other writs , which by this act must be registrated . the form us'd in loosing arrestments of old , was by the messengers giving a testificat under his hand , that the arrestment laid on by him was loos'd ; this being too great a trust for a messenger , and they receiving oftimes irresponsal cautioners . by this act it is ordain'd , that arrestments shall be loos'd only by letters on bills past by the lords , which is now observ'd , and caution is found to a particular servant in the bill-chamber , to whom the trying that the caution is sufficient , is referr'd , and the ordinary way to hinder an unsufficient cautioner , is by getting a warrand in praesentia from the lords of session , for that effect , after presenting whereof to that servant , if insufficient caution be receiv'd : the lords will give warrand to arrest de novo ; but if the caution be once found , and the letters exped ; the lords will not allow upon a bill , arrestment to be made de novo , nor recal their letters , though the caution be insufficient , the clerk of the bills being answerable by his office for the sufficiency of the caution . this act grants power to all who are infeft in ●o●●est●ies to judge such as shoot and kill vennison , and wild-fowl therein , and that by an inquest , which seems to exclude all other wayes of tryal ; for inclusio unius est exclusio a●●●rius ; and this inquest was ordain'd to prevent the partiality , and passion of the heretor . this act punishing drunkards by sining , is not well enough observ'd , though it be renew'd act par. ch. . it seems by this act that the kirk is regulariter , founded in the judgeing and sining of drunkards , though it may be alleadg'd that this were to secularize too much kirk sessions , which is properly an ecclesiastick judicature , and by the commission granted to the justices of peace ; the justices seem to be made the only judges , as appears not only by the instructions given to them , but by the said act sess. par. ch. . though it be alleadg'd that kirk-sessions have likewise a cumulative jurisdiction for punishment of all scandals ; for which the act sess. par. ch . is alleadg'd , and the constant practice of the whole nation ; and it was found by the council , may . the kings advocat contra the justices of peace of dumfermling ; that the kirk-sessions might uplift such fines as were voluntarly pay'd to them for such scandals , without being countable to the justices of peace for them . the difference betwixt a caulp and hereȝeld , is that a caulp is is the best aught , or beast that a man has , which is due to the chief , or master , after his death for protecting his bairns , given by express paction ; whereas a hereȝeld is the best beast due to the master only by law , after his tennents death : caulps are here discharg'd , but hereȝelds were allow'd , quon : attach . cap. . but it would seem that hereȝelds , and all taking of the best beast is discharg'd by this act , albeit indeed they are not . this act is explain'd in the act par. ja. . to which is to be added , that by this act , the relicts and bairns of notars being oblig'd to bring in their protocals to the clerk-register within fifteen dayes , after any notars decease ; the register uses to appoint a deput , call'd now , the clerk of the notars , who draws their bill , and receives caution from them ; and is by his admission oblig'd to do diligence to mark the books of notars , and to receive band for their returning their books ; and therefore sir william primrose , for not doing diligence , was depos'd upon a bill to the lords , february . though he alleadg'd that the wives and bairns only of the notars , were oblig'd to bring in their protocals , but not he , and he was content for the future , to follow what instructions should be given him . king iames the sixth , parl. , there being a general-assembly held at pearth in august . by hadingtoun , southesk , and scoon , as his majesties commissioners ; there were five articles therein past , in order to uniformity with england , viz. kneeling at the sacrament , privat communion , privat baptism , confirmation of children , and the observing some festival dayes , for conformity with the church of england , as far as was possible ; which articles are here ratifi'd in parliament ; nor is there any standing law made since to abrogat them ; albeit for peaces sake , they have not been much observ'd . vid. observ . on act par. ja. . supra . in this act it is warranted , that such as compris'd great estates for small sums , did notwithstanding , possess the whole rents for payment of their small annualrent ; and therefore to correct this , it is ordain'd by this act , that the comprizer shall impute in payment of his principal sum , the superplus of the rents of the lands intrometted with by him , and the true reason of the former custom was , because by the act par. . ja. . the lands comprized were to be adjusted by the sheriff , with the sums comprized for , and so the rent was at first but answerable to the annualrent , though thereafter all being comprised , the compriser appropriated all the rents , without imputing , as said is . observ. . that this act makes only the compriser lyable for his actual intromission ; and it has been found that the compriser is not bound to intromet : but yet this is so severe to the poor debitor , and the other comprisers , all whom the first compriser may debar , and so suffer the tennents to bankrupt , and the lands to become waste ; that therefore if a compriser once intromet , he is bound to continue his intromission ; and where there are tacks standing , he is bound to do diligence , february . . or where there are moe comprisers , the lords may force the first compriser to do diligence , or if he do not betwixt and such a time yearly , they may allow access for the second to enter to the possession , february . . july . or if the first compriser exclude any diligence that the second is using , he will eo ipso be lyable thereafter to do exact diligence . observ. . by this act it is declar'd , that upon payment of the principal sum and annualrent , and the expence bestow'd by the compriser , in passing and obtaining infestment together with the annualrent of the said sums , and the necessary expences bestow'd in leading the comprising , that then the comprising shall expire ipso facto ▪ that is to say , by way of exception , without declarator , though ordinarly an order of redemption be us'd ; and not only does payment , or intromission with the mails extinguish the comprising , and prove against singular successors , but even any acknowledgement of payment by the leader of the comprising will extinguish the comprising against those singular successors , july . observ. . that the comprizer is to get allowance of a years duty , as due to the superiour by this act , and though he get himself entered for less by the superiour than the years duty , yet he will get allowance of the full years duty that was due to the superiour , whose gratuity will be of no advantage to the debitor , july . . observ. . that by this act , what is pay'd to the superiour bears annualrent , as do the necessary expences ; but it may be doubted , if annualrent be due for sheriff-fees . observ. . that comprisings are not to run against minors , but that it is lawful for the minor at any time within the age of twenty five years to redeem , which priviledge was found not only to be due to minors when the comprising is led against themselves ; but even when a minor has right to the legal reversion , he being himself a second compriser ; for even in that case , a minor having led a comprising may be prejudged as well as the minor against whom the comprising is led , there being the same parity of reason in both ; and though this be not clear by the first words of the exception : yet it is clear by these words , and that notwithstanding of the preceeding laws and practiques of this kingdom , by the which , the legal reversion of the comprised lands expired within seven years after the leading of the comprising , from the which his majestie and estates hath by this present act and statute excepted minors in all time coming , declaring the same no wayes to run against them . observ. . that because this act appointed only the superplus of the mails and duties , which exceeded the annualrent to be imputed in the payment of the principal sum , during the seven years of the legal , but did not expresly extend this to the case of minority ; therefore it was found that minors not redeeming within the seven years , the compriser had from the expiring of the seven years , the whole rent of the land for payment of his annualrent , without imputing the superplus in payment of the principal sum , because the act corrected only that custom , quoad the legal , & leges correcti●●● non extendi debent ultra verba directa & expressa , february . and therefore by the act par. sess. ch. . this decision was corrected , and it was by that act ordain'd , that comprisers should impute the superplus of the rent , beyond the annualrent , for payment of the principal sum , not only during the legal , but during the whole course of the minority . this act extends all the priviledges granted to minors in comprisings to minors against whom adjudications are led : and from this it would seem to follow argumento hujus legis , that whatsoever is competent in adjudications , is not competent in comprisings , for else this act had been needless ; and the lords would not extend the priviledges of the one to the other in many other cases , and so would not allow the superiour to get a years duty , because the immediat preceeding act did allow comprisd lands to be redeemable upon the payment of the sums compris'd for , and a years rent for their entry : but in this act of adjudication , there is no mention of a years duty , and which therefore was thought to be of purpose omited , and so needed a new law , notwithstanding of the parity of reason , whereupon a new law was made , viz. the act par. ch. . whereby not only the superiour is ordain'd to have a years duty ; but it s expresly declar'd , that in all cases relating to superiours , adjudications shall be in the same condition with comprisings , and consequentially to this last act , it was found that the superiour might at his option , either enter the adjudger , or pay the sums for which the adjudication was led , since the act of par. ja. par. and act . appoints this in comprisings , june . . scot of thirlestoun contra the lord drumlanrig : as also upon the same reason , the lords found that the superiour was bound to receive the adjudger , though he could not produce his authors rights , debitors abstracting their writs , because comprisers are not bound to produce , february . . ramsay contra ker. nota , that comprisers intrometting , are lyable for their intromissions with the victual , according to the sheriffs fiars , and not according to the commissars ; not only because the commissars fiars are made only to regulat prices betwixt tutors and pupils , and in other consistorial cases ; but because this act sayes , as the samine were commonly sold between yuil and candlmas , in the sheriffdom where the lands ly . though regularly infeftments upon comprisings and adjudications , ought to be perfected by appending the great-seal , yet an extract of the debitors infeftment under the privy-seal , is here declar'd equivalent in so far as concerns the debitors heirs , because it is presumable that the debitor has destroy'd or abstracted the writs of the lands compris'd from him . quaritur , whether this act should be extended to adjudications , since they are not mention'd here in the very next act to the act anent adjudications . this act allowing bishops to feu out their ward-lands , is but temporary for three years , and so is expir'd , because not renew'd , and consequently bishops have not leave to feu out their ward-lands now . as ministers gleibs were to be tiend-free , so ought the soums grass that is allow'd to ministers in place of gleibs , be tiend-free . the reason given by this act , is , because the same is dedicated and appointed ad pios usus , which is no adequat , and sufficient reason , since lands mortifi'd to hospitals , are destinat ad pios usus , and yet are not tiend-free , that being a special priviledge only granted by the pope to the coelestines , or cistertians , and some few other orders ; but ordinarly hospitals and others are free from taxations , as act and act par. ch. . by the act par. ja. . deans and chapters were restored ; but by this act all the offices and dignities of the chapter are likewise restor'd , and it is declar'd , that all deeds done since the date of that act , or to be done thereafter , whereby any member of a cathedral kirk , being an office or dignitie , hath , or shall be supprest , or any land parsonage , vicarage , or other living , belonging to the said dignity , dissolved from the same without express warrand from his majesty and parliament , shall be null . for understanding this act , it is fit to know that in every bishoprick there are several dignities , allow'd by the canon law ; by which law , the word dignity is either taken largely , so as to comprehend all ecclesiastical dignities , as in cap. denique dist . but properly it imports administrationem ecclesiasticam cum honore vel jurisdictione conjunctam , gl●ss . in cap. . de consuetud . in . and generally , all such to whom the cognition of causes could be delegated , were accounted ecclesiastick dignities , cap. cum olim de offic . legat . there are in every chapter , and bishoprick with us some of those dignities , but of a different rank and jurisdiction , not only from those in the canon law , but the dignities in our own bishopricks differ from one another , though all of them agree in this , that those dignities which were appointed at the foundation of the bishopricks continue to this day , and the foundations are the rule , and are very different . the ordinary dignities common to all , are the dean , the arch-dean , the chanter , the chancellour , and the thesaurer . the office of the dean has been fully explain'd in the act par. ja. . the arch-deacon ( call'd improperly by us arch-dean ) is the archidiaconus of the canon law , who though they be inferiour to deans , yet they are in effect the bishops vicar , and have the chief jurisdiction next to him ; being in the canon law oculus episcopi , their office in that law was to examine such as were presented to the bishop , and to put them in possession of their benefice after their admission ; as also , to visit the diocy every three year , if the bishop be not present , and to oversee the manners and living of the clergy . the chanter is in the canon law called primicerius , because he is first of the order of the singers ; and by the greek church 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 his employment was to oversee such as sung and read in the church ; and with us the sub-chanter is a dignity called succentor in the canon law , and that likewise he was allow'd a dignity by the canon law is clear , innocent cap. . inter dilectos de excess . prael . the chancellor was so called , because he kept the seal of the church , cujac . ad tit . ut eccles. bon . sine diminut . conserv . he was likewise superviser of the bibliotheck of schools , and of these who taught the clergy , cap. penult . & ult . de translat . epis. & cap. veniens de reg . & trans . ad monast . in england the chancellor is in effect a church-lawyer , who judges for the bishop through the whole diocy , and is universal commissary ; whereas these only are called commissars by that law to whom the judging in particular places or cases is committed : but with us the chancellor is still a church-man , and the province of saint andrews has its chancellor as well as the special bishopricks , the bishop of edinburgh being the chancellor of the province of saint andrews . the thesaurer is he who did oversee the thesaury , and all things else belonging to the church , who in the forecited cap. cum olim , is accounted to have ecclesiastick dignity . it is observ'd by bengeus , de beneficiis ecclesiasticis , renat . chopin . and other canonists , that both the jurisdiction and precedency amongst those dignities , is now consuetudinary , and alter'd much according to the custom of the several places ; and it is so with us where they are regulated according to the special foundations or custom , if these be wanting or lost . this act is explain'd in many other acts concerning the priviledge of burghs royal. this act is formerly explain'd in act . parl. . ja. . by this act all playing at cards or dice in any inn or ale-house is discharg'd under the pain of fourty pounds , and all playing at cards or dice even in privat houses is forbidden , except where the masters of the families play ; and all playing at cards and dice , even though the master play ; and all horse-races are so far restrain'd , that the gainer cannot have action for any thing he wins above an hundred merks : but yet it was found that the loser is still lyable in payment , and therefore the kings advocat was found to have interest to compear , and crave the money to be consign'd , november . . park contra somervel . where it was debated if this was vitium reale , and might be taken from an assigney , though he knew not how the money was dew , for else this act might be eluded , by filling up the name of an assigney . by the civil law , tit. . lib. . l. . cod. de aleatoribus , he that is overcome at such games is not oblig'd to pay , and though he pay , he , or his heirs have repetition ; and by the canon law , church-men who use such games cannot be promoted to benefices , cap. . de excess prelat . but yet wagering seu sponsio was by that law allowed , l. . § . ult . ff . de prescript . verb. and so our horse-races were not condemn'd by that law , though they are by ours ; for that law did think that , nullam turpitudinem continet in se spo● sio ; nam inde rixae oriri non solent ; but our law did condemn horse-races , because they occasion'd great idleness and expence : this act is still exactly observ'd , but is not extended to other wagers , such as that ships will arrive at such a day , or in such a place , which was not found to fall under this act , which speaks only of cards , dice , and horse-races ; it seems that this act would not be extended to any other game ex paritate rationis ; but yet i find that by the late decisions of most nations , these are not sustain'd tanquam otiosi & aleatorii contractus qui nihil in se continent praeter inanem animorum concertationem , stockman . decis . . molin . tract . de usur . quest . . num . . by the civil law likewise , though wagering was allow'd , yet where either of the parties did certainly know the thing whereupon he wagered , but conceal'd his knowledge ; as for instance , if a man should wager that such a man should be dead before a year elapsed , and that he knew him to be already dead , the law would not allow action upon that wager , because in effect that were to cheat , and accordingly our courts in scotland have most justly decided . wagers likewise upon the deaths of princes are discharg'd as giving occasion of jealousie ; as also wagers concerning the event of publick undertakings for the good of the countrey , such as the success of arms , &c. and that , lest men should be tempted , either to wish the armies of their native country not to prosper , or to reveal their secrets to the end they may not prosper , vid. zipeum in not . juris belli , lib. . in fin . there is such an act as ours made by lewis . of france amongst his statutes , cap. . & seq . this act is fully explain'd in act . parl. . ja. . this act is fully explain'd in the act par. ja. . this act discharging that a peck should be taken to the boll , though with consent of parties , was made to prevent extortion , upon the same ground that usury is discharg'd ; but yet it not having been observ'd for a long time , the council stopt a gift that was granted thereof , as to bygones , till his majesty should be acquainted . this act concerning dispositions made by bankrupts , is fully explained by me , in a treatise a-part already printed upon this single act. this act regulating the prices of all writs and seals , is for the most part either in desuetude , or is innovated by the act sess. par. ch. . wherein new regulations are set down ; and from this act it is observable , that the secret council may make prices in all such cases ; for this act ratifies only their act ; and though the act ratifi'd bear , this act to have been made by the secret council and session ; yet the act of parliament which does ratifie that act , ratifies it only as an act of privy council , and so insinuats that the privy council hath power to regulate both the price of session , and exchequer . these regulations of prices in our law , are like to the notiti●● mentioned , cod. de ann . & cap. lib. . tit. . quae singulis offi●iis delegabantur quibus continebatur quantum singuli pro dignitate & ●fficio pro libellis mandatis codicillis accipiendis vel insinuandis pendere quantum pro annona & capite accipere deberent . for understanding this act , it is fit to know that annualrents are only due by our law , either by statute , or paction , so that regularly they are not due otherwise . they are due by statute , either by the act of sederunt ▪ . appointing , that where cautioners are distressed , and forced to pay , they shall have annualrent from the term that they pay , though the bond wherein they are cautioners bear none ; yet this is in effect ex pacto , because it arises from the clause of relief , this being a damnage incur'd by them , or by this act of parliament , by which annualrents are due , after the party is denunc'd , though the bond whereupon he is denunc'd , bear no annualrent , upon the same ground that in the civil law usurae debentur ex mora in bonae fidei contractibus , l. . § . . ss . de usuris : so that as by the civil law they were due ex pacto vel ex mora ; they are due only with us ex pacto vel ex lege , which is the same thing almost , since lex in hoc casu apud nos sundatur in mora ; for though there may be mora sine usuris , yet by this act there are never usurae sine mora : but this denunciation must be at the head burgh of the shire where the debitor lives : denunciations at the mercat cross of edinburgh , being a warrand only for caption , but not inferring annualrent , which may seem strange , since annualrents are by this act infer'd after denunciation , because of the debitors negligence ; but the reason of the decision is , that the lords thought the debitors did not know exactly when they were denunc'd at edinburgh ; but it has been found that the debitor is lyable in annualrent , after he is denunced at the head burgh of the shire , though the horning be not registrated , since the act only appointed denunciation ; and yet there can be no caption till the horning and executions be registrated ; and thus it is clear that caption , and payment of annualrents are very different effects of a horning , since sometimes caption will follow where annualrent cannot , and sometimes annualrent will follow , where caption cannot , february . . smith contra wauch . annualrents are sometimes due , without either express law , or paction , because of the tacite , and presumable consent of the party ; as if a party pay annualrent for one term , or if he promise to pay bygone annualrents , though he promise not for the future ; yet january . . hume contra seaton the lords found that he ought to pay constantly annualrent for the future , though the obligation did bear no annualrent : or from the principles of natural equity , as in the price of lands , which pay annualrent , though none be pactioned , because the buyer has the rents of the lands : or in tochers , because they are given ad sustinenda onera matrimonii , and the husband intertains the wife : or where the sum is ordain'd to bear annualrent after her marriage , to whom it is left quo casu , before marriage the lords found that annualrent was due , since matrimonia debent esse libera ; but yet regulariter , annualrent is not due in cases alimentary . and a father providing his daughter to a sum for her portion , without mentioning any thing of annualrent ; the lords would not decern annualrent , though annualrent was only said to be omitted there , through the ignorance of the notar ; but because of the presum'd will of the father , they modifi'd the aliment equal to the annualrent : but so unfavourable are usurae usurarum , call'd usurae judaicae by the doctors of the civil law , that an obligation to pay annualrent for annualrent , if it were not pay'd at the term , was not sustain'd , though it was alleadg'd that here pactum & mora , were joyn'd with equity , the woman to whom they were due , being a poor widow , who behov'd to borrow money to live upon , if her annualrent were not pay'd , and to pay annualrent for that money , which she so borrow'd , january . . lady braid contra the earl of kinghorn . it is fit to know that the statute . robert . appointing annualrents not to run against minors , is now in desuetude , though it would seem reasonable , that their mora should not prejudge them ; but minors money do still bear annualrent by our law. the king uses to pay annualrents for the ballance of his accounts de facto , but is not oblig'd thereto by law. this act is explain'd , crim. pract . tit . falshood . nota , that usury is excepted from this commission to uplift money , due by penal statutes , &c. ergo , acts against usury seem penal statutes . it is observable , that though by this act it be declar'd , that commissions for penal statutes be not put to execution , till they be authoriz'd by the lords of secret council ; yet this is too much in desuetude ; but the lords of secret council do use to discharge them , till they acquaint the king. the laws of the twelve tables , contain'd several sumptuary laws , though there was then little luxury , and particularly at burials : and saint chrisostom condemns feign'd mourners , whom we call saulies , because they pray for the souls of the dead . vid. act par. ch. . this act appointing houses in edinburgh to be sklated , and letters of horning to be direct to that effect ; shews that the parliament may dispose upon privat estates , ob bonum publicum , vid. act par. sess. ch. . it may be argu'd from this act , that if the town of edinburgh could have made such acts by their own authority , this act had been needless . this act is explain'd in the act par. ja. . this act is explain'd , crim . pract . tit . usury . this act discharges any man to hunt or hauk at any time , who hath not a plough of land in heretage , under the pain of an hundred pounds , but it is now in desuetude . k. charles i. parliament i. king charles the first having come to scotland to be crown'd , in anno . the parliament does by this act , grant him , not only a subsidie upon the land-rent ; bu● likewise the sixteen penny of all annualrents , the annualrent being then at ten in the hundred ; but because the annualrent was thereafter brought down from ten to six : therefore by the act par ch. . it is declar'd , that the said six of the hundred , shall be free of all retention , and other publick burdens whatsoever . there is no immunity allow'd by this act , to any from this taxation , save the ordinary lords of the session , and mortifications to universities , colledges , and hospitals ; and this was the first time the lords were separated from the advocats , and other members of the colledge of justice : and yet by the act of this parliament , all the immunities and priviledges that ever were granted to the colledge of justice , are ratifi'd ; and though it may seem that this act being posterior , derogats from the former , yet specialia semper derogant a generalibus . by this act likewise , the lords of erection are to be taxed in the same way that they were before the erection . this act is but a continuation of the first act , and shews the way of uplifting the taxation thereby given . the parliament having granted by the act par ja. . power to the king to appoint apparel for judges and others , because that act was but temporary ; they by this act continue the same to our soveraign lord and his successors , who now is ; which certainly is wrong printed , and reads ill , for the words should run , our soveraign lord that now is and his successors . observ. . that acts referring any thing to the kings majesty , and not mentioning his successors , are but temporary , else this act had been needless . obs. . that these erre who think the parliament cannot delegat their power ; for in the former act and this , it is clear that the parliament did delegat this power ; and it is declar'd that the kings letter , regulating this affair , shall be equivalent to an act of parliament ; and this same parliament . did grant a commission to revise the laws , and did declare , that what they did should have the force of laws without reporting to the parliament : and the lords of articles , anno . did grant a commission , with a parliamentary power to some to revise the earl of argiles rights , and the commission of teinds is of the same nature . there having been great debates in anno . concerning the securing the protestant religion , it was at last agreed , that the old acts made by king james , were in themselves sufficient ; and the best that could be fallen on , as being made when there were greatest fears of popery , and by the help of which , the protestant religion grew to the consistency it is now at ; and therefore the parliament acquiesced in this short act , ratifying in general the former acts made for securing the religion , vid. act par. ch. . the former parliaments which had determined ministers stipends , forgot to provide school-masters ; and therefore the privy council did provide them by an act of council ; and though it may seem strange , that the privy council could impose a burden , though for a just cause , yet that their act is here approv'd , and the secret council are made judges to all processes concerning school-masters dues , though now the lords of the session are the only judges ; nor are there any such processes intented before the privy council . since by this act the planting of schools is refer'd to the bishop with the consent of the heretors , and most part of the paroch , it would appear that they , and not the kirk-session where they live , should have the placing of them : and albeit it be alleadg'd that the school-master of the paroch is by the act par. sess. ch. 〈◊〉 to be clerk to the kirk-session , and therefore they should have the chief interest ; yet this consequence is not sufficient , and the act whereupon it is founded , is likewise abrogated : this is conform to the reform'd church of saxonie , wherein cura scolarum pastoribus , ac superintendenti commissa est carpz , lib. . tit . def . . by this act all mortifications by gift , legacy , or otherwise , are declar'd not to be alterable to any other use , than the special use to which they were destinated by the mortifier ; but yet if that use become unlawful ex post facto , so that the persons in whose favours they were mortifi'd , be dissabled to possess , i think they should fall to the king , as caduciary , if the property has been once transfer'd , and the person upon whom it was transfer'd , became thereafter uncapable , for quae sunt nullius sunt domini regis , and thus the mortifications made to monastries , fell not back to the first proprietars , or their heirs , but to the king ; but if the property was never transfer'd , but before the first acquisition , the person to whom the same was left , was incapable to receive the right mortifi'd ; as if a man should leave a legacy to his brother , who were a capushian , whose monastry , and not himself are only capable of legacies ; it seems that if the mortifier knew , that his brother was uncapable , and that it would fall to the monastry , that in that case also , the mortification should belong to the king , and should not be retained by his heirs , as a due punishment of his fault : but if the mortifier knew not the same , it were more reasonable to determine , that the mortifiers heirs should retain the right , vid. tit. cod. de caduc . tollend . thomas mudie having left a sum to be employ'd on the building a church in the grass-mercat of edinburgh , the magistrats thereof were upon their supplication , allow'd to build a steeple , and buy a pale of bells with the money , because a church was useless wanting a stipend , though this act against inverting pious donations was objected ; for the parliament thought , that if a mortification be left , which cannot take place , either because it is against law , or is useless , the parliament may allow the same to be fulfilled by an equipollency , that being more suitable to the design of the mortifier , and better for the common-wealth , than if the mortification should become extinct , which is consonant to the civil law. george heriot , having appointed by one of the statutes of his hospital , that nothing should be altered , though for the better ; and one of the statutes bearing , none should lodge within the hospital , save students ; it was doubted , if some un-furnisht rooms which the overseers could not furnish for want of money , might be set out to such as undertook to furnish them , for some few years tacks ! and it was thought that they might , since that was no case which any wise man could think to exclude , if he had had it under his consideration , and these rooms might be separated from the hospital for that time by a vvall. the act here ratifi'd is the act par. ja. . whereby all such as trouble ministers for seeking of their livings , or siklike quarrels , and put violent hand in them , are to be punish'd with the tinsel of their moveables , albeit no slaughter or mutilation follow ; which act is here extended to arch-bishops , bishops , and all others having power to preach , and administrat the sacraments ; from which it is observable , that acts in favours of ministers , can not be regularly extended to bishops , though a bishop may seem to be a minister and more ; and because the former act mentioned only siklike quarrels , as for seeking their stipends , &c. and that this might have been eluded by forg'd pretexts ; therefore this act extends the same to all invasions : and from both these cases , it may be urg'd , that acts of parliament are stricti juris , and cannot be extended de casu in casum ; else this act had been unnecessary . observe likewise from this act , a case wherein all land-lords , heretors , and chiefs of clans , upon whose bounds the invaders of ministers stay for ten dayes , the same being intimat to them , are to be punish'd as connivers ; this act is ratifi'd by the act par. ch. . by which it is further appointed , that if any invade ministers , either in their persons , or goods , not only within their houses , but parochs , the parochioners shall be lyable to pay his damnage , if they cannot apprehend the malefactors . the parliament there likewise ratifies two proclamations of privy council , which ordain'd the same thing formerly ; and which ratification is a great proof of the councils power , in things relating to the government . teinds are declar'd to be the patrimony of the kirk ; and therefore were not annex'd to the crown by the act par. . ja. . but because the leading of other mens teinds , occasion'd great confusion ; therefore in anno . there were three several submissions made , one by the laick heretors , a second by the church-men , and a third by the burrows , wherein they refer to his majesty what should be pay'd by every heretor for his teinds , to the titular or tacks-man ; and accordingly his majesty pronunced three several decreets , dated in september . wherein he appointed , that the rate of all tiends should be the fifth part of the constant rent of what each land pay'd in stock and tiend , where the same are valu'd joyntly , and where they are valu'd a-part , the rate is according as the same were valu'd by the particular commissioners for valuation of teinds , with deduction of a fifth part , call'd , the kings ease ; and that all teinds should be bought at nine years purchase , where they consisted in money ; and if they consisted in victual , that they be first liquidat into money , and then they should be bought at nine years purchase : and if there were but temporary rights , then the price is to be abated ; or hightned proportionally ; and the said teinds being so bought , the hetors are to relieve the titulars of his majesties annuity , and ministers stipends pro rata , and in case of wrong done by the commission , there is place for appeals left to the parliament . the submission made by the bishops , did only relate to teinds , payable to them , whereof they were not presently in possession ; and therefore where any church-men were presently in possession of any tiends , his majesty by his decreet arbitral , did not ordain them to sell the same ; but they are ordain'd to sell such tiends as belong to them , that were not in their present possession , which they were ordain'd to sell at nine years purchase , with deduction always of his majesties annuity , forth of the ex●ress of the bolls and rents , arising to the submitters , after the expyring of their present tacks . the determination upon the submission of the burrows , differs nothing from the former two ; but that the saids burrows are to pay the annuity forth of the superplus of their tiends , if they should be found to exceed what is due for intertainment of their ministers , colledges , schools , and hospitals , and the terms of payment , of what is to be pay'd for these tiends , is declar'd in all the three decreets arbitral , to be betwixt yule and candlemass ; such likewise as had church-lands and tiends , erected in their favours , in temporal lordships , did grant commission to surrender their rights in his majesties hand , upon the condition therein express'd ; and therefore by this act , the commission granted by his majesty for providing the ministers serving the cure with competent stipends , is here ratifi'd , and it is declar'd , that the lowest stipend shall be eight chalders of victual , or proportionally in silver , except such particular kirks occur , wherein there shall be good reason to go beneath the same ; but it seems that by this act , they can only go beneath the said quota , where there have already valuations been led ; the reason whereof seems to be , because till a valuation be led , it cannot be known whether there be more free tiends in the paroch , then will amount to eight chalders victual : as also , because this high quota was granted to the minister , in respect of the power granted to the heretors , to value their own tiends ; therefore , where the heretors had not taken the benefite of the valuation , the minister ought not to have the high stipend : but yet the commission for plantation of kirks , do use to modifie less stipends , where it is notour , that the paroch is not able to bear the same ; and that albeit that quota was condescended on in the commission of surrenders , and is renew'd in the act of this parliament . by this act it is likewise declar'd , that where valuations are lawfuly led against all persons having interest , that the samin shall not be drawn in question upon the pretence of enorme laesion , at the instance of the incumbent , not being titular , or his majesties advocat , except in the case of collusion , which is declar'd to be presumptione juris & de jure , where the valuation is led with diminution of the third of the real rent presently pay'd , as is clear by the last paragraph of the ninteenth act. this act contains that revocation drawn by sir thomas hope his majesties advocat , which is said to be of the things which gave the first rise to our late troubles ; for therein his majesty , not only revocks all alienations of lands formerly annex'd , and all rights made to his castles , meadows , woods , and parks ; but his majesty likewise revocks all rights made to any church-lands , and all infestments of erections of abbacies , prelacies , &c. spirituality , or temporality ; and a reduction of these rights , was thereupon rais'd : notwithstanding that by the act par. ja. . his majesty to remove all mistrust , does for him and his successors , perpetually confirm all erections , confirmations , patronages of the saids whole benefices , and promises in verbo principis , never to quarrel the same . but what was done afterwards being voluntar , and upon the submission of all parties concern'd , did not at all impinge upon the former statute . it is likewise declar'd in the end of this act , that the possession of any thing hereby revocked , shall not prejudge his majesty ; and therefore it may be urg'd , that fourty years possession of any lands , or others falling under this revocation , would not debar the king by prescription ; and yet it was found , that if the king be denuded in favours of a donatar : this revocation does not interrupt prescription without a reduction . this act is wrong plac'd , for it should be after the act ; for the superiorities of kirk-lands , being by the said act , declared to belong to the king ; the saids superiorities are by this act annex'd to the crown ; but they could not have been annex'd to the crown , till they were first declar'd to belong to it . there is here a dissolution of the annexation , made in the former act , in which it is declared , that this dissolution shall not warrand the alienation of his majesties castles , woods , parks , meadows , and offices ; which is conform to the act par. ja. . whereby all dispositions of these are declar'd null ; and though the lomonts of falkland be dissolv'd particularly by the act par. ja. . yet it is declar'd particularly in this act , that they shall remain inseparably with the crown . because by the act of prescription . it is appointed that such as might be prejudg'd by that prescription of fourty years run before that act . might intent actions within thirteen years after the date of that act ; and because the king could not intent particular summons against every person , whose rights he might challenge ; therefore it is allow'd by this act , that his majesty might interrupt the said prescription by open proclamation , at the mercat cross of edinburgh , and other particular mercat crosses , where the lands lye ; and at the mercat cross of edinburgh , peer , and shore of leith , against such as are out of the kingdom . but least this interruption might have too much alarm'd the subjects : it is upon the kings own concession declar'd , that the said interruption should be restric●'d to the annulling of rights of the annext property of the crown , and the un-annex'd ; whereof account hath been made in the exchequer , and of the principality unlawfully dispon'd by his majesties predecessors , against the laws and acts then standing , and to the annulling of erections , and other dispositions of whatsoever lands , tiends , patronages , and benefices , formerly belonging to the kirk , and since annex'd to the crown , and of any other lands , or patronages , which should any way justly belong to the kirk , or crown , and of whatsoever lands and benefices mortifi'd , and devouted to pious uses ; and of regalities ; and heretable offices ; and of the change of holdings , from the ancient holding of ward and relief , to blench and taxt ward , since the year of god . years . the earl of southesk having right to the muire of montromant , as heretable forrester , intented a declarator against the adjacent heretors , concluding that they should be debar'd from pasturing therein . against which it being alleadg'd , . that they had prescriv'd the right of pasturage . it was reply'd , that the prescription was interrupted by this act. to which it being duply'd , that this edictal interruption was introduc'd without a warrant , the act . having allow'd thirteen years for the subjects to interrupt , without any reservation in favours of the king. . this is neither his majesties annext property , nor is it a part of that un-annext property , whereof the ferms , or feu-duties have been counted for in exchequer , since the year . and so the interruption which is restricted to these , reaches not to this case . . this pasturage is but a servitude , and this interruption extends only to alienations , but not to servitudes , or things of so small moment . to which it was triply'd , that as to the first , there was no necessity that there should have been a reservation in favours of the king , by the act . since the king not being mention'd in the act , which was the rule ; there was no necessity to reserve his right by way of exception ; but this act of parliament has supply'd that want , though there had been an omission in that act. to the second , it was triply'd , that the interruption . being to secure his majesty against prescriptions , upon the act . it was just that it should extend as far as the act . and these words , whereof the ferms have been compted for in exchequer , are only demonstrative , and not taxative ; the compting in exchequer being only a publick evidence of his majesties right ; and therefore , where there were other publick evidences of his majesties right , as strong as this his majesties interruption by this act , behov'd to take place , else it should not extend to secure his majesty , as to any thing , for which there were blench , or ward-holdings ; this act mentioning only feu-ferms ; it should not extend to his majesties castles , or other things , for which he gets no advantage . . this has been compted for , in so far as the sheriff compts for the blench-duties ; and southesk payes blench-duties for his forrest . . by an act of parliament in king davids time , . and another . all the kings forrestries are ordain'd not to be dispon'd without consent of parliament , and so are to be lookt upon as a part of the annext property . to the third it was duply'd , that this act , as the act . was to be extended to prescriptions ; and there were things of less consequence than servitudes secur'd against by this act , such as change of holdings , patronages , &c. this case is not decided . the reason why this act restricts it self in this clause to the year . is , because in that year was the first act for annexing any property to the crown , viz. the act par. ja. . it being alleadg'd upon this act , that the king behov'd to produce the letters of publication at the several mercat crosses , and the executions thereof , else his majesty could not have the benefite of the interruption . it was answered , that the act of sederunt of the session , did indeed appoint letters of publication ; but two years after that act , this act of parliament was made , allowing the king this interruption , wherein the parliament did certainly consider the publication , as having preceeded , & statuit lex hoc casu super praesumpto , and so the letters of publication and extentions , need not now be produc'd ; which answer the lords found relevant , november . sir william ker contra grubet and others . interruption being thus made by the king , does last for fourty years , so that no prescription can run against the king , till fourty years after the date of this act ; and that though the executions and publication required by this act of parliament , cannot be found , for every particular shire : it may be likewise doubted , whether prescription should run against the king , whilst he was out of the countrey : for which , vid. observ . on the act of prescription . by this act , the parliament rescinds all rights of regality made by king charles , king james , or queen mary , belonging to abbots , priors , or any benefic'd person ; reserving alwise to the heretable baillies , and stewarts of the saids regalities and stewartries ; their rights granted to them , prior to the saids erections ; for ordinarly even when these regalities were in benefic'd persons own hands , they made heretable baillies ; but i confess , i understand not what is mean'd by the stewart of a regality ; for stewartries and regalities are distinct and inconsistent jurisdictions ; a stewart being a judge in the kings property only , having the same power that a lord of regality has of the lands erected in the regality holding of himself , and the lands holding of him : but this act has in this follow'd the words of the act of annexation . by the act of annexation . act . all regalities belonging to arch-bishops , and bishops , were thereby annex'd , because their whole lands and temporalities were then annex'd ; but being restor'd in anno . their regalities are hereby reserv'd to them . upon the submission and surrender made by the lords of erection , and other titulars , it is condescended to by this act , that his majesty shall remain , not only superiour to the lords of erection , but even to all the vassals , who held formerly of any abbacy , priory , or other benefice erected ; and therefore , by vertue of this act , they may hold of the king , if they please , but according to an express condition in the surrender it self ; there is by this act reserv'd to the lords and titulars of erection , who subscrived this surrender , the feu-mails and feu-ferms due by their vassals , ay and till the king pay to the saids lords and titulars of erection , a thousand merks for ilk chalder , or an hundreth merks of feu-duty , payable to them , for there is nothing allow'd to them for the service of tennents ; though the lords of erection did not expresly reserve to themselves the casualities that might fall to them by their vassals , during the not redemption , for they reserv'd only their feu-mails , and feu-ferms ; since inclusio un●us seems to be exclusio alterius ; and the superiority being by this act declar'd to belong to the king , the casuality should follow the superiority ; yet by a decision , the of july . the lords found , that the lords and titulars of erection , had right to the casualities of these superiorities , ay and till they be redeem'd ; but by the act par. ch. . it is declared , that the feuars shall be bound to make payment of their feu-ferms and duties contained in their infestments , to the lords of erection , ay and till they be redeemed ; but it is not clear whether escheat and non-entry will belong to the king , or feuars , except it be comprehended under the general word duties . though the feu-mails and feu-ferms be reserv'd to such lords and titulars of erection , as subscriv'd the surrender , so that it may seem necessary to prove that these who seek feu-duties , did subscrive , or else that these should belong to the king : yet because the surrender cannot be found , the lords found it sufficient , that the titular acknowledg'd the kings right , conform to this act : but they found that they had not right to the arrages and carrages of these kirk-lands , because by this act , all the rents and duties are declar'd to belong to the king , and the reservation in favours of the superiour , is only of feu-duties , if they found no abatement of the feu-duty , in respect of vastations , since the feu-duties were small , and the feuar might have gain'd by prior and subsequent years , june . . watson contra elleis . because the superiorities of these kirk-lands , is by act declar'd to belong to the king ; therefore the lords of erection cannot pursue a reduction of these feus ; nor is the concourse of his majesties advocat sufficient , except there be an express warrand under the kings hand for that effect . albeit it be uncontroverted by this act , that the king has no right to the feu-mails , and feu-ferms , due by the vassals of erection , until he redeem the same , as said is ; yet it may be doubted , whether the king has right to the feu-mails , and feu-ferms of the lands , which pertain'd in property to the lords of erection , before the said surrender , and which were mentioned in the old infestments , before the date of the erection , and that without paying for the saids feu-ferms , and redeeming them as said is , as he is oblig'd to do in the case of the feu-ferms , due by the vassals of erection : and it may be urg'd for the lords of erection , that the king has not right to the feu-ferms of their proper lands , except he redeem them ; and that because , . the act of parliament is relative to the submission made by the lords of erection , whereupon the act proceeds ; but so it is , that by the submission , they resign the superiorities , reserving only to themselves the feu-duties , till they receive satisfaction ; but it is expresly provided , that under this resignation , their proper lands should not be comprehended , but that they should hold the same of his majesty , as the same was holden before the date of the erection ; and so the meaning is , that though they should hold the same in feu , yet they should not be oblig'd to pay the feu-duties , till they receive satisfaction . . it were absurd that the lords of erection should not quite the feu-duties of their vassals , till they receiv'd satisfaction ; and yet they should be oblig'd to quite the feu-duties of their own proportion , in which they had far more interest , than in the lands of their vassals , without any satisfaction . . custom is the best interpreter of law , and by the general custom of the nation , the lords of erection have never counted for the feu-duties of their proper lands . . there being a reservation made in the first part of the act , of the feu-duties only in case of payment ; the reservation in the second part of the act , must in annalogie of law be constructed to be burden'd with the same quality , except the contrary were expresly declar'd in the act. but on the other side it may be more strongly urg'd for the king , that he has right to the feu-ferms of these their proper lands immediatly , without any satisfaction , and that for these reasons ; . because by the act of parliament , they are expresly to hold their proper lands of the king , and to pay him the feu-duties mentioned in the old infestments , without any clause obliging the king to make satisfaction ; ergo , the king is not oblig'd . . the parliament having had that reservation , of making satisfaction under their view , in the case of the vassals , they had certainly renew'd it in the immediat subsequent case of the property , if they had not expresly design'd the contrary . . by the charters granted under the great seal , to the saids lords of erection , since the surrender , and this act of parliament , they are expresly by different reddendo's made lyable , both to the general blench duty , due for the whole lands of the erection , both property and superiority , and for the feu-dutie of their own proper lands : ergo , this feu-duty of their proper lands , is due by their charter , which is a feudal contract , and that without any reservation of payment . . the blench-duty of the erection , and this feu-duty is due upon different accounts : ergo , the payment of the blench-duty is not sufficient ; for the blench-duty is due by the lords of erection , for the interest that they have in the vassals lands , and for the tiends , and for the property that was feu'd the time of the erection : whereas this feu-duty is due only for their own proper lands feu'd out before the erection . and to the contrary objections it may be answered , that acts of parliament are not to be extended de casu in casum , especially in such favourable cases as this , which tends most ungrately to take from the king a part of that which himself gave freely . . there was very good reason why they should be lyable to pay the feu-duties of their proper lands , without any satisfaction ; because the king having rais'd a reduction of all the saids erections ; the lords of erection did redeem themselves from the hazard of this plea , by this surrender ; and the reason why the quality of satisfaction was adjected , as to the vassals , and not as to the property , was , because the lords of erection had no interest in their vassals lands , but the feu-duties ; and so it was fit they should get a satisfaction for these ; though the satisfaction was made easie for the king : but as to their proper lands , it was just , because of the great advantage they had by them ; and that they were by this act secur'd in the property of them . it was just that the king should get the feu-duties without any acknowledgement ; and without this the king had got nothing for securing them , when he might have with success quarrell'd their rights ; and the pretence of the vassals , not having pay'd these feu-duties , for their proper lands formerly , is of no import , since the negligence of the kings officers cannot prejudge him ; and the times were rebellious , since the year . nor is this true , though it were relevant ; for the earls of roxburgh , and others have pay'd . because these arguments and difficulties gave some colour to the lords of erection , to think that they were not lyable , therefore they us'd to get ease as to bygones ; but they are made lyable still for the future , in the payment of these feu-duties . the superiorities belonging to bishops and their chapters , is reserv'd to secure them against the annexation , . and their superiorities , are likewise reserv'd from the annexation mention'd in the tenth act of this parliament . some think it fit for his majesties interest , that these superiorities should be redeem'd ; for he might thereby have a great and sure revenue , and a great dependence of vassals ; and it seems also fit for the interest of the poor vassals . his majesty having oblig'd so far the heretors , as to get them the leading of their own teinds , it was thought fit by this act , to give him some small interest in the teinds , viz. out of every teind-boll of the best wheat , ten shilling ; of the best tiend-bear , eight shilling ; of the teind-meal , oats , pease , and ry , six shilling ; and where the oats will not render half meal , three shilling . where the victual was of inferiour goodness , power is granted to the commissioners to modifie accordingly , and in order thereto , they did proportion the price on the several shires , which stands as a rule in the payment of annuity to this day : though it be said in this act , that the annuities shall be pay'd out of all teinds , except the teinds pay'd to bishops , ministers , colledges , hospitals , and other pious uses ; yet it was thought , january . renton contra ker. though there was no formal decision , that decimae inclusae , are lyable in payment of no annuity , for they did not belong to the titular , nor needed the heretor buy them , in contemplation of which liberty , this annuity is granted , and in effect they are likewise lookt upon as incorporat with the stock , and participating of its nature . this annuity was found to be made debitum fundi by this act of parliament , and so to oblige all singular successors ; because the act says generally , that the king shall have right to all the annuity bypast , and to come , though it be not expresly declared , that singular successors shall be obliged , as our law ordinarly uses to do , when it resolves to make any thing debitum fundi . it is declar'd by this act , that annuity shall not be annex'd to the crown , whereby the crown got a great prejudice , since thereby the king would have oblig'd every man to a dependance upon him ; whereas commissions having been granted to sell to every man his own annuity , the king made no advantage thereby . this act is formerly explain'd in act par. ja. . by this act it is declar'd , that every man shall have the leading of his own teind , the teinds being first valued ; and all teinds in scotland may be valu'd , except . where the lands are feu'd , cumdecimis inclusis and confirm'd before the year . as was found , january . . teinds belonging to ecclesiastick persons , and whereof they were in possession the time of the submission , as is clear by the foresaid determination upon their submission , conform to which by the act sess. par. ch. . all valuations led against the bishops , or benefic'd persons , being ministers , since the year . of any teinds , parsonage , and viccarage , wherein they were in possession by leading , or drawing of rental-bolls , are declar'd null ; but by a letter the . of may . it is declar'd , that where such teinds are set by bishops , or benefic'd persons to tacks-men , that eo casu the heretors shall have the buying of their own teinds , but prejudice to the bishop , &c. to enjoy the same after expiration of the tacks , as they were accustomed ; the benefic'd persons always having the prerogative of buying , if he pleas'd , and this to be extended to the heretors , and tacks-man of the teinds of laick-patrons . and conform to this , the lords of the commission decided , february . hamilton contra earl of roxburgh ; though it was there alleadg'd , that this would prejudge church-men , since it would discourage laicks to take tacks from them at due rates : but teinds holden of collegiat kirks , are subject to buying and selling , as other teinds , the . of february . though it would appear by this act , that every man shall only have the leading , and drawing of his own teind , after the same is valu'd , since the act sayes , the same being first truly and lawfully valued : yet if the heretor intent a pursuit for valuation , he will , during the dependence , get liberty to lead his own teinds , if he offer caution to pay his teinds , conform to the valuation that shall be led , july . . but this benefit of leading is only granted to heretors , by the the foresaid act ; and therefore no liferent tacks-man hath this benefit , except the liferent be constitute , by infestment of conjunct-fee , or the like , november . . neither can rentallers , or tennents crave this benefit , ex eodem capi●e , march . . it is only granted likewise to such heretors , whose teinds were drawn before , but not to these who pay'd rental-bolls , july . . and yet the contrary is found the . of july , but the heretor may have the leading of his own teinds , though he does not instruct a publick infeftment , if he shew that he is not in mora , to be infest , and that he is the person who should be infest , july . . but the teinds belonging to church-men , whereof they were in possession the time of the submission , are not to be led upon caution ; and yet by a missive the . of may . his majesty declares his favour not to be extended to their tacks-men , being laicks ; but that during these tacks , the heretor may lead , he finding caution , as said is . by the submission , the decreets following thereupon , and the express words of this act , ministers are to be provided before the heretors have liberty to buy , or value ; and therefore the titular may allocat what teinds he pleases , towards the maintainance of the minister ; and the heretor eo casu cannot force the titular to sell , february . . but though the kirk be not provided , yet the heretor may buy his teinds , if he be content to undergo his part of the augmentation when it shall be granted , the . of january . earl of hadington contra the laird of bairfuird . so that it appears , that albeit a titular may assign any one mans whole teinds towards the ministers maintainance , when there is no present provision ; yet if there be any , though it be small , he may not ; but the same should burthen proportionally , the whole free teinds of the paroch , where there is a present provision , and where the teinds are once bought , the heretor will not be burdened , as long as there is any tack-duties free in the titulars hands , february . . but the tacks-man will not be found lyable in the said relief , january . . but if there be no free teinds in his hand , then the buyers , and all the heretors must be burdened with the augmentation , january . . it seems that the titular cannot assign the teinds of one paroch for paying the stipend of another ; for by this act it is said , that the teinds shall be burdened with the stipend of the minister serving the cure of the kirk : but the commission allocats sometimes the teinds of one paroch , to make up a stipend to the adjacent paroch , if the minister of the paroch , out of which the free teinds are allocated , be competently provided ; for the commission thinks the teinds , as the spirituality of the church , to be burdenable in general ; and yet if this argument prove any thing , it will prove there can be no free teinds as long as there is any minister in scotland unprovided competently . by this act the exchequer is declar'd a soveraign court , and power is given them to pass , and discuss suspensions , and to decern in all things concerning his majesties property , and all things concerning the annuities of teind , which was the particular reason of making this act at this time ; but because of this act giving them power to decide every thing relating to the property ; therefore by the act par. sess. ch. . it is declared , that the deciding concerning the validity , and invalidity of infestments , shall only belong to the session . and whereas this act allows the exchequer only to proceed in things relating to his majesties property and others depending thereon , that act declares they have liberty to judge in all things relating to his majesties rents and casualities , as they might have done before the year . and it being doubted , whether the lords of the session were judges competent to the discussing suspensions , rais'd against the customers , by the masters of manufactories , who pretended , that as to goods imported for the use of their manufactories , they were free from custom ; the lords did justly determine , that thogh the exchequer were only judges competent to discuss suspensions , as to customs , or any part of his majesties revenue , where the same were due by a clear law , or constant use of payment ; yet the lords of the session were judges competent to clear what was due by law , and to interpret acts of parliament . nota , the act of parliament alleadg'd to be made upon the . of may . concerning the exchequer , ratifi'd by this act , can neither be found amongst the printed , nor the un-printed acts. though by vertue of this clause , and a letter from his majesty , it is declar'd that the exchequer are judges competent to liquidat wards and marriages , and that the exchequer has decided in some such cases ; yet regulariter , the session are only judges competent to such actions ; and albeit the session be only judges competent to contravention of law-borrows ; yet after the contravention is decided in his majesties favours , if the party , against whom the decreet is obtain'd , suspend the same , the charge being at his majesties instance , it ought only to be judg'd by the exchequer , that being a casuality already stated , and the point of law being already determin'd ; although it be alleadg'd , that this being a suspension of the lords of the sessions decreet , it should only be discuss'd before them ob continentiam causae . though by the . act par. . ja. . it is appointed , that all hornings henorth d ee , shall be upon no less than fifteen dayes ; yet that is to be restricted , as has been there observ'd in cases before the council ; for by this act , all charges of execution before the exchequer , are to be upon twenty dayes upon the north-side of dee , and ten days upon the south-side of dee . this act is the first commission granted for valuing of teinds , conform to the surrender , and decreets arbitral pronunced thereupon ; which commission is renew'd in several subsequent parliaments : and for clearing somewhat of the form of process before that court ; it is fit to know , that all dyets before the commission , are with continuation ; and because of their uncertain sitting , there needs no wakening ; all procurators appearing before them , should have written warrands , but this is not in observance ; but consents by advocats must be subscribed by advocats , else decreets given thereupon are null , july . . and executions are sufficient by a sheriff in that part , july . . and thereupon the defender will be holden pro confesso . the commissioners did of old , appoint sub-commissioners in every presbytry , who were to be chosen by the presbytry it self , and five to be a quorum , for trying the valuation of every mans teinds , and before them process were intented at the instance of the procurator-fiscal , or the heretors ; and their reports being return'd to the commission , were allow'd . the injunctions given to them , then were , that none should be witnesses before them who were not worth an hundred pounds of free gear ; that such as dwell within the presbytry should be cited upon ten days ; and such as were without it , upon twenty ; that the depositions should be subscriv'd by the most part of the sub-commissioners , and the clerk ; and when any man would make use of anothers servant , as a witness , that the master should produce him upon his hazard ; that where both used probation , not the greatest number , but the clearest deponers should be prefer'd ; and no witnesses to be receiv'd but only ten for each party , which was thereafter expon'd to be ten for each room , july . . the probation is oft-times allow'd to both parties in this court , and where it is single , it is call'd the prerogative of probation , and is much contended for ; wherefore it is thus regulated , viz. either the teinds are drawn ipsa corpora , by titular , or tacks-man , and then they have the sole probation allow'd them , to prove what the teinds were worth , they proving that they led seven years of fifteen before the year . and though after so long a time , this cannot be proven ; yet the proving immemorial possession is found equivalent ; or else they have rental-bolls pay'd them , & eo casu they have the sole probation likewise , they proving twenty years possession , of uplifting rental-bolls , condescending upon the quantity , and quality : or in the third case , the heretor has tacks of their own teinds , for payment of silver-duty : and then there is joynt probation allow'd , both to heretor and titular ; albeit the heretor have the benefit of a conjunct probation ; yet he may refer the worth to the titulars oath , before witnesses be receiv'd , but not after , february . . but where the titular has the sole probation , the heretor cannot eo casu lead any probation of the stock , except it be for certification , id est , except where the heretor summons the titular , who was in possession of drawing of the teind , to prove the worth thereof , with certification to him , if he appear not , the heretor will prove the worth of the stock , quo casu the fourth part is declar'd to be teind , february . . and february . . where the stock and teind are valu'd joyntly , the teinds are made the fifth part ; but where the titular and tacks-man has the sole probation , the heretor has the fifth part down , as the kings ease ; and therefore where the titular takes a dyet for proving of the teind by it self , the heretor may take the same dyet to prove the stock , that in case the heretor fail , he may have the kings ease , july . where there is joynt probation of stock and teind , the present rent should be proven , as well as the rent in all time coming , else the same is null , january . . there are two dyets granted for probation in this court ; and if the first be not made use of , the term may be circumduc'd , and the second will not be granted , february . . and though diligence be extracted after the dyet ; yet if it be extracted before the other party crave the term to be circumduc'd , the same will be sustain'd , november . . by this act also it is declar'd , that where valuations are lawfully led against all parties having interest , and allow'd , they shall not be call'd in question at the instance of the minister , not being titular ; nor at the instance of his majesties advocat , for his annuity , except the collusion be proven , to have been to the diminution of the third of the just rent presently pay'd ; and therefore all reductions upon this head , are at the instance of his majesties advocat ; but it may be doubted , whether his majesty has any interest , where the party has bought his own annuity ; though it may be alleadg'd , that even in that case , the decreet is reduceable , together with the alienation founded thereupon , if subsequent to the decreet , because the exchequer has sold upon a mistake , occasioned by the collusion , albeit regulariter with us , venditions are not quarrellable , as in the civil law , though made infra dimidium . by this clause it is likewise declar'd , that this collusion shall be probable by the parties oaths , and thereupon it has been doubted , whether this clause be exclusive of other probation , and in meldrums case against tolquhon , before the commission in january . it was found , that a decreet of valuation might be reduced upon this clause , if it were proven by witnesses that the valuation was led far within the third of what the teinds were then worth . these acts are but temporary . by this act the liberties of the colledge of justice are restricted to the senators of the colledge of justice ; and this is the first time that the senators of the colledge of justice were divided from the other members ; but thereafter the priviledges of the senators are communicated to advocats , writers , and others , by the act par. ch. . vid. observ . on that act. this act anent the priviledges of royal burrows , is innovated by , and therefore shall be explain'd in the act sess. par. ch. . this act gives a very large commission to the lords of secret council , to grant to the justices of peace , and constables , whatever power the parliament could have granted them ; but this being in effect but a commission , may be alleadg'd to expire with the king and parliament who gave it , as all mandats last no longer than the mandator ; and the power being given to the privy council indefinitly , without adding , for the time being ; it may be urg'd , that it could last no longer than that commission of council ; and from this many new doubts may be started , which shall be elsewhere considered ; but however the council does still grant instructions by vertue of this act. this act impowering the lords of session to exact pennies of the pound of all sums decern'd by them is now obsolet . this act concerning the priviledges of baronets , is fully explain'd in my treatise of precedency ; but from this act it is observable that the convention of estates have been in use to ratifie and approve general orders granted concerning honours ; though it be generally believ'd , that the convention of estates can only grant voluntary taxations , and nothing else ; and i formerly observ'd that they were in use to regulate the mint also . vid. observ . on act par. ja. . though by this act the clangrigor were abolish'd , and they ordain'd to alter their sirname , because of their bangstry ; yet because of their good services done to his majesty , during the late rebellion , they were restor'd in anno . it has been always believ'd , that no clan or family can change its sirname in scotland , without express act of parliament , or act of council ; for that might occasion great confusion , and might be a ground of cheating the people in their evidents and securities . but any privat man may , as we see daily in tailies ; and it does not follow , that because the parliament only can force men to change their sirname , that therefore they cannot do it voluntarly themselves . by this act it is expresly declar'd , that because particular acts of parliament , and acts of ratification , are made without hearing of parties , that therefore the lords of session shall judge in these cases , without respect to those acts , according to the privat interests of parties . the immediat occasion of making this act , was the case betwixt john stuart of coldinghame and the earl of hume , which was this . the earl of bothwel having been forefaulted , the priory of coldinghame was dispon'd by the king to the earl of hume , which earl of hume , set in tack a-part of the teinds of the said priory , to the laird of wedderburn , but thereafter the earl of hume having entred in a transaction with john stuart , son to the earl of bothwel , he suffers by collusion , a decreet of parliament to pass in anno . whereby john stuart was not only re-habilitat as to his blood , but the forefaulture rescinded , in so far as concerned his right to the priory of coldinghame , upon a pretext that he had a commendam of it settled in his person , before his father was forefaulted , whereupon dowglass of evelaw , pursuing the laird of wedderburn for a spuilzie of teinds in anno . he obtains a decreet , notwithstanding of very unanswerable grounds , then alleadg'd ; because the lords of the session would not call in question the act of parliament . notwithstanding of the act salvo subjoyn'd to the acts of that parliament ; for the lords found , that the session as an inferiour judicature , could not canvass special acts of parliament ; but because the subjects might be extreamly prejudg'd in their privat rights by such acts of parliament ; therefore the foresaid claus● was inserted in this act , and that it might extend to this case , though anterior it is expresly declar'd in this act , that this was the meaning of all former acts salvo ; and accordingly the lords of the session did in february . repone the laird of wedderburn to debate upon his just rights , notwithstanding of the act of parliament . by this act several privat rights and ratifications , are excepted from this act salvo ; but since the act salvo proceeds upon the principal of natural reason and justice , it seems that even these exceptions are questionable , for else the act salvo should signifie nothing ; for these who had the interest to obtain privat acts of parliament , would likewise have the interest to get them excepted from the act salvo ; and upon this reason it was doubted , and not decided , whether exceptions from the act salvo , made in privat rights , though not repeated in the act salvo , were sufficient to secure these rights against the act salvo ; for though it might be alleadg'd , that in these there is a speciality from this case , since the act salvo being posterior , and simple , annuls and derogats from the former reservation ; yet even there it may be alleadg'd , that it cannot derogat , since in the former special act , the parliament declar'd their special inclination , that it should not derogat . nota , the act salvo jure is never voted in parliament , because it is but an act in course ; and for the same reason , ratifications are not voted now , since no man can be concern'd in either ; albeit of old , i find that ratifications were past in parliament in the form of decreets , and so must have been voted ; but it seems strange , why acts for granting of mercats , and imposing customs for the maintaining of bridges , should not be voted : and in the parliament . the reports of the articles thereof , as to these , past the last d●y , without being voted , which was oppos'd by some as irregular ; because there the consent of some parts of the nation was requisite . but i conceive , that this likewise proceeded from the numerousness of the things that were brought in , and the general acquiescence of the members , and the time they were to sit being so short , and it seems securer to settle these by a vote . k. charles ii. parliament i. session first . albeit king charles the second did hold a parliament at saint-iohnstoun , in anno . yet this parliament , being the first after his majesties happy restauration , is by the inscription , intituled , the first parliament of king charles the second ; though that parliament . is not rescinded by the general act rescissory , which is the fifteenth act of this parliament ; nor by any other special act : and so that parliament stands still in force , so that this inscription seems unwarrantable . the rebellious parliaments in the former age , did choose their own president , though the chancellour ought to have presided in all courts , as is insinuated by the act par. ja. . but this they did , to have the president of parliament depend upon them , and not upon the king ; and therefore by this act it is declar'd that the chancellour is ratione officii , to preside in all publick judicatures where he is present . observ. . that this act says , that the lord chancellour , and such as shall be nominated by his majesty , shall preside ; and therefore if the king please , he may nominat another president , though the chancellour be present : and i find that his majesty has nominated others to preside where the chancellour was present . obser. . that though ( when the chancellour is absent ) his majesty can only nominat another president ; yet this does not exclude his majesties high commissioner from the power of nominating a president , since he has mandatum cum libera ; and middleton did nominat the earl of crawfurd to preside in this parliament , when glencairn , then chancellour , went to london . observ. . that the chancellour is to preside , not only in the parliament , but in all other publick judicatures ; and therefore though it was pretended by the thesaurer , that notwithstanding of this act , the chancellour could not preside in exchequer , though he was named in the commission ; because the exchequer was rather the kings chamberlains court , than a publick judicature , in which the thesaurer was chiefly intrusted , because he was chiefly to be answerable ; yet this pretence was groundless , since the exchequer is a judicature which hears , and discusses causes , relating to the revenue , and is declar'd a judicature by the act par. ch. . but by a letter in anno . the chancellour is discharg'd to preside in exchequer ; and this sh●ws his innate power to dispense with acts of parliament , which relate only to government , and his own service . observ. . that though by vertue of this act , it may be pretended that the chancellour may preside in the justice , or admiral court , if he pleases to be present ; yet i conceive he cannot come to any of these courts , without a special nomination : and even this act says , that the chancellour , and such as shall be nominat by his majesty , shall preside . this act likewise sets down the oath of allegiance , wherein the king is acknowledg'd to be supream over all persons , and in all causes ; which is founded upon the act par. ja. . and is the foundation of the act of supremacy ; which is the first act of the par. ch. . the parliament . had taken from the king , the nomination of the officers of state , counsellours and judges ; and therefore by this act , the power of nominating these , is declar'd to be a part of the kings royal prerogative , which is conform to the law of all nations , l. unica . ff . ad l. jul. de ambitu ▪ haec lex hodie in urbe cessat quia ad curam principis magistratuum creatio pertinet non ad populi favorem : by this act also , it is declar'd that our kings hold their royal power over this kingdom from god ; which was exprest here , to condemn that fundamental treason of the last age , which taught , that the king was subject to his people , because , he deriv'd his power from them : and from that they infer'd their power of reforming ; and at last , of deposing the king. but lest it might have been obtruded , that though by this act it be declar'd , that the king holds his power from god alone ; yet the holding it from god , did not exclude the interest of the people ; for all men hold of god , whatever they hold of others : therefore by the act of this parliament , it is declar'd , that our kings hold their crowns from god almighty alone : and lest it might still have been said , that though the king holds his power of god , yet he derives his power from his people ; therefore the convention of estates in their letter to the king , . and the estates of parliament , in the act par. ch. . anno . acknowledge , that he derives his power from god alone : and though conventions of estates cannot make laws ; yet it may be said , that they may declare and acknowledge their obedience as fully as parliaments may . observ. that these words , to hold the crown from god , is ill exprest ; for by our law , he that holds from me , holds not of me ; for a me & de me are diametrically opposit in matters of holdings . the former rebellious parliaments , especially the convention of estates , . did sit without a special warrand from his majesty ; and therefore by this act , the power of calling , holding , proroging , and dissolving of parliaments , is declar'd to be inherent only in his majestie , as a part of his royal prerogative ; and therefore the act of this parliament , annulling in special terms the said convention , . was unnecessary . i conceive that the word proroguing here , is us'd for adjournment only , though the word in its property signifies only to adjourn , so as to make all the overtures past in that session , to be null , which distinction is unknown to , and unnecessary with us . the impungers , or contraveeners of this act , are declar'd by this act guilty of treason . by this the former acts against convocations , and leagues , or bonds , are ratifi'd , and discharg'd under the pain of sedition ; and the keeping of all assemblies and meetings , upon pretence of preserving the kings majesty , or for the publick good , are declar'd unlawful , notwithstanding of these glosses , except in the ordinary judicatures . the design of which act was occasioned by , and levelled against such meetings , as the green tables in anno . whereat the nobility and gentry did formally meet in great numbers , though their papers did alwise begin ; we the noblemen , gentlemen , and others occasionally met at edinburgh . the former rebellious parliaments having rais'd armies , fortifi'd garisons , and treated with the french king , without the authority of their own king ; it is therefore declar'd by this act , that the power of making peace and war resides solly in his majesty ; and that to rise , or continue in arms , or to make any treaties , or leagues with forraign princes , or amongst themselves , shall be treason . observ. . that by this act the king is declar'd to have the only power of raising armies , and making garrisons , the subjects alwayes being free of the provision , and maintainance of these forts and armies ; and therefore it was asserted , that free quarter , except in the case of actual rebellion ▪ was unlawful , and that even then it behov'd to be warranted by a parliament , or convention , though it seems , that rebellions may be so sudden , or parliaments and conventions so dangerous , that free quarter may be warranted by the kings own authority in cases of necessity ; and if any part of scotland should rise in rebellion , it is not imaginable that they will either give quarter for pay , or deserve to be pay'd ; and so to refuse the king the power of free quartering , without parliament , or convention , in that case were to deny him the power of raising an army , without which it cannot be maintain'd . but free quarter is expresly discharg'd by the act par. ch. . observ. . some likewise think by this clause , that though the king may force towns , and adjacent countreys , to carry baggage and ammunition of his souldiers , the publick good so requiring ; yet he must pay them for it ; since by this act , the king is to pay for the provisions , as well as maintainance of the army , and to take away countrey-mens-horses without pay , is as great a tax upon them , as free-quarter : but yet our kings have still been in use , by immemorial possession , to exact such carriage without payment ; and so the only doubt remains , whether this act innovats the former custom ? and whether the subjects , not seeking payment , being merae facultatis , prescrives against them , jus non petendi ? observ. . it has been controverted , whether though by this act the king may dispose upon all forts , strengths , and garisons , if he can thereby make any privat mans house a garison ? that was not so originally , it being pretended , that if this were allow'd , no man can be sure of his dwelling-house , which is the chief part of his property ; but it cannot be deny'd , but that all houses with battlements , or turres pinnatae , as craig observes , are inter regalia ; and of old could not be built , without the kings special licence : and as to these , the king may garrison them ; for since he has the absolute power of making peace and war , it were absurd to deny him the power of garisoning convenient places , without which the war cannot be mannag'd . it having been controverted whether the earl of caithness might garison one of his castles , without express warrand from the council ; they found he could not , though it was alleadg'd that he was a stranger in caithness , and the countrey was broken : for this act of parliament having discharg'd all garisoning of houses , upon any pretext whatsomever , if it should be allow'd upon such pretexts as this , not only would the express letter of the law be overturn'd ; but all persons dissaffected might garison upon this pretext ; whereas on the other hand , there can be no inconveniency , since the council will allow liberty to garison ; and if present danger do press the heretor , he may garison his house for his own defence , till he obtain that order . this act annulling the convention of estates . was unnecessary , it being formerly annull'd by the third act of this parliament . this act declaring the league and covenant null , and the discharging the renewing thereof , under the highest perril , seems unclear , because of the indeterminatness of the punishment , and seems unnecessary , because by the fourth act of this parliament , subjects making leagues amongst themselves , or with forraigners , are guilty of treason . this act does in the first part command all jesuits , priest●● and traffiquing papists , not to say mass , and to remove forth of the kingdom within a month , under the pain of death , whereupon it was doubted , whether within that month , they could be punished with death , else this month had not only been elusory , but might have prov'd a snare , since they might have thought that this month was allow'd for preparing for their departure , and so they might have appear'd , and gone about their business in order thereto . by the second part of this act , children are ordain'd to be taken from parents , tutors , or curators , popishly affected , that they may be bred with well affected protestants , at the sight of his majesties privy council , which act is renew'd by a proclamation of council , in january . though the parliament . be here ratifi'd ; yet it is thereafter abrogated by the general act rescissory , which is the fifteenth act of this parliament , that not having been resolv'd upon till after this was past . the parliament . is by this act absolutely rescinded , and that without a general salvo , and though by the act rescissory , there is a general salvo in favours of the rights , and privat securities past in other parliaments , as is clear by the last words of the act , yet there is none subjoyn'd to this parliament . that parliament . had taken from patrons the power of presenting , they having conceiv'd it most antchristian , that the minister who was to care for souls , should be chosen by one man , and oftimes by one who would never hear him ; but they reserv'd to the patron the right of teinds , without prejudice to the present stipend ; and therefore that act is hereby rescinded , and patrons restor'd to the power of presentation : and though it cannot be deny'd , but that the people had a share in the elections , as is clear by saint cyprians epistles , yet this was when they pay'd them , and were themselves very judicious , and dis-interested in the infancy of christianity ; and before ; patrons had by founding churches , the interest they have now ; and now the people are by an edict cited to declare what they know why such a man should not be chosen : and in the reform'd churches of germany , as carpz . in his jus consist . relates , the people have vocationem ; from which the presbyterians borrow'd their word call. by this act it is declar'd , that such parsons , and ministers , as are in present possession of kirks belonging to laick patrons , shall claim no right , nor possession , but what they had before the making of this act , they being otherwise sufficiently provided . this act was unnecessary , because these parliaments are taken away in the general act rescissory . this act appoints all officers of state to take the oath of allegeance , and to assert under their hands , all the former royal prerogatives ; but now the council do put the same to all who are suspected ; and fine or banish such as refuse to take it , because the act having left to the council to put this oath to any , and having nam'd no penalty , the penalty is to be understood arbitrary . but now all who are in publick trust , take the test appointed by the act par. ch. . this act confirms all judicial proceedings , under the usurpers , except when they were quarrel'd within a year ; and this act having appointed , that within that time , the sentences of the usurpers might be quarrell'd , without suspension , or reduction ; and the writ by which they were quarrel'd , was call'd a review , which was in effect a reduction , and was like both in the name and matter , to that revisio allow'd by the civil law. the usurpers having by the example of our rebellious parliaments laid on an excise upon bear and ale , this loyal parliament did grant his majesty pounds sterling , to be uplifted yearly out of the custome and excise , in manner mentioned in the act : but it has been much doubted , whether it had not been better to have continued the excise upon the bear and ale , than to have laid it upon the malt ; for now brewers endeavour to take as many pints out of the boll of malt , as they can , which hinders much the consumption of the malt , by making the drink weak ; whereas if it had been laid upon the drink , they would have endeavoured to make the drink strong . and for which excise , the commissioners of the respective shires , are lyable personally , and they have their relief off the deficients , the goods of which deficients , are hereby to be poinded , without carrying them to the mercat cross , they being apprised at the next paroch church door , which is like the priviledge given to ministers stipends , by the act of the sess. of this parliament . though by this act the excise is laid upon the retailer of commodities ; yet by the act par. ch. . the importers are declar'd to be lyable for the same excise . after this parliament had rescinded some privat parliaments , they considered that all the parliaments from the year . till the year . were but branches of one and the same rebellion ; and therefore they did annul them all by this act , which is call'd the act rescissory : but privat parties rights , obtain'd in these parliaments are salved . in this act it is acknowledg'd by the parliament , that our kings hold their crowns immediatly from god almighty , which was done to exclude that rebellious republican , and sectarian principle , that our kings deriv'd their power from the people ; for if so , then the people might call them to an accompt , depose , or suspend them : and our very stiles , which acknowledge our kings to be by the grace of god , does convince us , that they are not kings by the people ; and therefore argentorat pag. . observes well , that formula illa quae est in titulis dei gratia , utuntur illi soli qui nulli mortalium imperium suum debent vid. obs . on the act par. ja. . this act allowing the government by synods , presbytries , and sessions , is rescinded by the act of the sess. of this parliament . this act appointing a solemn aniversary thanksgiving for his majesties happy restauration , was scrupled at , because this act did appoint it to be set a-part as a holy-day ; and therefore it was thought fit by the act of the sess. par. ch. . to renew it as an anniversary thanksgiving , leaving out the words holy-day . this act against cursing and beating of parents , is fully explain'd , crim . pract . tit . paricide . this act is explain'd crim . pract . tit . blasphemy . this act concerning casual homicide , is explain'd crim . pract . tit . homicide ; but it is fit to add here , that the rubrick of this act of parliament bearing , act concerning the several degrees of casual homicide , is very rediculous , for the degrees mentioned in the act , are casual homicide , homicide in lawful defence , and homicide committed upon thieves ; and no sober lawyer can think , that either homicide in defence , or homicide committed upon thieves , are degrees of casual homicide . by this act the whole priviledges belonging to the colledge of justice , that is to say , senators , advocats , clerks , writers , and remanent members , or whereof they have been in use , or in possession at any time bygone , are expresly ratifi'd , and that notwithstanding of whatsoever act , custom , or practice to the contrary , vid. act par. sess. ch. . where the priviledge of immunity from taxes , is only given to the lords of session . upon which act it was debated in december . whether advocats should not be free from the annuity impos'd by the town of edinburgh , since they were by this act freed from all impositions , and though by a special act of this same parliament , ch. . the colledge of justice was made lyable to the annuity ; yet they being free by this act , and the other act being but an un-printed act , and an act to which they were not call'd , their priviledge could not be thereby taken away ; albeit it was contended , that the being free from annuity was no priviledge , ever expresly declared in their favours : but on the contrary , was a debt upon them , as hearers of the word of god ; and so the parliament might very well by a general law , declare this priviledge , not to prejudge the annuities ; nor was that law concerning annuities a special , but a general law , binding all the people who came to live in edinburgh ; and therefore there needed no party be cited , nor was it necessary to the essence of an act of parliament , that it should be printed . by this act the creditors of the defunct are prefer'd to the creditors of the appearand heir , as to all execution against the defuncts estate , they doing diligence within three years after the defuncts death , which three years was found to be tempus continuum , and not utile , and that these three years did run even contra non valentem agere , december . paterson contra bruce . the reason of which act of parliament is , that it is just that every mans estate should pay his own debt , though upon the other hand it is likewise just , that in the next place , the appearand heirs creditors may likewise do diligence , even against that estate , to which their creditor may succ●ed : nor ought his voluntary lying out to prejudge them ; for which cause likewise it is , that they may charge the appearand heir to enter , and comprise , or adjudge the predecessors estate . by this act it is ordain'd , that fourty dayes after the sentence of excommunication , letters may be rais'd at his majesties advocats instance , for denuncing the persons excommunicat rebels ; the process being first revis'd by the lords of the session ; but this power of the lords of the session , being made before the bishops were restor'd , is abrogated by the act of the sess. of this parliament . by this act the person from whom goods were stollen , is to have his goods , or the value thereof restor'd to him out of the readiest of the thiefs goods , he alwise pursuing the thief to sentence . observ. . since this act reserves to the sheriff , or takers of the thief , the expence war'd out by them in taking the thief , and putting him to ●xecution . it seems that they ought to be prefer'd to the owners of the goods , though the act sayes , that he is to be pay'd out of the readiest . observ. . it may be doubted whether the justices , or the judge ordinary should restore ? and though the justices have no civil jurisdiction , yet i have seen them restore in such cases ; and this is in effect an incident jurisdiction , ●b continentiam causae . observ. . that it has been doubted , whether third parties buying the goods , though in a publick mercat , are oblig'd to restore . this act pardoning penal statutes , seems by a mistake , to except usury ; for usury is properly a crime punishable by all law , at all times : whereas a penal statute is properly a statute , which punishes a delinquency , that is only punishable upon some occasions by an arbitrary punishment ; and therefore acts of grace , or general indemnities , discharging the execution of penal statutes , should no more be extended to usury , than it should be extended to murther , or adultery ; and usury is by the act of indemnity , which is the act sess. of this parliament , excepted from that indemnity , amongst murderers , thefts , and other crimes of that nature , and it was excepted only in this act , ad majorem cautelam , because the chancellour had then the gift of usury . what are properly counted penal statutes , may be seen act par. ja. . where amongst other crimes , usury is ordain'd to be punish'd , and not to be pardon'd as a penal statute ; and if usury fell under penal statutes , it would very much encourage usury ; for men would still expect a discharge of it , because penal statutes are frequently discharg'd : but yet the lords in the case betwixt the laird of haining and cruick , found that usury was discharg'd by the act of grace . because of the special conception of that act. by this act the quots of testaments are taken from the commissars ; but upon the restoring of bishops , this act is abrogated by the act and sess. of this parliament . this act is formerly explain'd act par. & act par. ja. . this act is formerly explain'd in the act par. ch. . by this act all comprisings are to be allow'd within sixty dayes after the date thereof , with certification , that if they be not allow'd , and recorded within that space , a posterior comprising first recorded , shall be prefer'd thereto ; and upon the of june . the lords upon a supplication , ordain'd a comprising to be allow'd , though the person against whom the comprising was led , was dead , and the sixty dayes were expir'd ; and found that notwithstanding thereof , it should be prefer'd to a comprising , whereof the allowance was registrated after its registration . observ. . that by this act a comprysing is not declar'd null , for not being allow'd , and so was not excluded by a posterior apprysing , first allow'd ; but both were brought in pari passu ; which last part of the decision may seem strange , since it is expresly declar'd by this act , that the not allowance shall be with certification , that a posterior comprising , first allow'd , shall be prefer'd according to the date of the allowance , november . . maxton contra cunninghame ; and so they could not come in pari passu . but the reason of this decision must be , that by the posterior act . of this same parliament , all comprysings led within year and day of others , are ordain'd to be brought in pari passu : and these comprisings have been led within year and day , though the decision mention not this . and this i find decided , july . . stuart contra murray . observ. . that if the appryser has obtain'd infeftment without allowance , he will be prefer'd ; because ( as i think ) his infeftment being registrated in that case , supplies the not registration of his allowance , and certiorats singular successors sufficiently . observ. this act narrats , that it was ordain'd formerly by act of secret council , that the whole comprisings , and not a breviat , should be registrated : which not being authoriz'd by any law , or act of parliament , is therefore discharg'd ; from which it appears , that the secret council use not only to make acts relating to government , or to regular prices of writs , as appears by the act par. ja. . or to discharge bakers , and candle-makers to keep their broom-stacks , or melting-houses within towns , as in the act par. ja. . but even to make acts relating to registration , and competition of writs ; which though the parliament does here openly condemn ; yet tacitly this act declares their act was no law ; and they could less have made such an act , than the lords could have made an act of sederunt , ordaining seasins within burgh to be registrated , which they found only the parliament could do ; and it is observable also , that this act of council did therefore soon run in desuetude ; and the parliament confirms the contrary custom . observ. . this act narrats that by a custom , allowances of apprysings did contain , and express the names , and designations of the apprysers , the names of the defenders , ( whereas it should have said debitors , though the debitor be a defender in the comprysing , which is a decreet ) the debts for which the comprising is deduc'd , the messengers , and the clerks names , the date of the executions , the witnesses names thereto , and the superiours names ; which custom being authoriz'd by this act , it may be doubted , if the omiting any of these particulars in the registrated allowance , would annul the same , since the act does not subjoyn an irritancy . the difference concerning heretable and moveable bonds , is fully explain'd in my institut . part . tit . . by this act , these who marry themselves clandestinly , or inorderly , are to be imprison'd for three moneths , and beside to pay , each nobleman a thousand pounds ; each baron , and landed gentleman , a thousand merks ; each gentleman , and burges , five hundred pounds ; each other person , an hundred merks . observ. . the want of the parents consent , or of the consent of others having interest , seems by the narrative , to infer the clandestinness of the marriage : but yet by our practique , children marrying without the consent of their parents , if they be of age , and the marriage otherwise regular , they are not punishable ▪ wherein we seem to agree rather with the counsel of trent ▪ than either with the law of god , exod. . and . numb . ▪ deut. . . or the civil law , institut . de nuptiis & l. . ff . de ritu . nupt . observ. . that it may be doubted , whether since this act appoints no punishment to women ; if a noble-woman being an heretrix , marry a gentleman disorderly , she may be punish'd as a noble-woman , or he only as a gentleman ; and i think she should be punisht as a noble-woman , having precedency as such . observ. . that it has been doubted , if an expectant having power to preach , and being appointed a presbyter , but having no settled kirk , and marrying persons , the marriage can be punished : or if such as marry by a lawful minister of another paroch , without warrand , either from the bishop , or the minister of their own paroch , may be punished by this act. observ. . by the act sess. par. . ch. . such as enter into these disorderly marriages , lose their jus mariti , or jus relictae , by and attour the penalties here express'd . observ. . that the marrying in england , or ireland , without proclamation of bonds in scotland , and against the order observ'd in this church , infers the former fines ; but the marrying without proclamation of bonds , is not per se sufficient ; and therefore if there be a dispensation from the bishop , quaer . if the marriage is not clandestine , and it seems it is not , for the bishop may be mis-inform'd , as if the woman wanted parents : and by the narrative of this act , the want of the parents consent is made an impediment , as well as the having granted a prior promise to another ; and therefore , as the bishops warrand should not defend in the one case , so neither should it in the other ; but it is still peri●ulo petentis , else bishops should innocently become the instruments of robbing us of our children , and estates , and of taking them away in such manner , as that parents can neither see their daughters provided to competent jointures by the husband , nor the husbands who marry them , sufficiently provided by the father in law. quaer . . whether is the consent of the mother necessary when the father is dead ; and i conceive it is , especially when she is intrusted by the father , and the child stays with her ; for though the daughter be not in potestate materna ; yet she is a parent ; and this act requires the consent of parents ; and the instituts tell us , that naturalis & civilis ratio requirit consensum parentum : nor can it be deny'd , but the mother has an equal natural relation ; and by this interest , law incourages , and rewards the mothers pains . quaer . . what if the parents refuse reasonable offers , and yet the child is marriageable . to which it is answer'd , that the consent should be first askt , and why they refuse , that the judge may , when the parent thereafter complains , consider if the parent was culpable in refusing his consent . quaer . . if the being married by their own minister , without proclamation , or dispensation from the bishop be sufficient , and though the minister have a warrand from the bishop ; yet by act of synod , he is discharged to marry in a privat house , except the warrand dispense therewith expresly . this act shall be explain'd in my observations on the act par. ch. . by this act it is ordain'd , that none shall have right to any benefi●es , till they take the oath of allegeance ; and if the patron omits this , not only is the presentation to be null ; but the right of patronage as to that vacancy , belongs to the king. this act is formerly explain'd in the act par. ja. . by this act , his majesty and parliament having erected fishing companies , do declare , that salt , cordage , hemp , &c. imported for the trade of fishing , shall be free of any custom or imposition : but yet by the act of the par. ch. . the importers of forraign salt , are to give security for payment of the excise , whether the salt be employ'd for salting of fishes , or not ; but there is allowance to be given to the exporters , for what shall be prov'd to have been imploy'd upon fishing . it is observable likewise from this act , that his majesty by his soveraign authority , and prerogative royal , without speaking any thing of the consent of parliament , in this clause , d●clares that the ships , and furniture imploy'd in fishing , shall not be arrestable by creditors , nor the persons pursu'd before any judicature : and it may be doubted how this is consistent with the property of the subject ? or whether this would defend against criminal pursuits . the word attatchments here exprest , properly includes criminal actions , sed nulla excusatio prodest adversus pracepta ei qui cum leges invocat adversus eas committit l. auxilium , ff . de minor in ●in : and though it may be answer'd to the other doubt , that the parliament consented to this lessening of property ; yet it is clear , that the prerogative , and not their consent , is only mention'd , except we construct their not opposing it to infer a consent : and it may be rather urg'd , that the parliament has acknowledg'd , that this is the kings prerogative ; but if this be , the king may discharge judges to proceed in any civil action . this act incouraging manufactories , by discharging the custom , or excise , due upon the materials , to be therein employ'd , is much lessened by an act of exchequer , whereby it is declar'd , that these materials are only to be free , which the masters of the manufactory bring home upon their own risk ; because this act , and the act , in favours of sope-work , does say , that shall be imported for the use of manufactories ; and another decision of exchequer , whereby it is declar'd , that these are only to be accounted priviledg'd manufactories , where the species of the thing manufactored is altered ; and therefore it was pretended that the suggar works were no manufactory , because they only refine suggar that is brought in . it has been likewise debated , whether materials imported for manufactories , are by this act free from paying custom , or excise ; since the act only says , that oyl , dying stuffs , pottashes , or any other materials usual for manufactories , shall be free of custom , excise , and other publick dues , and that all cloaths , stuffs , stockings , and other commodities to be exported by them , shall be free of custom , and excise for nineteen years , must be subjoyn'd , both to the export and import , both these being in one sentence , and not divided by a punctum , but by a semi colon ; by which we are to observe , that not only the right wording , but the right pointing of acts of parliament are to be observ'd : but in my opinion , the materials are ever to be free ; and the export is only to be free for nineteen years ; which is clear , not only from the wording of this act , but likewise from the act of this same parliament . by this act any person inclosing his ground at the sight of the sheriffs , stewarts , &c. may cast about the high-way , two hundred ells ; and where inclosurs fall to be upon the borders of any persons inheritance , the next adjacent heretor is to be at equal pains in building , ditching , and planting that dike , which divideth their inheritance ; which last clause was found to be only conceiv'd in favours of those who had required the neighbouring heretor , because he might have imploy'd his own servants , or materials , but yet the lords , in the case of garletoun against george seaton , february . found that if the neighbouring heretor was not required , they would abate to him in the modification , what he might have saved by using his own servants and materials , by the act par. ch. . it is added , that the sheriffs , and justices of peace , may force the neighbouring heretor to sell as much of his lands as may cause the dike , or ditch to run upon even ground , or as may be capable of a dike ▪ or ditch , where the builders own ground is incapable of either dike , or ditch . bacons history hen. . observes , that that king restricted the frequency of inclosures , because much grass could be mannag'd by a few herds-men , which occasion'd a great decay of infantry , towns , taxes , tiths , vid. pag. . of that history . by this act broken copper , and brass , are discharg'd to be exported ; and the reason truly is , because it hinders the manufactory of making things of brass , or copper within the kingdom ; but yet because there was so much allow'd to be taken for broken brass and copper , exported by the book of rates ; which seem'd to imply , that exporting was allow'd , and that this act had not been in observance ; therefore the council discharg'd the confiscation quoad bygones , preceeding . but discharg'd exportation for the future . and it must be notic'd , that custom is ●mpos'd by the books of rates upon many things that cannot be exported . this act discharging trades-men to import made work , and declaring the one half to ●elong to his majesty , is not so well observ'd as in reason it ought to be , since it makes them lazie in improving the manufactorable commodities of our own nation ▪ but it may be doubted , whether this act does not also discharge the importation of all such made work , by merchants as well as trades-men , since this discourages manufactories more than the other ; for it is less probable they who can make such work , will bring it home ; and why should ill work be confiscated , when made by our own trades-men ? whilst any ill work may be brought from abroad ; and the words of the act being the parliament ●●hibits and discharges all trades-men to import made work , or any such ware brought home by merchants the prohibition may by the particle or , be extended to made work , brought home by merchants ; to which nothing can be answered , but that the rubrick bears , act discharging trades-men to import ; this selling was discharg'd formerly to crafts-men only , ja. . par. . act . ja. . par. . act . and par. . act . but it is alleadg'd , that some vvork cannot be so well made ; and that our own trades-men would extortion us , if we were not in a capacity to over-awe them by bringing home made work : and yet to encourage our own work-men , there is double custom laid upon all forraign made work by the book of rates , and ten per cent by a late proclamation , which being joyn'd with the sea-risk that those run who bring home made work , and the exchange pay'd for the price of it , is a sufficient encouragement to our own trades-men ; who , because they may live cheaper , may likewise work cheaper than those abroad , even beside these other encouragements . this act in favours of sope-work , seems needless , because it was comprehended under the general act concerning manufactories , being the act of this parliament ; but probably it has been thought necessary for clearing the time , for which the priviledge of manufactories was to endure , as has been observ'd upon that act. though by this act it be declar'd , that upon the bringing down the annualrent to six of the hundred ; that six is declar'd to be free of all retention , or other publick burdens ; yet subsequent parliaments have burdened , even the annualrents with retention , and otherwise , expresly contrary to this act , upon pretext that the impositions were voluntar offers , and not formally impositions . nota. it may be doubted , if the kings officers may not lawfully ingage for more than six per cent , to get money for publick use . by this act it is declar'd , that all sums whereupon no infeftments have follow'd , may be arrested , though they be heretable otherwise of their own nature ; and because regulariter heretable sums are not arrestable , therefore this dispensation was necessary . albeit this act bear only , that sums whereupon no infeftments have follow'd , be arrestable , and determines not , if arrestments may be us'd at his instance , to whom such sums are due ; yet a paritate rationis , this may follow . this act is formerly explain'd in the act par. ja. . this act is only a ratification of the act of the par. of ch. . save only that it is here declar'd , that notwithstanding of this act , any who have gotten , or shall get any new infeftment of superiority of kirk-lands , the same shall stand good , as to such vassals who have given their consent to the said right of superiority ▪ in regard that such a consent , as to his majesty , is of the nature of a resignation of their property , in favours of the said superiour , to be holden of the king ; but prejudice nevertheless to his majesty , of his highness right of reversion , of the feu-ferm-duties , and casualities , conform to the foresaid act of parliament . the design of which clause was , to secure such lords of erection , as had got bonds from their vassals , holding kirk-lands of them , to continue their vassals , and not to hold of the king , notwithstanding of the act of parliament . declaring the king to be the superiour of all kirk-lands : and albeit the lords did not think that the single taking of an infeftment from a lord of erection , did infer the consent mentioned in this act ; after giving of which consent , the vassal could not return to be the kings vassal ; yet upon the . of july . in a case betwixt the duke of hamilton and weir of blackwood . the lords found , that such a consent as this might be infer'd by presumptions , shewing that the vassal design'd to oblige himself to hold of the lord of erection , and not of the king ; and in that case they found , that blackwoods father having granted a bond , that so soon as the duke should obtain the superiority , his son should become his vassal ; and though the duke had not then obtain'd it , yet he has since ; the lands being lately dissolv'd from the crown ; and though the father was but a tutor , yet he was the person who was instrumental to settle his son in the right ; and the rest of the vassals of that abbacy , did take their lands expresly , holden of the duke only : but in my opinion , no consent can be founded upon by this clause of the act of parliament , except it be a clear and express consent , to hold only of the lords of erection , and not of the king , it being so much the interest , both of king and people , that the subjects should hold of the king ; and the parliament , . having so clearly introduc'd in the favours of vassals of erected church-lands , that they may hold of the king , it were hard to take that benefit from them without their express consent . for understanding this act , it is fit to know , that because ti●●lars of prebendaries , chaplanries , and alterages cannot be infest , and that there is nothing standing in any register , to shew who is titular ; therefore singular successors who are vassals , could not know by whom to enter ; to supply which , this act provides that the vassals of the saids provestries , chaplanries , and alterages , and others of that nature , may be infeft by the laick patrons , holding immediatly of the king ; because it is easie to discover by the registers , who is laick patron of the benefice , since it passes by infeftment , but yet the laick patron is to have no advantage ; and so the liferent-escheat will not fall to him as superiour , but will belong to the titular , who is true superiour ; nor can the laick patron pursue reduction : but yet it seems that since the vassal did enter by him , that therefore he is bound , both to produce to him , and that he will have right to the emoluments of the superiority , except the vassal can show who is the true superiour . nota. that when the patron presents in such cases , he needs not the consent of the chapter , or convent of the saids prebendaries ; and the provost and baillies are declar'd the only undoubted superiours , where such benefices ly within their towns , they having formerly been patrons of these chaplanries , which ablativi absolute positi seem to import a condition , and so they must prove that they were formerly patrons . albeit by this act it be appointed , that there shall be a cocquet for every ship , and that there shall be fourty shilling pay'd for it ; yet it was alleadg'd that a general cocquet , for a ship , was not sufficient ; but that every merchant should have a special cocquet , containing specially his goods , and enumerating particularly all the kinds of these goods ; because , first ; the design of cocquets was , to know whether the goods belonged to free-traders ; which could not be done , if the goods and merchants names were not condescended on particularly ; nor could it be known , if his majesties dues were pay'd for the goods , for which the cocquets were granted . . it were unjust that a great ship with rich wares should pay no more than a small one with courser goods . . by the customs of england , and other countreys , there were for these reasons , special cocquets given for proportional dues . . by the , , & acts of the par ja. . the cocquets are to contain the particular quantities of the goods ; vid. observ . on these acts. this act is explain'd in the act par. ja. . this act discharges the custom of two and a half per cent , and all raising of his majesties customs , directly , or indirectly , without consent of parliament : and so though by the act of the sess. of this parliament , asserting his majesties royal prerogative in the ordering of trade with forraigners . it seems that his majesty may lay what restraints and impositions he pleases upon forraign imported commodities , and as he pleases ; yet it seems the customs by this act cannot be rais'd : for though that act be posteriour , yet this is special , and is not particularly abrogated ; albeit by that act , all acts and statutes contrary to that act , are abrogated . by this act likewise , his majesty discharges the taking masters , merchants , and mariners oaths in the matters of customs ; but since their oaths are taken in the matters of excise , this priviledge signifies nothing , vide observations on the act par. . ch. . this act is explain'd in the observations upon the act par. . ch. . this act allows any of his majesties ordinary officers , to whose charge the same belongs to docquet signatures ; and by ordinary officers , i think are only mean'd , officers of state ; and this was formerly established by the act par. . ja. . but by this act is added , that these who do docquet , shall send a double of the docquet to the secretary to be registrated ; but yet the deed is not annull'd , though this be omitted : and therefore the deed i think would subsist ; but the omitters would be punish'd . the reason why a double is to be registrated , is , because by this his majesty may know what is formerly granted , which will prevent double gifts of the same thing . this act is formerly explain'd in the former commissions for plantation of kirks , viz. ja. p. act ch. p. acts & . this act for the most part is but temporary , and was made to give some ease to the poor debitor , whose lands had been so wasted and burdened in the late rebellion , that he could neither pay annualrent , nor redeem comprisings , or wodsets , as formerly , being founded upon the same reason , by which the novae tabula were introduced in rome by julius caesar , after the civil wars betwixt pompey and him : but the chief things observable in it , are first , that the legal reversion of all comprisings to be led , or that were led since january . whereof the legals are expired , and all comprisings whereof the legals were not expired before that moneth , shall endure for ten years ; and though it might have been pretended , that ▪ this act does not prorogat the reversion , but only makes the lands to be redeemable , and so the rents of the last three years above the seven , which was the ordinary legal , was not to be restored , but that the compriser had right to them , as fructus bona fide percepti & consumpti : yet the lords found that the compriser was countable for his intromission , even for these three years , since in effect these three years are added to the reversion , and so the compryser is lyable for these three years , as he would have been for the other seven , january . . clapperton contra torsonce . albeit by our former law , the compriser could have possess'd the whole ●ents of the comprised lands during the legal ; yet in respect the rents do often exceed very far the annualrents ; therefore by this law , allowance is given to the lords of session , to restrict the compriser to such part of the land as will pay him the annualrent of his sum and expense : the debitor from whom the lands were comprised , ratifying the apprysers possession of the rest ; but it is still to be remembred , that after the legal is expired , the compryser has undoubted right , and cannot be limited . upon this clause of the act , the lords upon the of june . restricted wilson who had comprised sir william murays estate , to medle with any part of the estate comprys'd that he pleas'd , esse●ring to eight per cent , he counting for the superplus above this annualrent , and for the publick burdens ; but thereafter in february . in a case betwixt wilson and sir alexander hume . it was contended , that this clause was a part of the temporary regulation past in favours only of such debitors as had taken the benefit of this act , by payment of their annualrents , and was only ill plac'd here amongst the clauses , relating in general to comprysings , for it was against the whole current of our laws , that during the legal , the creditor who was forc'd to want his money , , should be forc'd during the long legal of ten years , to accept of naked annualrent ; especially seing oft-times they got land at last , that they could not , nor car'd not for the possession of it ; nor would this ever spur , and excite creditors to pay the sums comprys'd for , and this was a very universal prejudice ; most part of rights being now founded on comprysings ; and the practique being single , and not upon debate , was not to be respected . to which it was answered , that the clause was oppon'd , and it was dangerous to alleadge that clauses were transplac'd by mistake ; nor could any thing gloss a law better than a decision past so recently , after the act made : at the making of which decision , many eminent persons were present who had been the very penners of the act , and the restriction was most reasonable ; for since great estates were to be carry'd away by comprisings for small sums , it wast just that till the comprising expir'd , the poor debitor should be favour'd : nor was the creditor a loser , since a comprysing being a legal pledge only for his money , he got the annualrent duly pay'd him , and a ratification of his possession , even during the legal : and if his money was not pay'd cum omni causa , with annualrent , for his very expense he got the whole land , though the sum were never so small ; upon which debate , the lord● adher'd to the former decision , though it seems very strange to the best lawyers . the lords likewise found upon the of july , . that this power granted to them , was only in favours of the debitor , from whom the lands were comprysed , and could not be extended in favours of posteriour comprysers , who could not upon this clause crave , that the first compryser should be restricted to his annualrent ; for the priviledge is granted to the first compryser in contemplation of his being oblig'd to ratifie : nor are the second comprysers prejudged by the first comprysers possession , since it will extinguish his comprysing pro tanto , and make way for them . by this act also , all comprysings led since the first of january . before the first effectual compryser , or after , but within year and day of the same , shall come in pari passu , as if one comprysing had been led for all the sums : upon which clause it is observable , . that comprysings led since . come not in with comprysings led before that year , though within year and day thereof , december . . hume contra hume . for clearing this and all other acts of parliament , which appoint diligences to be done within year and day ; it is fit to know that the year is the time design'd by these acts , and the day is adjected only ad majorem evidentiam ; and therefore dies ille inceptus pro completo habetur february . weddel contra salmond ; where the husband was found to have the tocher ▪ though the wife liv'd not the intire day following the year , but died in the morning of that adjected day . observ. . that the first effectual comprysing is interpreted to be a decreet of apprysing , whereupon infeftment follows ; and therefore if the second comprysing be led within year and day , after infeftment was taken upon the first , it will not come in pari passu with it , except it be within year and day of the decreet of apprysing , for the first comprysing was expir'd , and so the next creditor could comprise nothing , so that his comprising could not come in pari passu ; which was so decided . albeit it was alleadg'd , that by this act , all comprysings led within year and day , are fictione juris , to be repute as if one and the same comprysing had been led for all the sums contained in all these comprysings , quo casu , one of the creditors rights could not have expired in prejudice of another , and in effect this year is a new prorogation of the legal quoad that con-creditor who has led his comprysing within year and day of the other , july . . laird of balsour contra dowglas . upon this clause it was also debated very subtilly , whether an infeftment of annualrent having interveen'd betwixt a prior comprysing , and other posterior apprysings , could be prefer'd to the posterior apprysings ; for all these comprysings having been led within year and day ; it was alleadg'd that by this statute , they behoved to come in pari passu , as if one comprysing had been led for all ; and therefore since the first was preferable to the infeftment of annualrent , so should the rest , though posterior to it . but to this it being answered , that the meaning of the act was , that comprysings led within year and day , should come in pari passu , only in competition with one another ; but that infeftments of annualrents , or other rights could not be postpon'd to posterior rights , for which annualrents , if the creditor had compris'd , he had been prefer'd . the lords brought them all in pari passu ; the matter being dubious , and the doubt arising on the unclearness of a new statute , february . brown of colstoun contra nicolas ; which shews what 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the lords have , and what is done for clearing of new statutes . observ. . that this computation is only to be made with respect to the first effectual comprising ; and therefore though it be extinguished by discharge , or intromission ; yet the third compriser will not , upon this act of parliament , come in pari passu with the second , upon pretence that the second becomes first , by extinguishing the first comprysing , decemb. . . street contra the earl of northesk . obser. . that this act of parliament being correctory of a former law , was found not to be drawn back , so as to make such as intrometted prior to that act , oblig'd to communicat their intromissions before the act ; though their comprysings were led within year and day , the intrometter having been bona fide possessor , january . . grahame contra brown. but yet some think ▪ that after the act , 〈◊〉 first compryser will be lyable for his intromissions , and to communicat them with a second compryser , comprysing within year and day from the very date of the second comprysing , and not from the date of a citation only ; for though it may be alleadg'd , that before a citation , a second compryser is bona fide possessor , and is not oblig'd to know that there was a second comprising ; or whether he was pay'd aliunde : yet to this it may be answered , that by this act the first compryser is to count , as if the same comprysing had been led for both the debts , quo casu intromissions would have been communicated even before citation ; and by the foresaid decision , the lords found that bona fides defended only , as to intromissions prior to the act ; ergo it did not defend , as to intromissions subsequent to the act. observ. . that this clause of the act is somewhat innovated by the act sess. . of this parliament , whereby in favours of those posterior comprisers , who bought in the first comprising , to prevent its expiration ; it is declar'd , that the first comprising so standing in their person , shall not be brought in pari passu with other comprysings , though led within year and day : but it being doubted , whether that act of parliament should only secure such as were necessitated to buy in the first comprysing , because that seems to be the design of the legislator : yet the lords extended it to all comprisings so bought in , the statutory words being general , december . . veatch contra williamson . observ. . that since posterior comprysers were brought in pari passu with the first compryser ; it was justly ordered by this act , that the first compryser should be pay'd of his expenses by the posterior comprysers ; which was found to extend to all the expenses laid out by the first compryser , who is to contribute no part thereof himself , that being all he has in recompense of their coming in pari passu . but quaritur , whether if one of these comprysers were only pursuing to come in , if he would be oblig'd to pay all the expence , or pro rata off his sums ? and i think he would be oblig'd to pay all , reserving his relief . it is likewise doubted , whether one of many comprysers , coming so in , will have right to any , more than proportionally to his sums , all the rest remaining with the first compryser , till the rest of the comprysers seek to come in ; or if that compryser will force the first compryser to divide with him , according to the proportion of their two sums only , without respect to the other comprysers , till they come in . observ. . that comprysings led for real debts , and debita fundi , remain as formerly ; so that comprysings led within year and day , come not in pari passu with comprysings led upon these real debts , such as ground-annuals , annualrents due upon infeftments , or sums whereupon inhibition was rais'd ; for clearing whereof , it is fit to know that debita fundi , are either when lands are burdened by an express act of parliament , which makes the burden real , and to affect the ground against singular successors : or . what is pay'd to a superior as a part of his reddendo , are likewise debita fundi ; and do in like manner affect the land. observ. . that though adjudications and comprysings , have generally the same priviledges : yet where adjudications are not led for liquid sums , but are granted by the lords , for compleating dispositions and rights made by the party , where the granter refuses to compleat the right himself ; in that case , such adjudications come not in pari passu upon this clause , july . campbel of riddoch contra stuart . december . . lady frazer contra creditors of the lord frazer . by this act also it is declared , that if the appearand heir , or any person to his behove , shall buy in any expyred comprysings , the said comprysings shall be redeemable by posterior comprisers from the appearand heir , or his confident , for payment of the true sums pay'd out by them , and that within ten years after the said right was acquired . observ. . that though this be a correctory law , and so ought not to be extended ; yet it is so favourable , that the lords extended the same to rights bought in by eldest sons , whilst their father lives , though the eldest son cannot be properly call'd in that case an appearand heir , since an appearand heir is only he who can succeed in haereditatem jacen●em ; but the lords would not extend it to the right of an apprising , bought by the husband , where his wife was appearand heir : for though the lords found this reasonable , yet they found the act to be stricti juris ; and so would not extend it to this case , except it could be alleadged that the sums were truly pay'd for the wifes behove , and the lands provided to her heirs : and some doubt , whether comprisings bought in by the tutors and curators of appearand heirs , be redeemable upon this act : and since their pupils may oblige them to dispone the saids rights to them , though the comprisings were bought in , in the tutors and curators own name , if they had as much of the pupils means in their hands . it seems that by the same reason , the pupils creditors who comprise omne jus , that was standing in their person , should have the same priviledge . observ. . though this clause runs only in favours of apprysers , from which it may seem , that they are only allow'd to redeem ; yet the lords decided january . . hay contra gregory ; that a creditor having an infeftment of annualrent , might redeem from a compryser who excluded him ; and it seems by that decision , that any creditor may have this benefit as well as comprisers , since they may comprise : nor are the strict words of the act to be considered ; for else adjudgers could not redeem , since they are not nam'd in the act. by this act also , not only the apprising is redeemable , but even bonds granted for the sum thereafter comprised for , are null , if the apprising be satisfi'd as said is , so that appearand heirs cannot make use of the bond , or inhibition upon it , and though a disposition was bought in by the appearand heir , before the act of parliament ; yet if the infeftment was taken after the act , the comprising was found redeemable by the act ; for it is the infestment , and not the disposition , which gives the right ; because if a third party had been first infest , he had been preferr'd to the appearand heir , notwithstanding of this disposition : july . . maxwel contra maxwel . in which case it was also found , that thogh the act bears , that expired comprisings bought in by the appearand heir , should be redeemable ; yet if the appearand heir buy in a comprising in cursu , the same will be redeemable if it expire whilst he had right to it ; so that upon the whole matter , it is observable , that even correctory laws with us , are to be extended in favourable cases , so far as to make them answer the design of the legislator , which is to help the ill that was to be corrected . observ. . that this priviledge is allowed to the second compriser , not only by way of order of redemption , but even by raising an ordinary action ; so that if he raise that action within ten years , the lords will find the same sufficient ; providing he has rais'd a declarator , concluding compt and reckoning within the ten years , which the lords will sustain by way of reply , being propon'd upon incidenter in the ordinary action for payment , june . . kincaid contra laird abergeldie . observ. . that these ten years run from the infeftment taken by the appearand heir , or some other publick deed , as decreets , &c. done upon the right so bought in , else the appearand heir might keep his rights latent for ten years , and consequently the creditors could not redeem , because they could not know them . it is fit to know that by our law , wodsets are either proper , or improper . a proper wodset is , where lands being impignorated for a sum , the rents of the land are accepted in satisfaction of the annualrents of the money , and that without any restriction upon either side : and as to these wodsets , it is by this act ordain'd , that the wodsetter shall be oblig'd upon offer of sufficient surety by the lender , either to quite his possession , or restrict himself in his possession to his annualrent , counting for the superplus : but this act innovating the privat paction of parties , was found only to oblige the wodsetter , to be countable from the date of the offer of surety , and not from the date of the act of parliament , february . lord borthwick contra his wodsetters . but in this computation the wodsetter is to get defalcation of what he hath depursed upon reparations , or hath lost by quarterings , or any other manner of way . improper wodsets are these , whereby it is expresly declar'd , that the wodsetter shall not be lyable to any hazard of the fruits , tennents , wars , or troubles ; so that the wodsetter is to have re-payment of these , by and attour the rents of the lands , which are declared to be usurary in time coming , and the wodsetter in all such wodsets taken since the year . is obliged to count for the superplus , more than pays his annualrent , and to impute the same pro tanto , in payment of his principal sum. nota . this act of adjournment , is the first that i find in all the present impression of the acts of parliament ; for parliaments were of old dissolv'd , but now they are ordinarly adjourned , and the act of adjournment is neither touched with the scepter , because it is an act of the kings , and he needs not touch his own acts ; nor is it read in parliament ; because by the very adjournment the parliament is dissolv'd , and it being no more a judicature , nothing can be read in it . but by the par. ja. . by the black acts , i find that de mandato domini regis parliamentum suit continuatum usque ad sestum beati joannis babtistae sub praemonitione , . dierum : whereas though our adjournments bear now no dayes , upon which premonition is to be made ; yet when the king adjourns parliaments by proclamations , beyond the days to which it was adjourned by act of parliament , he uses to adjourn them upon the premonition of fourty dayes , and fifteen was too short . it was doubted , whether if the day to which the parliament was adjourned by proclamation was elapsed , a new parliament behoved to be called , or if the current parliament ought to be adjourned by a new proclamation , notwithstanding the day was elaps'd , and it was found that it might be adjourned ; since the power of calling and dissolving parliaments is the kings prerogative , and a letter to this purpose from the king , is registrated in the council books in july . king charles . parliament . session . episcopacy having been restor'd in anno . bishops were by the rebellious parliaments abolish'd ; and therefore are by this act restor'd to their undoubted priviledge in parliament ( that is to say , to be a third estate ) their function , dignities , and estates ; but before this act of parliament , the secret council by their act in june . discharg'd any person to meddle with their estates , or revenues , in obedience to a letter , directed by his majesty , which gave the first rise , both to that act of council , and this act of parliament . by the first act par. . ja. . king james had permitted the church to be govern'd by general-assemblies , synods , and presbytries ; which act was not expresly abrogated by the act par. . ja. . and therefore it is by this act expresly abrogated ; they are also restor'd to their commissariots , and quots of testaments ; but the present commissars rights are reserv'd ; and albeit they be restored to the superiorities ; yet vassals having entered by , or having pay'd to the superiors for the interval , are secur'd . by this act , taking up arms ( though in defence of religion ) is declar'd treason ; and conform to this clause , all going to field-conventicles in arms , was declar'd treasonable ; though it was alleadg'd that this was not a rising in arms , since every man went without knowing of his neighbour ; for the council and justices thought , that at this rate , a multitude of arm'd men might easily assemble ; and the levying war , or taking up arms , being impersonally discharg'd , it reaches every single man ; and though there were only one single man in arms , yet he would be guilty of treason , especially after that proclamation , for he knew not but others might be there , & versabatur in illicito . by this act also , all accession to the suspending his majesty , or his successors , or to the restraining their persons , or inviting forraigners to invade their dominions , is declar'd treason . there is one branch of this clause which may seem hard , but was necessary , viz. or put limitations upon their due obedience ; for the former age and this having invented new treasons , in asserting , they would own the king , in as far as he would keep the covenant , or own jesus christ ; but reserving still to themselves to judge , how far the king did so , they did by a necessary consequence conclude , that they were no further oblig'd than they pleas'd ; and so made themselves in effect judges above the king ; than both which , nothing can be more treasonable : and i remember that sir francis bacon in his history of king henry . tells us , that the judges of england found sir robert clifford guilty of treason ; because he said , that if he knew perkin werbeck were king edward 's son , he would never bear arms against him , though the words were alleadg'd to be only conditional ; for they thought it a dangerous thing to admit ands and ifs to qualifie words of treason , whereby any man might express his malice , and blanch his danger . the denying his majesties supremacy , as it was then established , is declar'd punishable by in-capacity , and such other punishment as is thereto due by law ; but it had been fitter to determine that punishment , and from the words as it is now establisht ; it may be doubted , whether the impugning the supremacy absolutely be punishable by this act , since the supremacy is extended by a posterior act , viz. the act par. ch. . but that act being only an explication of this ; all such as impugn the kings supremacy absolutely , are punishable . from these words also , that they shall be punishable by such other pains as are due by law in such cases : it may be doubted , what punishment is due to such as impugn the kings supremacy , besides incapacity ; and it seems they may be pannal'd upon the and acts par. ja. . it has been urg'd , that all speaking against the kings prerogative , is only punishable by incapacity and arbitrary punishments , because this clause sayes , that if they speak , print , &c. against the kings supremacy in causes ecclesiastick , or to justifie any of the actings , or practices abovementioned , they shall be so punished ; but so it is , that all rising in arms to depose the king , &c. are above-mentioned , ergo , say they , the speaking , or preaching in defence of these , is only to be so punished ; and they urge this from the principles of reason , and the practice of other nations ; and that excellent law , si quis imperatori maledixerit ; lib . tit . . c. but this were a most absur'd gloss : for certainly , if this objection prov'd any thing , it would prove , that no words could infer treason , which is expresly contrary to the very act , whereby all these positions are declar'd treason , and consequently all words whatsoever , which express these positions , are punishable as ●reason ; and it is fit to know that it is not that very formula , or words , which are condemn'd , but these positions are condemn'd , for else it were easie to make the act elusory , and to evade it , by using other words , than the words here set down , and the analysis of that part of the act is , that first the positions are declar'd treasonable . . the speaking against the kings supremacy , and the ecclesiastical government , as now establish'd , &c. is forbidden . . the plotting or contriving any thing against the king , consequentially to these positions , is declar'd punishable by forefaulture . . that the speaking , &c. against the supremacy , and the establish'd government of the church , is to be punish'd arbitrarly ; and the words , or to justifie any of the deeds declar'd againstly this present act , are to be restricted to words relative to the supremacy , &c. mention'd in that clause only . it is also observable , that the impugning the government by bishops , or the kings supremacy , are only punishable , if they be pursu'd within eight moneths , and sentenc'd within four moneths thereafter , and are only punishable by this act , if it was done by malicious , and advis'd speaking ; and therefore it appears , that such as were drunk , when they spoke these words , are not punishable by this act ; nor such as are reputed fatuus and fools , though they be not declared idiots , or furious : and yet it seems that all writing , preaching , and prayers , and such malicious expressions , to stir up the people to a dislike of his majesties royal prerogative and supremacy in causes ecclesiastick , are punishable indefinitly , and that because either the law presumes they are premeditated ; or because of the great danger arising therefrom , and therefore it will have them punish'd as such ; for the act runs disjunctively , writing , preaching , praying , or advis'd and malicious speaking . this is the first act whereby conventicles are discharg'd , and in it they are call'd , nurseries of sedition ; but yet there is no penal sanction against them in this act ; but by the act of the sess. of this parliament , they are declar'd to be fineable in a fourth part of the yearly rent , every burgess being to lose the priviledge of his burges-ship , and merchandizing , beside the payment of a fourth part of his moveables . observ. . i see by this act no fine impos'd upon such as live within burgh , and are not burgesses . observ. . by this act it is requir'd , that before with-drawers from publick ordinances be punish'd , they must be first admonisht by the minister , before two witnesses , which is not observ'd . observ. . the council are empower'd by this act to impose such arbitrary punishment as they please upon with-drawers ; but it is thought that such general powers cannot extend to life , nor limb. observ. . that these acts are only to last for three years , and are by the act of the sess. of the next parliament , continu'd for other three years , and further if his majesty pleases ; so that it is in his majesties power to discharge these acts , when he pleases . by the laws of the twelve tables , privat and clandestine meetings , under pretext of religion , were discharg'd ; and the word conventicul● , ▪ is oft mention'd in the civil law , l. . & . ff . de collegiis illicitis plin. lib. . complains of them as the pest of the empire . in these words , haec tempora serio docent magna monstra talibus parentibus alii , nec quicquam in tota re-publica magis esse perni●iosum vid. de crimine conventicula farin . quaest . . inspect . . there is a proclamation extant in the registers of council , in king james the sixths reign , declaring all privat convocations , without the king's consent , and particularly conventicles ( which is the first time i see them nam'd in our law ) to be punishable as treason ; for collegia & conventicula permittere valde quidem est regale . argen . art . . num . . this act appoints the declaration thereto subjoyn'd , acknowledging the league and covenant to have been unlawfully impos'd , and not to have been obligator , &c. to be taken by all persons in publick trust , or office under his majesty ; and which seems to be very strange , all members of the colledge of justice are declar'd to fall under this general ; and such as offer to exerce before they take the declaration , are declared to be punishable as vsurpers of his majesties authority ; and this punishment is de facto arbitrary , and is impos'd by the privy council . this act is extended to baillies of regality , by the second act of the sess. of this parliament , and by a decision of the council ; both these acts are extended to baillies in burghs of barony , though they be exprest in neither of these acts , and that because of these words in this act , and all who enjoy any other publick charge , office , or trust within the kingdom ; which is ( as all general clauses , ought to be ) extended to particulars , that are of the same nature with these , to which the general clause is subjoyn'd , and there was as great reason to extend this to baillies of burghs of barony , as to baillies of burghs of regality . by that act also ▪ such as refuse to accept offices within burgh , are punishable by losing their burgesship , and they may be also ▪ compell'd to accept , though the act mentions not this expresly ; for by the common law , cives cogi possunt ad suscipiendum munera reipublicae l. ss . de decurio : but with us they cannot be oblig'd to continue longer than a year , january . . wilson contra magistrats of queensferry . though this act of parliament obliges all who are privy counsellors , &c. to take the oath of allegiance and this declaration ; yet his majesty by a letter to the council in november . declares that the lawful sons and brothers of the present king , are oblig'd to take no oathes , because of their presumed fidelity , and that loyalty is their interest , as well as duty ; and upon this ground it seems to be , that his royal hig●ness had not formerly taken these oaths as admiral . we see likewise , that both the sons and brothers of kings are serv'd , not as subjects , but as the king himself ; and though they be dukes or earls , yet they take not place , as other subjects , but as the sons and brothers of the royal family : and thus the sons of kings were call'd adminicula augusti , subsidia dominationis , and in st. matthew , st. peter affirms , that the sons of kings are exempt from trib●t ; nor are they in france ever subjected to any corporal punishment , or put to death , vid. le bret. tit. des enfans & freres du roy , & leur praerogatives . and they are exempted by the parliament . from taking the test. this excellent act does appoint all sheriffs and justices of peace , to assist such as are robbed , or opprest in taking back their goods immediatly upon intimation , and to restore them within fifteen days ; or otherwise to be lyable : but the word immediatly does restrict the act so , as that sheriffs are not thereby empowered after a long interval , to bring back goods , or make such intimations , or raise the people for concurrence ; and therefore the gentlemen of caithness were found lyable in a spuilzie , for robbing , and away taking an heirship out of strathnaver ; though they alleadg'd that they were convocated , and commanded by the earl caithness so to do , he being sheriff , and justice general ; and they conceiv'd that they might have been punishable if they had disobey'd ; which defence was repell'd ; because though that convocation was since this act , yet so long a time having interveen'd , the sheriff could only have proceeded via ordinaria . it may be doubted from this act , whether when any man complains of oppression , as that a robber , or neighbour sits violently down upon his land ? the sheriff and countrey are not oblig'd to concur by this act , since the act seems to be restricted to the way of taking of goods , though it speaks generally of oppression , and i think they are lyable in the one case , as well as in the other ; and this case being a permanent act , is more easily redress'd . by this act likewise , the heretors , wodsetters and feuars within the paroch where the goods are found to have been disposed , or sparpelled , are declar'd lyable for the value of the goods ; but from the context of the act it is clear , that they are only lyable subsidiarly , in case the goods cannot be otherwise recover'd . the words wodsetters , and feuars , needed not to have been subjoyn'd to heretors , for both these are heretors : but it seems to have been more necessary to have added liferenters ; since it was just that men who are liferenters should be lyable ; for a father may put his son who is minor in fee , and reserve the whole liferent to himself , or a person of quality may marry one who liferents the whole paroch , and so this remedy becomes ineffectual ; because the act mentions not liferenters , and in such cases , liferenters are found not to be comprehended , november . . minister of morum contra the lady beanstoun . by this act such as kill , slay , hurt , or mutilat the away-takers , or their associats in prosecution of their goods , are indemnified . observ. that all who kill in such pursuits , are not indemnifi'd ; but such only whose goods are taken , or who are oblig'd to rise , for else such as had privat grudge , might upon that grudge follow and kill ; but yet it seems just that if men were desir'd , though not oblig'd ; or if gentle-men being in the house when robbed , should pursue and kill , that they should also be indemnifi'd . this act is generally so well conceiv'd , that if it were well prosecuted , as that it alone might settle the highlands . this revocation seems to be very ill conceiv'd , for it had forgot the lands of the principality , which are still comprehended under all other revocations ; and therefore the parliament thought fit to add this to the revocation ; and if this be valid , there needs no revocation under the kings hand ; but an act of parliament shall be sufficient without a revocation . it is likewise observable from this act , that the parliament qualifies the kings revocation , in sua far at his majestie revocks all deeds done by his father , by declaring , that such only are revocked , as were made against the laws standing in force , before the year . for otherwise all deeds done by the late king , might have been challeng'd upon that head of vis & metus exprest in this revocation ; but however , acts extorted , vi majori , either from king or subject , are null ipso jure by the common law , without any special revocation ; but revocations are naturally only extended to deeds done in minority , but not to deeds extorted vi majore , though this revocation comprehends both . when the clergy submitted their rights to the king , both the submission and decreet arbitral provides , that the bishops and others of the clergie , should enjoy the fruits and rents of their benefices , as they were possessed by them the time of the submission ; and therefore by this act it is ordain'd , that any valuations of ●einds , whereof the bishops and other benefic'd persons were in possession , either by leading , drawing , or rental-bolls since the year . should be null : and yet this priviledge is meerly personal in favours of church-men ; for by a missive letter from king charles the first , the of may . it is declar'd that this favour shall not be extended to the tacks-men of bishops , and other church-men , they being laicks , but that during these tacks the heretor may lead , he finding caution ; and accordingly a valuation was sustain'd to james hamilton of the lands of hetherwick against the earl of roxburgh , the bishops tacks-man of the tiends of these lands ; though it was alleadg'd there , that the submission and decreet arbitral having no such quality ; but the tiends whereof they were in possession , being absolutely reserv'd , no posterior letter could have prejudg'd them , and it was a great prejudice to them to have their tiends valu'd during the tacks , for this could not but lessen the tack-duty and the grassoums . in this cause it was likewise doubted , what way these tiends should be valued during the tack . government belongs to the king , and property to the people ; yet since the publick interest must over-rule the privat , all being still preferable to any one : therefore government does so far influence property , that all lawyers are of opinion , that the prince may , for a just cause , invert or take away property res privatorum auferre & jus alteri quaesitum tollere : and thus we see that the king may make a cittadale upon any mans ground , paying the just price , &c. and sometimes he may throw down the houses of suburbs , when there is either actual war , or fear of war , in which towns may be besieg'd , so that he is the sole judge of this justa causa , by which property may be inverted ; and amongst other just causes , one is the procuring of peace amongst the subjects ; for procuring whereof , the prince may remit both the civil and criminal reparations , due to subjects that are wrong'd during the time of the war , gail . lib. . observ . , & . but with us , general indemnities are ordinarly granted in parliaments , wherein certainly all privat interests may be discharg'd , because every privat man is presum'd therein to be represented : and this act of indemnity is one of the most full and formal that ever we had , and in it , all such are indemnifi'd , as acted by vertue of the publick pretended authority of these times ; and though an order be necessary to be produc'd , in cases where orders use to be given ; yet the benefit of this indemnity was extended to such as were in arms , though they could prove no orders , since souldiers use to get no written orders , except it were offered to be proven by their oaths , that they had no order , or that they converted the goods pursu'd for to their own privat use , february . . murask contra gordon : and that any promises made to restore such goods , did not bind after the act of indemnity ; though it was alleadg'd that the promise did innovat the debt , from a military , to an ordinary debt ; because the lords thought that that promise might have been given , and emitted upon the supposition , that the souldier thought himself lyable before the indemnity ▪ and therefore the lords found him not lyable , notwithstanding of the promise , except it could have been prov'n , that he apply'd the goods to his own use , or that he wanted a warrant . sometimes also the king does by his proclamation , grant general indemnities , as he did in , and . to the western rebels ; but in this case it was controverted , whether such as had robbed privat mens horses , were lyable in restitution , notwithstanding of that indemnity ; and it was urg'd that they were : because . what ever might be alleadg'd , where the king had once acknowledg'd rebellion to be a pretended authority & spe●iem belli , by exchanging of prisoners , and making of truces with them , &c. yet here there was not even those pretexts , and so they were only to be considered as a company of privat robbers . . even this act indemnifies only such as acted by vertue of pretended authority ; therefore since even the parliament did not indemnifie such privat robbers , much less should they be secur'd by proclamations . . whatever an act of parliament might do , because all persons injur'd were therein represented ; yet those proclamations were but general remissions , and no remission could prejudge the party injur'd of his reparation , and assythment . . this would incourage all rogues to be rebels , that they might robb , and thereafter be enriched by an indemnity : whereas on the other hand , it would discourage them both from rebellion and robbery , if they knew they behov'd to be still lyable in restitution ; and though the king did remit vindictam publicam & privatam , by this proclamation ; yet that vindicta privata was not to be interpret damnage and interest ; but that revenge and criminal action , which any privat party might pursue without the king , and vindicta is still contra-distinguished from damnum & interesse . . when the law allows to the prince a power to remit and discharge the damnage done to privat parties , in contemplation of a publick peace : lawyers acknowledge that this can only be done , if peace cannot otherwise be procur'd ; for otherwise publick peace is none of these just causes , for which property can be inverted ; and therefore any such indemnity after the peace is established , cannot prejudge privat subjects , as to their restitution as gail expresly declares , observ . num . . king charles . parliament . sess. . bishops being restored in the former session of parliament , the king does in this act declare , that he will maintain and preserve that government in the church , and not give any connivance to the prejudice thereof in the least ; and so all indulgences are from this still urg'd to be contrary to the royal promise , and the publick faith. by this act ministers absenting themselves without a lawful excuse from the diocesian meeting , or not concurring in the church-discipline , when required by the arch-bishop , are to be suspended till the next diocesian meeting , and if they conform not then , to be depos'd ; and though this be design'd chiefly against the non-conforming ministers ; yet it has been repin'd at by some of the episcopal clergy , because the bishops have by it a power to suspend by themselves ; and by the present discipline of the church , the bishop may depose by himself , without the concourse of the clergy , even in the diocesian meetings , though he usually takes alongs with him the advice of the ministry . in this act with-drawing from publick worship , as well as keeping of conventicles , is declared to be seditious ; and therefore each heretor with-drawing , loses the fourth part of his years rent ; each yeoman , or tennent may be fin'd , not exceeding a fourth of his free moveables ; every burges is to lose his freedom , and may be fin'd in a fourth part of his moveables : and the council have by this act a very full and undetermin'd power , to inflict corporal , beside the former punishments ; but it seems that 〈…〉 those punishments can be inflicted upon with-drawers , except where they have first been admonished by their minister in presence of two witnesses ; but since the minister of the paroch is not here specifi'd , it was thought that persons might be fin'd after an admonition , given by any minister appointed by the privy council , or presbytry . this part of the act is not expresly abrogated ; but the fines are altered by the act of the sess. par. ch. . by which every protestant with-drawer ( whereas this act extends both to papists and protestants ) is to be fin'd thus , viz. an heritor in the eight part of his valu'd rent ; a tennent in six pounds scots ; a cottar in fourty shilling scots ; every person above the degree of a tennent , but having no real estate , in twelve pounds ; every considerable merchant in twelve pounds ; every inferiour merchant , and considerable trades-man in six pounds ; and the other inhabitants within burgh in fourty shilling ; and his majesties privy council is by this last act allow'd to force all who shall with-draw from their paroch churches for a year together , to give bond that they shall not rise against the king , nor his authority , and to banish or secure them in case of refusal : whereas by this first act , there is a general power given to the council by the parliament , to do every thing that they shall find necessary for procuring obedience to this act , and putting the same to punctual execution ; upon which clause was founded the councils putting heretors to give bond for their wives , tennents , and servants keeping the church ; for since the parliament might have exacted such a bond for that effect , it was thought the council might , since they have by this clause a parliamentary power . by the other act also it is appointed , that the same shall continue for three years , except his majesty shall think fit it continue longer , and it was thought , that this power of fining might be continued by the council , without any new express order from the king , since his majesty did not command the contrary : as also upon this clause was founded the indulgence . the parliament having put it in his majesties power to punish with-drawers , or not , as he thought fit , after three years were elapsed . this act is explained in the act of the former session . this act against protections is explained fully in the act par. ja. . this act declares the king to have the only power of calling or dissolving synods ; and that his majesty has not only a negative voice in stopping acts to be made in such synods , but even a negative , in not suffering any thing to be treated or debated there , except what is contained in his proclamation , or instructions . this meeting of the church , is with us call'd a convocation , though it be here only call'd a synod ; nor can it be deny'd , but that the emperors did of old call the synods , and the formula was visum est mihi & jussi . thus euzeb . speaking of constantine , sayes , cum per varia loca exorirentur inter episcopos dissentiones , ipse , seu communis episcopus a deo constitutus synodos ministrorum dei indicebat . and thus leo writing to the emperor theodosius , si pietas vestra suggestioni ac supplicationi digna●ur annuere ; ut intra italiam haberi jubeatis episcopale concilium cito poterunt omnia scandala , quae in perturbationem totius ecclesia sunt commota , resecari . this act is explain'd in the act par. queen mary , and and in the observations upon the act par. ja. . by this act all strong-waters are discharg'd to be imported , under the pain of escheating thereof , because it prejudged the sale of barley , which is the great native commodity of this kingdom : but yet by the second act of the session of the par. ch. . all these acts against strong-waters are rescinded , and an imposition thereon is imposed ; but yet it was thought by the council , that notwithstanding of that last act , his majesty might by his pr●rogative in the ordering and disposal of trade with forraigners , asserted by the act of this session of parliament , discharge again the importation of brandy , and other strong-waters , and accordingly a proclamation was issued out , discharging them in march . and it was urg'd that the parliament thought that the king might dispose upon these , against an express act of parliament ; for though by this act the importation of them be absolutely discharged ; yet the king had before the other act allowed the importation of them , and the parliament in the narrative of this act , declares that the king had done this upon good considerations . this act for preventing the fraudulent mixture of the finer sort of tinn with baser mettle , has ordained the peutherers to put their name , with the thi●●le , and the deacons mark upon their work , and that the same be as fine as the peuther of england , marked with the rose . it may be argu'd that this act does not hinder all mixture of lead and tinn , for one pound of lead must necessarly be mixt with two pound of tinn to make it work . the peutherers and plumbers are with us under one deacon , we had no plumbers till of late ; our peutherers of old having been our only plumbers ; but now it is pretended from this act , and upon other grounds , that the peutherers should not work in lead . this act discharging advocations from inferiour courts , for sums within merks , did not except the members of the colledge of justice ; and therefore by the article of the act for regulating the session , causes belonging to the members , and sums due to merchants , cooks , vintners , and others in burgh , for furniture taken off from them , by such as dwell not within the shire where the furniture was taken off , are expresly excepted from this act ; and because this act wanted a sanction or penalty ; therefore by that seventeenth article , the clerk of the bills is ordained not to present , pass , or write on any such bill at his peril , because this act of parliament sayes , that the lords shall not pass any such advocations for causes which may competently be decided by inferiour judges ; therefore it is ordained by the article foresaid , that when the lords pass any such advocations for sums within two hundred merks , they shall write upon the back of the bill , that the lords have found sufficient ground why the cause should not be pursu'd in the first instance , before the inferiour judge ; and this was done to prevent any mistake , and to cause this act be carefully observ'd . this act is formerly explain'd in the act of the par. ja. . the exportation of money being discharg'd by many acts , as ja ▪ par. act . ja par. act . for making these acts effectual . by this act every skipper and merchant is oblig'd upon oath to declare before the thesaurer , thesaurer-depute , or such as are appointed by them , that they shall not carry abroad any more money than is able to make their expence to the next port , and to reveal , either before , or after the voyage , any who does , and that a book shall be keeped in exchequer for that effect ; but this act is not exactly observ'd . because by the act par. q mary , the carrying of victuals , tallow , or flesh out of the countrey , was then discharg'd under the pain of escheating the same , victuals having been then scarce ; therefore by this act it is declared lawful to export corns , when the wheat is under twelve pounds , the bear and barly under eight pounds , oats and pease under eight merks the boll ; and also , to export all sorts of barrell'd flesh for nineteen years , free from custom and bullion , but the custom and bullion here impos'd upon corns exported , is absolutely discharg'd by the act par. ch. . it may be observ'd from the former act of q. mary . that skippers are not regularly lyable for transporting merchandise , forbidden by acts of parliament , except the sanction of the act do expresly strick against them ; since that act is appointed to be extended to masters and skippers , as well as owners of the goods ; for beside that the parliament thought fit to express them , which they needed not have done , if the act had imported it , these words , this act to be extended , seem to imply that the act naturally did not import it ; for to extend an act , or any thing else , is to carry it beyond its natural import . this act imposing great impositions upon english commodities , for the advantage of our own manufactories is in force , but not in observance ; and one of the great dis-advantages of setting the kings customs in tacks is , that it is the tacks-mens interest , that all prohibited commodities be brought in for the advantage they get by their paying custom , and for conniving at the bringing them in . by this act there is a great custom imposed upon victual brought from ireland ; but thereafter by the act sess. par. ch. . importing of irish victual is totally discharged . this act is formerly explain'd in the act par. . ja. . but it is further observable , that by this act it is declared the duty of all s●eriffs , steuarts , and baillies of regality , to cause apprehend all rebels , and to count for their escheats , and to punish all the contemners of his majesties authority , and this is declar'd to be , both by law and the nature of their office , a duty incumbent to them ; and therefore it is fit that sheriffs and others advert to this . this act ratifies by mistake the act par. ja. . but the act that should have been cited , is the act of that parliament ; this act ratifies also the act of this parliament , but it should have cited the . the act it self provides for the maintainance of beggars and manufactures , by putting the one in the other ; but the act was never observ'd , though in it self it be a very excellent act. these acts are explain'd in the act par. ja. . but for further clearing of the act , it is sit to know , that though coals were forbidden of old to be exported by the act par. q. mary ; yet when they grew more frequent , they were allowed to be transported , and custom and bullion is put upon them , viz. two ounces of bullion for every four chalders coals , as is clear by the act par. ch. . and by this act the culross chalder is declared to be the measure by which the custom and bullion is to be exacted ; because as i conceive , that was the least of all chalders : the lothian chalder of coals being generally a third more ; but thereafter bullion being only impos'd upon goods imported ; coals do now pay no bullion , for exporters pay no bullion , and there are no coals imported to this nation . the keeping mercats upon sunday was discharged , act par. ja. . and by this act they are discharg'd to be kept upon munday , or saturday , lest people might be oblig'd to travel to , and from mercats on the sabbath : but by that act it was appointed , that they should keep them upon any other day , not being the mercat-day of the next burgh ; which provision in favours of the next burghs was ill forgot here , vide the observations upon that act. this act is formerly explain'd in the observations upon the act par. ja. . and the act sess. par. ch. . this act is explain'd in the act par. sess. ch. . this act is explain'd in the act of the sess. par. ch. . the bishops having consented by this act to the imposition upon themselves , in favour● of universities , it is declar'd , that this act shall be no preparative for laying on any burden upon the clergy hereafter ▪ without their own consent ; from which it may be argu'd , that though all the rest of the parliament should consent to an imposition upon the clergy , yet that would not be valid , except they themselves consented to it , though the imposition were carry'd by plurality of votes ; but this inference is not concluding ; for the parliament is a collective body , compos'd of the king , and three estates , in which the major part determines the rest ; and if this were granted to the clergy , they being but a third estate ; every one of the other two estates might pretend the like ; and so each estate should have a negative as well as the king : whereas not only craig has determined that the parliament may make an act , without the consent of any one of the states , having stated this question expresly ; but we see that the burrows having unanimously dissented from the act of the session of the second parliament , concerning the priviledges of burghs-royal , the same was notwithstanding past in parliament , and we all remember the memorable story of the burrows , rising and leaving the rebellious parliaments . before the parliament passed the act for allowing the value of annualrents , whereupon a worthy peer said , that since they had sitten so long without the head , they might well enough sit without the tail. by the act of the sess. of this parl. the annuity of pounds sterling being granted to his majesty , to be uplifted out of the excise in manner mentioned in the said act ; by this act the proportion of the said excise is regulated , and laid on upon the several shires and burghs accordingly . nota. this is the only act wherein i find the word grievances . by this act the militia of foot , and horse is establish'd , which was found not to take off the obligation of rising betwixt and according to the ancient laws , for attending the kings host , when called for ; this act declares , that if his majesty have further use for their service , they will be ready every man betwixt sixty and sixteen , to joyn and hazard their lives and fortunes , as they shall be call'd for by his majesty : and though it be pretended , that at least they cannot be called betwixt sixty and sixteen by this act , without an express order from the king : the words running , when call'd for by his majesty , without adding , or the council in this clause , as it did in the former immediat clause of this same act , and which shews that this was designedly omited in this clause ; yet we see that the council does call to the host all betwixt sixty and sixteen , without express warrand from the king , and that the justices fine such as are absent upon these proclamations ; and which is very just , because the king is still presumed to be in the council sictione juris , they re-presenting by their commission his royal person ; and we see by many instances , that rebellions may rise before any such warrand can come from the king. by this act it is declar'd , that these forces shall be in readiness , as they s●all be call'd f●r by his majesty , to march to any part of his dominions of scotland , england , or ireland , for suppressing of any forraign invasion , intestine trouble , or insurrection , or for any other service , wherein his majesties honour , authority , or gre●tness may be concerned , which clause was much excepted against by some in the parliament of england , as if scotland had thereby design'd to authorize the invading of them ; but it cannot be properly said to be an invading of them , if we be call'd by the king ; and the calling of subjects etiam extra territorium is inter reservata principi , and a just right of all kings , as is clear by castal . de imperatore quaest ▪ . num . ▪ and the subjects of this kingdom have been oft-times fined , and fo●efaulted , for not attending the kings host , when they were called to invade england ; nor could any war be mannaged , or rebellion supprest , even in the justest cases , without this . by this act , the ordering and disposing of trade with forraign count●●●s ▪ is declared to be his majesties prerogative ; and though it be alleadged that this act was only design'd as a power to his majesty , for the better debarring english commodities , whereby to bring both the nations to an equal ballance of trade ; which design was said to have been then represented to the parliament , as the only motive for making this act , and that if this were allowed in its full extent , our kings might by debarring us from iron , copper , timber , spices , and other necessars , force us to any condescendencies , or might by this prerogative , grant monopolies at their pleasure : yet i see not how this gloss is consistent with the general words of the act , or with our declaring that this by the law of nations , belongs to all free princes : or with subsequent parliaments , allowing the priviledges granted to the fishing company , the prohibiting of brandy , and other strong waters , and several other things , which are founded solely upon this act. it may be debated , whether under the word forraigners , the english may be comprehended , since we are not treated by them as forraigners in the point of succession , it being frequently decided amongst them , that the scots may succeed to heretage in england , notwithstanding of their statute , debarring alibi natos ; and why then should they be repute as forraigners to us in the matter of trade ; and this were indeed solid reason for both nations ; but since the english debar us from their plantations , and look upon us as forraigners in the point of trade , it is just that we should give them the same measure . king charles . parliament . session . it is observable , that in all the sessions of this parliament , the particular day of the month whereupon the respective acts were past , is set down , and yet since the acts are to take effect , not from the passing , but from the publication , as is clear by the act of this parliament , it would have seem'd more rational to have set down the day of the publication ; to which nothing can be answered , but that the laws are presum'd to be publish'd the day they were past in . in no former parliament the day is set down , but the whole parliament is said to be held upon such a day , and the old use was , that the articles prepar'd all the acts , and they were all past in one day . this act declaring the kings supremacy in ecclesiastick causes , is formerly explain'd in the observations upon the act par. . ja. . it is observable from this act , that the militia is come in place of the old weapon-showings , and that there being foot , and horse granted as a militia , by the act session of the first parliament , which does specifie the particular proportion of horse and foot , to be given by every shire ; it might have been thought , that these proportions could not have been altered but by the parliament ; and yet the king and council having converted the foot of some shires unto horse , seems to be founded upon the last clause of the former act , whereby his majesty is intreated to give directions to his privy council for mannaging of that whole affair , as his majesty shall think fit : which acts of council , and the said alteration of the proportions , are hereby ratifi'd as having been legal ; and in the last clause of this act , his majesties subjects are commanded to obey whatever orders and directions they shall receive from the privy council , relating to the militia , and upon these clauses was founded the overtures of the late conversion of the said to , augmenting the number of the days , wherein the said are to serve , according to what might have been exacted from the whole , so that the are to meet ▪ the number of dayes , because the were oblig'd to meet fourty dayes ; though this last model was by some objected to be a standing force : and all laws are stricti juris , and to be fulfill'd in forma specisica ; but especially taxations , which are a gratuity , founded upon the free offer of the people , as this is , to allow conversions in such cases , would discourage the subjects from future offers . this act likewise did ratifie the acts of council , which appointed the shires to provide at their own charge , colours , standarts , drums , and trumpets , though that might seem an imposition ; but these being necessars , and the natural consequents of the first grant ; and the parliament having granted to the council the former power , as said is , these acts of council are therefore hereby approven as legal . both this and the former act doe ordain the militia to be furnished with fourty dayes provision , which was the old provision , that was ordinarly to be made by such as came to the host ; albeit sometimes twenty dayes provision be only appointed , as in the act par. ja. . and of late the council has ordain'd this provision to be made in money , though it was contended that the parliament having appointed only provision to be made , it was in the power of the persons obliged to furnish their own men according to their conveniency ; but money being thought fitter for expedite marches , the council thought they were authorized by the former clauses , to make this conversion ; and some have thought that by the same power , the council could ordain the shires from whom no proportions of militia was sought to advance free quarter to such of the militia , as could not furnish themselves , or at least , might force them to be the first advancers in cases of necessity . this act concerning the militia is further clear'd by the first act of the third session of this parliament , appointing such as 〈…〉 serve either as officers , or souldiers in the militia , to accept and to take the oath of alleadgeance ; and that those who are set a-part for the militia , be not altered , &c. notwithstanding of all our former excellent acts , for securing singular successors , yet they were still un-secure , because they could not know , if the vassal had resigned his feu ad remanentiam , in his own superiours hand ; for in that case there was no seasin requisite , which is the only register whereby singular successors know , if lands were formerly dispon'd ; and therefore by this act it is appointed , that these instruments of resignation ad remanentiam , ( which are equivalent to seasins , ) be registrated in the register of seasins , within sixty dayes , which is the time appointed for registrating of seasins by the act par. ja. . by this act likewise as in that act , instruments of resignation of lands , holding burgage , are excepted ; but it seems that they must be registrated within the town-court-books within the same sixty dayes ; for the act sayes only , that such instruments being registrated there , shall not fall within the certification . by this act it is declared unlawful to poind moveables upon registrat bonds or decreets , for personal debts , till the parties be first charged , and the dayes of the charge expire ; the reason of which act was , because noblemen and persons of quality were oft-times poinded , and so affronted , and merchants surprized , and thereby ruined , before they knew that a decreet was recovered against them , or their bond was registrated : but this act was found not to extend to other diligences ex paritate rationis ; this being an act restrictive of former laws and customs . from this act are expresly excepted poindings used against vassals for their feu-duties : but this exception was very unnecessary and unproper ; for such poindings did not at all fall under the prohibition of the statutory part of the act , which only prohibits the poinding moveables for personal debts ; exception is likewise made of decreets obtained by heretors against their own tennents in their own courts only ; and therefore it has been doubted , whether tennents may be remov'd and ejected , without a previous charge ; and though upon decreets before the lords , previous charges are necessary ; yet upon decreets of removing before inferiour courts , it is the custom to eject immediatly ; and though this may seem hard , yet it is necessary , because the intrant tennent must remove immediatly , and so must have a place , to which he may remove , & sibi imputet , the tennent who being warned did not provide himself timeously . it is fit to observe from the narrative of this act , that the parliament thought the king and council had power to emit proclamations , commanding the parochs to protect and defend their ministers , and to be lyable to such fines as the council should think fit , besides the ministers reparation , if the offenders were not brought to condign punishment , which shows what great power the king has in the like cases ; and the council are hereby authorized to proceed in taking such courses for the future , which general power may go very far , especially where these courses are otherwise satisfied by necessity . this act is more fully explain'd in the observations upon the act par. ja. . from this act discharging suspensions against bishops , ministers , and other benefic'd persons without consignation : it is observable from comparing the narrative and statutory part of the act , that vniversities and colledges are still accounted a part of the clergy , and have still the same priviledges with them . since we find that the parliament grants acts for naturalization of strangers , as is clear by this and by the act par. q mary . it may be doubted , if the king can naturalize strangers by a deed of his , for else those acts were unnecessary : and in england , though the king can grant a charter of denization , which lasts only for life ; and though it enables a man to transact his heritage to his children ; yet his majesty cannot there naturalize without act of parliament ; and it may be urg'd , that since third parties , who would otherwise succeed , are prejudg'd by the naturalization ; that therefore this cannot be done without an act of parliament ; especially if there be once jus quaesitum to any party : but by the civil law , the prince could naturalize , l. ▪ ff . de jur . aur . annul . of old strangers acquired only usum toga ; and at last were received inter cives , l. . & . ff . de jur . fisci . and with us craig observes , that bona immobilia nemini ablata memini ex eo quod extraneus esset : and i find it decided that strangers may succeed with us , january . . and that strangers doing diligence for their debts , may enjoy and affect lands in scotland , seems more favourable , for else there could be no commerce , for without this none would trust our merchants or countrey-men . the design of proving trade , by naturalizing strangers , has been very ordinary ; for as plinius remarks nunc factum est ut gens altera alterius suppleret inopiam & ut quodam modo quod genitum esset uspiam apud omnes natum esse videretur in france lewis the . did upon the same design naturalize those who traded in the hanseatick towns. to encourage the exportation of commmodities , the bullion which was formerly payable by the exporters , by the act par. ch. . is by this act imposed upon the importers . by this act all arrestments on registrated bonds , or contracts , or decreets not pursu'd and insisted on within five years after the date : and all arrestments upon dependences shall prescrive , if not insisted on within five years after sentence ; so that there is here a new visible difference betwixt arrestments on dependences , and arrestments upon decreets , but upon the matter that comes to be the same ; for all arrestments upon dependences , are likewise by this act to prescrive within five years from the sentence , that is to say , from the decreet ; so that utrobique the prescription begins from the decreet . by this act likewise , ministers stipends , multures , bargains concerning moveables and sums of money , that are probable by witnesses , are after this act declared only probable by writ , or oath of party after five years ; and all actions upon warnings , spuilȝies , ejections , arrestments , or ministers stipends , are to prescrive within ten years , except they be wakened every five years , but prejudice alwise of any of the saids actions , which by former acts of parliament , are appointed to prescrive in a shorter time ; which exception is here added , because of the acts , , and . par. ja. . by which spuilȝies , ejections and removings , did prescrive within three years ; yet if any action was intented upon them , it did not prescrive otherwise than in fourty years : therefore by this act , these actions are ordained to prescrive in ten years , except the action be wakened ; that is to say , a new summonds raised and executed ; for the raising of a summonds is not sufficient in any case to stop prescription , vide observations upon these acts. it was sound , hamilton contra herreis , march . . that this act was not to be extended to the teind-duties due to bishops , or other titulars , being only a correctory law : and in the case pursued by sir william purves contra it was debated that a part of what was due to the minister , could not prescrive , because it was mortified money , and mortifications are not appointed to prescrive by this act ; but the lords found that if a mortification became a part of a stipend , they did prescrive by this act , though of their own nature they do not prescrive : holograph missive letters , and holograph bonds and subscriptions in compt books , without witnesses , not pursu'd on within twenty years , are only to be proven by the oath of the subscriver , so that if the subscriver die , these debts die with him . i remember the parliament expresly refused to limit bills of exchange to this time ; though these be holograph papers , because these beng the vehicles and supports of trade betwixt us and forraigners , ●hat were to limit them by too narrow statutes . these prescriptions are ordain'd not to run against minors ; and from this and the next act it may be argu'd , that prescriptions regularly run against minors , except they be secured by a positive statute . because citations do interrupt the current of a prescription ; therefore this act does appoint that only executions by messengers shall interrupt , which was done to exclude sheriffs ; in that part messengers being persons of publick trust , and who find caution ; but though this act mentions only messengers , and that it is correctorie of a former custom , and consequently ought to be strictly interpreted : yet citations by heraulds or pursevants will interrupt ; nam majori inest minus : it was alleadged that this act should extend to all interruptions , so that if an interruption had been made in anno . it should be renew'd after this act ; for the act says , that all interrupions shall be renewed evrey seven years : but it was found , february . colstoun contra barefoot . that only such interruptions should be renewed as were made since the act of parliament ; for the first part of the act bears , that all interruptions as to rights of lands , shall in all time hereafter be executed by messengers : and the last part of the act must be interpreted according to the first , and agrees with the general nature of laws , quae futuris tantum dant formam negotiis . since this act is only to extend to interruptions , concerning the rights of lands , some have doubted , whether it should extend to heretable bonds and servitudes . by our former law explain'd in my crim . prac . tit . treason ; it appears clearly , that no man could be forefaulted in absence , except before the parliament ; but this being thought a great incouragement to rebellion , the justices did , upon an advice from the lords of the session , alter the conclusion of criminal libels for treason , making the certification to be , that probation should be led against them , and they should be forefaulted , as if they were present ; and therefore by this act , these decreets of the justices are ratified , and for the future , it is ordained , that such as rise in arms in open and manifest rebellion against the king , may be forefaulted before the justice court : so that this method can only be taken against such as are guilty of perduellion , but not in statutory or other treasons , such as the raising a fray in the kings host , drawing treasonable papers , &c. for these can yet only be forefaulted before the parliament , though they may be declared rebels before the justices : and it has been doubted , whether the hounding out to open rebellions , or the resetting those who were at them , be punishable by the justices in absence ; for art and part is by the act par. ja. . to be punishable as the crime , whereof it is an accession , and it really deserves oft-times a severe and speedier animadversion : and thus a noble-man of great interest plotting , o● hounding out , is more dangerous than a tennent who actually rises in arms : but on the other side it is urg'd , that rising in arms is to be pursu'd so in absence , because the probation is so notour , that it can hardly be deny'd , but the probation of secret treasons may be more dangerous , if taken in absence . it has been doubted , whether such whose forefaultures were ratifi'd by this act , could be thereafter admitted to propone an exculpation , since the justices could not rescind sentences of parliament ? and whether such as are forefaulted before the justice-court , can be admitted to propone any such exculpation upon their being alibi ? ( or else where ) or that there was two of the same name , or to object against the witnesses , for the persons forefaulted being cited , sibi imputent , that they appeared not ? and if this were allow'd , forefaultures might be easily evacuated ; and whatever might be said as to alibi in the first instance , yet it were hard to reduce a decreet upon it , and except the person forefaulted could prove an invincible necessity , why he could not come , or send , certainly none of these d●fences can have the least shadow of justice ; nor is it sufficient to say , that they were either afraid , or out of the countrey ; for these are the ordinary defences of such as are guilty , and any guilty person might go out of the countrey purposely to have this defence . the method now observ'd in forefaultures in absence , before the justice-court , is , that the advocat raises a libel of treason with the former certification , he sends a herauld with a displayed coat , to give the citation , and sends witnesses alongs , who at their return , swear that they saw the execution truly executed ; because that was found to be the form before the parliament . then the witnesses are adduc'd , after the relevancy is cleared by interlocutors , who are examined whether they knew the party who is to be forefaulted , which excludes the defence , that there were more of one name , as the purging them of partial council does all objections against the witnesses , that can be thereafter founded upon , since it was their own fault , who compeared not to object . the advocat uses ordinarly to cause cite the pannals upon sixty dayes , and at the mercat cross , and at their dwelling-house , lest they be out of the countrey ; at all which places , copies of the libel , the names of the assizers , and witnesses are left . though ordinarly the advocat , for further terror , causes renverse , and tear the coat of the persons forefaulted , in the justice-court , with sound of trumpet , after the doom of forefalture , and proclaim them traitors over the cross with sound of trumpet ; because that solemnity is observed in forefaultures before the parliament ; yet this is not thought absolutely necessary . it is observable , that in the process against the earl of mar and others , for taking away king james the sixth from stirling : and the earl of gowries forefaulture , the summons were before the king , parliament , and his justices , and the doom is , the king with the advice of his parliament , and his justices : some think the justices sit only in parliament , as the judges sit in england ; but the summons having been before them , insinuats that they were conjunct judges , and not assessors . the probation in that case is led before the lords of articles , and not before the parliament ; but in anno . the probation was led in plain parliament , and this is juster , because the parliament is the grand inquest . the last words in the act , viz. if the said summons be found relevant , and proven by the verdict of an inquest , are wrong pointed ; for the summons cannot be found relevant by the verdict of an inquest . by the act par. ch. . forraign salt to be employed upon fishing , was to be free of custom and excize ; but by several acts of exchequer thereafter , all fishes spent within the countrey , lost that priviledge , and by this act the importer is ordain'd once to pay all the excize on forraign salt , which is to be re-pay'd by the customers , to such as can by certificats prove , that the same was employ'd upon fishes ; and though it was pretended , that this could not prejudge the importer , since he was to be repay'd , if the salt was imploy'd upon fishes ; whilst on the other hand , it would secure the kings customs , and would keep out much forraign salt , whereof very much was now brought in , upon pretext of being employ'd upon fishing : yet to this it was answered , that this would destroy the design of fishing companies , and shew too much the inconstancy of our parliaments . . many poor families were employ'd in fishing , who would get credit for salt , and yet would not get money to pay the excize thereof per advance . . fishers were sometimes forced to bring in great quantities of salt , being uncertain what quantities of fish would be taken ; and oftimes they would lose their salt altogether . . this and all such methods , which subjected the merchant to the customer , destroyed trade , and in this case they had but a personal action against publick servants for their advanced money , and probably these publick servants would not have so much money at once in lews , l●chsine , &c. as would pay back the excize of fishes exported out of these places , and beside that , the customer might retard the merchant at his pleasure . . the poor merchant behov'd still to make two unnecessary voyages , one to pay the excize , and another to seek payment . by this act likewise , the merchant is ordained to give his oath upon the custom and excize , though by the act par. ch. . their oaths are discharged in matters of custom . this act annexing orknay and zeatland to the crown , is explain'd in the observations upon the act par. ja. . by this act it is declared lawful to export corns , except when the same is discharged by the council , upon the account of dearth , and to encourage exportation , corns are to pay no custom , bullion , or other duty , except one merk scots for ilk chalder , vid● observations upon the act sess. par. ch. . by this act the lords of the privy council are empowered to regulate the prices of ale and drinking bear , and to settle a proportion betwixt the weight of the bread and the boll of wheat , and the price of the ale , and the boll of bear ; upon which warrand , the privy council do not pretend that they can settle a price upon victual , but that they may thereby only proportion the price of the one with the other , so that they may discharge malt-men or baxters to give less than such respective prices , when they sell their bread and ale at such and such rates , as they did by their proclamation in the years . and . by this act malt-men are likewise discharged ▪ to have a deacon , and least this act should be eluded , it is appointed , that no malt-man shall keep correspondence , nor meet upon any pretext whatsoever ; and therefore i conceive , that such towns as appoint , that none shall brew except gild-brothers ; and in meettings of the gildry , treat of , and settle the prices of malt , seed , and bear , do thereby contraveen this statute , vid. act par. ja. . this act having appointed , that sheriffs and others , may conveen all tennents , and cottars , &c. for repairing high-ways , and bridges , at any time betwixt seed-time and harvest ; and that being found too short a time , it is therefore appointed by the act of the second session of this parliament , that they may be called the same number of dayes , in any season of the year , seed-time and harvest excepted . this act is explain'd in the observations upon the act par. ch. . this act is explain'd in the observations upon the act par. ja. . this act is explain'd in the observations upon the act par. ja. . by this act the shires of ross , sutherland , caithness , argile , and inverness , are declared to be lyable in the double of the excize , and of the taxation then current , laid on by the convention , in case of their being deficient ; against which act , it was alleadged at the passing thereof , that this seem'd very unjust , since as to both these , one shire could not be put in a different condition from the rest , in a common concern ; but that the legal way was , to use stricter execution against them ; and whatever might be done at the first laying on of an imposition ; yet after it is laid on , this seems hard , for probably these shires would not have consented , if they had foreseen any singularity , nor did they consent to the excize , but upon equal terms with other shires , and this was yet much harder , because both these taxations were voluntar offers , and consequently should not be otherwise exacted , than in the terms in which they were offered . likeas , this would discourage any shire for the future , to offer , or consent to taxations , because they could not know but a prevailing party , or the passion of some leading men , might raise to the double what they consented to ; which reasons were so convincing , that this act was never put in execution ; nor do i think it could , without a previous declarator , finding that these shires had incur●ed the duplication , by failing to pay their shares ; for otherwise , his majesties collectors , and cash-keeper might exact the double , when it was not incurred ; and we see that all other irritancies , even imposed by the parliament , such as ob non solutum canonem , require a previous declarator , and are purgeable at the bar. king charles . parliament . sess. . this act is explained in the observations upon the only act of the par. ja. . some phanaticks having , against the laws and customs of nations , refused to depone , when they are call'd as witnesses against those of their own opinion ; it is declared by this act , that such as refuse , shall be banished and fined . qui testimonium dicere recusant paenalibus mandatis compelli possunt , l. si quando & auth . seq . c. de testibus , vid. ruland . de commiss . part . lib. . c. . & mortaliter peccant . c. quisquis quaest . . cap. . x de test , cogend . it may be doubted , whether such as refuse to depone in matters of treason , may not be punished as concealers of treason ; for this is in effect the worst kind of concealing ; for others may conceal , because they fear want of probation , or upon other designs , without any malice , but this still proceeds from design ; and it seems that in all other crimes , he who refuses to depone against a delinquent , is as guilty as he who rescues him by force from the hand of justice ; for the contempt of authority is equally great in both , and the prejudice arising to the common-wealth , is the same . it is declared by this act , that nothing that any man depones against another , shall operat against himself , as to the loss of life , or member , or banishment , which seems to be ill conceiv'd ; for nothing that a man depons as a witness , can operat against himself de jure , as to any effect ; but it seems the design of the parliament has been , that parties should be obliged to depone upon conventicles , and resetting off , and intercommuning with rebels , not only as witnesses , but as parties ; and in the words immediatly before , it is said , that they should be forced to depone in those things , for the more speedy execution of justice : but to take off all scruple in this , the king by his letter in anno : allowed his advocat to declare , that he did insist only , ad paenam p●cuniariam & arbitrariam ; and that thereupon they might be forced to depone in these cases ; but it being alleadged that this declaration was not sufficient to force people to depone : because . resetting of rebels imported infamy , because it was treason , & nemo tenetur jurare in suam turpitudinem . . no declaration without a remission past the great seal , can secure a man in such cases ; yet both these defences were repelled by the privy council in the case , kings advocat contra laird of duntreath , june . . for as to the first , it was answered , that some crimes did defame omni jure , as incest , adultery , &c. and in these a man could not be oblig'd to depone against himself , because the kings declaration could not take away the stigma impressed by the laws of god and nature : but in crimes introduc'd only by the municipal laws , in favours of the king and his government , the infamy may be taken away by the declaration ; and where the kings advocat declares , he insists not in it as a crime , but as an irregular transgression ; the confession does not defame , because no crime is acknowledged . to the second , it was answered , that there needed no remission , where the irregularity was not pursued by way of crime : remissions being only of crimes , and there was nothing more ordinary , than for his majesties advocat in all courts , to restrict his pursuits to arbitrary punishments , as in the cases of mutilations , hamsucken , &c. such as assault the lives of ministers , or rob their houses , or actually attempt the same , are to be punished with death , and confiscation of goods ; by actually attempting , i understand not nudum conatum , but what the law calls actum proximum , as the shooting a pistol , which misgave ; and this further justifies the procedure against mr. james mitchel , who shot actually at the bishop of st. andrews ; for though this act was posterior to that deed , though not to the process , yet it shews what was the thoughts of of our parliament , as to attempts , and so was sufficient to inform judges , how to explain the dubious word , invade or pursue , us'd in the act par. ja. . by this act , the fines appointed for house-conventicles , are for every man and woman having land and heretage , liferent , or proper wodset , a fourth part of their valued yearly rent ; each tennent , twenty five pounds ; each cottar , twelve pounds ; each serving-man , a fourth part of their fee ; each merchant , or chief trades-man , to be fin'd as a tennent ; and each inferiour trades-man as a cottar ; if their wives or children be present at house-conventicles , they are to pay the half of the respective fines ; and if themselves be present at field-conventicles , they are to be fin'd in the double of these respective fines ; so that though the act do not specifie wives and children , yet they are to be comprehended under the word others . field conventicles are by this act declared to be meetings where any shall without licence or authority , preach , expone scripture , or pray in the fields , or in any house where there are more persons than the house contains , so that some of them are without doors ; which last alternative was added ; because some , to shun the double avail , preached within a little house , many thousands being without . it has been doubted whether those who were within , and knew not that any were without , can be punished as a field-conventicle ; for though versabantur in re illicita ; yet it was such , a res illicita , as had a determined and different punishment , and it were hard that where the punishment is death , as it is for the minister preaching at a field-conventicle , that he could be overtaken , where he could not know his guilt . it seems by this act , that if the house could hold more , though some were known to be without doors , yet that meeting could not be call'd a field-conventicle , since the act sayes , or in any house where there be more persons than the house contains , and the reason inductive of the act ceases in this case . by this act magistrats of burghs-royal are fineable at the councils pleasure , for each conventicle keeped within their burgh ; but that which was thought somewhat severe by the burrows , was , that they should have been fin'd , where they discovered the conventicles themselves , since in law , diligence can only be requir'd in magistrats ; and in policy it seems , that this would discourage magistrats from doing diligence to discover ; nor is it sufficient that by this act they have relief from those who were present at the conventicle , since these oft-times are neither known , nor able to relieve . the master and mistres of the house likewise where the conventicle was kept , are lyable to relieve the magistrats , upon which ground , an act of council was made , making the heretor lyable for the fines ; against which it was objected , that the parliament 〈◊〉 not the heretor lyable , but the master , which is the lands-lord , who because he is present , may hinder the keeping of conventicles in his house , which the innocent heretor , who may be very remotely absent , cannot . by this act the minister who preaches at field-conventicles is punishable by death ; but the minister who keeps house-conventicles , cannot be so much as fin'd , for he is only ordain'd to find caution not to do the like thereafter , under the pain of five thousand merks , or to enact himself to go out of the kingdom , and not to return . by this act the half of the fines are declared to belong to sheriffs , stewarts , lords of regality : and therefore by the act of the sess. par. . they are ordained yearly to give an account of their proceedings to his majesties privy council , under the pain of five hundred merks : in which act this act is explained as to some other points . by this act , such as offer their children to be baptized by any but their own ministers , or by such as are authorized by the council , in absence of their own minister , upon a certificat from their own minister , or in his absence , from one of the neighbou●ing ministers , are to be fin'd , i● an heretor , in a fourth part of his valued rent ; every person above the degree of a tennent , having only a personal estate in an hundred pounds scots ; every inferiour merchant , considerable trades-man , and every tennent labouring land in fifty pounds scots ; every meaner burges , trades-man , and inhabitant within burgh , and every cottar in twenty pounds scots ; and every servant in half a years fee : but because upon this act , these who would not conform , did , to shun these fines , delay to baptize their children ; therefore by the act sess. of this parliament , the same fines are impos'd upon such as keep their children unbaptized for thirty dayes . this act is formerly explain'd in the act sess. of the par. ch. . but for further clearing thereof it may be observ'd that since by this act husbands are not made lyable for their fines , as by the act of this parliament ; it was urg'd , that therefore they could not be fin'd for them ; since it was presumeable they were designedly left out here , because tho a man may hinder his wife to go to a conventicle ; and therefore was justly punished by that , for her going , whereas no man can force his wife to go to church ; and therefore he was not to be punish'd for her in this act : it was also urg'd , that laws should not be extended de casu in casum , where it was probable , that the ommission was design'd ; and so tho adjudications and comprisings were equipollent diligences by our law , yet it was found that an adjudger was not lyable to pay a years rent for his entry , as a compryzer was , because the statute appointing the one , had not exprest the other ; and therefore an express statute was made , for extending this to adjudications , which is the act par. . ch. . and this extension was less favourable , because it was a penal statute , and it was against the principles of law , that one person should be punished for another ; to which it was answered , that the parliament had refer'd the regulation of conventicles to the council , and had invested them for this end , with their own full power to prevent the cheats that might be invented , and the dangers that might ensue . . this being a matter of government , must be interpreted so , as to preserve the government ; and if wives who were the half , and the more humorous half of scotland , were allow'd to abstract , all the other remedies would be ridiculous , and they would debauch their children , tennents , and servants , as well as influence their husbands . . in all other cases they were lyable for their wives , for conventicles , by the said act for popish withdrawing and superstitions by the act pa. ja. . for their vvives swearing and cursing , by the act pa. sess. ch. . in all which acts , the parliament considered more the good of the kingdom , than the advantage of private parties ; and extensions are allow'd in favourable cases ; and there is none more favourable than this , especially since the vvomen began the last rebellion , and since the council has ordained men to be lyable , the countrey was become much quieter . . there being a communion of goods betwixt man and vvife , it was just that the husband should be lyable for his vvife , and so he should pay her debts , whereof this withdrawing was one ; and if he offer her to the magistrats , and do not converse with her , he is to be free , and so he can only blame himself . the council having transmitted th●se reasons to the king. his majesty found that husbands should be lyable for their wives ; but declared that husbands who were loyal , and would take the oaths of allegiance and test , should be favoured in the exacting of such fines . this act is explain'd in the act par. ch. . and act par. ch. . and the exemption from taxes here granted to the senators of the colledge of justice is also allow'd to the counsellours of the empire , bocer . de regal .. c. . and to the counsellours of france , papon . l. . c. . and is extended in both these kingdoms to their widows , arg . l. . c. ad . l. ●ul . de adult . vid. jac. benium . privil . juriscon . part . . n●m . . this act is explain'd in the act par. . ch. . king charles . par. . sess. . this act is explain'd in observations upon the act par ▪ ch. . this act ordains that no tutors or curators to be named or designed to any pupil , minor , idiot , or furious person , shall exercise their office , till they first make inventar of the pupils writes , evidents , means , or estate , with the consent of the nearest of kin , of the fathers side , and of the mothers side , in manner specifi'd in the act , and if the nearest of kin refuse to concur , for making inventars , they are to be summoned by the tutor for that effect , with certification that if they be absent , the tutor is to make an inventar before the judge ordinary , to the end it might be known what the tutor or curator might be charged with . observ. . that since the act only says , that no tutor , or curator of any pupil , minor , idiot , or furious-person , shall exercise ; it may be doubted , whether a curator bonis datus , should be comprehended under this act , because he may fall under none of these denominations , though the reason of the law extend to him ; as for instance , if a man should tailȝie his estate to a. and failing of him to the second son of b. which failing , to the second son of c. if a. died , b. being alive , but having no second son , the king might nominat a tutor to mannage the estate , till it were known whether b. would have a second son ; and therefore it had been clearer to have said in the act , that no tutor nor curator should exercise , &c. observ. . that the words , no tutor or curator nam'd , or design'd , might have been better expressed , by suppressing these words , nam'd or design'd , for that is not the proper words of stile . observ. . that since the act requires only the consent of the nearest of kin of the father and the mothers side indefinitly ; this is found by decisions to be so interpreted , as that two of the fathers side , and two of the mothers side are only requisite , conform to the act par. queen m. and though tutor datives were formerly granted summarly by the king in exchequer ; yet by this act it is appointed , that the craver of such gifts shall cite the nearest of kin upon both sides , that is to say , two of each , as has been also decided . this act is formerly explain'd in the act par. sess. ch. . all law having thought fit to use more citations than one in matters of importance . by our forms before this act , he who raised a summons , caused execute the same by any person he pleased , who is call'd a sheriff in that part ; after which he did get an act of continuation from one of the clerks , and a second summons ; both which were called act and letters , and were sign'd by the clerk ; but because that was expensive and troublesome ; therefore by this act , these act and letters are taken away , and two citations upon the first summons are declared to be sufficient : as also , because of old , the execution of summons did only bear , that the messenger cited the parties within exprest , without mentioning the particular parties ; therefore sometimes the execution of another summons at the same parties instance , was cast on upon a summons , which it may be , was never execute ; as for instance , if i had rais'd a summons of reduction against b. and another against c. the executions against b. would have been sufficient against c. though c. had never been cited , and so would have interrupted a prescription , or would have produced any other effect against him , which being alleadged in a case of rowallans ; it is by this act appointed in times coming , that all executions of summons shall bear expresly , the names and designations of the parties , pursuers and defenders , and that it shall not be sufficient , that the same do relate generally to the summons , otherwise the execution shall not be sustained . and though it was alleadg'd , that this was only to hold in cases of prescription , but in no other case ; yet it was found to extend to all citations indefinitly ; and therefore a citation against mr. james alexander , having no designation , but husband to such a woman , and bearing only relation to the letters within-written , was not sustain'd ; but yet the lords thereafter upon the helping the execution , allow'd the same , the messenger having abidden by the execution . it is fit to know that there are three seals in scotland , the great-seal , privy-seal , and quarter-seal ; the great-seal is properly design'd to be appended to heretable rights , and the privy-seal for moveables , and the quarter-seal is but the testimonial of the great-seal , and generally it is appended to papers that are subservient to heretable rights , such as precepts of seasin , presentations to forefaultries , &c. the chancellour keeps the great-seal , the lord privy-seal keeps the privy-seal , and the director of the chancery keeps the quarter-seal ; for as the quarter-seal is but a seal subservient to the great-seal , so the director of the chancery , is an office● depending upon the chancellour . the servants of the chancery , and privy-seal office , having been in use to give out the papers that were to pass their registers , before they put them in a minut-book ; so that such as desired to know what passed those seals , could not know the same ; therefore they are by this act ordain'd to registrat all writs that pass their office , before they give them out , and to make a minut-book . nota , that in the chancery-chamber there are two kinds of registers , one of parchment , for charters , and such heretable rights , and other two in paper , one for temporary rights , such as gifts , pensions , &c. in which likewise , adjudications , and comprisings are included ; for though these be heretable , yet they are but temporary rights , being redeemable ; there is another paper register likewise for retours . of old , the precept of seasin did pass the quarter-seal , but because that was expensive and troublesome , therefore they are now ordain'd to be ingrossed in the charter , and so pass the great seal only . by this act likewise ; charters which were formerly in a large skin of parchment , are by this act ordain'd to be written by way of a book , that they may thereby be the more commodiously read , the line being very much shorter in the one than in the other . by an old custom in scotland , burgesses might have arrested strangers , if they found them within their burgh , till they faud caution to pay them what was due ; but by this act , this is restricted to horse or mans meat , abuilȝiments , or other merchandise , for which they have no security ; which act was found not to extend to such as lived upon the borders of either kingdoms . the custom having been amongst the borderers of each side , to cause one another find caution , judicio sisti & judicatum solvi , lest otherwise the english might have drawn the scots to london , or the scots the english to our session , laws unknown to either ; and therefore since the english continued this custom after this act of parliament , it was fit that the scots should have the like priviledge of arresting such as dwell in england , january . . bell contra robertson ; and it was found by the council , that the same custom had been , and therefore should be allow'd to sheriffs , and other magistrates without burgh , so that the sheriff upon the borders may arrest any english-man till he find caution judicio sisti & judicatum solvi . by this act burghs of regality and barony , are discharged to arrest , or incarcerat any person who are not burgesses , or inhabitants in their burghs for any manner of debt , which seems to imply that they may arrest their own burgesses , who are inhabitants : likeas de facto , they use to arrest such . this act having discharg'd all such arrestments , except for horse or mans meat , abuilȝiments , or other merchandize ; the lords february . . found that a merchant could not arrest a stranger within burgh , until he should find caution to answer as law will , for payment of the price of a bargain of victual , which had fallen to the said burges as a part of his fathers stipend , and consequently was of the nature of other ferms , though it was alleadged , that this did fall under the word merchandise ; and that corn so falling to be due , might as well fall under this act , as a merchands shop falling under executry or legacy . this act ordains that no person shall ordain , or be ordained ministers , except in the way prescriv'd by the present government of the church , under the pain of banishment and confiscation , and whosoever shall be married within this kingdom , by the foresaid persons ; or any not authorized , they shall amit and lose any right or interest they may have by that marriage , jure mariti vel jure relicti , and that by and attour the penalty contained in the act which is the act par. ch. . upon this act his majesty having gifted the jus mariti of hume of kimmorghame , who had mar●ied the young lady aiton , and a declarator being pursu'd at the donatars instance· it was alleadg'd , that first , the person who married them had a licence from the arch-bishop of st. andrews to preach . . that the jus mariti was not declared by this act to fall to the king , but only that the husband had amitted the same ; and that the king can have right to no confiscation , except where the same is expresly declared to belong to him by the statute , which inflicts the confiscation . to which it was answered , that as to the first , no man could marry any within the paroch of any minister , without leave from that minister , who could only understand whether the parties might be married lawfully ; nor is the being ordained a presbyter sufficient , since that gives only power to preach , but not to baptize , or marry ; marriage especially requiring proclamation of bonds , which is de officio parochi . to the second it was answered , that by law all confiscations cedunt fisco , whether the act appoint so or not , this being the very nature of confiscation , as is clear by peregrin . de jur . fi●● . lib. . cap . num . . for cui competit accusatio , ei desertur poena ; nam poena est effectus tantum accusationis ; and penalties being introduc'd in sol●●ium ejus cui fi● injuria , that should belong to the king , to whom the injury was done . . the design of the act was to punish such as transgressed , and contemned the government of the church , whereas it were no punishment for the husband to lose his jus mariti , if the same fell to the wife . . if it fell to the wife , she was uncapable of it , being in the same delict . . nothing by our law can subsist in the person of the wife ; and therefore if the husband do renounce his jus mariti in favours of the wife ; it does by our law return to the husband . . if this were allow'd , not only might the wife in other cases , and particularly in this be rewarded for transgressing the law , since for marrying irregularly , she would have ●●ight to the jus mariti of her husband ; but this would prompt all humorous women to marry irregularly , that they might get a jus mariti , and administration of their husbands estate , and dominion over him . . if this were allow'd , the husbands creditors might be easily cheated , for they might marry disorderly , and so their creditors could have no right to the jus mariti , and this would open a door to those frauds , against which our law has so seriously guarded . it may be doubted from these words of the act , whosoever shall be married within this kingdom , that such as are married without the kingdom , incur not this penalty , though they should go upon design , which if it were allow'd , would frustrat absolutly the act , for the transgressors might still go over the border and be married : and by the said act par. . all persons having their residence in scotland , are discharged to get themselves married in england or ireland , without proclamation in scotland ; and since the law looks upon actus elusorios , as inefficaces ; so that if a man should go out of scotland to shun a citation , to the end another compriser may be prefer'd , coming back after he is cited by the first upon sixty dayes , to the end the second may cite him upon a shorter time , and so be able to lead the first comprising , the first citation would be preferr'd , and consequently it were unjust that this which is a greater collusion should be allow'd . this sumptuary law against apparrel is restricted , and explained by the act sess. . of this parliament , and the whole act is now in desuetude . this act is explain'd in the act sess. . of this parliament . this act is explain'd in the act par. sess. ch. . this act is explain'd act par. . q. mary . in all retoures it is usually exprest , whether or how the lands are in his majesties hands , as if they be in his majesties hands , by vertue of ward , the retour bears it , but since the retour did not use to bear the taxt of the marriage , or of the feu cum maritagio ; therefore this act appoints these to be exprest , and the reason why i think these were not exprest formerly , was because taxt-ward was a very late invention , and lands holding feu cum maritagio is a very extraordinary thing , and so the inquest took no notice of either . this commission for plantation of kirks differs nothing from the commissions given by the other parliaments , but only in that the power whereby titulars were forced to sell to each heretor his respective teinds is only to last for three years after this act , so that all that great design ends here , except it be reviv'd by the next commission ; but if the impediment during that time , flow from the titular by reason of his minority , or other inability , in that case the heretor who offered to buy his own teind , is to have place to buy his teind as soon as the impediment is remov'd ; but the act does not express within what time : and therefore it would seem , that except the heretor offer to buy during the minority , and did really renew the offer to buy , immediatly after the minority , or inability was over , he cannot have place to buy . it is also declared , that if the heretor be minor , and his tutors neglect to buy his teinds , the minor shall have action for years after his minority to compel the titular to sell them ; but the act is ill conceived , not mentioning curators ; but the giving power to buy after minority , includes both ; but it may be doubted whether this should extend to idiots and fatuous persons ; or where there is tutor bonis datus ob non existentiam haeredis : and it seems the liberty to buy , should be extended to their heirs for two years after they succeed , or two years after furious persons reconvalesce . the king in anno . by a commission under the great-seal , did impower noblemen and others to regulat the judicatures ; and these regulations set down by them , are here ratifi'd : but it was objected , that this could not have been done in law , because by the institution of the colledge of justice , and particularly by the act par. ja. . the session has power to make sick acts , statutes and ordinances , as they shall think expedient for ordering of processes , and hasty expedition of justice : and it was thought strange how noblemen and gentlemen , who understood not forms of process , could regulat incident diligences , and the ordinary terms in reductions and improbation , which with many other things specified in these regulations , were so much matter of form , and were so little to be known by the strongest reason that the greatest lawyers did oft-times understand less of them , than the ordinary leaders of processes . the first thing in these regulations is , the roll in which all causes are to be taken up , and are ordain'd to be discuss'd according to the dates of the returning of processes ; which roll was formerly in use , though by the article it was here added , that if any cause should be call'd by anticipation out of its due place , the pursuers advocat might refuse to insist , or the defenders advocat to answer ; and upon this article it was , that the lord almond appeal'd to the parliament ; because in the action at dumsermlings instance against him , there having been a debate in the outter-house , reported to the lords , they had ordain'd the cause to be summarly heard before themselves in praesentia ; whereas by the article , where the lords upon intricacy , ordains a cause to be heard in praesentia ; the process should have been insert in the roll of the inner-house , according to the date of that deliverance ; which article being controverted : it was alleadg'd that by this article , almonds procurators were not oblig'd to debate . to which it was answered , that though where a cause is ordain'd to be inroll'd , it must be heard according to that date ; yet that did not hinder the lords to call in any cause for clearing the terms of a debate in the outter-house , reported to them , before they give their interlocutor therein , which , as needing no inrolment , falls not under this article ▪ and this course of calling in advocats summarly , for clearing some points , is ordinarly us'd without inrolling causes in the inner-house , roll ; but after a cause is once inrol'd in the inner-house roll , it must be heard according to its date . the council sometimes likewise when they sustain themselves judges competent to ryots , do , if any defence be propon'd before them in point of right , remit the matter of right to the lords of session ; but ordain it to be discussed summarly , without attending this enrolment , to the end , that when the matter of right is discuss'd ▪ they may know how to judge the ryot . as to the and articles , vide observations upon the act sess. par. ch. . by the article , it is appointed , that the advocat who returns the process shall give out all the papers , whereupon he resolves to found his defences ; which was done to prevent the pursuers being forc'd to take a time to see those papers , upon which the defence was founded ; but this was found unpracticable , because the defenders advocats knew not what would be found relevant , or not ; and therefore the defenders advocat does now propone his defence , and if it be found relevant , he takes a day to prove it as formerly . the difference betwixt outter-house and inner-house advocats , which was appointed by the regulations is omitted in this act , which confirms the regulations without that distinction . before this act in incident diligences , four terms were allowed for producing the writs , which were accidentally crav'd to be produc'd : the first was letters , with certification , that if the havers produc'd not , other letters would be direct against them , charging them thereto simpliciter . . that letters of horning would be direct . the third was horning . the fourth was caption . but by this act , the first diligence is appointed to be horning . the second caption , which may seem too short ; for it is hard that third parties should , without any previous advertisement be charged with horning ; for though no escheat will fall on this denunciation ; yet the rebel will upon this denunciation be debarr'd , ab agendo , beside other inconveniencies . as to the regulations concerning the justice-court , it has been doubted , whether they extended to justice-airs , or circuit-courts ; and therefore it was doubted , whether a citation given to a pannal who is in prison , might be given upon fewer than fifteen dayes in a justice-air , and the judges inclined to think , that these regulations extend to justice-airs , as well as justice-courts , as to all the articles here exprest , since orders are given by the parliament for regulating justice in these regulations , which shew the parliament design'd to extend them to both . from these words in the ninth article , that the chancellour of the assize mark how every individual assizer shall vote whether he condemns or asseilȝies , it clearly follows , that no assyzer in criminals may be non liquet : and if this were allow'd in one , it might be in all ; & because this was not necessary formerly ; therefore by the act par. . ja. . it was ordain'd that when a summons of error was rais'd , each assizer was to set down who assoilȝed , and who condemned ; but because they might forget , or for fear of punishment , might be unfaithful in this ; therefore this act appoints , that in the first verdict it shall be marked who condemned , and who assoilȝed . albeit this act appoints that the chancellor shall mark whether every man assoilȝes or condemns : yet it is thought the omission of this would not annul a verdict in favours of the king , that being only introduc'd in favours of the king , to the end that his majesties advocat may be instructed whom to pursue in a summons of error , when a party is wrongously assoilȝed . by the article it is appointed , that when any summons of exculpation is executed against any party , that at the same time the names of the witnesses and inquest should be given , to the end the party may know what to object against the witnesses : upon which article it was alleadged that when an exculpation was rais'd against the king , the witnesses names should be given to his advocat likewise ; and which the justices found to be necessary in march . for the act being general as to all ; and there being as great reason that the king should know those who are to be led against him , as any privat party , he ought to have the same measure : and whereas it was objected , that it were a very severe thing , that a poor pannal might not lead any witness , even during the debate , though his name had not been given in list ; yet this has no weight , since the act is so clear in general terms as to all : and it may seem as unreasonable that the king should not be allow'd to lead any witness to prove a crime , if he find him in the court the time of the debate ; for the pannal may much better , know who can prove his defence , since he behov'd to know them , if they were present , than the kings advocat can know who were present when the crime was committed ; and though there may be some inconvenience in this , for one particular pannal , yet in the general there is great advantage in this to pannals , the king being thereby forc'd to give in the names of his witnesses , so that the pannal may not only know how to object against them , but even how to practise them : and whereas it may be objected , that by this procedure there behov'd to be progressus in infinitum , since the king might cite witnesses to cast the pannals witnesses ; and the pannal behov'd therefore to be allow'd to cast the kings witnesses , and to have citation for that effect . it is answered , that this might as well be urg'd against all reprobators ; nor does this hold here , for the judge should not allow such citations , save one to each party . because messengers in executing criminal letters , gave sometimes only copies of the libel it self , and yet returned executions to his majesties advocat ; that they had likwise given lists of assizers and witnesses ▪ therefore the justices declar'd in february . by an act of their sederunt , that if the pannal should produce a copy under the messengers hand of the libel , except the list of the assizers and witnesses names were upon the same paper with it , they would not sustain the execution , though bearing that lists of witnesses and assizers were given . this act is explain'd in the act par. sess. . and act sess. par. ch. . comprisings were at first invented to pay debt with a suitable proportion of land , and the sheriff was to adjust the sums due with the lands comprised ; but thereafter great estates being comprised for small debts , the parliament thought fit by this act to ordain , that for the future , not a messenger who was judge in comprisings ; but the lords of session should by a process before them , adjudge as much of the debitors lands to the creditor as would satisfie his principal sum and annualrent , with a fifth part more , because the creditor was forc'd to take land for money , whereas by the common law , aliud pro alio invito creditore solvi nequit . and albeit this act expresses only that this fifth part shall be beside the composition to the superiour , and expenses of infeftment ; yet certainly the creditor must likewise have all the expenses bestow'd upon the process ; for as this is reasonable in it self , so that expenses tends to the procuring of the infeftment . observ. . this act came in to the parliament simply in these terms , and the equity of it was prest from the custom of other nations , and particularly the common law , where the praetor did adjudge the debitors land proportionally to the debt ; but it being strongly urg'd by the lawyers , burgesses and other members who were moneyed men , that it was most unreasonable to force the creditor to take land , except the debitor should produce to him a good progress and security ; for both , to be forced to take land , and yet to want a sufficient right thereto , was altogether unreasonable : therefore the parliament ordain'd , that if the debitor did not compear and produce a sufficient progress , and renunce the possession , the debitor might adjudge the whole estate as formerly he comprised it ; and this has almost evacuated the whole act ; for the most of debitors are unwilling to produce a progres● , and renunce possession ; and therefore most lands are now adjudg'd as they were formerly apprised ; and in december . . it was found that an adjudication led for a fifth part more in absence of the debitor , was null ; since the fifth part more was only to be given , where the creditor compeared , produced a progress , and renunced ; albeit it seems that this alternative being introduced in favours of the creditor , it ought to be optional to him to choose either . observ. . that the legal in these adjudications is only five years , whereas it was seven in comprisings , for the danger being less ▪ because of the said commensuration , it was just that the time for redemption should be shorter ; and though it be not exprest that the foresaid five year shall not run against minors , and that it may seem it should not run against them , in respect of the short commensuration , and that it seems unreasonable , that a creditor being forc'd to take so little land , and should yet be forced to be unsecure during a whole minority , yet the said legal in adjudications will not run against minors , for adjudications having come in place of apprisings , are to be regulated by the same rules , except where it is otherwise provided by express law ; and therefore adjudications cannot be led upon bonds , bearing requisition , except requisition be first used , this being formerly necessary in comprising● , february . . gordon contra hunter : albeit it was there alleadg'd , that an adjudication was a more solemn action , ( requiring previous citation of parties ) than a comprising , and so there needed no requisition in adjudications , as in apprisings . observ. . that where land is decern'd proportionally to the sum , with a fifth part more , the creditor is to possess the land in satisfaction of his annualrent , during the not redemption , without being lyable to restitution , or compt and reckoning ; and therefore when the act does thereafter say , that he shall be pay'd of his principal sum and annualrent , that must be understood in the terms foresaid , viz. that the rent of the land shall be allowed for his annualrent , without restriction . observ. . if the creditor acquire once possession , he cannot thereafter use personal execution ; which i think should be understood only where the debitor compears , both because this clause is adjected to that part of the act which presupposeth compearance ; and before the clause punishing his absence ; and because it were unjust that a debitor should have advantage , when he will not consent . it may be also doubted , whether though the debitor compear , he may be free of personal execution , when the land adjudged is not able to pay the sum , according to the terms of the act ; for the reason of the law ceaseth , viz. that a man should not use execution , when he has attain'd payment : and thus albeit of old in comprisings , the compriser could not use personal execution , where he was in possession , except he renunced the same , july . . yet where he had not attained the possession , albeit the comprising was expir'd , he might have us'd personal execution by horning and caption , though not by arrestment and poinding , december . . observ. . that since this act declares , that neither the superiour nor adjudger shall be prejudged by this act ; it clearly follows , that the superiour may in this case , as in comprisings , redeem the adjudger by payment of the sum , it being unjust that a stranger vassal , should be forced upon him , when he is content to pay what is due . quaritur , whether albeit by this act , no comprisings can be led of lands , not already comprised ; if yet adjudications may not be led , even where lands are formerly comprised ; for this is not expresly discharg'd : and this seems to have been introduc'd , in favours of the creditors , who may make their own election , and i think they may . whereas it is declar'd , that the superiour and adjudger , shall be in the same case after citation in the process of adjudication , as if apprising were led , and a charge given . it may be doubted , how a simple summons can be equivalent to an apprising and charge ; for if that were sustained , he who had rais'd the first summons would be preferr'd to him , who having rais'd a posterior summons , had got the first decreet ; because the first summons would be equivalent to an apprising ; and consequently to a decreet of adjudication : but the lords have very justly found that the meaning of this clause is , that the first step in an adjudication shall be preferable to the second step in a comprising , and so forth : but not that the first step in an adjudication shall be equivalent to a compleat comprising : and yet it still remains , that a summons in an adjudication is equal to a denunciation in an apprising ; for tho a denunciation be the more solemn act , yet a summons publickly call'd in the house , does likewise make the diligence very notour . king charles . parliament . sess. . the king having designed to improve salt made in scotland , whereby poor people were maintained , and the money kept in the countrey , did buy the salt made in scotland , and ordain it to be sold out at reasonable rates , which was called the pre-emption of salt ; but the servants and officers imployed in venting the salt , having taken exorbitant prices , as was alleadg'd , and remote places , such as galloway and the highlands being ill furnisht , since it was difficult to keep store-houses every where , and many fearing , that this might be a preparative for the pre-emption of coal , corn , &c. his majesty was therefore pleased , for removing all such jealousies and prejudices , to condescend by this act , to discharge the said pre-emption , and all pre-emption of salt in time coming , but to give some advantage to our own salt above forraign salt , our own salt is declared free of all excise , and imported salt is to pay fourty shilling upon every boll . this act is explain'd in the observations upon the act sess. par. ch. . nota , that before this act the king had right to twenty shilling of custom for every tunn of imported beer , by the act par. ja. . many noblemen and gentlemen having been ingaged for debts contracted by our late rebellious parliaments and committees , and not being able to shun these debts , because they had given their privat security for the same ; the parliament . and posterior parliaments suspended execution upon them , but could not in justice take away the debt ; therefore for payment of this debt , an imposition was granted upon tobacco to be imployed for payment thereof , as being the most unnecessary commodity that was imported ; and yet this being complained of as a monopoly , or at least a great imposition upon a commodity , which though at first useless , was now by custom necessary ; his majesty did therefore discharge the said imposition , and allow the importing of tobacco in all time coming , free of all custom and imposition , except the ordinary custom . king charles . parliament . after many draughts of an act to secure the protestant religion , wherein his royal highness allow'd all liberty and encouragement , many of them were found great snares to the subjects ; and thereupon it was remembred , that in anno . king charles who was a very zealous protestant , and dyed a martyr for our church , resolv'd to make new laws for its defence ; but it was found that the laws made by king james sixth , were so full that nothing could be added ; and that was very probable , for that king being a most learned and zealous protestant , and the dangers arising to the protestant religion , being then so recent and urgent , it cannot be thought that any thing would have been omitted ; and therefore as that parliament satisfied themselves with a general ratification of all former acts , so did this parliament ; but to shew their earnestness , this act appoints the old laws against popery , and for securing the protestant religion , to be put to execution , according to the tenor and proport of these acts ; which clause is here added to this act , and is not in the act par. ch. . this act is explained in the observation on the act par. ja. . but more fully in my jus regium , cap. the right of succession defended : and it is remarkable , that it was past without a contrary vote , or the least objection ; only most thought it so just , that it was unnecessary , and really it had been so , if some in england had not controverted it . this act discharges ●ree-quarter and localities ; but because some pretended , that by this act they were free from all necessity of carying corn , or strae , or grass ; whereas , if this were true , the souldiers horses had been made unfit for service , by such carriages , and the troopers and dragoons might have been easily murther'd , whilest they went out singly to bring it in , therefore by act of council , this is fully regulated . there having been a full debate before his majesty , how far masters were answerable for their tennents , the parliament to prevent the like for the future , made this act , being fully convinc'd , that masters in scotland could command their tennents and servants ; suitable whereto , there are many old statutes , commanding masters to present them , and finding that without this , the peace could not be secured ; and upon the event it is found , that this has secur'd the peace for tennents and servants , knowing that their masters would find out their crimes , which sheriffs and others could not know ; and that they could not get service , or land any where ; if they were disorderly , they have conformed , and this hath restor'd masters to the just influence which our predecessors had over their tennents and servants , and which they lost by their fanaticism , by which they came to depend only on their ministers ; and minding more conventicles than their work : and in which extravagancy , they were so far advanc'd , that they would not see themselves till they were secur'd , that they should be allow'd to go to these : nor is the master ty'd by this act to any hard thing , since by presenting them to justice , or by putting them out of his land , or out of his service , he is free from all danger , and this is in his power ; as also to secure him yet further , it is declar'd , that he may break their tacks ; and that if any master take them who are put away , he shall be lyable unto three years duty . it having been also debated before the king , that there could be no deputs nam'd , for putting the laws against ecclesiastick disorders to execution , within the bounds of heretable judges ; therefore his majesties power is declar'd as to this point , by the clause of this act ; but this is now unnecessary , because by the act of this parliament , his majesties cumulative power is declar'd as to all points . it is very observable that the longer the world lasts , probation by witnesses-lessens alwise in esteem , because men grow alwise more wicked . in our saviours time , out of the mouth of two or three witnesses , every word was to be established : thereafter by our law , and by the laws of other nations , nothing above an hundred pounds could be proven by witnesses . and albeit of old the affixing of a seal was probative without a subscription or witnesses : but as by former acts , the subscriptions of parties is declar'd requisit : so though formerly the designing the witnesses , was sufficient , although they did not subscrive : yet by this act no writ is declar'd probative , except the witnesses subscrive ; and without their subscriving , the writ is declared null : but the act of parliament does not condescend , whether this nullity shall be receivable , by way of exception , or if it must require a reduction : but i conceive it must be null by way of exception , since the law hath declar'd such papers null , and the want of witnesses appears by production of the paper it self . the second thing established by this act is , that no witnesse shall sign as a witness to any parties subscription , except he know the party , and saw him subscrive , or saw , or heard him give warrand to the nottar , or touch the pen ; the occasion of which part of the act was , among other remarkable cases , that a gentlewoman pretending that she could not write before so many company , desir'd to sign the paper in her own chamber , whereupon she got the paper with her , and at her return brought it back subscriv'd , and she thereafter rais'd a reduction of the same paper , as not truly sign'd by her ; and though this should hardly have been sustainable at her own instance , because she was heard to own it by ▪ the subscriving witnesses , and the whole company : yet this exception of dole could not have secluded her heirs or executors from reducing it as said is . if witnesses without seeing a party subscrive , or giving warrand to subscrive , shal subscrive as witnesses , they are declared to be punishable as accessory to forgery ; which quality some think was added to seclude the punishment of death , it being , as may be pretended , too severe to punish by death , that which is the effect of meer negligence , and unto which very many fall through negligence ; yet our law knows no difference betwixt accessories and principals further than ex gratia ; accessories may sometimes find a mitigation of the punishment . i conceive also , that a party signing as witness , without seeing the paper subscriv'd , should be lyable to a third party who got assignation to that paper in damnage and interest , if it be reduced ex eo capite , since he was a loser by his negligence : but quid juris ? . if the party himself , to whom the paper was granted , were pursuing such an action for damnage and interest , since he should have considered his own security , and the witnesses might have trusted to his exactness . . quid juris ? if the witness heard command given to one of the nottars , since the act says , that unless they heard him give warrand to a notar , or notars , and touch the notars pen ; and yet even in that case , the paper may be null , because there was not a command given to both the notars ; and a third party may thereby lose his right ▪ . it may be doubted if upon a notars asking , if the party will warrand him to subscrive , the party do give a nod , whether that nod will be equivalent to a warrand , and free the witness , who thereupon subscrived as witness ? and it seems it should ; for the act says , except he saw or heard him give command : and a man cannot see a warrand otherways than by a nod ; and nutus was sufficient by the civil law to infer a mandat . the third point in the act is , that albeit in all forraign nations , the subscription of a notar proves in all obligations ; ( for there the notar keeps the paper sign'd by the party , and gives only a duplicat sign'd by him ) and albeit in our law , a notars subscription did prove in all instruments , such as seasins , intimations , &c. if the witnesses were insert , and design'd , though they did not at all subscrive ; yet by this act the witnesses must likewise subscrive , which is another argument to prove , how much the faith to be given to men is now lessen'd : but it is fit to observe , that other instruments taken by notars , continue in the former condition , and need no subscriving witnesses ; though for cautiousness , all witnesses in any instrument do now subscrive . nota , that the civil law call'd all obligations instruments ; but we call only acts of notars instruments . the fourth point in this act is , that all executions of messengers upon inhibitions , interdictions , hornings , or arrestments , shall be null , if they be not subscriv'd by witnesses ; and these were exprest , because they are executions of great importance ; and yet it seems that executions of comprisings and adjudications are of as great importance as any of these ; and yet it is not requir'd by this act , that executions of comprisings and adjudications should have subscriving witnesses ; and a reduction being raised of the execution of a comprising , because there being but two witnesses exprest in the execution ; one whereof did expresly deny , that ever he was witness in such an execution , and so the same became null , as wanting two witnesses : to this it was answered , that the deposition of a witness , denying that he was present upon the land the time of the execution , was not sufficient to destroy an heretable right of so great importance , as this comprising was ; for this deposition after so long a time , could amount to no more than a non memini ; and the reason whereupon this statute is founded , appears by the narrative to be , because the witnesses may by their forgetfulness easily disown their being witnesses ; and many men are apt to forget such circumstances , and to deny that ever they have been in such a place or house , until the same be brought back to their memory , by other very remarkable circumstances , which could not be done here , because the messenger and the other witnesses were both dead . . the deposition of one witness denying his being present , should not infer a nullity of the comprissing , since the loss of the whole executions would not infer the same , after so long a time as has been frequently decided . . if this were allow'd , it should be in the power of every single witness in an execution of a comprising , or adjudication , which are now the foundations of the most of our rights , to destroy and overturn the same for money or prejudice . . no singular successor buying a comprising , could be secur'd ; and if these executions had been thought of such importance , this statute had required subscriving witnesses . for a comprising is of far more consequence than an arrestment ; the one relating to an heretabl● , the other to an moveable , and very temporary right . . no man could with a sufficient causa scientiae , depone that he was not upon the ground of the lands of such a barony , except he knew every bit of the march of the barony , for that execution might have been used upon the very remotest corner of it . the last branch of this act is , that no execution whatsoever shall be sufficient to interrupt the prescription of heretable rights , unless the same have subscriving witnesses ; and by this , we see what care our law has taken to preserve prescriptions : and for the same reason it is appointed by the act par. ch. . that all citations that shall be made use of , for interruptions shall be renew'd every seven year ; and because of this clause in the act , it is advisable , that all executions in adjudications , comprisings , molestations , and generally in all actions , relating to real rights , have subscriving witnesses , though these be not exprest , because they may be made use of as interruptions in other cases . vid. observ . on the said act. this act concerning the test , is so exactly and universally known , and all objections against it have been so fully clear'd , that it is unnecessary to write any observation upon it : by the act of the par. ch. . it is declar'd that the nomination of the senators of the colledge of justice did ever belong to the king. and his majesty and his predecessors have ever been in use of appointing the times in which they should sit , and judge for him ; and therefore his majesties royal brother , finding , that many members of parliament inclin'd to want the summer session , he allow'd the overture to be brought into the articles . it was likewise propos'd , that there might be one moneth allow'd for the summer , and four only for the winter ; for which it was urg'd , that this would save all the inconveniencies that could be adduc'd against the summer session ; since therein causes that could not well admit of delay , such as suspensions , removings , actions upon bills of exchange , &c. might be discuss'd ; but this was rejected by vote of both articles and parliament , as tending to as much trouble and expense as the summer session it self , without any considerable advantage . for the leiges behov'd to attend from the remotest parts of the nation , and yet the whole time would be spent in useless preparations for business the first fourthnight ; and in a dangerous hurry the last fourthnight ; by this act then there is only one session to be in the whole year , which is to last from the first of november , to the last of march inclusive . the arguments adduc'd for this model were first , that two meetings of the session did encourage our countrey-men too much to litigiousness , who were naturally too much addicted thereto ; whereas one session might well enough end all our affairs : and it was indeed observable , that to recommend this overture , all possible dispatch had been made in the former session . . that these two sessions occasioned great expense , since people behov'd to come twice a year from the remotest parts of the nation , most unnecessarly ; for the summer session was spent in preparation , or hurry , as said is . . the summer being the only time wherein scots-men could have any pleasure , or could make any improvement by building , imparking , &c. the summer session did , without making us any recompense , destroy both our own pleasure , and the adorning of our countrey . the arguments for continuing the summer session as formerly , were . the session not sitting for seven moneths , his majesties authority during all that time , wants the support and assistance which otherwise it uses to have from the frequent attendance of the nobility , the kings officers , and others do meet frequently during the session , because of the conveniency they have in attending their private business . whereas in this long vacation of seven moneths , they can hardly be brought together , and so want that correspondence , intelligence and mutual assistance which they have in time of the session ; and our rebellions being ordinarly in the summer time , because of the conveniency which rebels have of lying in the open fields , and of getting provision for their horses , it would be much easier to suppress the same , when his majesties authority is fully represented , and his nobility and servants fully conveen'd ; a great instance whereof appear'd in the late rebellion of bothwel-bridge . . the summer session was very well contriv'd for the administration of justice , because in the moneths of june and july , such as have affairs in dependence before the session , had then no labouring at home , those two moneths falling very conveniently in betwixt seed-time and harvest , and we having formerly had the moneth of march adjected to the winter session , that moneth was taken from it , because it was a part of our seed-time , and consequently to have it now a part of our session , must be very inconvenient . . in those two moneths , his majesties subjects in the isles , and remote countreys , can only come to get justice administrated to them in the summer , there being no passage from these places to the session in the winter time ; or at least if they do come , they must stay the whole winter ; and in some years the storms are such , that there is no travelling , even from nearer countreys , nor is the winter fit for old men bishops , clergy-men , and such as are infirm to travel in . . the season in these two moneths , being very moderat with us , and the dayes long , much more bussiness is dispatched , than in the winter time : and there is far more conveniency of informing , than in the cold and rigid winter nights , which puts men to great expense , and occasions many diseases . . though his majesties subjects now procure decreets , or get bonds ; yet the same being suspended , they cannot be discuss'd for nine or ten moneths ; during which time also widows and orphans starve ; masters cannot remove tennents , because they advocat the cause ; and debitors become insolvent ; creditors likewise being forc'd to use adjudi●●●ions within year and day of one another , are altogether by the said long vacation excluded . . not only business before the session by this means , but even before inferiour courts are stopt ; for such as are conscious to the injustice of their own cause , stop procedure there likewise by advocations , which cannot be discuss'd for nine or ten moneths . . not only in these particulars ; but in general , the course of justice is stopt here : far contrary , not only to our conveniency , but to the custom of all nations , who allow in place of one , four or five sessions . there being no vacation in the world longer than two moneths , except in scotland , who now allow seven ; during which time , honest men are defrauded , bankrupt , and violent possessors are indulg'd ; probation by witnesses , and otherwise perish : and to be short , there is no face of justice during that time . . as the vacation is too long for the conveniency of the people , so is the winter session too long for the conveniency of the judges , advocats and other members of the colledge of justice , who must either destroy themselves by toiling too much , or the peoples business by their languid and negligent mannadgement thereof , it being undenyable that before the four moneths used to expire formerly , all persons concerned did languish , weary , and wish for a vacation . . the shortness of the time now allow'd , forces the judges to give shorter audience and to frequent the side-bars more than is fit . . the want of the summer session destroys trade and commerce ; because . merchants cannot get in their money , with which they should trade , wanting the execution of law for so long a time . . there is now no whitsunday term , so that the course of money is stopt ; and it is undenyable , that there are no payments now at whitsunday ; whereas we having had two terms formerly , whitsunday and martinmas , there were very wisely two sessions appointed , one in the summer for those who did not pay at whitsunday ; and another in the winter , for those who did not pay at martinmass . . there being no concourse and meetings of the people for seven moneths , there can be little commerce : for all traffique arises , and bargains are made upon such occasions . . it is undenyable , that twice more merchants have broke in those two years that we wanted a summer session , than in any six formerly ; from which decay of trade also arises a great loss to his majesty in his customs and revenue . . this want of the summer session is very prejudicial to the private estates and interests of almost all sorts of people : for , . there is alwise greatest consumption of corn , cattle , and all products of the nation , in more frequent and numerous concourse of people ; and the greater the consumption be , the prices rises so much the higher . . the victual of the northern shires not being transportable till april , because of the storms , it was only vented during the summer session ; and now the price of the victual there is much faln , and his majesties 〈◊〉 in those shires much prejudg'd . . the heritors of store-rooms in the south and west are very much prejudg'd , since a great part of their cattle , especially of the younger , was only vented in the summer session . . the heretors in the shires about edinburgh are prejudg'd in every thing that is pay'd to them . . the half of the town of edinburgh it self is almost laid waste ; landlords having almost lost half their rent , and the best trades-men running away to other nations , because they are idle for seven moneths here . by which also his majesty is a great loser in his revenue , that town paying him more alone , than a sixth part of what is pay'd by all the burghs-royal in the kingdom ; and trade by this extraordinary poverty decaying in edinburgh , which is the fountain of commerce , and the staple port of the nation , it must proportionally decay in all the other towns , since their trade and commerce depends upon it . . his majesties ordinary and additional excise in edinburgh , has very much decreased , and the brewers are almost all broken within these two years , as the tacks-men and customers too well know : the ministers stipends likewise being pay'd out of the annuities on house-meals , they must likewise decrease as the house-meals do . nor is the town able to keep up the company , nor to furnish his majesty such assistance , as formerly it gave in the rebellions at pentland and bothwel . as to the contrary arguments , it was answered , that as to the first , business did increase daily in all nations , with the improvement of land and of trade , and the multiplying of diligences , so that processes could not be sooner ended than formerly , without deciding them more carefully . to the second , no man now needed to come till his cause was call'd , because all causes were decided in their course by a roll , and so it was no matter whether he came summer or winter . to the third it was answer'd , there was more planting and improvement in the moneth of march , which is now lost than in both the moneths of june and july . it may be doubted if the king can recal the summer session without an express act of parliament ; and it may be urg'd that he may , since the session is his own court , wherein he does justice to his people by his judges ; and therefore as any of his majesties vassals may hold their courts when they please , much more may his majesty hold his. likeas his majesty has oft-times by his council , order'd the session to sit when and where he pleas'd : and whereas it is pretended , that if this were true , acts of parliament in ●his case were unnecessary ; and that such alterations have never been made without the parliament . to this it is answered , that at first the session was a committee of parliament ; and so the diets of session behov'd to be appointed by parliament : and now likewise it is fit , that the inclinations of the subjects be gratifi'd by such acts , taking along their consent in a case of so general a concern ; but it does not necessarly follow , that all things that have been establ●shed by an act of parliament at some times , can at no other time be order'd by his majesty alone ; for we see that there are several acts of parliament , regulating trade and coynage ; and yet it cannot be deny'd , but that trade and coynage are inter regalia . albeit by the fourteenth act par. ch. . the excise is to be taken up by the commissioners of the excise , or collectors appointed by them , and for whom the commissioners are answerab●● and may be quartered upon for their deficiency : by this act , the grant of the excise , which is to commense from the kings death , gives his royal successors only a right to what the drink exciseable it self can yield , and so the shires will not be oblig'd to burden their land with cess , for deficiency of the excise , as now they do . this act is formerly explain'd in the observations on the act par. ja. . by our former law , it was generally believ'd that all widows had right to a third of their husbands estates , call'd with us a terce , except the wife had been expresly secluded by her contract of marriage , and that she had right to her joynture , and to a third of the superplus of any land , wherein her husband died infeft : but in a case betwixt prestongrange and the lady craigleith , debated in the session immediatly before this parliament ; it was alleadg'd , that the said lady , being competently provided by her contract of marriage to a great joynture , she could not likewise have right to a terce , because primo , provisio hominis tollit provisionem legis ; and therefore where a wife is provided by express agreement , and the provision acquiesced in by the wife and her friends , it is in the construction of law reputed to be in full satisfaction of all she can crave , if the same amount to a third of all the lands , which the defunct had at his decease . . this is declar'd to be our law , by the . cap. lib. . reg. maj. n. , & . and by balfour in his title of the wises dowry and terce : and by craig lib. . cap. . . by the laws of other nations it is clear , that where a wife is secured by a conventional provision , she can have no right to any legal provision ; this the french expresly determine , when they say , that a wife having dotarium praesixum , cannot claim dotarium ex lege & consuetudinarium . . this terce is the same in the analogy of law , that a legi●tim , or an aliment is to children ; but so it is that neither of these are due , when the children are provided ; and therefore the most that can be due in either case is supplementum legittimae ; the law having only designed the rationabilis tertia : and there is no more due to our queens by the act par. ja. . albeit these reasons were thought very pungent , and tending much to the support of old families , and to secure men against the importunity of their wives ; yet because some positive decisions had run in favours of the wives , though abundantly provided ; therefore the case was referr'd by the session to the parliament , and they by this act ordain'd that in time coming , if the wife be provided , tho her provision were never so small , she shall be excluded from a terce , unless her right to a terce be secur'd to her , by and attour her particular provision : but because this act was not thought a declaratory statute , but a regulation ; therefore the case depending was remitted back to the session . this is fully explain'd in the observ. upon the act par. ja. . his majesty having , by vertue of his prerogative royal , declar'd by the act sess. par. ch. . the sole ordering , and disposing of trade with forraigners ; he did by act of council anno . regulate the matter of trade and manufactories ; which proclamations are here ratifi'd , for a security to such as shall undertake manufactories ; and therefore it may be doubted , if his majesty can dispense with any thing relating to manufactory , since in this , third parties have followed the faith of his majesties acts and proclamations ; so that his majesty seems to be bound to them ex quasi contractu . it is declared by the last clause of this act , that no persons contraveening this act , shall be lyable to the penalties , unless they be found guilty within three moneths after the delation : upon which clause it was found , that the offenders were free , though they had confess'd their contravention by their oath within the three moneths ; because there was not a formal sentence against them ; albeit it was alleadg'd that in confitentem nullae sunt partes judicis ; and the king had done sufficient diligence ; and the reason of the act did only militat in favours of those , who where not oblig'd to depone after so long a time ; and the king could not be prejudg'd , where his officers had done sufficient diligence , for this in effect was a prescription , which runs only against the negligent . likeas in this case , the want of a decreet could not be oppon'd , since it was occasioned by a petition , given by the defenders craving a delay , with which the king gratifi'd them : but yet the council thought the words of the act so positive , that they would not go over them ; especially since the clause did resolve in an indemnity to people who might have , and did ordinarly contraveen by mistake , or through necessity , and all such indemnifying clauses should be favourably interpreted . by the act par. ja. . the lords of session can only be declined to vote , or judge in causes belonging to their fathers , brothers , or sons : but because the prohibition of that act , was too narrow , and that the reason thereof did equally militat against all judges ; therefore by this act the prohibition of the former act is extended to degrees of affinity as well as consanguinity : as also to uncles and nephews , so that now no lord of session , or other judge whatsomever is capable to vote where either the pursuer or defender is father , brother , or son in law to him , which is most just , since these may have an equal influence upon him , and sometimes greater then those formerly discharged . it may be doubted whether this act should extend to cases caryed on in the names of confidents and trusties , for the behove of the persons comprehended in this act ; and it seems rational to extend it ; for a cause cannot so much be said to be his , in whose name it is pursued , as the persons to whose behove it is pursued : and if this were otherwise , the design of this excellent act might be altogether evacuated : but yet i remember that the earl of rothes in exchequer , gave by his vote the gift of non-entry of the estate of levin to sir william bruce , though it was alleaged that it being to his own behove , he could not jus sibi dicere . to which it was answered , that he did not vote for himself , but that he was necessitat to sit to make up a quorum , because there behoved still to be such a number of commissioners of the thesaury present in exchequer , as sine quibus non . as laws do ordinarly show the genius of the nation ; so do they likewise show the genius of the time wherein they are made ; and this law was occasion'd by a dreadful principle , whereby the fanaticks had declar'd , that it was lawful to kill all who serv'd the king ; and though none were punish'd in scotland for meer principles of religion : yet it is very lawful to punish those who maintain principles which tend necessarly and naturally to the raising of rebellion , or committing of crimes : whereof this and the act sess. par. ch. . are just instances . it may be doubted , whether judges may be declined , where their relation is equal to the pursuer and defender , or in cases of affinity , where the affinity has ceased by the dissolution of the mariage . item , it may be doubted , if a judge can be declined where he is related only to one who is a member of a society , which is pursuer or defender ; as for instance , if the process be against a colledge , and the judge be brother to one of the masters of the colledge . observ. from these words , the exchequer and other judicatures , that the exchequer is a judicature in our law , by this act it is declared , that the high court of admirality is a soveraign judicature in it self , and imports summar execution , by which last words is meant only , that execution of horning may pass upon their decreets immediatly , without seeking a decreet conform before the lords , as of old , conform to the act par. . ja. . which is here wrong cited , and call'd the par. but this summar execution is no mark of its being a soveraign court ; for sheriff and bailiff courts have the same priviledge . but that which makes this court a soveraign court is , that by this act it is declar'd , that they may not only review the decreets of inferiour admirals , but their own ; and the reason why they are allow'd to review their own is , because it is their custom to grant oft-times decreets summarly , for not finding caution ; and it were hard not to allow the persons concern'd to be heard upon an offer to find caution : as also , it is declar'd by this act , that no advocations shall be granted from them to the session ; but even this is not observ'd , tho it was the great design of this act , for this act restricting this priviledge to maritim and sea-affairs , the lords advocat causes from that court , as not maritim , it not being determin'd what cases are maritim , and so can be comprehended under that term. the lords are still allow'd to suspend the decreets of the admiral in praesentia , or by three lords in the vacance , which is hardly to be reconciled with its being a soveraign court : and yet in some cases , the lords suspend the decreets of the justice-court , and of the commission of the kirk , which are certainly soveraign courts . the admiral court has got also power by this act to apply the fines and amerciaments of their own courts , to their own use , which formerly belong'd to the king ; and they have also the sole power to grant passes and safe conducts to ships , which by a special priviledge was granted immediatly before this act , very irregularly to magistrats of burghs royal , and in the time of the late dutch war , it was granted to a particular person , named by his majesty , who was called surveyer-general ; and was bound by his instructions , not to grant a pass to any ship till he was aboard , and surveyed all that was in it ; only he had power to make a deput for a●erdeen , and beyond it . by this act because common things are neglected , and creditors are disappointed of all the rents where the same are controverted amongst them ; therefore they are allow'd to roup the lands of the common creditors , when become bankrupts , which is now done by summons , narrating this statute , in which all the real creditors are cited , and thereupon the lords grant a commission for trying the value of the estate , and then they determine what shall be the least price , and they name a lord before whom the roup is to be made , and letters are raised , charging creditors to appear on twenty one dayes , at such an hour at the new-session-house , to offer before such a lord , at which day he comes to the outter-house , and the clerk reads the acts , and commission to that lord , and the macer offers the lands at the price put on them by the lords three several times , and if none offer more , he who raised the summons gets them at that price . after all this , the creditors go on in their multiple poinding , and being rank'd according to their due preference , the price is distributed amongst them accordingly , tho it may be debated that this preference should be first determined , since till then creditors will not willingly offer . it seems more reasonable that roups should be in the shires where the lands to be sold do ly , for there will be more buyers found there than at edinburgh : i could likewise wish , that where any of the lords of the session are pursuers , they would name commissioners in the countrey to make the roup , for societies should shun sibi jus dicere , where the same can be supply'd by others . i think also that it were fit that roups were made three several dayes , and not all at one time , as is required by the doctors ; for this would give all persons concerned time and opportunity to appear , and consider what is fit to be offered , for men may be surprised , or be sick , or busie at one hour , or time . i conceive also , that the lord who makes the roup , should stay all the two hours allow'd , not only to the last moment , but from the first , as we see the judges do in roups abroad , and before our admirals , where the roups are therefore appointed to be made ad candelam , or clepsidram , and in orders of redemption , we see that the redeemer must wait from sun to sun ; and tho where the common good is to be rouped in towns , or the customs in exchequer , the same use to be done in half an hour or so , yet it is a different thing where creditors are to offer for getting payment of their own just debts : and for the same reason it seems , though a just creditor come somewhat late ; yet if he offer more , he ought to be preferred , nam de minimis non curat praetor , and the interest of lawful creditors ought to have greater favour . it is doubted , if a part of the bankrupts lands may be rouped , since the act ordains in general his estate to be roupt , and a part of the estate cannot be call'd the estate ; and it were hard to choose out the mannor-place , and some little part of the land , by the want whereof , the rest would become of little value : the act also by ordaining the price to be distributed among the creditors , insinuats that one creditor cannot choose a part to be roupt for payment of his particular debt . whether the lords may stop offers when they grow exorbitant in prejudice of offers of a just price , made by lawful creditors ; and whether a creditor should be preferr'd to a stranger , both offering the same price , tho the stranger made the first offer ; and if a creditor in passion may be allow'd to repent , and if he should get deductions in case of supervenient war , pestilence , or vis major , may be seen with many other intricat questions , fully discust by matheus de auctionibus , and postillus de sub-hastationibus , where all the matter of roups are excellently treated . when field conventicles , and other insolencies grew insupportable , the privy council required the sheriffs , baillies of regalities , and other magistrats to call together these within their jurisdictions , for repressing the same ; but they answered , that this was not possible ; whereupon the council being justly jealous , that the sheriffs did not their duty , gave commissions to the commanding officers , and other gentlemen to be conjunct-sheriffs , as to all ecclesiastick disorders , and found that these contributed much to quiet the countrey ; but this being complained of , as a streach of the prerogative , this act was made , declaring that his majesty may by himself , or others commissionated by him , take cognizance and decision of any causes he pleases , notwithstanding of any jurisdiction bestowed by him and his predecessors ; for understanding whereof , it is fit to know that all jurisdictions granted by absolute princes , are cumulative , and not privative ; for tho they empower others to distribute justice to their people , for their and their peoples greater conveniency ; yet they never thereby denude and debar themselves from judging or appointing others ; for the king may see , and the people may find judges very unfit , and that the government is ruined by them ; and yet a crime cannot be prov'd , whereby deprivation may be infer'd : whereas there is no inconveniency on the other hand . . this is clear by craig to be our law , lib. . diag . . illud tamen generaliter observandum , quod jurisdictio nunquam privative , sed cumulative delegari potest : non est enim quasi translatio juris ex una persona in aliam , sed tantum mandata jurisdictio , quae non obstante delegatione adhuc remanet in delegante . . this is no more than what was allow'd to the king by the act par. ja. . whereby it is declared , that it shall be lawful to the king at his empleasance ( or pleasure ) to take decision of any matter that comes before him , likeas it was wont to be as of before . . this keeps heretable officers in a just aw , and secures people ; for if they will be partial or remiss , they know that others may be nam'd to supply their defects . the occasion of this act was a solemn debate betwixt provost curry and charles oliphant in december . in which the said provost rais'd a reduction of a right made by the mr. of mordingtoun to the said charles of the lands of nether mordingtoun , and edringtoun , as made by a minor ; and though an oath was adjected by the minor , to ratifie at his majority : yet that was likewise null , since by the same facility that minors will contract to their laesion ▪ they will likewise swear to their laesion ; and therefore it is the publick interest , as well as the interest of the minor , that such oaths should not bind . to which it was answered , that though the world , whilest pagan , did rescind such oaths ; yet by the famous law sacramenta puberum , such oaths were to be observ'd : and though oaths given against a publick law , were not to be observ'd ; yet in such a case as this , where the publick was not concerned ; and where there was no statute against the interposing such an oath , the oath ought to be observed , as being a matter of far greater consequence than the contract : nor should judges favour perjury , or ensnare people who trusted oaths ; and even in countreys where statutes were made against the validity of such oaths , they ordained the minor to be first absolved by a church-man ; and since we had no such absolutions , we could admit of no restitution . to which it was reply'd , that the laws restoring minors were founded upon publick good and interest ; and therefore it were absurd to suffer the contravention of them to be secured by an oath , and that an oath adjected by a minor , should no more bind than an oath adjected by a wife , which has been by many decisions found not to be binding , and even in these countreys where the canon law takes place , this authentick constitution is not observ'd , viz. in france , flanders , &c. as is observed by guidilinus de jure novissimo , lib. . cap. . it was ly alleadged , that such oaths ought not to secure where the deed is in it self invalid and illegal , as here where the father authorizes the son to confirm a deed to the fathers own advantage , nam nemo potest esse author in rem suam . . it ought not to be respected even by the opinion of the civilians , where there is aenorm laesion ; which aenorm laesion is dolus praesumptus : and no oath can secure against fraud or dole . . though the minor might have prejudged himself by that oath , and thereby have secluded himself from craving restitution ; yet he could not prejudge the provost who was a third party , and was his creditor ; for the effect of the oath being only personal , could not reach him . the lords upon this debate sustained the contract , and repelled the reason of reduction , though rais'd by a singular successor . but they caused draw this act of parliament , discharging for the future , the exacting of such oaths : annulling likewise the contract , and declaring the elicitor of the oath to be infamous . nota , these words in the act , that it shall be competent to any person related to the minor , to obtain the writs to be declared null , were adjected , because some minors might scruple to pursue a reduction of a writ , that they themselves had granted upon oath ; and albeit this act declares only such contracts to be null , yet it will certainly extend to bands , dispositions , and other writs ; for as the reason is the same , so both the narrative and the last words of the act , has the word writs , which comprehends all these ; and i conceive the remedy of this act will extend likewise to promises , though these be not comprehended under the word writs ; for if it were otherwise , the act might be eluded by taking of promises upon oath from minors : as also , albeit the narrative relates only to writs of importance , by which are only mean'd in our law , such wherein the sum exceeds an hundred pounds scots : yet since the statutory part is general , and that an hundred pounds may ruine poor people , nor should men of substance las●le an oath by interposing it , to mean matters ; therefore i think that this remedy should be extended to all cases whatsoever . by this act for facilitating the course of trade , bills of exchange are ordain'd to be registrated within six moneths after they are due , and tho the bill bear no consent to the registration as bands do ; yet they are registrated by vertue of this act , which is narrated in the beginning of the paper that is registrated ; but this is of no great use ; and therefore merchants choose rather to pursue summarly before the dean of gilds court , who is with us , le consul des merchans , and even these pursuits are disappointed by advocations ; nor have they so much as the priviledge of being discust summarly , without attending the course of the roll , as was crav'd by the draught of the act that was first under consideration . it was also crav'd , that compensation should not be receiv'd against bills of exchange , as is customary abroad ; and a bill is in effect , in the construction of law , a bagg of money trusted by the drawer , and to be redelivered in another place ; and compensation is not even by the common law received against depositations . the reason why this act was only extended to bills drawn from abroad , or in favours of persons abroad ; and not to bills drawn from one place within the kingdom to another , was , because if that had been allow'd , all debts had still been constituted by bills , and not by bands , and so had been priviledged by too summar execution . before parliaments can proceed to publick affairs , all the controverted elections must first be cleared and determined , which being the occasion of great delayes in the dispatch of business gave the rise to this act , whereby it is ordain'd , that none shall have vote in the elections of commissioners for shires or stewartries , except those who are publickly infeft in property or superiority , life-rent or proper wodset , and in possession of a shilling land of old extent , holden of the king or prince , or in lands of pounds valuation , whether kirk-lands , or other blench , few or ward-lands , and that appearand heirs being in possession by vertue of their predecessors rights , and husbands for the free-holds of their wives , or as life-renters by the courtesie of scotland , of the extent and valuation foresaid , have right to vote . the shire of berwick having made cross elections of commissioners to the late parliament , the committee for controverted elections decided these points for clearing this act , which report was approven in parliament . . that a charter confirmed by the king of a shilling land , does not give a party right to vote , except his seasin thereupon be produced , and that the confirmation be of the seasin , since the confirmation of a charter , imports no more but the confirmation of a personal obligment . . vassals of kirk-lands of the extent and valuation foresaid , have no vote unless they hold their lands of the king as their immediat superiour ; for since it is optional to them , either to hold of the king , or lord of erection , by the act , parl. ch. . it is presumed they still hold of the lord of erection , unless they instruct that they hold of his majesty . . where vassals produce rights to a part of a barony , that will give them no right to vote , except they can instruct that their lands are retour'd to such a proportion as put them in the terms of the act of parliament . . life-rents not constitute by infeftments , but by personal obligments , give not the life-renters right to vote . . persons interdicted seem to be debarr'd from voting , since they who were not fit for managing their own affairs , ought not to be trusted to vote for commissioners to parliaments ; but this i think should only hold in interdictions , causa cognita , very judicious men consenting to voluntar interdictions . . if the king be only superiour supplendo vices of the immediat superior , by his not entering to the superiority : this will not give the vassal a vote , since the immediat superior retains all the casualities , and consequently remains still superiour , albeit pro hac vice the king supplies the defect of the immediat superiours lying out , by infefting the vassal . . appearand heirs , albeit in the terms of this act have no right to vote , if they have renounced , or if their predecessors were denuded , albeit they were in possession , the famine being only by a tollerance from the party in whose favours the predecessor was denuded . . appearand heirs by the mothers side , gives not a title to vote , except they be actually entered heirs , since it is presumed there are heirs male , except the contrair be proven by a service . . vassals who have expired apprisings , or adjudications , have liberty to vote , albeit by an act of the lords of session , the lands are declared to be redeemable for the sums truly due , since by this act apprisings , adjudications , and proper wodsetts , are not to be questioned upon pretence of any order of redemption , payment , or satisfaction , unless a decreet of declarator , voluntar redemption , resignation , or renunciation be produced . . it was found in the election of the commissioners of east - lothian , that no votes are sustained , but these who voted and signed before the meeting was dissolved ; and the votes of those who came immediatly after , were not sustain'd , tho the preses return'd with some of the number . but in the elections for the mers , it was found that a person was capable to vote , albeit he was detained prisoner by a mis-information from one of the competitors ; he having given an account of the way and manner of his imprisonment to the meeting , and declared his vote to them , and after his enlargement did immediatly take the test , and sign the commission . finis . several additions and supplements to the observations on the acts of parliament . by this act the wardens are discharged to judge , which is here called very odly to intromet with , any thing that pertains to the dittay of the justice-air , saving the points that are needful for conservation of the trews ( or truce ) that is to say , the jurisdiction of the wardens by this act is prorogated to the cognition of all crimes which were necessary to be judged by them , for preservation of the peace betwixt the kingdoms ; and so the first part of the act specifying treason , was unnecessary , for it was comprehended under the general : but now the commissioners of the borders , who are come in place of the wardens , have power directly , and so not only incidenter to judge thefts , and many other points of dittay . to add after these words , the king may make any man a lord of parliament ; yet by the constant course of posterior acts of parliament concerning elections and representatives of shires in parliament , and by the constant custome acknowledg'd both by king and parliament , none can represent shires in parliament , but such as are actually chosen by the shires whom they represent . after these words , that a registrat extract will not stop a certification , when a horning and its executions are called for , but the principal must be produced . it is fit to add , that though this hold against the user of the horning , yet the kings donator is not oblig'd to produce the principal horning , for else by collusion betwixt the debitor and the creditor , the kings donator might be easily prejudg'd . whereas it is said , that decimae inclusae are to be burdened with no part of the ministers stipend ; for clearing whereof it may be added , that this was so decided before the commission in january . . heretors of tulliallan contra colvill ; but afterwards in march . the same case being heard in praesentia before the lords , by a reference from the high commission ; it was found that conform to this clause in the act of annexation , reserving the tenth penny to the ecclesiastick person , that therefore the heretor having right to his lands , cum decimis inclusis , should be lyable to the minister for the tenth part of his feu-duty , with relief to him against the titular pro tanto . after these words , the earl marshal contra brae , add , this decreet was in foro : and stairs asserts , that competent and omitted before baron-courts , is not considered . the answer to this doubt is , that the act of the convention anno . doth not make either stipendiary ministers , or ministers having modified stipends lyable to impositions , but only ordains beneficed persons to be taxt : and the convention . having ordained the impositions then laid on , to be levied according to the valuation led in anno . and not according to the retoured duty ( which was the old way ) did ordain , that benefices should be valued , and pay , in so far as these benefices exceeded the modified stipend , and so they are burdened in both these acts as beneficed persons , and not as stipendiary ministers , of whom this act only speaks . in the second observation upon the said act , it is said , that the lords will allow the user of a writ to condescend who was the writer , albeit his name be not insert , nor condescended on in the writ . but now by the th act , parl. . ch. . all writs not condescending upon the writers in the body , are absolutely null ▪ and not suppliable by a condescendence , ex post facto . this observation should be thus worded , the act here related to , is the . act , par. . q. mary ; and the acts dispensed with both in this and the said . act , is the . act , par. . ja. . we have this custome of morning-gift from the germans , which is called in their language , morgengab , and is learnedly treated by milerus , in his gamologia personarum illustrium , cap. . where he defines morgennatica to be donum matutinale quod olim apud germanos & francos una cum do●e proprium patrimonium erat uxoris , vid. pag. . whereas it is said there , that a band wanting witnesses is null , if the same exceed an hundred pounds , and is valid , if restricted to pounds : it is fit to add , that this seems to be somewhat dubious , in respect of the act , par. . k. ja. . and . act , par. . ch. . which declare all writts , without exception , null , that are not subscribed before witnesses . it being asserted in the observations upon this act , that the reservation of the act extends as well to the patronage of mensal kirks , as those that are of the bishops representation ; this caution should be subjoyned , that notwithstanding of the decision there mentioned , march . . it may be contended that mensal kirks are not contained in the said exception , and that because that exception mentions only patronage of kirks pertaining to bishopricks , whereas a mensal kirk is not patronate , being a part of the benefice , and the disponing a mensal kirk is a formal dilapidation of the benefice , and so contrary to other acts of parliament . notwithstanding of the decision i have there cited , it see●s that this act of parliament is designed to make all retours , even at the instance of the nearest of kin irreduceable after years , and that even where competition is betwixt heirs of the same kind ; as if a second brother had served himself heir to his father during the life of the elder brother , or his descendents in lineà recta ; and it seems this has been the opinion of the lords in the case younger contra johnstoun , . novemb. . likeas the act of parliament makes no distinction , but on the contrary , having extended the prescription of retours from . year● to . and that only in favours of the righteous heir , and nearest of kin , it declares generally , that after the said years , no party shall be heard ; but yet it seems very hard , that if a second brother himself , who knew he had an elder brother ; or yet more , if he were keeping daily correspondence with him whilst he w●re abroad , should serve himself heir to their father , that thereafter this service might not be reduced , notwithstanding of this prescription of years ; but it would likewise seem that there might be a speciality in this case , because the dole , or it may be the knowledge of the second brother , without any dole , in some cases might hinder prescription , which requires in law bona fides , as one of its essential requisits ; and yet if a third party bought or comprised that estate , the prescription might be valid , because the impediment being personal , could not prejudge him ▪ and it is fit to observe , that what i said in general in my observations upon that act concerning singular successors , was only mean● of singular successors acquiring rights before that act , for they having bought bona fide before that act , a supervenient law could not prejudge them . for clearing the . observation upon the said act , it is fit to take notice , that albeit it be there insinuated , that lords of erection pay only a blench duty for the lands feued out to them the time of the erection ; yet it appears both by the surrender and decreet arbitral following ther●on , that they still pay a feu-duty for the lands feued out to them since the erection . nota , after a solemn debate before the exchequer , upon the . of january , . it was decided in a case betwixt bellhaven and the cash-keeper , that the king has right to the feu-duties which anciently were due to abbots , or church-men , before the annexation , or to k. ja. . before the erection ; and that these feu-duties need not be redeemed as the feu-duties of the superiorities , which were holden of the lords and titulars of erection , and whereof they had not acquired the property before the surrender ; and that notwithstanding that for ● . years together , there was a blench-duty payed for the saids lands and aeques made ●n exchequer conform . the diligence mentioned in the said act of parliament , must be a compleat , not an inchoat diligence , for else it would run not for three years , as it is designed , but for fourty . albeit by the . act , par. . ch. . it was declared , that all rights and deeds made prior to that act , which might prejudge his majesty , as to the superiorities and feu-farms of kirk-lands should be null , yet to elude that act , there were commissions procured from the king , to serve the kings vassals in kirk-lands heirs , and to receive resignations , &c. with right to apply the compositions and casualities to their own behove ; as also , they procured long tacks , both of the feu-duties and casualities of the superiorities , for payment of inconsiderable tack-duties , to furnish a pretext that the king was still kept in possession , that they might not seem to contraveen the act ; as also , others than the proper vassals of kirk-lands procur'd from the king rights of the feu-duties after the king had redeem'd the same from the titulars of erection , or procur'd a right from his majesty to redeem them , and so did in effect interpose themselves betwixt the king and his vassals of kirk-lands ; therefore by this act all these indirect courses are discharg'd ; and the earl of dumfermling having procur'd a long tack of the casualities of the vassals of the abbacie of dumfermling , containing a commission to enter the vassals ut supra , the exchequer would not allow the same , albeit he had procured a ratification of that right in parliament , and a letter from king charles the d. declaring that it fell not under his revocation . notes, typically marginal, from the original text notes for div a -e act. . act. . act . act . act . act . act . act · act. . act. . act. . act. . act . act . act . act . act . act. . act. . act. . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act and . act . act . act . acts , . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act and . act . act . act . act. . act . act . act . act . act . act . act . act . act . act . act . act . act . notes for div a -e act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act 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act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . notes for div a -e act . acts , , , act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . acts , , . acts , , and . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act · acts , act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . acts , . act . act . act . act ▪ act . act . act . act . act . act . act . act . act . act . act . act . act . act ▪ act . act . act . act . act . act . act . act . act ▪ act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . acts , . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act , act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . acts , & . act . act . act . act . act . act . act . act . acts , & . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . acts , & . act . act . act . act . act . act . act . act . act . act . acts , , & . act , act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . notes for div a -e act . act . act . act . act . act . act . act . act . act . act . act . act : act . act . act . act . act . act . act & . act . act . act . act . act . act . act . act . notes for div a -e act . act . act . act . act . act . act . act . act . act . act . act . acts & act : act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . acts & act ▪ act . act . act . act . act . act . act . act ▪ act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act ▪ act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . notes for div a -e observation on act . par. . ja. . pag. . act ▪ par. . k. ja. act . par. . ja. . p. . act . par. . k. ja. p. ● . act par. ja. . p. . act par. ja. . p. . act par. ja . p. . act . par. . q. m. p. . acts , & . par. k. ja. . p. act par. k. ja. . p. . act par. k. ja. . p. act . par. k. ja. p. . act par. . ch. . p. . act par. . ch. . p. . act . par. . ch. . p. . moral gallantry a discourse, wherein the author endeavours to prove, that point of honour (abstracting from all other tyes) obliges men to be vertuous and that there is nothing so mean (or unworthy of a gentleman) as vice / by sir george mackenzie. mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing m estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) moral gallantry a discourse, wherein the author endeavours to prove, that point of honour (abstracting from all other tyes) obliges men to be vertuous and that there is nothing so mean (or unworthy of a gentleman) as vice / by sir george mackenzie. mackenzie, george, sir, - . [ ], , , p. printed for robert broun ..., edinburgh : . first edition. marginal notes. imperfect: "a moral paradox" [ p.] and "a consolation against calumnies [ p.] lacking in filmed copy. reproduction of original in bodleian library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng virtue -- early works to . ethics -- early works to . - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - melanie sanders sampled and proofread - melanie sanders text and markup reviewed and edited - pfs batch review (qc) and xml conversion moral gallantry . a discourse , wherein the author endeavours to prove , that point of honour ( abstracting from all other tyes ) obliges men to be vertuous . and that there is nothing so mean ( or unworthy of a gentleman ) as vice. by sir george mackenzie . seneca . though god could not know , nor men would not punish vice , yet would i not commit it , so mean a thing is vice. edinburgh , printed for robert broun , and are to be sold at his shop , at the sign of the sun , on the north side of the street , a little above the cross , anno dom. . to his grace john earl of rothes , his majesties high commissioner , lord high chancellour , lord president of his majesties exchequer and council , and general of his majesties forces in scotland , &c. may it please your grace , my obligations to you are such , as may excuse real passion in a stoick , and seeming flatteries in a philosopher ; and my gratitude deserv'd not to aspire to that name , if it should not like them want measures . but , seing your modesty makes you think even what is justice to your merit to be flattery , as the greatness of your merit keeps the highest elogies i can give you from being so ; i shall retain my respects for you in a breast , which may dispute sincerity as to your interests , with the first of those who pretend to it : with which i shall the sooner rest satisfi'd , because no paper nor any thing else except the heart , which sends you this , is capable to retain or expresse that kindnesse it feels for you . in the above-written enumeration of your titles , i have neither design'd to flatter you , or to contribute to your fame ; but rather to remember you how much you are debtor to providence for it's kindness , and we to you for your repeated cares , that thereby ye may be thankfull to it , and we to you . in order to which , i have presented you and my country with these discourses , which by inciting both to be vertuous , will not allow either to be ungrate : and therein if i evidence not abilities , i will at least kindness and respect ; which cannot but far out-value the other , seing the last relate to you , and the first respects only my self . since then holy altars have not disdain'd to offer up pigeons , and such like value-lesse things , which nothing but the sincerity of the offerer could render considerable , refuse not to accept and revise these , though unfiinsht discourses : and if a mans last words may be believ'd , i ( who am to make these my last words in print , and confine my thoughts for the future to my ordinary employment ) do assure you , that they are presented with all imaginable respect and zeal , by your graces most humble servant , george m ckenzie . to the nobility and gentry . my lords and gentlemen , having lighted this , though the smallest and dimmest of vertues torches , at honours purest flame ; i thought it unsuitable to place it under the bushel of a private protection , but rather to fix it upon such a conspicuous elevation , as your exalted names , that vertue might lance out from thence its glorious beams more radiently , and the better direct these who intend to be led by it . narrower souls then yours , have not room enough to lodge such vast thoughts , as vertue and honour should inspire : and that which raised you to that hight , which deserves this complement from vertue , does deserve that ye should not , when ye have attained to that hight , neglect its address , though sent you by the meanest of it and your servants . ye may ( my lords and gentlemen ) make your selves illustrious by your vertue ; and which is yet nobler ( because more extensive ) ye may illustrat vertue by your greatness , and as the impressa of a great prince , makes gold more current , though not more pure ; so your patrocinie and example may render vertue more fashionable and useful then now it is . undervalued vertue makes then its application to you , as to those whom , or whose predecessors it hath obliged ; and persecuted vertue deserves your patronage , as rewarded vertue is worthy of your imitation . and seing it did raise your families , and offers still to raise monuments for your memory , ye do in that assistance but pay your debt , and buy fame from succeeding ages . and as what is ingraved upon growing trees , does inlarge it self as the tree rises , so vertue will be serious to advance you , knowing that it will receive extension accordingly as ye are promoted . vertue is nothing else , but the exercise of these principles which respect the universal good of others ; and therefore , nature out of kindness to its own productions , and mankind in favour to their own interests , have ennobled and adored such as were strict observers of those . the only secure and noble way then to be admired and honoured , is to be vertuous ; this will make you as it did augustus , the ornament of your age , and as it did vespasian the delight of mankind . this is ( though to my regrate ) the way to be nobly singular , and truly great . for men follow you , when ye are vitious , in complement to their own depraved humours , but when they shall assimulat themselves to you in your vertues , they will shew truly their dependence , and that they follow you and not their own inclinations . in vice ye but follow the mode of others , but in re-entring vertue into the bon-grace of the world , ye will be leaders ; by this your lives will become patterns , and your sentences lawes to posterity , who shall enquire into your actions , not only that they may admire , but ( which is more ) that they may imitat you in them . i intend not by this discourse ( my lords and gentlemen ) that all vertues should shrink in to the narrowness of a cell or philosophers gown . no , no , publick vertues are in their extension as much preferable to private , as the one place is more august then the other , of which to give you but one instance ( for the principle is too well founded to need moe ) there is more vertue in relieving the oppressed , then in abstaining from oppression , for that comprehends this , and adds to it the nobleness of courage , and the humanity of compassion . the one is the employment of philosophers , but the other of that omnipotent god , whom these philosophers with trembling adore : in the one we vanquish , but in the other we only fly temptations . vertue then has employment for you , great souls ! as well as for retired contemplators , and though justice , temperance , and these vertues wherein none share with you , be more intrinsecally noble , then the atchieving the greatest victories , wherein fate souldiers and accidents challenge an interest ; yet vertue loves to bestow lawrels as well as bayes , and hath its heroes , as well as philosophers . rouse up then your native courage , and let it overcome all things except your clemency , and fear nothing but to stain your innocence ; undervalue your ancestors no otherwise , then by thinking their actions too small a patern for your designs ; and assist your prince , till ye make the world ( which is washt by the sea on all quarters ) that isle which should acknowledge his scepter ; your time makes the richest part of the publicks treasure , and every hour ye mispend of that , is a sacrilegious theft committed against your countrey . throw not then so much time away , ( though some be allowable ) in hunting and hauking which are not the noblest exercises , seing they favour alwayes the strongest , and do incline men ( though surdly ) to oppression and cruelty ( for which reason ( i beleeve ) nimrod the first tyrant , is in scripture observed to have been a mighty hunter ) and with lucullus that glorious roman think it the noblest hunting , to pursue malefactors by justice in peace , and irreclaimable enemies by armies in war. raise siege from before these coye ladies ( i speak no● of the nobler sort , for to court such will obliege you to learn witt , liberality , patience and courage ) who do highten their obstinacy of design to make you lengthen your pursuites , and lay it down before these strong cities , which are by no forc'd metaphor called the mistresses of the world , level their proud walls when they refuse your just commands , with the ground whereon they stand , and leave it as a doubt to your posterity , when they see ruines , to judge whither your fury or the thunder has lighted there . but if ye will justifie your complements to deserving beauties , employ your courage , as well as affection in their service ( for till then ye serve them but by halfs ) and as cesar at his parting told cleopatra , think your selves unworthy of them , till ye have raised your own value by such exploits , as courage has made great , and vertue has made generous . court them as he did her , with no other serenades , then the pleasant noise of your victories ; and after ye have returned , covered not with perfumes , or tissue , but with deserved and blossoming lawrels , then that same vertous courage , which hath forced a passage through walls and ramparts ( piercing where shot of cannon languisht , or gave back ) will find an entry into the hardest heart , which if it yield not to those gallant importunities of fate and fame , it is certainly more unworthy of your pains then ye of its choice . but forget not amidst all your trophees , rather to chastise pride , then to be proud of any your plumpest successes ( which become cheats , not victories , when men are vain of them ) for by so doing you shall become vassals to it : whilst ye toil to enslave others to you , endeavour rather to deserve , then to court fame : for in the one case ye will make it your trumpet , whereas in the other it will become your imperions mistriss ; and ye will thus oblige it to follow you , whereas otherwayes you may weary your selves in following it . the noblest kind of vanity , is to do good , not to please others , or to expect a reward from them , ( and fame is nothing else ) but do so of design , to gratifie your own gallant inclinations , judging that the having done what is good and great , is the noblest reward of both , and scattering , like the sun , equal light , when men look , or look not upon it . the noblest kind of detraction , is to lessen those who rival your vertue , not by obscuring their light , as the dull earth eclipses the moon ; but by out-shining it as the sun renders all these other stars inconspicuous , which shine , but appear not at the same time with it . raise your spirits by these heroick efforts , to so generous a pitch , that ye need not think heaven it self too high for you : and as if all things here below were too unworthy a reward for that courage , to which all those things do at last stoop . attempt heaven ( if ye will be truly couragious ) which the scripture tells us , is taken by violence , and the violent take it by force . and when vertue hath made you too great for this lower world , the acclamations and plauditees of such as consider the heroickness and justice of your actions , shall be driven upwards with such z●●l and ardor , that they shall ( as it were ) rent the heavens , to clear an entry for you there . where when ye are mounted , though cesar , or augustus , alexander , or antoninus , were adorning the skyes , transformed into stars , as their adorers vainly imagined ; yet ye may with pity look down upon them as spangles , which at best do but embroider the out-side of that canopie whereupon ye are to trample . ye shall there have pleasure to see our blest saviour interceed for such as were vertuous , and welcome such as come there under that winning character ; and shall from these lofty seats , see such terrestrial souls , as by their love to the earth , were united , and transformed into it , burn in those flames which took fire first from the heat of their lusts here : which though it be an insupportable punishment , yet ceds in horror to these checks they shall receive from their conscience , for having undervalued , or oppressed that vertue which i here recommend . the authors design and apologie . though i can by no other calculation then that of my sins , be found to be old ; yet in that small parcel of time which i have already transacted , i have , by my own practice , been so criminal , and by my example adopted so many of other mens sins into the number of my own , that though i should spend the residue of my allowance without one error ( which is equally impossible and desireable ) yet that negative goodness being a duty in it self , it could attone my foregoing sins no more , then the not contracting new debts , can be accounted a payment of the old . the consideration of which prevailed with me , to endeavour to reclaim others from their vices , by discourses of this tenor , that in their prosolited practice i might be vertuous , as i have been vitious in the practice of such as have followed my example ; and that i might in the time they should imploy well , redeem what i my self had so mispent . in order to which , i did resolve to address my self to the nobility and gentry , as to those whose reason was best illuminated ; and by prevailing with whom , the world ( who imitats them as they depend upon them ) may be most compendiously gained to the profession of philosophy , and to such as have most leasure to reflect upon what is offered , and fewest temptations to abstract them from obeying their own perswasions : and as physitians do judge their medicaments will be most successfull , when they rather second , then force nature . so i resolved to use the assistance of their own inclinations in my discourses to them , laying aside an enemy , and gaining thus a friend by one and the same task . wherefore finding , that most of them were either taken by an itch for honour , or a love to ease , i have fitted their humors with two discourses ; in the one whereof , i endeavour to prove , that nothing is so mean as vice ; and in the next i shall prove , that there is nothing so easie as to be vertuous . i had , i confess , some thoughts of this discourse , when i first undertook the defence of solitude , but i thought it fit to acquaint my self with writing , by writing to privat persons , before i attempted to write to such as were of a more elevated condition : and that it was fit to invite all men first to solitude , which i prefer as the securest harbour of vertue . but if some would pursue a publick life , as the more noble , i thought it fit to demonstrate to them , that there is nothing truly noble , but what is sincerely vertuous . i doubt not but some will out of mistake ( i hope few will out of malice ) think that the writing upon such forreign subjects , binds this double guilt upon me , that i desert my own imployment , and invades what belongs to those of another profession : but if we number the hours that are spent in gaming , drinking , or bodily exercises ( at none of which i am dexterous ) if we consider what time is spent in journeys , and in attending the tides and returns of affairs , we will find many moe vacant interluds , then are sufficient for writing ten sheets of paper in two years space , especially upon a subject which requires no reading , aud wherein no man can write happily , but he who writes his own thoughts . with which , pardon me to think him a sober wit , who cannot fill one sheet in three hours ; by which calculation there needs go only thirty select hours to ten sheets : and his life is most usuriously imployed , who cannot spare so many out of two years to his divertisements ; especially where the materials are such daily observations , as are thrust upon me and all others by our living in the world , and are so orthodox and undeniable , that an ordinary dress cannot but make them acceptable . and so few ( i may say none ) have written upon the subject , that i am not put to forge somewhat that may be new : but what ever others judge of this or me , i find that it is a part of my imployment as a man and christian , to plead for vertue , against vice. and really , as a barrister , few subjects will imploy more my invention , or better more my unlabour'd eloquence , then this can do . and i find , that both by writing and speaking moral philosophy , i may contract a kindness for vertue , seing such as repeat a lye with almost any frequency , do at last really believe it . neither is there any thing more natural , then to have much kindness , for either these persons , or sciences wherewith we are daily conversant : and by this profession and debate , i am obliged ( though i fear that i satisfie not that obligation ) by a new and strong tye to be vertuous ; lest i else be inconsequential to my own principles , and so be repute a fool , either in not following what i commend , or in commending so much what by my practice i declare is not worth the being followed : and therefore if i cannot pleasure others ( which is my great aime , and will yeeld me great satisfaction ) i will at least profit my self : which , because it is more independent , is therefore more noble , and so will suit best with my subject , though the other would suit better with my desires . a discourse , endeavouring to prove , that point of honour obliges men to be vertuous ; and that there is nothing so mean as vice , or so unworthy of a gentleman . by how much the more the world grows older , by so much ( like such as wax old ) its light grows dimmer ; and in this twilight of it's declining age , it too frequently mistakes the colours of good and evil , and not infrequently believes that to be the body , which is but its shaddow . but amongst all its errors , those which concern honour , are the most ( because conspicuous , therefore ) dangerous ; every fault being here an original sin , and becoming , because of the authority of the offender , an law , rather then an example . some conceive themselves obliged in honour to endeavour to be second to none , and therefore to overturn all who are their superiors : others to think every thing just whereby they may repay ( though to the ruine of publick justice ) the favours done to their private persons , or fortunes . some imagine that they are in honour bound to live at the rate , and maintain the grandour of their predecessors , though at the expence of their starving creditors ( obedient to nature in nothing oft-times , but in this fantastick keeping of their ranks ) and there want not many , who judge it derogatory to theirs , to acknowledge these errors of which they stand convinced . young gallants likewise look upon vertue , as that which confines too narrowly their inclinations , judging every thing mean which falls short of all the length , to which power or fancy can stretch it self : and as a gentile wit hath handsomly exprest it , they believe that honour is nothing but an itch of blood , a great desire to be extravagantly good . and thus whilst every man mistakes his fancy for his honour , they make honour to be like the wind ( from which at that rate it doth little differ ) then which nothing sounds higher , and yet nothing is less understood . to vindicate honour from these aspersions , and reclaim persons otherwayes noble from these errors , i have undertaken this discourse : the nobleness of whose subject deserves , that it had been illuminate by the victorious hand of mighty cesar , and to have been writ by a quill pluckt from the wing of a fame . but i hope the readers will consider , that seing i am able to say so much upon it , that more sublime wits would be able to say much more . and as in refining of mettals , the first work-men require usually least skill ; so i hope that after i have digged up with rather pains , then art , the first ore , it will hereafter be refined by some happier hand . i have in great esteem these honours which are derived from ancestors ( though that be to be great by our mothers labours , rather then our own ) and to those which princes bestow ( though that be but to be gallant in livery ) and i believe that we may justly interpret nebuchadnezzars image ( whereof the head is said to have been gold , the breast silver , the belly brass , the legs iron , and the feet clay , to be a hierogliphick of this lower world , wherein nature hath imprest the several ranks of mankind , with gradual advantages suitable to their respective imployments ; the meaner sort falling like dregs to the bottom , whilst the more refined spirits do like the cream rise above ; these like sparkles flying upward , whilst the others do like the contemned ashes lye neglected upon the level . and seing the wise former of the world , did design by its fabrick , the manifestation of his glory ; it is most reasonable to conclude , that he would adorn such as are most conspicuous in it , with such charms and accomplishments as might most vigorously ravish the beholders into the admiration of that glorious essence they represent . the almighty being hereby so kind to such whom he hath deprived of the pleasure of commanding others , as to give them the pleasure of being commanded by such as they need not be ashamed to obey , and so just to those whom he hath burdened with that command , as to fit them for it by resembling indowments : and as by the heroickness of these who represent him , he magnifies his own wisdom in that choice ; so by their publick spiritedness , he manifests his love to these who are to be governed . thus as amongst the spheres , the higher still roll with the greatest purity : and as in natural bodies , the head , is as well the highest as the noblest part of that pretty fabrick ( from being vain whereof , nothing could let us , but that , as the apostle sayes , it is given us , and is not our own workmanship ) so amongst men ( each whereof is a little world , or rather a nobler draught of the greater ) the highest are ordinarily the more sublime ; for such as attain by election to that hight , must be presumed best to deserve it , such as force a passage to it , could not do so without abilities far raised above the ordinary allowance , and such as by their birth are accounted noble , have ordinarily ( like water ) their blood so much the more purified , by how much the further it hath run from its first fountain : antiquity is an abridg'd eternity , and that being one of gods attributes , these do oft resemble him most in his other attributes , who can pretend with greatest justice to this . and as in natural bodies , duration doth argue a fineness , and strength of constitution , so we cannot but acknowledge that those families have been most worthy , who have worn out the longest tract of time without committing any such enorme crime , or being guilty of either such rashness , or infrugality , as moth away these their linages , which like jonahs gourd , rather appear to salute the world , then to fix any abode in it . yet there is a nobility of extraction much raised , above what can owe its rise to flesh or blood : and that is vertue , which being the same in souls , that the other is in bodies and families , must by that analogy surpasse it as far , as the soul is to be preferred to the body , and this moral honour and nobility prizes its value so far above all other qualities , that the stoical satyrist following the dogma's of that school , is bold to say , that nothing but vertue deserves the name of nobility , nobilitas sola est atque unica virtus . and in opposition to this nobility , but most consequentially to that doctrine , seneca a partisan of the same tribe , doth with a noble haughtiness of spirit tell us , that licet deus nesciret , nec homo puniret peccatum , non tamen peccarem ob peccati vilitatem , though god could not know , nor man would not punish vice , yet i would not sin , so mean a thing is sin . for proving of which , i shall advance and confirm these two great truths , that men are in point of honour obliged to be vertuous , and that there is no vice which is not so mean that it is unworthy of a gentleman ; and shall lead you unto that seraglio of privat vices , of which , though the weakest , seem in our experience to have strength enough to conquer such who pass for great geniouses in in the world : a philosopher will yet find , that these defeats given by them to noble spirits , do not proceed from the irresistableness of their charmes , but from the inadvertance of such as are captivat , and is rather a surprize then a conquest . for these great souls being bussied in the pursuit of some other project , want nothing but time to overcome these follies , or else these vices and passions ( which is a great argumemnt of their weakness ) do then assault such heroes , when they are become now mad with their prosperity . but if we will strip vice or passion of these gaudy ornaments , which error and opinion lends them , or advert to our own actions , we will find , that these overcome us not , but that we by our own misapprehension of them overcome our selves , as will appear , first , by some general reflections , to which in the second place i shall subjoyn some particular instances , and shall by a special induction of the most eminent vertues and vices clear , that there is nothing so noble as vertue , nor nothing so mean as vice. as to the general reflections , i shall begin with this , that if advancment be a noble prize , doubtlesse vertue most by this be more noble then vice , seing it bestowes oftest that so much desired reward . for further proving of which from reason , consider , that no man will cabal with vitious persons ( without which no project for advancement can be promoved ) for , who will hazard his life and fortune with one whom he cannot beleeve ? and who can beleeve one who is not vertuous ; trust fidelity and sincerity , being themselves vertues ? or who should expect to gain by favours , the friendship of such as by their vices are ingrate to god and nature ? who have been to such liberal , infinitly far above humane reach ( and thus likewise vitious persons are contemptibly mean seing they are so infinitly ingrate ) and in this appears the meannesse of vice , that it can effectuat nothing without counterfitting vertue , or without its real assistance : when robbers associat , they entertain something analogical to friendship and trust , else their vices would be but barren ; and without humility shewed to inferiors , the proudest men and tyrants would owe but little to the greatnesse of their spirit : when undertakers league together , either they trust one another , because of their oaths or because of their interests only ; if the first , they owe their success to vertue ; if the second , then they never fully cement , but assist each others by halfs , reserving the other half of their force to attend that change , which interest may bring to their associats , and do such as fight for hire ( interest being nothing else ) acquit themselves with such valor ? as those , whose courage receives edge from duty , charity , religion , or any such vertous principles ? vitious persons have many rivals , and so meet in their rising with much opposition : the covetous fear the promotion of him who is such , and the ambitious , of him who is of the same temper . but because , all expect civility from the debonair , and money from the liberal ; they therefore wish their preferment , as what will contribute to their own interest , and princes are induc'd to gratifie such , as knowing that in so doing , they transmit to their people what they bestow upon such favourits , and that they preclud the challenges of these who repine at their favours as misplac't when not bestowed upon themselves . if there be any thing that is noble or desirable in fame , vertue is the only ( at least as the straightest so the nearest ) road to it , posterity taking our actions under their review , without the byasse of prejudice , passion , interest or flattery , and of such as story cannonizes for its grandees . alexander is not so truly glorious , for defeating the indians , as for refusing to force darius fair daughters ; for in the one , a great part is due to the courage of his souldiers , and the brutishness of his opposers , whereas in the other he overcame the charms of such , as might have overcome all others , and was put to combat his own youth , which had gained for him all his victories : the meanest of his souldiers could have forc'd a prisoner , but fame reserved it as a reward worthy of alexander in this chastity to vanquish a monarch and to gratifie a generous lady ; to displease whom , was as great a crime as it was to ravish others . nor was william the conqueror more honoured , for subjecting a war-like nation , then for pardoning gospatrick and eustache of bulleign , after so many revoltings : for in the one he conquered but these who were lesse then himself , but in the other he conquered himself , who was their conqueror . aristides was esteemed more noble , in under-going a patient banishment , then these usurpers who condemned him to it , whose names remain as obscure as their crimes are odious , whilst his is the continual ornament of pulpits and theaters : and all the roman glories do not celebrat neroes memory to the same pitch with that of seneca's , who did ( like the sun ) then appear greatest , when he was nearest to the setting . alexander is only praised , when we remember not his killing parmenio , and the famous hugh capet of france ends his glory , where we begin to talk of his usurpation : and ( to dispatch ) this is one great difference betwixt vertue and vice , in relation to fame , that vice like a charletan is applauded by the unacquainted ; or like rotten wood may shine in the dark , but it 's lustre lessens at the approach of either time or light ; whereas , though vertue may for a time ly under the oppression of malice ( which martyrdom it suffers only when it is mistaken for vice ) yet time enobles it , and light does not lend it splendor , but servs only to illuminat it's beholders : and so to enable them to discover what native excellencies it posesses . if amphialaus or orondates had been charged in these romance , ye so dote upon with drunkenness oppression or envy , certainly it had lessened their esteem , even with such as most admire , though they will not imitat these vertues . and to shew how much kindness vertue breeds for such as possesses it , consider , how though ye know these to but imaginary ideas of vertue , yet ye cannot but love them ( as ye can love them for nothing else ) seing they never , obliged you or your relations ; and since abstract vertue conciliats so much favour , certainly vertue in you will conciliat much more : for besides that idea which will be common to you with them , some will be obliged thereby to love you , as their benefactors , and others , because they know not when ye will become so . and at least they will honour your vertue , as that which will secure them against your wrongs , and which will assure them of your good wishes , if you cannot lend them your assistance . would not the most prostitute ladies hate statira , or parthenissa , if they had been represented under any one of these their own vices , whose number can find their account no where but in the moments they live , nor excuses no where but in the madness of such as commit them ? and would not our gallants think it ridiculous to see these hero's brought in by or the authors of cassandra , or parthenissa glorying in having made their comrades brutish by drinking , or poor maids miserable by uncleanness , and though whoring be cryed up as one of these gentile exercises , that are the price of so much time and pains ; yet we hear of none of these , who are so much as said to have had a whore , beside to glory in it . but to turn the medal , consult your own experience , and it will remember you of many hopeful gentlemen , whose advancement hath been so far disappointed by these vices , that they fell so low as to become objects of pitty to such as feared them once , as their accomplisht rivals . and to let us see the folly of sin , i have known such as hated nigardliness so much , as that to shun it , they spent their abortive estates before they were full masters of them ; brought by that excess to flee creditors , starve at home , walk in raggs , and which is worse , beg in misery , and so to fall into the extremity of that vice , whose first , and most innocent degrees they laught at in others : and when they beg'd from these who were both authors and companions in their debordings , ( expecting to be supplied , as well by their justice as their compassion ) did get no return but that laughter which was a lesson taught by themselves ; or at best , a thousand curses , for having bred them in a way of living , that did naturally occasion so much mischief . if then poverty be mean and ignoble , certainly vice must be so too , seing beside sickness , infirmity and infamy , it hales on poverty upon such as intertain it . when the world was yet so young , as to be led by sincerity , in place of that experience , which makes our age rather witty then honest . its hero's , who equally surpassed and ennobled mankind by their vertue , were for it deified , even by these their contemporaries , who in possessing much more both riches and power then they , wanted nothing but this vertue to be much greater then they were . and thus nimrods kingdom could not build him altars , though sincere rhadamanthus had fire kindled on his , by the heat of their zeal , who knowing him to be mortal , could not , even in spight of his dying , but worship that immortal vertue which shined in him . and as cicero informs , these gods of the pagans were at first but illustrious hero's , whose vertue , rather then their nature rendered them immortal , and worthy to be worshipped , even in the estimation of such undisciplin'd bruts , as thought the laws of nature a bondage , and the laws of god a fable . we find though licurgus in lacedemon , aristides in athens , and epamenondas in thebes , were not born to command , yet their vertue bestowed on them what their birth denyed , and both without , and against factions , they were elected by their citizens to that rule , which they did not court , and were preferred to such as both by birth and pains had fairer pretences to it . and whilst greece flourished , reges philosophabant , & philosophi regebant : these common-wealths being more numerous then their neighbours , in nothing but their vertues , and stronger then they in nothing but in the sincere exercise of reason : and when tyranny and pride had by wasting these common-wealths , made place for the roman glory , nothing conquered so much the confiners of that glorious state ( whose center was vertue , and circumference fame ) as their vertue . thus the phalerians are by plutarch said to have sent ambassadors to rome , resigning themselves over to the roman government , because they found them so just and noble , as to send back their children who had been betrayed by a schoolmaster : when pirhus was advertised by the romans to beware of poyson from one of his own subjects , who had offered to dispatch him , he did then begin to fear that he should be conquered by their armes , who had already subdued him by their civilities . and such esteem had their justice gained them , that they were chosen umpires of all neighbouring nations , and so gained one of the opposites , first to a confederacy , and then to a dependency upon them . and attalus king of pergamus , did in legacy leave them his kingdom , as to these whose vertues deserved it as a reward ; which occasioned st. augustine to fall out in this eloquent expression , because god ( saith he ) would not bestow heaven upon the romans , they being pagans , he bestowed the empire of the world upon them , because they were vertuous . and many have been raised to empires , by no other assistance then that of their vertue . as numa pompilius , marcus antonius , pertinax and vespasian , whilst the want of this , hath in spight of all the power with which vicious governours have been surrounded , degraded others from the same imperial honours , as tarquinius superbus , domitian , comodus . and generally there is but one emperor to be seen in that long roman list , who was unfortunate , being vertuous : and not one whose vice was not the immediate cause of ruine to its author . antiquity hath also transmitted to us the memory of socrates , zeno , and other philosophers , under as obliging elogies , as these of the most famous emperors , whom vertue ( to let us see that riches and honours are but the instruments of fame , and not the dispensers of it ) hath , without any assistance , raised to this pitch , above these princes , that they have conquered our esteem , without the aid of armies , treasures , senats , or flattering historians ; and cease not like them to command when they ceas'd to live ; but by their precepts and discourses , force worthy souls yet to a more intire obedience , then the others did whilst they were alive , by their sanctions and penal statutes . for princes govern but a short time one nation : and by these laws , they aw but such vitious persons , whom it is more trouble then honour to command . but these illustrious philosophers , and such as imitate their vertue , have thereby attained to a soveraignty over both the wills and judgements of the best of all such as are scattered amongst all the other kingdoms of the world. and marcus aurelius , who was one of the greatest emperors , doth recommend to kings as well as subjects , to think , that one of these philosophers is beholding all their actions , as a most efficacious mean to keep men in aw , not to commit that vice to which they are tempted . i have seen very great men shun to owne even their beloved vices in the presence of such as they needed not fear for any thing but their vertue : and it is most remarkable , that nero , who exceeded all who then lived in power , and all who shall live ( i hope ) in cruelty , did still judge himself under some restraint , whilst seneca was at court to be a witness to his actions . and every vitious person must flee publick , and the light ( which showes the meanness and cowardliness of vice ) when he is to resign himself over to any of these criminal exercises , by which likewise when committed , men become yet more cowards ; for who having spent his life at that unworthy rate , will not ( if he be master of any reason ) tremble and be afraid to venture upon such exploits ? as by taking his life from him , may , and will present him before the tribunal of that god whom he hath offended ; and from whom ( which will not a little contribute to his cowardliness ) he cannot expect that success , vvhereof the expectation lessens , or hightens to its own measures , the courage of such as are engaged . we may easily conclude the meanness of vice from this also , that servants , without pains or art , equal us in them ; for these can whore , drink , lie , and oppress : but to be temperat , just and compassionat , are qualities whereby we deserve , and are by such as know us not , judged to be masters and well descended . and have not servants reason to think themselves as deserving persons as their masters , when they find themselves able to equal , or surpass them , in what they glory in as their great accomplishments ? seing what is imitated , is still nobler then what imitats , certainly vice must be the less noble , because it but copies vertue , and owes to its mask , and our errors , what it possesses of pleasure or advantage . cruelty pretends to be zeal , liberality is counterfeited by the prodigal , and lust endeavours to pass for love. is there any thing more ignoble then fear , which does as slaves , subject us to every attempter ? and have not all vices somewhat of that unmanly passion ? in covetousness we fear the want of money , in ambition the want of honour , in revenge the want of justice , in jealousie rivals ; and when we lie we fear to speak openly . is there any thing more mean then dependence ? and maks not ambition us to depend upon such as have honours ? covetousness upon such as have riches ? and lust upon the refuse of women ? whereas vertue seeks no other reward , then is paid in doing what is vertuous , and owes it's fee only to it's self , leaving vice in the servile condition of serving for a fee even those whom it most hates . and generally in all vices we betray a meannesse , because in all these we confess want and infirmities : in avarice , we appear either fools , in desiring what is not necessar and in dissoblieging friends , hazarding our health , and other necessars for what is not so it 's self or else we confess that our necessities are both greater , and more numerous , then these of others , by heaping together riches and money , which serve for nothing , when they serve us not in supplying our wants . in ambition we confess the want of native honour and excellency , in lust want of continency , in anger we want command of our selvs , and in jealousie we declare we think not our selves worthy of that love alone , wherein we cannot fear rivals upon any other accompt ; and in jealousie men likewise wrong their own honour , in suspecting that of their ladies or friends ; whereas vertue perswads us , that our necessities may be confin'd to a very small number , and that these may be repaired , without any loss of friends , and but little of time : it teaches us that riches were created to serve us ; and that therefore we disparage our selves , when we subject our humour to our servants . and from it we learn , to rate so justly the excellencies of that rational soul , which is the image of god almighty , as to expect from it , and no where else under the sun , any true and solid happinesse : and to accompt nothing more noble then it , except the almighty god , whose offspring it is , and whom it represents . there is nothing more mean then to be cheated , and all vices cheat us , treason promises honour , but leads to a scaffold ; lust pleasure , but leads to sickness , and flattery cheats all such as hear it , and such as are proud are doubly miserable , because they are both the cheaters , and the persons cheated . thus vice cannot please without a crime , and these are even then gaining the hatred and contempt of others , when they are enquiring , or hearing from flatterers , that the people seek no where without them objects of love and admiration . whereas , sacred vertue allows us to admire our selves , and which is more , to beleeve that all these things for which vitious men neglect the care of their souls , are unworthy of our re-search ; and certainly the soul is a more noble creature then that earth , or mettal , which we stain our souls to get : for , our souls do censure all these things ; it finds defects in the noblest buildings , and shews by desiring more , an unsatisfiablenesse in all extrinsick objects ; it determins the price of all other creatures , and like the magistrat in this common-wealth , assigns to every thing it's rate ; to day it cryes up the diamond , and to morrow it allows preference to the rubie : these treats , and colours , which ravish this year , passe the next for no beauty . red hair pleases the italian , and our climat hates it , and it is probable , that this change of inclination , is not a culpable inconstancy in man , but a mark of his soveraignity over all his fellow-creatures . vertue teaches him not to owe his happinesse to the stars , nor to be like some foolish emperours , so fondly vain , as to think that he shall have no other reward for his vertue , then the being transformed into one of these lesser lights , which he knowes to have been created only for a lantern to him , or at best but to adorn , with their numberless associats , that firmament which was created to be one of these least arguments , whereby he was to be courted into a beleife of , and love for that god , who thinks him so excellent a creature , that he is said to be glad at the conversion of a sinner , and to grieve at his obstinacy ; and if we will consider the miraculous fabrick of our bodies , which though we be but dull , yet we may see to be all workmanship ; and wherein the number of wonders , equals that of nervs , sinews , veins , bones or ligaments , the curious fabrick of that brain , which lodges ( without croud or confusion ) so many thousands of different and noble thoughts , the artifice of those various organs , that expresse so harmonious airs and ravishing expressions , the charmingnesse of these lynes and featurs in ladies , which like the sun scorch as well as illuminat the beholders . we may conclude that our soul must be a most excellent piece , seing all this contexture , is appointed to be but a momentany tabernacle for it , when it is in its lowest and unworthiest estate ; and which when the soul deserts , is thrown out with all it's wonders , least it should by its stink trouble the meanest of these senses , which servs the souls of these who are alive . consider how this soul grasps in one thought all that glob for which ambitious men fight , and for some of whose furrowes , the avaritious man doth so much toil . consider , how it despises all that avarice has amas'd , how it is pleased with no external object , longer then it fully considers it , and what a great vacuity is left in our desirs after these are thrown into them ; and by all this we will learn , that vice disparages too much the soul , when it imagins , that any finit thing can bound it's thoughts , and we are but cheated when we listen to these proffers , which vice makes use of honour , pleasure or advantage : for who can be so mean , to think that all these faculties were bestowed upon our souls ? these featurs upon our bodies , and so much care taken of both by providence , for no other end , then that we should admire that wine which peasants make , those colours which prostitute whoors weare , that we should gain fortunes , which serve too oft to corrupt these for whom they are prepared , or respect from such , as bow not to us , but to our stations ? having thus overrun these general considerations , whereby men who are gallant may be courted to a love for vertue ; my method leads me now to fall down to those instances of particular vices and vertues , wherein i may make nearer approaches to the actions of mankind : and seing there is too much of ease , and too little of cogency , in writing full and tedious essays upon these common theams , i shall consider them only as they relate to gallantry , promising no other tract of art in all this discourse , but that i shall pursue my design so closely , as not to imploy any argument against vice , nor assist vertue with one thought , but such as may decry the one as mean , and cry up the other as gentile and handsome . we owe that deference to great men , that even their vices should have the precedency of all others , and therefore i shall begin this invective with dissimulation , which is peculiarly their sin , for when the meaner sort are guilty of the same thing , it is in them called falshood , from which dissimulation differs nothing , but that it is the cadet of a nobler family . and this evinces what an ugly and ungentile vice dissimulation is , seing he is no gentleman who would not choise rather to die , or starve , then to be thought false : all dissemblers shew an inability to compass without these pitifull shifts , what in dissembling they design , for this is the last refuge , and by this courage becomes unnecessary , and we oft see that cowards dissemble best , gallant men laying that weight upon their courage , vvhich the others do upon dissimulation . and at this unworthy game , it is not requisite to be gallant , providing men be vvicked . dissimulation is but a courtly cowardliness , and a stately cheat : and certainly , he is too much afraid of his own , either courage , or fate , and values too much his prize above his honour , or innocence , who can stoop to play this under-boord game : whereas a gallant and generous soul , will not fear any event so much , as to leave his road for it ; and will owne vvhat is just , vvith so much nobleness of resolution , that though fate should tumble down upon him mountains of misfortunes , they may perhaps overwhelm , but they shall never be able to divert him . where are then these gallant resolutions of our fore-fathers ? who scorned even victories gained by teachery , falshood , poysons , and such other unhandsome means ? where is the roman fortitude ? which advertised pirhus of his physicians offer to poyson him , though their greatest enemy , and which caused marcus regulus choise to return to be a martyr for vertue , rather then stain the roman faith ? where are these resentments of the lie in frivolous cases , when great men magnifie in their dissimulation what is in effect lying and treachery ? to deceive one who is not obliged to believe us , is ill ; but to cheat one whom our own fair pretences have induced to believe us , is much worse , for this is to murther one whom we have perswaded to lay aside his arms. and as dissimulation thrives never but once , so to use it cuts off from the dissembler that trust and confidence vvhich is necessary in great undertakings ; for , who will depend on these whom they cannot trust ? and after dissemblers are catcht ( as seldom they escape ) the abused people hate and persecute them as violators of that without which the world cannot subsist . i appeal to the reader , if he hath not heard enemies lov'd for their ingenuity ; and if he hath not seen these cut-throat lights blown out , and end in a stinking snuff : and as if every man had escaped a cut-purse , if every man did not bless himself , and rejoyce to see these dissemblers fall . and i may justly say , that dissimulation is but the theory of cut-pursing , and assasination . consider how unpleasant any thing appears that is crooked , and ye will find an natural argument against dissimulation , and though it hath great patrons , and can pretend to an old possession , and much breeding at some courts ( though all who are gallant there hate it ) yet it is never able to gain esteem , and can defend it self no other wayes , then by a cowardly lurking , and shunning to be discovered . neither can there be so much wit in this art as can justifie its error ; for women , and the meanest wits are oft-times most expert in it : all can do it in some measure , and none ever used it long without being discovered ; and such only are rendred its prey , as make it no great conquest , they being either our friends , who expected not our invasion ; or fools , who are not worthy to be gloried in , as our trophees . there are none of these vices which rage amongst men , more destructive to either their honour , or to the honour of that common-wealth which they compose , then envy , and ( which both follows it , and aggravats its guilt ) detraction . envy is mean , because it confesses that the envyer is not so noble or excellent as the person envied : for none are envied , but such as possess somewhat that over-reaches , or excells what is possest by such as do envy . this vice acknowledges , that he who useth it , wants much of what is desireable , and which is meaner , much of what another possesses , and as if we despair'd of rising to anothers hight , it makes us endeavour to pull him down to the stature of our own accomplishments . most men essay to imitate the actions of these whom they envy ; so that in detracting from these , they leave others to undervalue what they themselves design ardently to perform . and thus , if these detracters be so much favoured by fate , as to atchieve any such great action , as that is which they undervalue in others , they get but a barren victory , and which is more insupportable , they see themselves punished by their own vice. and to convince us how mean vices , envy and detraction are , we may observe , that such as are victorious , judge it their honour to magnifie these who were vanquisht ; and men wound extreamly their own honour , when they detract from persons who are more deserving in the eyes of the world then themselves , for they force their hearers to conclude , that the detracters themselves must be undeserving , seing these who deserve better , are by their confession , cry'd down as being of no merit , which remembers me of this excellent passage in plinius the second , tibi ipsi ministras in alio laudando , aut enim is quem laudas , tibi superior-est , aut inferior ; si inferior & laudandus , tu multo magis ; si superior , neque jure laudandus , tu multo minus . thou serves thy own interest when thou praises others , for either he whom thou praisest , is thy inferior , and then if he deserves to be praised , much more thou , if he be thy superior , and deserves not to be praised , much less thou . all men are either our friends , or our enemies , or such who have not concerned themselves in our affairs . we are base , because ingrate , when we detract from our friends , and we assert our own folly , when by detraction , we endeavour to lessen the worth of those whom we have chosen for such : we lessen likewise our honour , when we detract from our competitors , and enemies , because to contest with undeserving persons , is ignoble , and to be vanquisht by them , has little of honour in it ; whereas , as all events are uncretain , if we be overcome by such as our detractions have made to pass for undeserving , our overthrow will by so much become the more despicable , and to detract from such as expected no wrong from us , and who are strangers to us and our affairs , is not only imprudent and unjust , but is as dishonourable and little gallant , as that is to wound one who expects not our aggression , and whose innocency , as to us , leaves him disarm'd ; and the word backbiting clears to us , that detraction is a degree of cowardlienesse , for it assaults only such as are unprepared , or absent , which is held dishonourable amongst the least of such as have gallantry in any esteem . he who praises , bestows a favour , but he who detracts , commits a robbery , in taking from another what is justly his ; and certainly to give , is more noble then to take . envy is also most prejudicial to great undertakings , seing such as are engaged , must resolve either not to act , what is necessar for compleating so great projects , or if they do , to fall under the envy of these for whom they act them , and the undertakers do obstruct by envy their own greatnesse , because they are by that vice , perswaded to crop such as but begin to perform in their service , attempts worthy of the being considered : how destructive likewise this vice is to the glory of kingdoms , and common wealths , does but too clearly appear from this ; that all who are in them , are either despicable , by not being worthy of the being envyed , or else will be destroyed by that vice , which levells it's murthering engines at such only , who are the noblest spirits , and who deserve most promotion from their countrey . carthage was destroyed by the envy which hanno and bomilcar , bore to hannibal ; who by denying him forces , to prosecut his italian conquests , did involve themselves with him in the common ruins of their countrey ; which shews the dishonourable folly of envy in conspiring against it self , with these who being enemies to both the opposits , sides first with the one , in gratifieing his envy , and then destroyes the other , whose passion it first serv'd . pitifull examples whereof , our own age affoords us , wherein many great men were by envy driven to oppose principles , whereon they knew the publick safety , and their own private interest to depend . flaminius the roman general endangered rome , and terentus varro did almost losse it out of envy to fabius maximus ; and such was the force of envy , that it did defeat the great scipio , and banished him from that rome which he had made both secure and great ; and did by his example cool the zeal of such who retained their blood in it's veins , as in an arsenal , for no other end then the service of their countrey , as a consequence of which envy , it was observ'd , that in the next age most of rome's citizens declin'd rather to entertain that fame , which the former courted , then to be exposed to the cruelty of that envy , which did usually attend it . detraction brings likewise these great disadvantages to our reputation , that it engages both these from whom we detract , and their friends partly out of revenge , and partly for self defence , to enquire into our errors and frailties , and to publish such as upon enquiry they have found , or to hatch calumnies , if truth cannot supply them : and in that case , rate of game obliges us to favour the counterer , for we defend what may be our own case , in favouring what is at present but the defence of others . it legittimats likewise these calumnies which are vented of us , by such as our detraction hath not yet reacht , who will think it their prudence ( like these who fear invasion ) to carry the war into the territories of such , from whom they do upon well founded suspitions expect acts of hostility . if then our own honour be dear to us , we should not invade the honour of others : for , revenge , the activest of passions ( when added to that love of honour which is equal in us and them ) will obliege them to do more against our honour , then we can do in it's defence . whoring renders men contemptible , whilst it tempts them to embrace such as are not only below themselves in every sense , but such as are scarce worthy to serve these handsomer ladies , whom they either do , or may lawfully enjoy . doth not this vice perswade men to ly in cottages ? with sluts , or ( which is worse ) strumpets , to lurk in corners , to fear the encounter of such as know them , and to bribe and fear those servants , who by serving them at such occasions , have by knowing their secrets , attained to such a servile mastery over them , that i have been ashamed to hear gentlemen upbraided by these slaves , in terms , which were the adequat punishment , as well as the effect of their vice. men in whoring must design either to satisfie their own necessities , or their fancy ; if their necessities , then as marriage is more convenient , so it is as much more noble then whoring ; as it is more gentile for a person of honour , rather to lodge constantly in a well appointed pallace , then to ramble up and down in blind ale-houses ; in the one a man enjoys his own , whereas in the other he only lives as theeves do , by purchase : if to satisfie fancy , certainly it should please more , at least it is more honourable to be secure against rivals , then to be sure to be equal'd by them who will fancy a divided affection ? and who can be sure ? that she who destroys her honour for us , will not risign the same to a second , or third ? for besides the experiment we have of her change , oaths , honour and obligations can be no convincing evidents of , or sureties for what she promises , seing she is then breaking these , when she gives strangers these new assurances . and this makes me laugh to hear women so foolish , as to rely upon such promises as are given by men who destroy their nuptial oaths , when they make them . and if women be such excellent persons , as to deserve that respect , and these adorations , which are passionat enough to be payed before altars ; certainly every man should endeavour to secure the esteem of one of these rare creatures , which is more noble , then to rest satisfied with a tenth , or sixteenth part , like men sharing in a caper . and therefore , seing fancy nor honour allow no rivals , i am confident that no man can satisfie his fancy , or secure his honour , in preferring a whore to a wise , or in using whores when he wants one . have not whores ruined the repute of some great men who entertained them ? by causing them neglect to pursue their victories , as thais did to alexander , and cleopatra to mark anthony ? have they not betrayed these secrets wherein their same was most interessed , as dalila did to sampson ? and there is nothing more ordinary , then to hear such ( like herod ) swear that they dare not refuse their mistrisses , what ever is within their reach ; and thus , they must either prove base , in perjuring themselves , if they think not what they say ; are contemptible slaves , both to their passions , and to these who occasion them , if they resolve to perform what they promise : which makes likewise these to be dangerous masters , who depend upon the humour of a woman , and so concluds them unfit to be great . it were then a generous expiation of this vice in such as are opprest by it , to use it ( not it's objects ) as mahomet the great , did his gallant mistriss irene , whose life and head he sacrificed to the repinings of his court , and jannisars , who challeng'd him justly , for loving rather to be conquered by one silly woman , then to conquer the world , wherein she had many , but he no equals . it is noble to deliver ladies out of danger , but not to draw dangers on them , and to punish such as scoff at them , rather then to make them ridiculous ; and what thousands of dangers , are drawn upon ladies , by being debauched , when married , and if they be not married , are they not thereby made the proverb of all such as know them : and to these i recommend tamars words , who when ammon offered to ly with her , told him , thou shalt be as one of the fools in israel , and i whither shall i cause my shame to go ? and after this let them remember , that when he had satisfied his lust , then he instantly ( as is too ordinar ) despised her person . and since ladies will not stain their honour with this vice , till they be married , i conceive they should much lesse after , for there the obligation is doubled . from all which it followes , that lust is equally base and ignoble , whither it discharge it self upon equals or inferiors , betwixt which two , there is only this difference , that it is brutal in the one case , and cruel in the other . there is no vice whereby gallantry is more stain'd , then by breach of promise , which becoms yet more sacrilegious , when ladies are wrong'd by it . and of this , whooring makes men likewise guilty , when it robbs from ladies their husbands , robbing likewise such upon which it bestowes them , both of their honour and quiet . and thus , though it makes such as use it barren ( god in this resistig the propagation of sin ) yet it self brings forth it's faults in full clusters . and nathans parable to david , proves it likewise to be so high an oppression , that no man of honour would commit it , if he would but seriously reflect upon his own actions ; from which parable , this new observation may be likewise made , that though david was guilty of murther and whooring , yet the prophet made choice only of this last to astonish this warlike monarch , and raise his indignation against this vice , when shaddowed out under a forreign and borrowed representation . though murther be so barbarous a crime in it self , that the barbarians did instantly conclude paul guilty of it , when they saw the viper fasten upon his hand . the unjustest caprice of lust is that whereby men contemn such as become their wives , though they admir'd them when they were their mistresses , for in this they confess , it is a meanness to be theirs ; for since that time , the neglecters thought them amiable , they , sweet creaturs have oft contracted no guilt , nor lessen'd the occasion of that esteem no otherwise , then by marrying their inconstant gallants , who seemed to have so warm a passion for them . and it is strange , that men should admire their own eloquence , courage , estates , and all things else they possesse , for no other cause , then because they are their own ; and yet should undervalue their wives ( the noblest thing they possesse ) upon this and no other account . i cannot think nature such a cheat , as that if women had not been the excellentest of creatures , it would have beautified them with charms , and armed their eyes with such piercing glances , that to resist them is the next impossibility to the finding a creature that is more accomplisht then they ; and i confess , the love we bear them , is not only allowable in it self , as an inclination that is of its own nature noble and vertuous , but likewise , because it obliges such as are engaged in it , to despise all mean vices , such as avarice , or fear , and is incompatible with all dissingenuous arts , such as dissimulation , or flattery . and though such as are guilty of whoring , do justifie their debordings by a love to that glorious sex , yet by this pretext they are yet more unjust and vitious then their former guilt made them ; for by roaving amongst so many , they intimat that they are not satisfied with their first choice ; and that not only there are some of that sex , but that there is none in it who deserves their intire affection . or else , by dividing them amongst so many , they think their kindness sufficient to make numbers of ladies happy ; by both which errors , they wrong not only themselves by swearing otherwayes to the ladies to whom they make love , but they wrong likewise the innocence and amiableness of that sweet sex , in whom no rational man can find a blemish , besides their esteem for such persons , as these , who indeed admire them no where but in their complements , and who are oft so base , that not only their society is scandalous , but they are ready to tempt , such as they frequent ; or if they fail in this , are oft so wicked , that they , to satisfie either their revenge , or vanity , do brag of intimacies , and allowances which they never possest . if then gallants would be loved by their mistrisses , they must be vertuous , seing such love only these who are secret , many things passing amongst even platonicks , which should not be revealed . these who are couragious , seing this is appointed to be a protection to the weakness of their sex , and these who are constant , seing to be relinquisht , inferrs either a want of wit , in having chosen such as would quite them without a defect , or else that they were abandoned because of defects , by such as the world may justly from their first ardency , conclude , would never have abandoned them without these : what lady without a cheat , will be induced to love one wasted with pox and inconstancy ? one whom drunkenness makes an unfit bedfellow , as well as a friend ? and though some worship the reliques of saints , yet none but these who are mad , as well as vitious , will worship the reliques of sinners . neither is the meanness of this vice taken off , by the greatness of these with whom it is shar'd : which may be clear from this , that either affection , interest , or ambition , are in the design of these offenders . if affection , it should excuse no more her who is whore to a monarch , then her who is such to a gentleman ; for affection respects the person , but not the condition of such as are lov'd : and it is certainly then most pure , when it cannot be ascribed to , nor needs the help of either riches to bribe , or power to recommend it . but if riches be design'd , then the committer is guilty both of avarice and whoring , and she is not worthy to be a mistriss , who can stoop to a fee like a servant . and she who designs honour and repute by these princely amours , is far disappointed : for though she may command respect , yet esteem is not subject to scepters : and i am confident , that lucretia , who choos'd rather to open her veins to a fatal lance , then her heart to the embraces of a soveraign , is more admired then thais , poppaa , jean shore , and madame gabriel , whose obedience to their own kings , was a crime in them , though it was loyalty in others . blushes are then the noblest kind of paint for ladies , and chastity is their most charming ornament : and if these would send out their emissaries , to learn by them how to reform their errors , as they oft do to inform their revenge , they would easily perceive , that loose men laugh at their kindness , vertuous men undervalue them , and it . and when ever any judgement is poured out upon the kingdom , or misfortune overtakes these minions , then all is ascribed by divines , to their looseness ; and it is one of the allowablest cheats in devotion , to invent miraculous resentments from heaven upon their failours . young ladies , to recommend their own chastity , are obliged , in good breeding , at least to say they hate them ▪ such as are married , are bound by their interest to decry such as may debauch their husbands ; and these who are old , rail against them , as those who place all happiness in what , because of age , they cannot pretend to : whereas such as are chast , are recommended with magnifying praises , for patterns to such as are vitious , and are coppied as admirable originals , by such as are vertuous . and i cannot omit this one reflection , that chast women are more frequently tainted with pride , then with any other vice ; nature , as it were , allowing to them to raise their own value far above others , whom they have ( almost ) reason to contemn , as persons who prostitute themselves ( which , and the word humbling , are the lessening epithets of whoring ) and as such who are nasty , spotted and unclean . lust and obscenity in discourse , run in a vitious circle , and by an odious incest beget one another ; for as lust prompts men to obscenity , so obscenity pimps men in to lust ; but in this , obscenity is more culpable then lust , that in the one , men alledge a natural advantage , and some a necessity ; but in the other , they have no temptation , and so fall under that curse , wo unto them that sin without a cause . in the one , men sin covertly , making by their blushes , as by a tacit confession , some attonement for their guilt ; but in the other , men divulge their sin , and by graceing it , with what , if the subject were honest , might pass for wit , do invite such as wish to be repute wits , first to admire , and then to imitat them in their sinning ; and the best of such as use that eloquence , become thereby most ignoble , being in effect but cooks , who prepare sawces for provoking a lustful appetite in their hearers . and i admire , that seing comedians are hist off the stage , when they attempt it , that such as are so far greater then these , as masters are above buffons , should imagine they can magnifie themselves by it . this vice may well enough be ranged under one of the species of sodomy , seing such as use it , employ in their lust these members , which were so far from being destinat for so low uses , that the psalmist in saying , he will praise god with his glory ( which interpreters render to be the tongue ) doth shew us , that our tongues are amongst the noblest parts of our body . and when i consider how melodious it is in its harmonies ; how eloquent in its expressions ; how whole multitudes are reclaimed from their greatest furies by it ; and how cicero is in spight of all his other faults , so admired for it , that thousands sweat and toil daily , to make one in that number , wherein he is acknowledged to be by them all , far the first . when i consider how miraculously it expresses , with the same motion , so varying sounds , that though mankind be innumerable , yet each in it hath his distinct tone and voice , and how , with little different positions , it signets the same air with words so extreamly differing , that one may think that each man hath a spirit speaking out of him . i must fall out in regrates and wonders , that , and how , so excellent a faculty is so much abused ! neither must we conclude , that because such go away unanswered , that they owe this to the sharpnesse of their wit , but rather to the depravednesse of its subject , wherewith the greatest part of accurat spirits are so little acquainted , that some know not the terms , and others know them only to hate them . we must not think that we admire for wits , such still , at whom we laugh : and i believe many laugh at such as are prophane , as they do at such as they see slip and catch a fall , though never so dangerous . i regrate in this vice , both to see sharp men so vicious , and so much wit so missimployed ; for though we may say here , that materiam superabat opus , yet such is the abjectnesse and worthlessenesse of the matter , that it is not capable of ornament , no more then excrements are to be admired , though they were gilded , and carv'd out by the most curious hand ; and their wit is at least to be charged with this error , that it choises not subjects worthy of their pains : for whereas the quaintnesse of fancy doth , when imployed about indifferent subjects , beget its masters respect ; and when upon excellent admiration , all that it can do here is but to excuse the faults it makes , and so at least is so beggerly an imployment , that it is scarce able to defray its own charges . i account him no wit , who cannot deserve that name , though he be barr'd any one subject , especially such a subject as obscenity is , wherein former trafficquers have been so numerous , and so vacant from other imployments , that as nothing which is excellent , so little that is new can be said upon it ; and what is said , is transmitted from ear to ear , with so much of secrecy , that as no historian will write it , so fewer will know it , then will know any of these witty productions of learning , or moral philosophy , which all men indifferently desire to read and repeat , whereas this will be altogether supprest from succeeding ages , and of the present ladies , states-men , lawers , divines and phisicians are not allowed to give it audience . i have heard women , though loose , say , that they loved none of these who published their shame , though they satisfied their lust ; and that such did oft evaporat their lust in these raileries , or design to supply their defects in such discourses . and i know that lackeys , or bawds , will be more accurate in that kind of eloquence , then the noblest of such as use it ( if any who are noble use it at all . ) men must either think women great cheats , in loving what they weep or blush at , or else they are very cruel , in tormenting their ears with so grating sounds . and if women be such excellent creatures , as mens oaths and complements make them , certainly obscenity must be a mean vice , seing of all others , such decry it most . for complyance with whom , it is strange that these who offer to die , will not much rather abandon a piece of imaginary wit ; and which passeth not even for such , but amongst these who are scarce competent judges . it is most ungentle many for such as frequent ladies , to spend so much time in studying a kind of wit , that not only cannot be serviceable , but which cannot in any case be acceptable , or recreative to these lovely persons , for whose divertisement and satisfaction , even these obscene ranters do pretend that they imploy all their time and pains , and whom they will doubtlesse at some occasions offend , by slipping into one of these criminal expressions , which custome will so familiarize , that it will be as impossible for them to abstain , as it will be for these others to hear what is so spoke , without trouble and dissatisfaction . such as have their noble souls busied about great matters , find little time to invent expressions , or mould thoughts concerning such pittiful subjects ; and i appeal to the worst of these , if they do not abominat such as are in history noted for obscenity , and if they would not hate any , who would adorn their funeral harangue , with no other praises , but that they were so wittily prophane , that they would force ladies to blush , debauchees to laugh , states-men to undervalue them , and chase divines from their table . avarice is so base a vice , that the term sordid is improperly used in morality , when it is otherwise applyed , and by terming one a noble person , we intend to signifie , that he is liberal : this is that vice , which by starving great designs , hinders them to grow up to their full dimensions . none will carry about dismembered bodies , and wear scarres in their service , or to gain victories for these , whose avarice will so little reward their pains , that they oft-times refuse to supply these necessities which were contracted in their own imployments . no great man can have both the hearts and the purses of his inferiors : and few have been famous , or prosperous , but such as have been as ready to bestow riches upon their friends , as they have been ready to take spoil from their enemies . themistocles finding himself tempted to look upon a great treasure , blush'd at his error ; and turning to his servant , said , take thou that money , for thou art not themistocles . rome then begun to be jealous of cesars greatness , when he begun to put the army in his debt ; it was said of that noble duke of guise , that he was the greatest usurer in france , for he laid out his estate in obligations ; and tacitus observes , that vespasian had equal'd the greatest of the roman hero's , if his avarice had not lessen'd his other vertues : which is the observation made by philip de comines , upon lewis the th of france . perseus , out of love to his treasures , lost both his kingdom and these , being as a punishment to his avarice , led in triumph in the company of his coffers , by a roman general , who gloried , and is yet famous for having died almost a beggar . the world love , esteem , and follow such as are liberal ; historians celebrat their names ; souldiers fight their battels , and their beeds-men importune heaven for success to their arms ; but no man can have a kindness for such as will prefer to them a little stamped earth , or value no obligations , but these which bind to a paying of money . and it is well concluded by the world , that no vast soul can restrict all its thoughts to that imployment , which is the task of porters and coblers . in this vice we make our souls to serve our riches , whereas in its opposite vertue , riches and every thing else ( whose price these may be ) are by such as are truly liberal , subjected to the meanest imployment , to which the soul can think them conducive : and the soul is too noble and well appointed an appartment , to be filled with coffers , baggs , and such like trash ; which even these , who value them most , hoord up in their darkest and worst furnisht rooms : and such as are liberal , are the masters ( for it belongs to these only to spend ) whereas the avaricious are in effect but their cash-keepers , who have the power to keep , but not the allowance to spend what is under their custody . i am confident , that zeno is more famous ( and to be rich serves for nothing else ) for throwing away his money , when it begun to trouble his nobler thoughts , then cresus , whose mountainous treasures served only to bribe a more valiant prince , to destroy them and it . and marcus crassus , the richest roman , was so far undervalued by julius cesar , that he said he would make himself richer in one hour , then these riches could their master , which came accordingly to pass , when by his liberality he gained the roman souldiery , and they gained for him the empire of that world , whereof cresus estate was but a small one , though his avarice made it a great spot in him . this vice implyes a present sense of want , and a fear of future misery , to be hoording up what serves for nothing else , except to prevent , or supply us in these conditions . but noble spirits , who design fame and conquests , vertue and religion , raise their thoughts above this low vice , and design not to gain riches , but men , who are masters of these ; and with whom when gain'd , thy can soon bring all things to their devotion : and therefore in point of honour we are obliged to hate avarice , and cherish liberality . though treason cheats with fair hopes of glory and advancement , and at least this vice pretends to have whole woods of lawrels at its disposal , yet the most ordinary preference it gains men , is the being first amongst fools and vicious persons ; for they are then wronging both that honour they possess , and that to which they aspire , when they by their usurpation learn others how sweet it is to rebel against their superiors . and such as imploy the commons against their soveraign , must expect to allow them greater liberty then suits with the honour of governours , and must stile themselves the servants of the people ; how meanly must these flatter that unreasonable crew ? swear friendship with such as have wronged their honour , lye , dissemble , cheat , beg , meet in dark corners with their associats , and suffer as much toil and misery , as wants nothing but the nobleness of the quarrel to make them martyrs . it is not safe for any man in point of honour , to undertake designs wherein it is probable he will fail , and wherein if he fail , it is most certain that his honour will suffer : and there is no crime wherein men are more like to fail , then in this , the rable whom they imploy , being as uncertain , as they are a furious instrument : and like the elephant , ready still to turn head against such as imploy them in battel ; and who will trust the promise of these leaders , ( for without large promises , rebellion can never be effectuat ) who in these promises are betraying their own alledgeance ? and such as these imploy , will ( at least may ) consider , that how soon they have effectuat these treacherous designs , they will either disdain the instruments , as useless , or destroy them as dangerous , and as such , who by this late experience , are abler to ruine them , then they were their predecessors . and when such traitors are disappointed of their designs , they are laught at as fools ( for nothing but success can clear them from that imputation ) and exposed to all the ludibrie , and thereafter to the tortures of enemies , who cannot but be violent executioners , seing their ruine was sought by the rebellion . is there any thing more ignoble then ingratitude ? and these traitors are ingrate , seing none can pretend to these arts but such as have been by the bounty of these , against whom they rebell , advanced to that hight , which hath made them giddy ; and to that favour with the people , upon which they bottom their hopes . and do not men and story talk more advantagiously of footmen and slaves , who have relieved their masters , then of the greatest of such as have rebelled against their princes ? all mankind being concerned to magnifie that wherein their own safety is concerned , and to decry these arts , whereby their ruine is sought . that same people who cut sejanus in as many pieces as he had once favorites , did raise a statue to pompey's slave , for staying by the carcass of his dead master . and as alexander hang'd bessus , who had betrayed to him his master spitamenes and antigonus caused massacre these hygeraspides , who had betrayed the gallant eumenes : so charles the ninth of france , did refuse to punish such as had opposed him , when he was in rebellion ; for , said he , such as have been faithfull to the king , against me , when i was but duke of orleans , will be faithfull to me , when i am raised from being duke of orleans , to be king of france . inconstancy is likewise an ignoble vice , seing it shews , that either men were foolish in their first choise , or , that they were foolish in relinquishing it ; it shews that men are too much subject to the impressions of others , and small or light things are these which are soonest blown off from their first stations : whereas vertuous and constant persons do shew their greatness in the impossibility of their being removed . this vice likewise is unfit for such as design great matters , seing no party will care much to gain such for friends , whom they cannot retain ; and when they tell you that such are not worth their pains , they tell you how mean an esteem they put upon inconstancy . all affairs in the world are subject to change ; and it is most certain , that some occasion , or other , will somewhat raise all parties : to be constant then to any one , will gain him who is fixt , the honour of being sure to his friends , which will magnifie him amongst such as are indifferent , and procure him respect even from his enemies , who will admire him for that quality , which by ensuring their own friends to them , will advantage their interest more then they can be prejudg'd by him , as their enemy , how considerable soever he be ▪ augustine's greatness cannot perswade the world to pardon him this fault , nor can cato's severity ; nor self-murther , disswade them from admiring that constancy , which had as much extraordinary gallantry in it , as may be a remission for his crime : besides , that it made cesar ( even when his victories had raised him to his greatest hight and vanity ) regrate the losing an opportunity to gain so great a person . there is amongst many others , one effect of inconstancy , which i hate , as mean , and unworthy of a gentleman , and that is , to alter friendships upon every elevation of fortune ; as if ( forsooth ) men were rais'd so high , that they cannot from these pinacles know such whom they have left upon the first levell : but really this implyes a weakness of sight in them , and no imperfection in their friends , upon whom they cast down their looks , and who continue still of their first stature , though the others eyes continue not to possess the same clearness . a generous person should not entertain so low thoughts of himself , as to think that what is the gift of another , can add so much to his intrinsick value , as to make him confess in the undervaluing of his former friends , the meanness of his own parts , and former condition : and he obstructs extreamly his own greatness , who obliges his friends to stop , and retard it , as what may be disadvantagious to their interest , by robbing them of so rare an advantage as is a friend . whereas the noblest trial of power is , to be able to raise these whom men honoured formerly with that title : for by this , others will be invited to depend upon them , and they may thereby justifie their former choice , and let the world see , that they never entred upon any friendship that was mean , or low . friendship , the greatest of commanders , hath commanded us to stay by our friend , and he who quites the post assigned to him , is either cowardly , or a fool ; and a gentleman should think it below his courage , as well as his friendship , to be boasted from a station which he thought so advantagious , out of fear of either fate , or interest : which recommends much to me that gallant rant in lucan , when after he had preferred cato to other men , he , in these words , extolls him above the gods , victrix causa diis placuit sed victa catoni . the gods did the victorious approve , but the great cato did the vanquisht love . but lest my tediousness should make the constancy i plead for , seem a vice , i shall say no more of a subject , whereof i can never say enough . drunkennels is so mean a vice , that i scorn to take notice of it , knowing that none will allow it , but such as are mad ; and such as are mad are not to be reclaimed by moral discourses . yet i cannot but press its meanness from this , that though noah was a person of the greatest authority , his once being drunk , is remarked in scripture , to have made him despicable in the eyes even of his own children ( whom he had also lately obliged to a more then natural respect , by saving them from that deludge , which drowned in their sight the remanent of mankind . ) and yet he might have excused himself , more then those of this age , as not knowing the strength of that new-found wine : and having been drunk but once , might have defended himself by curiosity , which too few now can alledge . it is a mean and mad complement , to requite the kindness of such as come to visit us , with forcing them ( after the fatigue of travel ) to drink to such excess , that they commit and speak such follies , as make them return home from that strange place , without being remarked for any thing else , then the ridiculous expressions they vomited up with their stinking excrements . why are servants turn'd out of doors , and each man ( which is very mean ) obliged to serve himself , when men enter upon that beastly imployment ? is it not , that servants may not hear , or see , what extravagancies are there to be committed ? and is it not an ignoble part in persons of honour , to do resolutely what they dare not owne before the meanest who attend them ? men by this vice bring themselves to need their servants legs to walk upon , and their eyes to see by ; but which is worse , they must be govern'd at that time , by the servile discretion of such ( who will be emboldned by this , to undervalue both them and their commands ) and these masters are accounted wisest , who do most submissively follow their directions . judge if that exercise can be noble , which in disabling us to serve our friends , makes us uncapable to discern the favours they do us , and measure its disadvantages by this , that when men have their senses benighted with the vapours of wine , they are thereby unfitted to lead armies , to assist at councils , to sit in judicatories , to attend ladies , and differ nothing from the being dead , but that they would be much more innocent if they were so . men are then very ready to attaque unjustly the honour of others , and most unable to defend their own : and such as they wrong then , do with a scornful mercy pardon their failings with the famness of disdain , which makes them forgive fools , or furious persons : and that in my judgement should be the most touching of all affronts . and if we esteem roots according to the prettiness of these flowers they display ( as if they would give a grateful accompt to the sun , of what its warmness has produc'd ) certainly we will find drunkenness ( as the apostle speaks of avarice ) the root of all bitternesse . for this is that vice , which keeps men at present from attending such of their own , and of their friends interests , as concern most their fame : and as to the future , begets such diseases , and indispositions , as makes their bodies unfit instruments for great atchievments . and seing to talk idly , is the most pardonable of its errors ( which is so unworthy a character , that no gentleman would suffer another to give it of him , without hazarding his life in the revenge ) it 's other madnesse must be beyond all remission . by this , men are brought to disgorge the deepest buried secrets , to reveal the intimacies , or asperse the names of ladies , to enter upon foolish quarrels , and the next morning , either to abjure what they said , or fight injustly their commerads ; and victory is not in that case rewarded with fame , but is tainted with the aspersion of a drunken quarrel , and is ascrib'd not to courage , but to necessity . i confesse , whooring is in this a more extensive vice , then others ; that it corrupts still two at once , for no man can sin so alone , but drinking ( as if it scornd not to be the greatest vice ) does surpasse it in another quality , which is , that one vitious person can force , or tempt whole tables , and companies to be drunk with him : and if great men should be known to love this vice , all such as have need to accoast them , would be in danger , either by complacency , or interest , to plunge themselves into this miserable excess . in other vices , men debauch only their own rational souls ; but here men add to that , the ingratitude of imploying against god , and nature , these rents and estates , which were kept by providence , from more pious persons , that great men might by that testimony of his kindness , be engaged to a religious retribution . so that such as employ their estates , in maintaining their drunkennesse , commit almost the same sacriledge with beltshazzar , who was terrified by a miraculous hand upon the wall , delivering him his fatal sentence , for carousing with his nobles in the sacred vessels , that were robb'd from the temple of jerusalem . my employment , as well as philosophy , oblidges me to implead injustice as the worst of vices ; because it wrongs the best of men , and the best of things ; the best of men , seing they have still the best of plea's . and so , injustice can only reach them , and these will not by flattery , bribing , or cheats , conciliat the esteem of such , as have a latitude to return them this unjust advantage ; which good men neither need , nor will accept . injustice likewise , debauches the law , which is the best of things ; and in affronting whereof , of all others , great men are ( when guilty ) most ungrate : because , it is their guardian , & fence by which they exact respect and treasures from others ; and without which , such magistrats are unjust , could not escape these hourly massacres , which a robb'd and opprest people would poure upon them . and though such , as are generously injust , intend thereby to complement their friends , or repay old favours ; yet in effect , this requital , is as base , as if one should rob a church , to pay his particular debts . he is not worthy of your friendship , who will expect such returns : and vertue is not like vice , so penurious or poor , as that it cannot build upon any other foundation , then the ruins of another . such as intend by their injustice to gain esteem , from the party advantag'd thereby , are much mistaken ; for though , they should gain the esteem of one thereby , yet they would lose that of many thousands ; and he who is wrong'd , will disclose the injustice done him , more then the other dare brag of the favour . and i have my self heard , even the gainer hate and undervalue his injust patron , loving not the traitor but the treason : considering , that by that precedent , himself was laid open to more hazard , then he thereby reapt of advantage ; for that same injustice , which ensured him of his late conquest , made him unsure both of it , and all that he had or should gain thereafter . and to be injust for a bribe , is as mean , as to serve in the worst of employments for a fee , it is to be as base as a thief , and lesse noble then a robber ; and it deserves all these base reproaches , that are due to avarice , lying , flattery , ingratitude , treachery and perjury : all which , are sharers in this caper when it prospers , and when it prospers not , it leads to these ignoble ports , infamy , poverty , the scaffold , pillory or gibbets . though my having usurp'd so far upon the readers patience , makes all i can say for the future , criminal , yet such respect i owe , and such i bear , to the memory of these noble patriots , who have by their publick spiritednesse , settled for us that peace , whose native product , all our joyes are : that i cannot but recommend , that protecting vertue to such as live now , for the noblest ornament of a great soul , and if our actions be specified and measured by their objects , certainly these souls must be accounted greatest , which center all their cases upon the publick good , scorning to wind up their designs upon so small a bottom , as is privat interest . by this , the heathens became gods , and christians do by it ( which is more ) resemble theirs . this is the task of kings and princes ; whereas privat interest is the design of churles and coblers : who can so justly expect universal praise , as these who design universal advantage ? and none will grudge , that riches should be carried into his treasurs , who keeps them but as joseph did his corn in granaries , till others need to have their necessities supplied . these are deservedly stiled patres patriae , and it is accounted moral paricide , to wound the reputation of such as the common-wealth terms its parents . and when these treasures which privat interest have robbed from the publick , shall , after they have stain'd the acquirer with the names of avarice and crueltie , invite posterity to recall them from his offspring , as not due to them ; then such as have like providence toiled only for the good of their countrey , and mankind , shall find their fame like medals , grow still the more illustrious , by all accessions of time ; and that the new born generations shall augment the numbers of their admirers , more then following years can moulder away these heaps of coyn , which avaritious men raised as a monument for their memory . epaminondas is more famous and admired , then cresus ; and fame may be better believed concerning him , seing he left neither gold , nor money , to bribe from it a suffrage . and albeit he was so busied in raising the glory of his countrey , that he had no time to gain as much money , as to raise the meanest for his own ; yet we find him at no loss thereby , seing ▪ each theban assisted at his funeral , as a mourner : and nature lays it as a duty upon all whom it brings to the world , to magnifie him who endeavoured to resemble it , in the universalities of his favours . that glorious roman , who threw himself into the devouring gulf , to avert the wrath of the gods from his countrey , did , in exchange of a few years ( which he but might have liv'd ) add an eternity of fame to his age ; and by the gloriousness of that action , has buried nothing in that gulf , but his personal faults . and brutus , by dying for his countrey , is not more justly called the last of romans , then he may be called the first of men . and for my part , i think that he sacrificed cesar , rather as a victime to his injur'd countrey , then to his private malice . for as mr. couley well remarks , the pretext of friendship ▪ can be no reason , why a man should suffer without resentment , his mother to be violated before his eyes . paul likewise , whom grace had raised as much above these , as reason had raised these above others , was so zealous in this vertue , that after he had known the joyes of heaven more intimately , then others , who had not like him traveled through all these starry regions ; yet such was his affection to his ▪ countrey , that he was content , to have his name deleted out of the book of life , that room might be made for theirs . but if men will love nothing but what will advance their privat interest , they will at least , upon this score , love their countrey , because , when it becomes famous , they will share in the advantage : as the being a roman , was sufficient to make one terrible , when rome flourished . and i imagine , that it was sufficient to incite one of that glorious re-publick , to undertake , or suffer the hardest of things , to remember him that he was a roman : and at all times the unacquainted still esteem us , according to the presumptions they can gather from our countrey , race , and education . for besides that a hawk of a good nest is still preferred : we see , that example and emulation , are the strongest motives that can either induce , or enable men to be noble and valorous ; and though some term this but a fancy , yet , granting it were no more , it is such a fancy , as tends much to our honour , because it hightens in others a fear of us , and lessens in us the fear of them . i may then conclude with this , that as the rays of the sun are accounted a more noble light , then any that is projected from a private candle . and as amongst perfumes , these are accounted noblest , whose emanations dart to the greatest distance ; so amongst souls , these are the most excellent , which respect most the advantage of others . i confess there are some vices , which by shrouding themselves under the appearance of good , do advance themselves too far in ill govern'd esteems , as we see in ambition , and revenge ; yet to our severer inquiries it will appear , that ambition is ignoble , seing such as desire to be promoted , confess the meanness of that state they press to leave . this vice oblidges men to serve such as advance its designs , exchanging its present liberty , for , but the uncertain expectation of commanding others ; and paying greater respects to superiors for this expectation , then it will be able to exact from those whom it designs to subject . what is advancement , but the peoples livery ? and such as expect their happiness from them , must acknowledge , that the rable is greater and nobler then themselves ; and by exchanging their natural happiness , for that which is of its bestowing , they confess their own to be of the least value ; for no man will exchange for what is worse . a courtier admiring the philosopher , gathering his herbs , told him , that if he flattered the emperor , he needed not gather herbs ; was answered , that if he could satisfie himself with herbs , he needed not flatter the emperor ; and without doubt , flattery inferrs more dependence , then gathering of herbs . and in the dispute for liberty , diogenes had the advantage of the stagarit , when he told him , diogenes did dine when it pleased diogenes , but aristotle not till it pleased alexander . vanity is too airie a vice to be noble , for it is but a thin crust of pride , and but a pretending cadet of that gallant sin ; it is i confess , lesse hurtful then pride , because it magnifies it self , without disparraging others , ( for if we admire others when compar'd with our selves ; we are not vain , but proud ) and it is oft the spur to great actions , being to our undertakings , what some poysons are to medicins ; which , though they be hurtful in a dose apart , yet make the compounds they enter , more opperative and pointed . and i have heard some defend , that vanity was no sin , because , in admiring our selves , at a greater rate then we deserv'd , we without detracting from our neighbour , hightned our debt to our maker , which might be an error , but was no fault . but vanity , being an error in our judgement , it cannot but be mean , as all errors are ignoble : and he is avery fool ( which is the ignoblest of names ) who understands not himself . he who understands not his own measurs , cannot govern himself , and so is unfit to govern others ; and it is the employment of a great soul , rather to do things worthy to be admired , then to admire what himself hath done ; but leaving to pursue the croud of it's ill effects , i shall single out some of these i judge most enemies to true gallantry , amongst which , i scruple not to prefer inmeanesse , the being vain of prosperity , and derived power : which shews , that we prefer , and admire more what others can bestow , then what we possesse our selves . whereas , vertuous persons , may justly think , that nothing can make them greater , and to be vain of prosperity , shewes we cannot bear it ; and so concludes us under a weakness : to take advantages of others , when we are more powerful then they , is as base , as it is for an arm'd man to force his enemie to fight , when he has no weapon : this is cowardlienesse , not courage , and who defers not his revenge , till his rival be equal with him , implys a fear of grapling upon equal termes . that one expression , of one of the kings of france , that he scorn'd when he was king of france , to remember the wrongs done to the duke of orleans , makes his name grateful in history , and if great men would reflect seriously , how a word from him they serve ( though but a man who must himself yeeld oft times to a mean disaster ) or how the least error in their own conduct , can overturn the fixtest of their endeavours , and make them in being unfortunat , ridiculous withal , certainly they would call this presumption , rather madnesse , then vanity ; and would conclude it more gallant , to bear adversity , with a generous courage , then to be a fool or flattered by prosperity , which vanquishes as oft , these for whom , as these against whom it fights . neither can i leave this period , till i inveigh against that meannest of vanities ; whereby , men are vain of estates and territories : for , seing man is born lord of all the world , why should he retrinch his own right , by glorying in so little a part of it , that his share will escape an exact geographer . i wish such would remember , that pompey bestowed kingdoms upon his slaves , and yet epictetus , who was a slave , is more admired , then he ; and yet admired for nothing , but his vertue : and why should men be proud , of enjoying that , upon which the meanest begger pours out his excrements if these be vain , because they may call it their own , what hath the master but that ( as solomon says ) he beholdeth it with his eyes , and at this rate , i may glory , in that the glorious heavens are spread over me , for i may behold the one , with as impropriating eyes , as he can do the other . and he who wants a tomb , which these have , have the heaven for a vault and burial place — coelo tegitur , qui non habet urnam . but if the answer be , that these rents will allow them the keeping of a table for their grandour ( which i wish , were the only excuse ) that answers makes them servants , and burdens them with a necessity , to provide for such as they entertain ; and so they are vain of being servants , and servants to such , as will rise from their table , to read and admire above them , plato , socrates , or which is lesse , the author of a well contriv'd play ; but to leave this folly , these may have some pretext , for preferring their own estates , above these of others , but why should they admire themselves for their estates ? which is no part of themselves , and so they should not in reason think better of themselves then others for it . under the same condemnation fall such , as are vain of theis horses , lackeys , or such like things , which is most injust , except their horses and they were all one . such as crust themselves over with embroideries , and after they have divided their time , betwixt their comb and their mirrours , are vain of these silly toyes , which are the creaturs and workmanship of servants , must be certainly very low , and mean spirited , when they imagin to add to their natural value , by things that have no value in them , but what our fancy ( which is the most despicable quality of that soul they neglect ) gives them . and do not they amongst the rest of mankind , disparage very much even these mistrisses upon whom they bestow these adorations ? which they deny their mighty maker , when they imagine by such contemptible means , to scrue themselves into their esteem . how ignobly undervalue they their own thoughts , the noble conversation of excellent men , and accurate books ( to write some whereof , cesar , and the greatest of the emperors have laid aside their swords ) when they impend upon ribbans , and laces , that age of time , which would be missimployed , though it were let out but in moments , upon such womanly exercises . but if ladies , or their suitors , will magnifie these handsome shapes and colours , which are too often bestowed upon them , to repair the want of these noble qualities , of which those who are masters may be more justly vain : why are not they afraid ? by whoring , fairding , drinking , gluttony , or macerating envy , to blast these florid advantages upon which themselves do , and would have others to dote . i must here endeavour to subdue one error , which is by so much the more dangerous , that it wears the fairest mask of all other vices : and this is that whereby men are induced to believe , that true honour is but an appanage of preferment , and that preferment is seldome without honour , but honour comes never without preferment ; and not only are the lees of the people taken with this opinion , but the gallantest of men , who are spheared far above those , do in this , slide easily into the sense of the neighbourhood . yet it remains still an error , for true honour is an innat elevation of the soul , whereby it scorns every thing which is more mortal then it self , and nothing is more frail then preferment ; whose paint is washt off by the least storm , and whose being depends upon the fancy , or humour of others : whereas true honour is independent , and as it cannot flow from any other , so cannot stoop to them . he is truly gallant , whose innocence fears not the jurisdiction of men ; and who looks upon scepters , and such gilded trifles , as impertinent toyes , when they are not sway'd by the hand of vertue ; and who would not value power for any other end , but to be a second to these inclinations which are so reasonable , that they should not need power to make them be obeyed ? tyrants can bestow the tallest preferments , but they cannot make men truly honourable ; which shews that these two differ . and heliogabulus cooke was still but a base fellow , though his masters doting made him as great , as were his own vices ; a statue becomes not taller by the hight of its basis , nor a head more wise , or noble , for being adorned with a shaggie plummage . julius cesar , though no emperor , has a more lasting glory then tiberius who was so . and cato gloried more in that the people asked why he was not preferred , then he would have done in enjoying the greatest honours these had to bestow . preferment is but the creation of men , but true honour is of gods own creation ; and as we should esteem this last as a piece done by the nobler master , so we should love it best , because it is more our own , then what rises from anothers favour . greatness , when most advantagiously bestowed , can but produce love , or fear ; to beget fear , is not noble , because the devil doth this most , and these who come next to him in baseness , come nearest him in this brutes , savages and mad-men , have sufficiency enough for that undertaking ; but to beget love , is peculiar to true honour : and so generous a passion is love , that it is soonest elicit , when least commanded . a vertuous person is likewise a greater governour , then he who suffers himself to be commanded by a vicious woman ; a thirsty appetit , then that king who suffers himself to be led by the ears with flatterers , and to be forced by his own pride to disobey his reason , by which alone he is truly great , and which when any man disowns absolutely , he is to be thrown into a dungeon , or bedlame : preferment leaves and obliges us to bow to others , for satisfying our interest , so that interest is confest by great men , to be greater then they . but vertue and true honour teacheth us to subject our interest to our selves , and puts it in our own power to make our selves happy . and what a pilot is in the ship , a general in an army , the soul in the body , that is a philosopher amongst these with whom he converses . necenim nunquam in tantum convalescet nequitia , nunquam sic contra virtutes conjurabitur , ut non virtutis nomen venerabile & sacrum maneat . sen. epist. . to which purpose i must cite statin . silv. vive mide gazis , & lido ditior auro , troica & euphrate supra diademate foelix quem non ambigui fasces , non mobile vulgus , spemq●● metumque domas , vitio sublimior omni . exemptus fatis . in revenge , we must use instruments , who exact more , and will upbraid us more then the law will do , when it satisfies us our wrongs . and does not the philosopher , who denys that he can be wrong'd more nobly ? then he who confesses , that he is both subject to wrongs , and hath received so great a one , that he cannot but pursue it's revenge ? he who con●eals his wrongs , is only wrong'd in privat ; whil'st he who revenges his wrong , is wrong'd in publick : and certainly , the publick wrong is more ignoble . and seing we conceive our selves concern'd in honour , to punish such as would divulge an affront , that was smothered , as soon as given : we can not but be said to wrong our own honour , when we in seeking revenge , proclaim such wrongs , as had else either evanisht , or been lessened by the concealment ; which remembers me of a story , that goes of an old man , at whose bald head , a rotten orange being thrown in the street , clapt his hat upon it ; and said , i shall spill that villans sport , who expected to see me come shewing my head all besmeared over , and complaining of the injury . it is one of the most picquant revenges , to undervalue our enemies so far , as not to think them worthy of our noticeing , and we shew our selves to be greater then they , when we let the world see , that they cannot trouble us , when children and fools do us the same things , that we fret at in others of more advanced years , we passe them without a frown ; which shews , that it is not the acts done us by our enemies , but our own resentment , which in effect injures us ; so that it is still in our power to vex such as design to affront us , by laughing at , or undervaluing these , and such like little endeavours as what cannot reach our happiness . he who pardons , proclaims that by so doing , he fears not his enemies for the future ; but revenge implyes a fear of what we desire upon that account to lessen . thus cowards , and none but they , are cruel , seing they then only account themselves secure , when their enemies have lost all capacity to resist . in revenge , we act the executioner , but we personat a prince when we pardon ; in the one , we bestow a favour , and so are noble , but in the other , we disclose our infirmity , which is ignoble . i admire passive courage , as a vertue which deserves its palms best of all others , because it toils most for them , honours and rewards are but gifts to them , but they are conquests to it : and it merits as much praise , as it meets with injuries . avida est periculi virtus , & quò tendat non quid passura sit cogitat , quoniam & quod passura est , gloriae pars est : this vertue hath rather a greediness for , then a desire to find dangers ; and seing its sufferings make the greatest part of its glory , it runs out to meet them , thinking that to attend them , is a degree of cowardliness . and if we remark narrowly , we will find that all other vertues owe their gallantry to this : and have no other title to that glorious quality , but in so far as they borrow excellencies from it . friendship is then only gallant , when to gratifie our friends , we expose to injuries for them , either our persons , or interest . gratitude is then noble , when we consider not what we are to suffer ; but what we owe , or ( which is more gallant ) what is requisite for the service of such as have obliged us . justice is alwayes excellent , but is then only most to be admired , when we resist temptations , and when we resolve to suffer for having been just ; the envy and rage of these , who consider only how much they have been prejudged , but not how much the publick good hath been thereby advanced . by this it is that a vertuous person shews how great he truly is , and that power and command were the instruments only , but not parts of his former worth . he who yeelds to affliction , shews that those who inflicts it , are greater then himself ; but he who braves it , shews that it is not in the power of any thing but of guilt , to make him tremble . it is easie for one who is assisted by power and fate , to urge these advantages , but to dare these , shews a pitch beyond them : and this induces me to think , that passive courage is more noble then what is active : for one who fights gallantly in an open field , and in the view , or front of an army , is assisted by the example of others , by hope of revenge , or victory , and needs not much fear that death which he may shun , as probably as meet : but he who in a noble quarrel , adorns that scaffold , whereupon he is to suffer , evinces that he can master fate , and make danger less then his courage , and to serve him in acquiring fame and honour . but this vertue deserves a larger room , then my present weariness will allow it in this paper : and therefore i will leave it for praises to its own native excellencies . i shall ( my lords and gentlemen ) leave these reflections to your own improvement , for i am confident that the heat of your own zeal for vertue , will kindle in your breasts such noble flames , as that by their blaze , ye may see further into this subject , then i can discover : and in this essay i desire to be esteem'd no otherwayes presumptuous , then a servant is , who lights his master up these stairs which himself intends to mount . finis . notes, typically marginal, from the original text notes for div a -e native honour commended . dan. . vertue contributes more to advancment then vice can do . vertue is more conducive to fame then vice. au argument from romances . vertue railed the grecian and roman empires . vertue hath made philososophers to be admi red above princes . vice must lurk , and is cowardly . servants equal masters in vice. vice but coppies vertue . all vices imply fear . all vices make us depend upon others . vertue allows us a just value of our selvs . dissimulation . envy & detraction . vvhooring . obscenity . avarice and liberality . rebellion and perfidie . inconstancy . an invective against unconstant friendships . ` drunkenness . injustice . publick spiritednesse . ambition is a mean , vice . vanity . the meanness of being vain of riches and eestates . the meaness of vainity in apparel . preserment is not still honourable . the ignoblenesse of revenge the gallantry of patience ▪ pleadings in some remarkable cases before the supreme courts of scotland since the year to which the decisions are subjoyn'd. mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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[ ], , [ ] p. printed by george swintoun, james glen, and thomas brown, edinburgh : . attributed by wing to george mackenzie. reproduction of original in the cambridge university library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng pleading -- scotland. law reports, digests, etc. -- scotland. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - melanie sanders sampled and proofread - melanie sanders text and markup reviewed and edited - pfs batch review (qc) and xml conversion pleadings , in some remarkable cases , before the supreme courts of scotland , since the year , . to which , the decisions are subjoyn'd . cicero in brut. nulla res tantum ad bene dicendum prodest , quantum scriptio . edinburgh , printed by george swintoun , james glen , and thomas brown : anno dom. . the authors reflections upon these pleadings . few men can expect praise by writing in this age , wherein every man almost doth think himself roo'd of that praise which is given to others , and wherein he is thought to want wit , who will allow others to have any . former ages railed against such as wrote ill , but ours against such as write well ; they were sometimes so unjust , as not to reward merit ; but we are so malitious as to persecute it : thus we can neither want new books , nor deserve them ; and it hath been well observed , that it would seem now , that none but mad men write or censure . this i say , not to regrate my own fate , which hath been kind to my writings beyond my merit and expectation ; and though it had not , yet i am secure , by want of that merit which can raise envy : but i say it to regrate , that this should have stopt so many ingenious and learned men in our profession , from illuminating our law , and from informing our country-men . the laws of other nations are opprest , but ours is starv'd . this made me adventure to write these few sheets , and i wish that censure which is so much feared by others , might blunt all its edge upon me ; and that i might , like that noble roman , by leaping into this gulf , secure my countrey against this plague . this way of writing hath been very happy amongst strangers , and was not minded hitherto by us , and what way of writing is preferable to that , which hath been successfull , and yet is new ? but my design in choosing this way of writing , was to inform strangers as to our way of bleading in scotland , to form to my self a stile , and to give me an easinesse in pleading ; for since that is my dayly employment , it should be my greatest care , nihil tantum ad bene dicendum prodest , quantum scriptio , sayes cicero , the greatest master of that art. i had , by pleading whilst i was yet very young , wrapt my self into errors ; which could not be reform'd in the croud and noise of businesse , and therefore i resolved to employ some serious and solitary hours for my own recovery ; and that i might obliege my self to the greater exactnesse , i resolved to print what i wrote , hoping , that thus the fear of censure would over awe my lazinesse : by printing them , i likewise design to know my enemies , and my faults , such as censure maliciously will inform me of the one , and such as censure justly will instruct me in the other . i designed at first , to have printed many moe , but i thereafter considered , that if these pleased not , they were too many , and if they did please , it was easie to add : and i resolve to correct in the last , what shall be found to be justly censurable in the first . in three of those pleadings , ( viz . . . ) i have mingled with my own arguments , the arguments of such as pleaded with me ; in the rest , i have used only my own ; those three i wrote to be patterns , because they were not particularly mine ; those which are particularly my own , i wrote for my own divertisement , and if they bear any proportion to their fellows , they may not only satisfie the world to which they go , but ( which is it may be harder ) the author from whom they came . i have been oft asked two contrary questions ; one was , how i diverted my self , during all our six vacant moneths ? and by others , how my employment gave me leisure to write ? to answer both at once , i conceive that a man in two afternoons of each vacant week , may write twice more then ever i sent to the presse ; and he must be very busie , who hath not these to spare . when i was too young , to write in my own profession , my love to my countrey tempted me to write moral philosophy , and to adventure on a play and poem ; but now that i find , that our countrey-men could be happy enough in these , if their inclinations were not lesse then their ablities , i have abandoned those employments , and the spring of my age being past , it is fit those blossomes should ripen into fruit. i promised formerly , never to appear in print , save in my own employment ; to which promise i have , these five years last by past , been very faithfull ; and this being my first essay in it , some allowance is due to a beginner . i must confesse , that many in this kingdom could have exceeded my poor endeavours , but it were unreasonable for any man , to refuse to fight for his countrey , because another could fight better . and i rather conclude , that others need not be discouraged , though i meet with no applause ; whereas , if any be allowed me , their greater parts may expect a greater measure of fame ; and as i have been very kind to all my countrey-mens productions , so i shall be extreamly pleased to see my self out-done in my countreys service . i designed to let strangers know how we plead in scotland , and therefore it was not fit , that i should have used here the english language . i love to speak as i think , and to write as i speak . no man should be vain , because he can injure the merit of a book ; for the meanest rogue may burn a city , or kill a hero ; whereas he could never have built the one , nor equalled the other . and i confesse , that an ordinary wit may discover faults in a better author then i pretend to be : for the writer being intent upon all , cannot lay out all that industry upon every line , which amalicious critick can ; who ( like the wasp ) fastens still upon the sore : but a greater wit then they said , ubi plurima nitent in carmine , non ego paucis offendor maculis — malice likewise and observation can easilier fix upon a printed pleading , then upon what flyes away from a current speaker : and a discourse , animated by the voice and action of a gracefull and sprightly orator , will supply very much of that force and beauty , which a cold and indifferent reader will require in what comes from the press . i am not concerned in the reception of this book , my cares end with the printing : and thoughts in an innocent breast , are as secure as men are , when storms grumble and roar about the strong castle where they are lodged . few ever displeased , and none ever pleased all . such as censure too severely those sheets , are either of my own profession , or not ; those who are not , may fear to be thought ignorant ; those who are , to be thought emulous . but having now confined all my recreations to my own employment , if i cannot please others , i will at least improve my self . but it would ●bate very much the passion of authors and criticks , of advocats and clients , if all would seriously weigh my beloved verse , hi motus animorum , atque haec certamina tanta , pulveris exigui jactu compressa quiescent . the contents . what eloquence is fit for the bar. an essay . page . a pleading translated out of french , to inform such as understand not that language , of the way of pleading there . the authors answer to the former pleading , there being no answer to it extant in the french , ( with additions , pag. penult . ) how far a man may use his own , though to the prejudice of his neighbours . whether a clause prohibiting to sell , will prejudge creditors . whether tax'd-wards be lyable to recognition . how far the borrower in commodato aestimato , is lyable , if the thing be lost , vi majore . how fury , and lucid intervals may be prov'd . in what case a sentence may be reduced , by a reprobator of the depositions of the witnesses whereupon the sentence was founded , and by what probation sentences may be reprobated . how far a disposition , made by a man , in favours of his lady , of his whole estate , is reduceable , as done in lecto aegritudinis . how far restitutions by way of justice , are prejudged by acts of indempnity . how far a person unjustly forfeited and restored , may repeat annual-rents from the intrometters . whether ships taken after they have carryed contraband goods , can be declared prize , ( with additions , pag. last . ) whether it be free to all the lieges to trade with forreigners , or if this priviledge be only competent to burghs-royal . whether a novo damus secures against preceeding casualities . whether a contract entered into by a minor , who averr'd himself to be major , and swore never to reduce , be revocable . against forfeitures in absence . whether passive complyance in publick rebellions , be punishable as treason . for maevia , accused of witchcraft . for titius , accused before the secret council for beating his wife . how far minors may be punished for crimes . . whether complices may be pursued before the principal party be found guilty . . whether socius criminis may be received awitnesse in riots and lesser crimes . an answer to some reasons printed in england , against the overture of bringing into that kingdom , such registers as are used in scotland . errata . pag. . lin . . for silogisticè , read sylogisticè . pag. . lin . . for i●terta , read i●certa . pag. ibid. lin , . for animated by gain , read animated by conscience , pag. . lin . . for effectation , read affectation . pag. ibid. lin . ibid. dele the word all . pag . lin . . read 〈◊〉 meer mommeries . pag. . lin . . for lib. c , read lib. eodem . pag. . lin . . read not ●ailzies . pag. ibid. lin . . for petitus , read penitus . pag. . lin . . read fortui●●s . pag. . lin . . for quem , read quam . pag. . lin . . for effect , read , affect . pag. . lin . . for ressamen , read residuam . pag. . lin . . read must not be lawfull . pag. . for by the donator for gifts of e●cheats and non-entries , did take place according to the latter , read of gifts of escheat and non-entries , which were restricted according to the latter . pag. . lin . . for againg , read against . pag. . lin . . read so cruel a revenge . read still violated , for violat ; confiscated , for confiscat ; necessary , for necessar ; ordinary , for ordinar , and the like . what eloquence is fit for the bar. an essay . eloquence is that art , by which the orator at once convinces , and pleases his hearers ; and by which he gains same , and obedience . monarchs govern our estates , but the orator governs our wills , and inclinations ; the souldier may conquer our lands , but the orator our reason ; and whilst these owe their empire to multitudes of men , and accidents , he do's alone share in the glory of his conquest . amongst all such who stand rivals for this great honour , the advocat seems to have the fairest pretentions ; for a courtiour may by eloquence , charm a lady , he may raily , and say nothing with a bon grace : a preacher may in his retirement , sorm a discourse , which after much premeditation , meets with no opposition ; but the advocat must upon subjects infinitely various , make present replyes to what he did not expect . we come to church convinc'd of every thing our preacher is to say , we are the converts of his theme , and not of his discourse : but at the barr , justice do's oftimes side so equally , that a thousand times the hearers do confess themselves still convinc'd by the last speaker . what can the world bestow above what it allowes the advocat , as the reward of his noble pains ? what is so desireable , as to be a sanctuary to such as are afflicted , to pull the innocent from the clawes of his accuser , to gain bread for the hungry , and to bring the guilty to a scaffold ? what is so noble as to be depended upon by such as are in prosperity ( for client and depender , are the same in all languages ) to be complemented by such as are beautifull , and admir'd by such as are learned ? and if he design to flatter his vanity , would it not charm him to see a crouded audience , stand in a profound silence , with countenances which do mark longing , and reverence , to see every man look with amazement upon his neighbour , and all upon the speaker ; whilst he makes his learned judges , bow under the weight of his well exprest arguments ; and when the discourse is ended , to have all who see him salute him with respect as he passes by , and the city choose him for the subject of their kind discourses ? some divines and philosophers have oftimes prov'd so injust to the law it self , as to think it too dull and flat a science to affoord such subtile reflections , as could be the foundation of an accurat debate : to whom i design modestly to return no other answer , then that men cannot judge well what they do not throughly understand . thus common eyes discover no difference betwixt the starrs , though to judicious and learn'd persons , they appear in their distinct classes : i wish they would consider , how much the actions of men differ , how many circumstances attend every one of these , and how they are varied by these circumstances ; if letters can by their several conjunctions , make up such a swarm of words , certainly thousands of statutes , customs , and cases , must affoord much room for new and subtile conclusions ; especially since these have been subtiliz'd and cultivat for many ages , by the finest spirits of the world , who have been drawn to prefer this to all other employments , and to refine themselves to all imaginable hight in it , by the joynt hopes of glory , applause , preferment , money and emulation : — stimulos dedit aemulavirtus . i doubt not but there are many , who will think that eloquence is not allowable at the barr , since those who are to be convinced there , are old and reverend judges , whose severe judgments are not to be moved by a pleasing discourse , but by solid reason , old age being little taken with those flourishes , which it cannot practise : and that though where passions are to be excited , as they are by the pulpit , and theater , or where states-men endeavour to reclaim a mutinous multitude , there , eloquence is not only allowable , but necessary ( eloquence being the true key of the passions ) yet , since no passions are allowed in judging , and the object of that excellent science , being truth , and not humor , eloquence should not be allowed in discourses there : and i imagine it will be objected to me , that at the first institution of our senat , it was appointed by an act of sederunt , that all argunning ( which term was us'd in that age for arguing ) should be silogisticé , and not rhetoricé . to which my answer is , that eloquence do's not only consist in trops , figures , and such extrinsick ornaments , whereby our fancy is more gratified , then our judgement , and our discourse is rather painted then strengthned ; but when i mean that an advocat should be eloquent , i design thereby , that he should know how to enliven his discourse with expressions suitable to the subject he treats ; that he should choose terms that are significant , and which seem full of the thing which they are to express , and so lodge his reasons handsomly ; though when his subject looses him from the strict terms of a statute , or authority , and that he is to debate upon probable theams , to enquire into publick utility , or to enforce or answer presumptive arguments , he may use a more florid and elegant stile : his great design is to conciliat favour to his clients cause ; and sure , caeteris paribus , even the learnedst and most severe judges , love to be handsomly informed , and he must be very just , who is not somewhat bribed by charming expressions . but that the greatest part , of judges are taken with that bait , is most undenyable ; and as in mariages we find , that even those who desire rich portions , are yet pleased to have a beautiful mistris , and the severest man alive will be content to abate somewhat of the portion to gratifie his fancy ; so , i am sure that a papinian or ulpian , would , when the scales seem to stand even , encline to that side upon which eloquence stands . eloquence raises the attention of a judge , and makes him follow the speaker closely , so that nothing which he sayes in favour of his client passeth unregarded ; whereas another may say what is very reasonable , and which if it were notic'd , might weigh much ; and yet the judge who is not allured to hear attentively , may easily miss it . i may likewayes add , that eloquence thaws ( like the sun ) the speaker himself , who when he is warm and pleas'd , will thereby have his invention stirr'd up , and his memory and all his faculties opened ; by which many excellent and apposite reasons may be suggested to him ; as we see the earth ( when warm'd ) casts up many new and profitable fruits and herbs , as well as flowers ; whereas , we may dayly observe , that a stiff and cold pleader do's omit oftimes , even what he knowes . by the same eloquence also , the hearers being warm'd and thaw'd have their judgements thereby open'd , and doe receive more easily impressions of what is spoke ; and i conceive eloquence the fitter for advocats , that others think it should be banish'd as that which may bryb and corrupt judges : and methinks it should be pardon'd some little dangerousness that way , since it pleases so much another ; nor can i think but that providence has ordain'd it for the barr , to soften , and sweeten humours , which would els by constant sticking at meer law , become too rigid and severe ; and to divert and ease the spirits both of judges , and advocats , which are too much upon the rack , and bended for the service of their countrey . as to our act of sederunt , which appointed , that all pleading should be sylogisticè , i need not reflect upon the ignorance of those times , which was very excuseable amongst us , since it did at that time blind even italy and france , who do now smile with pity upon the customs and productions of their countrey-men in that age : but i conceive , that our session having been at first constitute of an equal number of church-men and laicks , and the president being an ecclesiastick , these church-men having the advantage of learning and authority , did form that act of sederunt according to their own breeding , by which they were tyed in their theology-schools to debate by syllogismes ; but after-ages having found this upon experience to be very unfit and pedantick , they did not only suffer that act to run in desuetude , but allow'd of this auguster and more splendid manner of debating , which is now used . and therefore i conclude , that not only is that way not warranted by the authority of that act , but that it has the less preference because of that act ; for , if that act had not been made , we might have been induc'd to believe that such a way might take ; but now since experience has reform'd us from it , and since even the authority of a statute could not maintain it , we must think it was not fit nor suitable , as indeed it is not , if we consider these few remarks . all sciences have an expression which is suitable to them ; the mathematicks require demonstration , and discover themselves to the eye : medicine , and natural philosophy require experiments ; logick , metaphysick ( and alas now theology ) must wrestle by syllogismes ; but the law argues by a discourse , free , and unconfined , like those who debate from its principles . it is the nature of a syllogisme to have the subsumption in the second proposition ; but in pleading , the matter of fact must come first , for it stands in the state of the case , and therefore though it be proper for lybells ( which are but a sylogisme ) yet it suits not with a defence : and it were very ridiculous , and impossible , to wrap up a long story , many circumstances , presumptions and probabilities in a syllogisme ; and oftimes there are many defences propon'd and joyned together . the most ordinar and most allow'd way of arguing in law is by similies , instances and parallels , and it is improper to drive those into syllogismes : but he will best confute this way of arguing by syllogismes , who will sit down and plead any of the causes i have set down in a syllogistick way , which if any man do , i shall renounce pleading , except he take syllogistick debating in a very large sense ; as for instance , in kenedies case , the pursuer behov'd to say , he who is guilty of forging writes , should be hang'd ; but so it is , kennedy has done so ; ergo , the defender behoved to deny the minor , and then the pursuer behov'd to say , he who is burden'd with such and such presumptions , is guilty of falshood ; but kennedy is guilty of these ; and there he behov'd to insist upon all the indirect articles or presumptions : but how should the defender answer all these by a distinguo ? or if this way were introduced , how little would this shorten debates ? and are any creatures alive so litigious as some divines , and philosophers , who debate only by syllogismes ? and so little do syllogismes contribute to clear a debate , that both in their schools , and books , such as use syllogismes must leave that way , and enlarge themselves by discourses , when the debate growes warm , and intricat . every man in pleading , gratifies his own genious , and some of all kind find equall success , and applause ; but it has been oft debated , whether pointed and short pleading , wherein the speaker singles out a point , and presses it , or full and opulent pleading , wherein the speaker omitts nothing which may prove advantagious , be preferable : each side has its examples , and patrons . the full and copious way pleases me ; for i not only find that to have been used by demosthenes , and cicero , but plinius assures us , that it was used by caesar and pompey . at first no man was stinted amongst the romans in his pleading , and when they were confined by pompey , qui primus fraena imposuit eloquentiae , the pursuer was allow'd two hours , and the defender three ; but this being found thereafter too narrow ; celicius did allow the pursuer six houres , and the defender nine : nor can a pleader be interrupted in france ( where pleading is in its greatest perfection ) though he speak three full dayes ; and if it be a fault , it is peccatum felicis ingenij , the error of great witts , whereas short pleading is common to such as pretend to be great spirits , and to such as really are meer dunses . such as use to say much can contract their discourses , but few who are used to say little , could say much , though they were willing ; and copious pleading is called ordinarily a fault , by such as have not the wit to commit that crime themselves . we see that in nature , the largest bodies are ordinarily strongest , the largest fruits most desired ; and many stroaks do best drive in the wedge . nature has produc'd many things for meer ornaments ; and god has in his scriptures , us'd eloquence and rhetorick on many occasions . but there are two arguments which have determined me to this choice , the first is , that a short pleader may leave things unclear , and so wrong his client ; whereas a full pleader can only burden too much his hearers , and so wrong only himself . a narrow , and starved discourse , is like those slender and small costed bodies , which allow not sufficient room for the noble parts to exercise their functions , non enim amputata oratio , & abscissa , sedlata , magnifica , excelsa , tonat , fulgurat et omnia evertit . the next is , that even where there is but one judge , it is uncertain which of all the arguments will convince him , but where there are many , as with us , it is very well known to such as discourse in privat with them , upon what has been pleaded , that some fix upon one argument , some upon another : the best lawyers differ oft in opinion upon debatable points , and it is great vanity for any pleader to think , that he can certainly know what will take , and what not ; this was really not an appologie for my error , but the motive of my choice , and i find it to have been formerly used by plinius the younger , ( the greatest pleader of his age , and whose epistles do of all other books best inform us how to plead ) this great man in his epistle tells us , that regulus said to him , tu omnia quae in causa putas exequenda , ego jugulum statim video , hunc premo , respondi , posse fieri , ut genu esset , aut tibia , ubi ille jugulum putaret , at ego qui jugulum perspicere non possum omnia pertento . but i will not with him adde , neque enim minus imperspicua , interta fallaciaque sunt judicum ingenia ; quam tempestatum , terrarumque adjiciam quod me docuit usus , magister egregius , aliud alios movet , varia sunt hominum judicia , variae voluntates , inde qui eandem causam simul audierunt , interdum idem , saepe diversum , sed ex diversis animi motibus sentiunt , our colledge of justice is but one body , in which the senators are the judicative faculty , and the advocats the inventive ; and as the judgement is too rash , when it concludes before the invention has represented to it all that can be said pro , and con , even so judges should not decide till the advocat ( who is animated by gain , applause , and custom to find out , all can be said ) do first lay open all the reasons , and inconveniences which he has in his retirements prepar'd : from which also i conclude , that seing the advocats are in place of the invention , that those advocats who have the fertilest nvention , are most fitted for that excellent employment . when i prefer copious pleading , i design not to commend such as are full , but of tautologies , and repetitions , who moe periods , then arguments , and who , providing they find many words , care not much how to choose them . i love a discourse which is beautiful , but not painted ; rich but not luxurious ; harmonious but not canting . i am not for many replyes , duplyes , and triplyes , but for one , or two strong , full and clear discourses , and to lengthen those , by streaching out those unnecessar plyes into one just measure . nor do i love long pleading in the utter-house , where new decisions are not to be made , but where the old should be follow'd ; and where the multitude of attenders do require a speedy dispatch , and in the inner-house it is only to be practised where the cause is new , and fertile , and when the judges desire a full information ; for it is most unfit to vex an unwilling judge , who will think all that he loves not to hear , meer effectation , and vanity : but envy must not want its objections , and where it finds not a fault , it makes one out of the next vertue ; when a man pleads fully , it terms that luxuriency , and when he pleads shortly , it will have that pass for ignorance , or lazinesse : and so inconsistent are backbite●s not only with the truth , but in what themselves invent , that i have heard one and the same pleader , blam'd for a too luxurient pleader by some , and for a lazie pleader by others , because in the inner-house he used the full allowance , and in the utter-house he thought it impertinent to make speeches , where a short defence is only necessary ; for either the point there is clear , as ordinarily it is , and then it is absurd to enforce a principle ; or it is dubious , and then he gets the lords answer , and may be full in his information ; and why should pains be taken to vex a lord with debate who is not to decide ? far be it from me to prescribe magisterially , a form of pleading to others , but i love to tell freely my own opinion , and if others did so too , we should shortly , from comparing notes , come to know what method were most allowable . in pleading amongst the ancients , and yet amongst the french , there was still a preface , and epilogue . amongst them , he who spoke first , endeavoured to establish his own opinion , and to anticipat what he thought might be urg'd by his adversars ; but with us the pursuer relates only the cause , which he is only allow'd to adorn with a pertinent representation of such circumstances , as may best , either astruct the justice of his own pursute , or obviat unnecessary objections in his opponent , but without mentioning any thing pro , or con , in jure . andyet i have heard the case so prudently stated , as that thereby the defender was precluded from many defences he design'd to propone ; for amongst able pleaders , most of what is debated , arises from a difference rather in fact , then law ; and it is a great affront for one to plead , in law , a long discourse , which the other will grant to be all true , when the discourse is ended : and yet i have heard some concede all was said , and seem to difference the present case from the case pleaded , when indeed there was none , but when this was done meerly to evite a discourse which could not be answered . after the pursuer has stated his pursute , and enlarg'd himself upon all the favourable circumstances which we call the merits of the cause , the defender propones his defence , but urges it little , till he know if it be contraverted ; but if the relevancy of the defence be contraverted by the replyer , in a full discourse , then the duplyer makes a sull answer , and ordinarily these terminat the debate , and after that the discourses become too thin and subtile , and the judges weary , albeit some causes because of their intricacy , or of new emergents , require moe returns . in these replyes , or duplyes , our custom allowes a short preface upon solemn occasions , in which the rule seems to be , that these prefaces should not be too general and such as are applicable to any debate ; as when the speaker excuses his own weaknesse or recommends justice to the judges , or such common places ; but it should run upon some general principle , which though it be not a concluding argument , yet tends much to clear that which is the subject of the debate : as in the french pleading i have translated , the pleader being to inforce that a civil death purifies the condition , si sine liberis decesserit , he begins with a preface , which shewes , that the law has a great empire over nature , and plyes its events to its civil designes ; whereas i being to plead the contrair , i do insist to clear in generall , that matters of fact , escape the regulation of law , and that law is ty'd to observe nature . the discourse it self do's consist of these arguments , whereby the defender maintains his defence , or of these answers by which the pursuer elids those arguments ; and to range them appositly into their own places ( so that such arguments as have contingency , may be set together ) is a mark of a clear , and distinct wit : and when arguments are so rang'd , each of them adds strength to another , and they look like men well marshal'd into distinct troops ; whereas arguments stragling out of that place where they ought to have been placed , seem unpleasant , and irregular , and will hardly be expected where they are ; for instance , in pleading against the viscount of stormont , all the arguments which can be press'd , are either such as endeavour to prove , that the clause of stormonts infeftment is contrary to the nature of dominium or commerce , and after that the pleader had past first dominium , and then commerce , to return to those arguments , which arise from the nature of dominium , were irregular ; for that were to return to show what he had forgot . and from this i conclude in reason , that all arguments founded upon that same general principle , should be pleaded together , and in the ordering of these generalls , i would choose to begin with those which clear best either matter of fact , or which tend most to illuminat the subject of the discourse ; and thus the controversie in stormonts case , being , whether the proprietor of tailzied lands , may alienat these lands if he be prohibit to alienat by the first disponer , or at least if they may be comprys'd from him ; the first classe of arguments to be urg'd , should be these which tend to prove , that this prohibition is inconsistent with the nature of dominium , and propriety , for these clear best the nature of propriety which is the chief subject of the debate . he who answers , uses with us , to repeat the arguments which he is to answer all with one breath ; before he begin to make distinct answers to them ; and this proceeds as i conceive , from the aristotelick way of arguing in the schools , wherein he who maintains the thesis proposed , must repeat the argument , before he answer it : this method i love not , for it consumes unnecessarily much time , and sure it wearies judges to hear the same argument twice , yea thrice , repeated ; for first , the enforcer do's repeat them , then the answerer do's repeat them , both generally at the entry of his discourse ; and therafter he must repeat each argument when he is to make a special answer ; and i should think it much more natural to repeat and answer each argument a part , ordinarily the answerer follows in his answers the method of the proponer ; yet sometimes he chooses rather to classe the arguments as he pleases , and to answer accordingly . if the defender design to answer the arguments brought against his defence , and to adde new ones to astruct the reasonableness of his pursuit , he uses first to urge his own arguments , and then to answer what is alleadg'd for the defender . whether the strongest , or weakest arguments or answers should be first insisted on , was much debated amongst ancient orators ; some thought the weakest should be first urg'd , because the judges were then freshest , and might possibly by weariness slight what was delay'd : others thought fit to leave with the judges the strongest arguments , that they might be fresh with them when they were to decide : this i think is arbitrary , and they are but weak judges , who do not weigh all equally ; but i think it adviseable for a young pleader , to urge the strongest arguments first , that he may thereby conciliat favour to himself , and raise the attention of his judges , and in all cases where the cause seems unfavourable the strongest arguments are first to be used , for the same reason , and there seems little reason to leave the strongest arguments last , if the cause be not presently to be decided : but where many answers are to be made to one argument , the weakest is ordinarily first made and as it were overlye , but the strongest is reserved last , because it is most to be insisted upon : and i think it most natural to urge the weakest arguments first , because our discourse should like our selves , and like our studies , grow from strength , to strength , and from less to more , but sometimes one argument grows from another , and then there is no place to doubt , and alwayes the most mysterious argument is to be left last , because it is to be presumed , that then the cause is best understood , and mysterious arguments come to be most in season , when judges have fully master'd the case . the epilogue with us is ordinarily , in respect whereof the defence ought to be admitted , or repell'd , &c. but in some solemn cases , the pleader may recapitulat shortly his strongest arguments , or may urge the favour and merits of the cause ; and i should love to press this merit rather here then in the preface ; for favour is but an accessory of justice , and the consequent should not preceed its cause . action , was of old one of the chief ornaments of speech , under which was comprehended , gesture , and voice , all which were accomodated to the orators design , when they spoke to multitudes of ignorant people , to whom , tears or ejaculations pleaded more , then reason did ; for that they understood better , as more obvious to that sense by which they were govern'd : but now the world is become too wise to be taken by the eyes , albeit i confesse these adde grace , though not force . with us , action is possibly too violent , which i ascribe both to the violent temper of our nation , prefervidum scotorum ingenium , and to the way of our debate , for fire sparkles ordinarily from the collision of two bodies , one against another , some debate for interest only , some for honour , but advocats for both ; yet hardly can he raise passion in others , who shows it not himself ; and all men presume , that he who is very serious , and earnest to convince others , is the convert of his own argument . i confess , that passion do's disorder very much the kindled speaker , and that he can hardly clear well his discourse who is himself perturb'd , and we know the design of an angry man no more , then we can see clearly the bottom of troubled waters : and therefore it were very advisable , that hot and cholerick spirits , should calm themselves before they adventure to enter upon a serious debate ; but such as are bashfull are the better to be warm'd , and to loose prudently , a little of their indiscreet modesty ; melancholick persons likewayes who are ready to loose themselves in their wandering thoughts , need to be a little fretted , for thereby they become intent , and finding themselves somewhat piqu'd , they are gather'd into their subject . he who fears to be interrupted , will ordinarily stammer , for he will be more busie in thinking upon the being interrupted , then upon what he is to say ; and there , passion do's well also , seeing then he considers nothing but what he is speaking . railing , is of all other qualities , the worst in a pleader , for it makes men judge that his cause needs it , when he rails against his adverse client , and that he finds himself worsted , when he rails against his adverse advocat : but some times he is obliged to found upon matters of fact , which though they have much of reflection in them , yet are necessar truths ; and sometime the law by which he pleads , obleidges him to terms , which may seem rude to strangers , and in both these cases , not to be severe , were prevarication ; though i have known advocats very innocently condemn'd for calling the late times rebellion , and such as were forfeited traitors , though in that they spoke their art , and were not obliged to speak their thoughts : and there are few clients , who when they loose the cause do not discharge a great part of their fury , upon these advocats by whom they conceiv'd themselves overthrown . too subtile speading convinces few , because few understand it , and it is applauded by few , because few can reach to the practice of it ; and in young men it may be interpret to be but affectation , or notionalnesse , though in such as have by long practice establisht their own reputation , it gains glory . many citations also are to be avoided by all in pleading ( though they are necessar in writing ) especially in young men , for in these they are thought but common place-wit ; and yet young men do most use that way , because they think thereby to supply their own want of authority ; and because they know notmany parallel cases , and are not yet so intimatly acquaint with their subject , as to draw arguments out of its retired intrails . many parentheses are to be avoided , for they interrupt the threed of the discourse , and make it knotty , and mysterious , though these weeds grow ordinarily in the richest soil ; and are the effects of a luxuriant invention . frequent repetition of the ordinar compellations , such as my lord chancellor , or my lord president , are to be likewayes shunn'd . before i propose what phrase , or stile is fit for a pleader , it is fit to tell that the two usual stiles known by distinct names , are the laconick or short sententious stile , and the asiatick , or profuse and copious stile ; the first was used by the old roman legislators , as is clear by reading the digests ; but when the empire was transfer'd to constantinople in asia , the empire changed its stile with its seat ; and we find that profluvium asiaticum in the codex , and novels . yet all the grecian and roman pleaders , even in their purity , us'd a full copious stile , as is clear by demosthenes , cicero , and others , and though legislators or judges should use the laconick , yea the other must still reign at the barr. a barrister likewayes should rather study not to want words then to stick at the choosing fine ones , and the generality of hearers are more displeased at a gap , or breach in a discourse , then can be recompens'd by a multitude of these fine words or sentences which occasioned these gaps , whilst the speaker waited for these delicat words which he found after that stop ; and as i have known many admir'd for a fluent speaking of pittifull stuff , so i have known others loose the reputation of orators by studying in their greener years too much finenesse ; and i would advise my friends who begin to speak , first to study fluency , and when they are arriv'd at a consistency there , they may easily refine the large stock they have laid together . many who are not friends to the barr , inveigh much at the canting terms which they say is us'd there ; but these do not consider , that every science has its particular terms , and it were pedantry to substitute others in their place ; and as a man looks ridiculously in a womans habit , or a woman when attir'd like a man ; a souldiour under a gown , or a church-man in buff ; so it is as ridiculous to hear a member of parliament or a councellor speak of affairs in terms of hunting , as it is for a lawyer to speak in his terms of other things ; and i laugh as much to hear gentlemen speak in their canting terms of hunting , hauking , dauncing , as they can do to hear me speak in the idiom of my trade : and to speak like a gentleman at the barr , is to speak like a pedant ; pedantry being nothing , but a transplanting of terms from what they were fit for , to that to which they are most unfit , and i love equally ill , to hear civil law spoke to in the terms of a stile-book , or accidental latin , ( as is most ordinar ) as to hear the genuin words of our municipal law , forc'd to expresse the phrases of the civil law and doctors . it may seem a paradox to others , but to me it appears undenyable , that the scottish idiom of the brittish tongue is more fit for pleading , then either the english idiom , or the french tongue ; for certainly a pleader must use a brisk , smart , and quick way of speaking , whereas the english who are a grave nation , use a too slow and grave pronunciation , and the french a too soft and effeminat one . and therefore , i think the english is fit for harranguing , the french for complementing , but the scots for pleading . our pronunciation , is like our selves , firy , abrupt , sprightly , and bold ; their greatest wits being employ'd at court , have indeed enricht very much their language as to conversation , but all ours bending themselves to study the law , the chief science in repute with us , hath much smooth'd our language , as to pleading : and when i compare our law with the law of england , i perceive that our law favours more pleading then theirs does , for their statutes and decisions are so full and authoritative , that , scarce any case admits pleading , but ( like a hare kill'd in the seat ) it is immediatly surprys'd by a decision , or statute . nor can i enough admire , why some of the wanton english , undervalue so much our idiom , since that of our gentry differs little from theirs , nor do our commons speak so rudely , as these of yorkshire : as to the words wherein the difference lyes , ours are for the most part , old french words , borrowed during the old league betwixt our nations , as cannel , for cinnamon ; and servit , for napkin ; and a thousand of the like stamp ; and if the french tongue be at least equal to the english , i see not why ours should be worse then it . sometimes also our firy temper has made us for hast , expresse several words into one , as stour , for dust in motion ; sturdy , for an extraordinar giddiness , &c. but generally , words significant ex instituto , and therefore , one word is hardly better then another ; their language is invented by courtiers and may be softer , but ours by learn'd men , and men of businesse , and so must be more massie and significant : and for our pronunciation , beside what i said formerly of its being more fitted to the complexion of our people , then the english accent is ; i cannot but remember them , that the scots are thought the nation under heaven , who do with most ease learn to pronounce best , the french , spanish , and other forraign languages , and all nations acknowledge that they speak the latin with the most intelligible accent , for which no other reason can be given , but that our accent is natural , and has nothing , at least little in it that is peculiar . i say not this to asperse the english , they are a nation i honour , but to reprove the petulancy , and mallice of some amongst them who think they do their country good service , when they reproach ours . — nec sua dona quisque recuset . i know that eloquence is thought to have declin'd from cicero's time , and it has so indeed , if with pedants , we make cicero the standart , for nothing can be straighter then its square ; but i conceive that the world do's like particular men , grow wiser and learneder , as it grows old ; but of all things eloquence should improve most , because of all things it rypens most by practice ; experience discovers daily more , and more of the humour of such whom we are to convince ; and the better we know them , we can convince them the easier . by experience also we learn to know , what forms , and sounds please most , and every pleader and orator adds some new inventions to that of the last age , and if one being added to twenty make twenty a greater number , then the eloquence of this age , being added to that of the former , must make this age more eloquent then the last . but i know such as envy the orators of the present age , do still endeavour to mortifie them , by admiring such as are dead , who in their time met with the same measure ; death also removes men from being our rivals , and so from being envy'd by us ; yet we should remember , that even cicero , and demosthenes did complain of the same in their age , though they far exceeded their predecessours . some may think that the eloquence of rome , and others behov'd to be higher then ours , because the multitude were in these common-wealths absolutely govern'd by it , and the greatness of their reward for eloquence , exceeding ours , their eloquence behov'd to do so too . but i am formally contrary , for since our judges are wiser , and more learn'd then the commons , there must goe more art to convictions now , then was requisite then , and though we have not kings , nor common-wealths to defend , as those ostimes had , who pleaded in the roman senat ; yet we may show as much eloquence upon lesser occasions , as one may cut finer figures upon steel , then upon gold ; it is the intricacy of the case , and not the greatness of the pryze , which makes the value of the pleading , and generous spirits are more animated by difficulty , then gain . we have also moe laws , parallels , and citations to beautify our discourse , then they had , and want none of their topicks ; so that though our spirits did not equal theirs , yet in our pleadings we could not but exceed them . nor do i value much the opinion of those , who think the spirits of such as liv'd in common-wealths were greater , because freer then ours , who live under monarchies , and being sub●ects to none , they had greater confidence then we can have . this is but a fancy , invented by such as live under that form of government : but i have not seen any switzer , or hollander , so eloquent as the english , or french ; and it enlivens me more to see kings , and courts , then to see these busie , and mechanick nations : nor can i think any spirit can excell much in any one thing , where equality is design'd , and where all such as offer to rise above the vulgar , are carefully deprest , and sunk down to a level , as they are under common-wealths . for my own part , i pretend to no bayes ; but shall think my self happy , in wanting , as the fame , so the envy which attends eloquence : and i think my own imperfections sufficiently repay'd by fate , in that it has reserv'd me for an age , wherein i heard , and dayly hear , my collegues plead so charmingly , that my pleasure do's equal their honour . a pleading translated out of french , to inform such as understand not that language of the way of pleading there . an estate in land being dispon'd to a woman , and another being substitute , in case she should die without children of her own body ; she being condemn'd for incest , and burnt only in effigie , the question is , whether by that civil death , the condition be purified , as well as if she were naturally dead , and if the person substitute hath by that civil death , right to the estate , without waiting for her natural death . in favours of the person thus substitute , it was pleaded . albeit matters of fact do depend intirely upon nature , and cannot submit themselves to the authority of politick laws , eaquae sunt facti , nulla constitutione infecta fieri possunt ; yet law considers them only in so far as they are necessar and usefull for humane society , and upon that account forces this maxim to suffer many exceptions . thus bonae fidei possessor , is per actionem publicianam , made to have right by an imaginary and fictitious possession , to that which he never really possessed . jus postliminii , makes us believe him who is a prisoner of war , never to have been taken prisoner . and lex cornelia doth presume , that these who did test whilst they were captives , did dye in the city to which they belonged , though they dyed really abroad in their captivity . all which instances prove , that the law doth not subject it self blindly to nature , but that it can ply matters of fact to its own designs , and can by an innocent cheat , adjust them to publick utility and advantage . this foundation being thus establish'd , let us examine this condition ( if she dye without children ) and let us try if it be so bound up to a matter of fact , as that it cannot submit it self to the just and politick fictions of the law. it is certain , that albeit all conditions be ordinarily meer matters of fact , yet this condition which depends entirely upon the intention of the testator , must owe its form to his will ; and seing he did fix his first desires and designs upon this woman and her heirs , and did call the person substitute for whom i plead , but in the third place , not to suspend and differr his liberality , but to obliege my client to wait , because she and her heirs did preceed them in the order of his inclinations : therefore , when death or fortune do state her and her heirs in such a condition , that neither of them can expect the succession , there is no doubt but his will doth immediatly transport the effects of his liberality to the person substitute , since the persons who should preceed them , are by the law removed out of the way . nor was it the intention of the testator to enrich the fisk any more , then if he had adjected a condition relating nothing to the purpose , veluti , si navis ex asia venerit . from this likewayes it follows , that as succession is one of the wayes whereby we acquire in law civil rights which depend upon the law , and which the law doth not allow to any but to its own citizens , qui habent testamenti factionem passivam ; so this condition , si sine liberis decesserit , is not so entirely and absolutely a matter of fact , but that law and fact are therein mixed together ; and therefore , albeit the death of the first heir without children , is regularly understood according to the proper and natural signification of natural death , yet lawyers have extended this to civil death , and have purifi'd the condition by deportation and other kinds of civil death . as is clear , l. ex facto , . § ex facto , ff : ad senatusc . trebel . ex facto tractatum memini , rogaverat quaedam mulier filium suum , ut si sine liberis decessisset restitueret haereditatem fratri suo , is postea deportatus , in insulam liberos susceperat ; quaerebatur igitur , an fidei commissi conditio deficisset , nos igitur hoc dicemus , conceptos quidem ante deportationem , licet postea edantur efficere , ut conditio deficiat : post deportationem vero susceptos , quasi ab alio , non prodesse , maxime cum etiam bona cum sua quodammodo causa fisco sint vindicanda . this woman is condemn'd to be burn'd and strangl'd , she had no children , and can expect no divorce ; her flight has not only banish'd her out of the kingdom , but that sentence that has reveng'd her crime on her memory , and picture , has rendered her servam penae , the unfortunat prey of an unfamous gibbet ; how can she then but be repute dead , seeing she is expung'd out of the number of subjects ? and how can that law which has execute and kill'd her , belye so far its own authority as to believe her alive , after it has taken so much pains to make us believe she is dead ? and after her civil death , how can it conserve for her a faculty of bearing children , which may fulfill a civil condition ? i confess that deportation is not still compar'd to natural death , and that the liberty which a banish'd man carry's with him to a forraign countrey , do's preserve for him all the advantages of the law of nations , ita ut ea quae juris civilis sunt , non habeat , quae vero juris gentium sunt habeat , l. . ff . de penis . but on the contrary , since the being a slave devests man of his humanity , and ranks him amongst beasts , l. . § . . ff . ad l. aquil . the law can no more consider him , but as a piece of moveables , living and animated , as a reasonable tool belonging to his master ; so that having no head , nor will , but his masters , therefore if the law allow him to fulfill any condition , that is upon his masters consideration , and not his own . a person condemn'd is the slave of his punishment , servus penae , magis enim penae quam fisci servus est , l. . ff . de jure fisci : and therefore , the law reputes him dead , since that gibbet to which it tyes him can communicat nothing to him , but a cruel death , and consequently he can fulfill no condition , l. . § . si quis rogatus ad senatusctrebel . si quis rogatus fuerit filiis suis , vel cui ex his voluerit restituere haereditatem papinianus , l. . responsorum etiam deportato ei tribuit eligendi facultatem ; cui liber factus fidei commissum restitui velit , sed si servus penae fuerit constitutus , nullo ante concepto filio , jam parere conditioni non poterit decessisseque sine liberis videtur ; sed cum decedit electionem illam quam papinianus deportato dedit , huic dari non opportet . law imitats nature , and uses the same authority over a man , as he is sociable , that nature exercises over him , as he is natural : and hence it is , that the law governs and ●egulats societies for its own advantage , and as it can beget children , and people families by adoptions ; so by the same power it can cut off unnecessary members from families by exhereditations , and can kill them by condemnatory sentences , servus penae in omni jure , verè ac semper similis est mortuo : cujac . obser . l. . cap. . law then may justly bury a criminal in the unfamous sepulchre of a cruel servitude , which takes from him his civil life with his liberty , and can tye him to a long death and excessive torment , which may draw out his torture to a very long continuance , and make him , as petronius speaks , pass but for the pitiful vision , and horrid shadow of his own person . we must then confess , that that sentence which confiscats his body and goods , doth at the same time confiscat his person and liberty . it is the sentence which kills him , and his natural death following thereafter doth but execute that sentence ; and as we say , that a robber has kill'd a passenger when he gave him the mortal wounds , though he did not then dye , tunc occidisti cum vulnerabas , l. si ita ff . ad l. aquil . so by the same reason , the judge doth kill a criminal the very moment that he pronounces the sentence , and he truly dyes by the sentence , and not by the execution , l. . ff . de pen. qui ultimo supplicio damnantur statim & civitatem , & libertatem perdunt , itaque prae-occupat hic casus mortem , & nonnunquam longum tempus occupat , quod accidit in personis eorum , qui ad bestias damnantur , saepe etiam adeo servari solent post damnationem , ut ex his in alios quaestio habeatur . and as the authority of the law may beget a citizen before his birth , and receive a posthume into the common-wealth before he come out of the womb , post humus pro nato habetur : so its empire may take away the life a long time before a man die . it may preveen his death , and chase him out of the world before death overtake him , which is likewayes confirmed per l. si quis . § . sed & si quis ff . de injust . sed & si quis fuerit capite damnatus , vel ad bestias , vel ad gladium ; vel alia pena quae vitam adimit , testamentum ejus irritum fiet , non-tunc cum consumptus est , sed cum sententiam passus est , nam penae servus efficitur . let us now see if this way of reasoning drawn from the roman customs , can be brought home to our french practique . lawyers who designed to found the principles of their true philosophy , upon maxims , real , solid , and constant , were too clear-sighted to force their lawes to discharge their revenge upon an image , and an apparition , to take the shadow for the body , and in supposing the name of a criminal for his person , thereby to challenge their judges of want of power and precipitancy ; and therefore they did not allow , that a person who is absent should be condemn'd , and that the law should in vain spend its thunder upon those whom it could not reach : l. . ff . de requirend : reis . since then the law of the romans , could not condemn capitally a criminal who was contumacious , it was easie to them to believe that a prisoner who was present and fetter'd , did instantly receive that death to which he was condemn'd . but since our statutes ordain a painted and imaginary execution , either our statutes and customs must confess their weakness , and quite these as a meer mumries , or els they must necessarily obliege us to believe these appearances to be realities , and essay to verifie these civil lyes , in forcing us to believe that these painted executions are real ; that the originals of those infamous pictures are no more alive , and that res judicata pro veritate habetur . if the power of a roman pretor was sufficient to beget a child in spight of truth , and nature it self , plane si denuntiante muliere , negaverit ex se esse pregnantem , tametsi custodes non miserit , non evitabit quominus quaeratur , an ex eo mulier pregnans sit , quae causa si fuerit acta apud judicem , & pronuntiaverit cum de hoc agetur , quod ex eo pregnans fuerit nec ne in ea causa esse ut agnoscere debeat , sive filius non fuit sive fuit , esse suum , l. . § : ult . ff . de agnosc . liber . or may force a mother to disown her child , which is really hers ; sive contra pronuntiatum fuerit , non fore suum , quamvis suus fuerit , placet enim ejus rei judicem jus facere , l. seq . ff . eod . by much more reason , may a general law and custom universally receiv'd , force subjects so far to obey their judges , as to believe that a woman strangled and burnt has lost her life upon the scaffold , where she has been so publickly and tragically executed . it is then more just to presume , that this woman who is condemn'd is dead without children , and that her execution has purify'd the condition , then that the pursuer should attend her death , should search out her wandering person , which lurks under so much shame , and pursue her in her flight and banishment through countries , which are either unknown , or in enmity with ours ; and therefore i conclude , that it is most just to put the pursuer in possession of the estate . i have essayed thus to answer the former pleading , because there is no answer to it extant in the french , and because such cases may with us frequently occurr . the greatest glory of art is , that it can imitate nature ; and every thing which forces nature , is hated by men , as folly and affectation ; but amongst all those arts which follow nature , law is the chief , for it being the chief product of reason , it endeavours most to resemble nature , reason and nature being in man the same thing vary'd under diverse expressions , and reason being mans nature . and thence it is , that the law plyes all its constitutions to the several degrees of nature , and observes it exactly before it begin to form a statute relating to it , propter naturam statuitur aliter , quam statueretur alias , gl . ad . l. julianus , ff . si quis omissa causa ; though it appoints that consent should obleidge , yet it excepts minors , because of the frailty of their nature ; though it appoints murder to infer death , yet it pardons such as are idiots , or furious ; it doth in dubious cases prefer that interpretation which is most suitable to the nature of the thing contraverted , it presumes illud inesse , quod ex natura rei inesse debet : and it has very well ordain'd , that ea quae dari impossibilia sunt , vel quae in rerum natura non sunt , pro non adjectis habentur , l. . ff . de reg . jur . since then there is nothing so unnatural as to force us to believe , that a person who is really alive , is truly dead , and that the children which a woman may bring forth shall not be her children ; i see not with what appearance of successe the substitutes can in this case aspire to the succession now craved . nature has a fixt beeing , and men know what it determines by consulting their own breasts , and think themselves happy under the protection of what is sure , and determin'd ; but if it were allow'd that law might vary , and that lawyers might invent such fictions as these , and by them impose upon others , who not being of their profession could not follow all their subtilties , and windings ; then law should become a burden , and be esteem'd an illusion . and i imagine i hear those amongst whom this woman lives , laugh at this discourse , which would force them to believe that she is dead ; and i am sure that any country-clown may refute it , by presenting the woman , as one refuted a wise philosopher , who maintain'd , that there was no motion , without any other argument , then by walking up and down . the question then being , whether the condition , si sine liberis decesserit , is purified by a civil death , and if immediatly after she is burnt in effigie , she can be said , sine liberis decessisse , so that the person substitute may immediatly succeed , and exclude any children she shall thereafter bear , or if the substitute must attend her natural death . that the substitute cannot succeed immediatly after her being burnt , but that any future children would seclude him , so that a natural only , and not a civil death , purifies the condition , is contended by these reasons ; first , the question being , whether this condition , si sine liberis decesserit , respects natural , or civil death ; we must interpret the word death , so as that we follow the more genuine and natural signification ; and i am sure , the ordinary and genuine interpretation of death , is a natural and not a civil death . . if we look to the meaning of the disponer , which is the next rule to be 〈◊〉 in the interpretation of dubious and equivocal words , we will find , that it is hardly imaginable , that the disponer dream'd of a civil death ; and it is most certain , that any man , especially who was not a lawyer , would never have figur'd a civil death ; nor is it deny'd , for fictio is mens legis , non disponentis . but how unsuitable were it to natural equity and the principles of law , that the will of the disponer should not regulat what is dispon'd ? or why should the law dispose upon what it did not bestow ? . words are to be explain'd in a disponers will , as the disponer would probably have explain'd them himself , if the meaning had been contraverted at the time of making the disposition ; but so it is , that if it had been proposed to the disponer , whether the children of the woman institute should be cut off , in case their mother should commit a crime ? it is probable that he would not have punished poor infants , for a guilt to which they were not accessory ; and the law was never more generous , then when it said , non competere beneficium inofficiosi testamenti post-humis , cum exhaeredationis causam comittere nequeant , nec debent alieno odio praegravari , l. . § . . c. de inoff . test . nor is it imaginable , that the testator would have taken from them what he designed , because they sell , without their own guilt , in a condition , which made that which was but liberality to become charity : and since he designed this for their mother and them , to supply their wants , it is not imaginable he would have taken it from them , when their wants were greatest . the children would likewise still continue to be nearer to the disponer , then the substitute , nam jur a sanguinis nullo jure civili adimi possunt ; and since the blood-relation gave at first the rise to that nomination , it is probable , that the effect would not be taken away whilst the cause continued . . if she can have children after her being burnt in effigie , she cannot be said decessisse sine liberis , upon her being burnt in effigie ; but i subsume that she may have children , and such too as the law would acknowledge to be children : for by the . nov. cap. . marriage is declar'd still to subsist , notwithstanding of any interveening criminal sentence , for though by the old law , condemn'd persons pro nullis habebantur , and so the marriage was dissolved , yet by that excellent constitution this was abrogat , si enim ex decreto judiciali , in metallum aliquis , aut vir , aut mulier , dari jussus esset , servitus quidem erat & ab antiquis legislatoribus sancita & ex supplicio illata , separabatur vero matrimonium , supplicio possidente damnatum , sibique servientem . nos autem hoc remittimus , & nullum ab initio bene natorum ex supplicio permittimus fieri servum , neque enim mutamus nos formam liberam in servilem statum , maneat igitur matrimonium hoc nihil tali decreto laesum . since then her husband continued to be so still , and that the law would acknowledge the children to be hers , would not the law contradict it self , if it should say that she died without children , and yet should acknowledge that these were her children ? . post-humus pro jam nato habetur , ubi de ejus commodo agitur ; and therefore , by the same reason of justice and equity , the law should be so far from presuming , that there can be no children born after the mother is condemned , that if she shall bear any , it should rather presume them to be already born , to the end they may not be prejudged of the succession which would be otherwise due to them ; and if posthumus habetur pro jam nato , ubi agitur de ejus commodo , much more should he be presumed natus , ubi agitur de damno vitando ; for we are much more favourable in damno vitando , quam lucro captando . . by the roman law , auth bona damnatorum , c. de bon . prescript . the goods of condemn'd persons were not confiscat in prejudice of the ascendents , or descendents , to the third degree , except only in the case of lese-majestie . if then the crime be not able to seclude children , it follows necessarily , that children quo ad their succession , are in the same case as if the crime had not been committed , and if the mother had committed no crime , here there had been no place either for the substitute , or for this question . it is just that delict a s●●s debent 〈◊〉 authores ; and that since punishment is only justified by the preceeding guilt , that the punishment should not exceed the guilt , and that the right designed for the children by the first disponer , should not be taken away from them by the mothers fault : this were also to adde affliction to the afflicted , to make poor infants loose with their mother , their patrimony , and to impoverish them most , at an occasion , when to give them were charity . i confesse that law sometimes doth recede from nature , and invents pretty fictions , as in the cases propos'd of jus postliminij , adoptionis , and legis corneliae ; but it doth so , very sparingly ; nor are these fictions ever allow'd , except where they are introduc'd by an expresse law ; for the law thought it not reasonable to allow every judge or lawyer a liberty to coin his own caprice into a fiction , lest so , unreasonable fictions might be introduc'd , and lest the people might be ignorant of what they were to follow . since then the pursuer founds his strongest argument upon this as a priviledged fiction , he must instruct that this fiction is founded upon expresse law , and even in these fictions , law neyer inverts nature , but rather seconds it , and it makes not nature bow to these , but these to nature ; and amongst many other instances , this is clear by adoptions , wherein the younger cannot adopt the elder , because it were against nature saith the law , that the younger should be father to the elder , inst. de adopt . § . . minorem natu majorem non posse adoptare placet , adoptio enim naturam imitatur , & pro monstro est , ut major sit filius quam pater . and i may by the same reason say , that it were monstruous to imagine , that she who may really labour in child-birth , and who really may give suck cannot bring forth a child , but is dead ; and that the law should not own as children , these whom the church owns as such . and in these fictions which are allow'd , we will find upon exact inquiry , that law has not designed to overturn nature , but only has made bold by these fictions to dispense with some of its own solemnities , as is clear by the law cornelia , wherein the romans did by that legal fiction imagine , that he who died in prison amongst the enemies in a forreign countrey , died at rome , and at freedom , meerly that they might by that fiction render valid the testament of him who was a prisoner , for the honour of their common-wealth ; and whose testament could not have subsisted without this fiction , seing none but a free citizen could amongst them make a testament . since then there is no need of such a fiction as this , and since there is no expresse law introducing it specifically in this case , there is no reason that it should be allowed to take away the benefit of the disposition from the person substitute , which it gave not . nihil tam naturale ( sayes the law ) quam eo genere quidque dissolvere quo colligatum est , l. . ff . de reg . jur . since then the children owe not their succession here to the civil law , but to the will of the disponer , the law should not by its fictions , take away what was not at first the effect of its liberality . in the cases where the law allow's fictions , it allow's them only for to strengthen natural equity , and not to overturn it , and by the definition given of it , it is said to be indubitatae falsitatis pro veritate assumptio , in casu possibili , & ex justa causa proveniens , ad inducendum juris effectum equitati naturali non repugnantem . jason . ad l. si is ff . de usu-cap : upon which definition no subsumption can be founded here , for not only is not this in casu possibili , because it is impossible , that a person can be both dead and alive at once , and that children should be , and not be , verum est , neque pacta , neque stipulationes , factum posse tollere , quod vero impossibile est , neque pacto , neque stipulatione potest comprehendi , l. . ff . de reg . jur . but it is also repugnant to justice and equity , that the estate destinat by the disponer to his blood-relations should be taken from them , and given otherwise then he would have bestowed it himself ; and though the law doth sometimes in favours of children , obliege us to believe , that the child that is in the mothers womb is born , there is some foundation for imposing that upon us , since there is a child extant though not born ; yet it never uses that liberty in punishing poor infants , and to condemn them before it can know them , or that they have transgressed . in answer to the second classe of arguments , i do confesse , that it is true , that all civil rights should perish by a criminal sentence , and that in sensu civili , pro nullo habebatur damnatus ; but it is as true , that ea quae sunt juris naturalis were not thereby taken away , quod attinet ad jus civile , servi pro nullis habentur , non tamen et jure naturali , quia quod ad jus naturale attinet omnes homines aequales sunt , l. . ff . de reg . jur . but so it is , that to bear children is in her no effect of the civil law , but of the law of nature , and the children to be procreat by her , will be her children by the law of nature ; so that since she can bear children , she can yet fulfill the condition of the institution ; nor can she be debarr'd from that by being serva penae , at least her children cannot , seing they are not condemned by her sentence : condemnatory sentences take only from the person condemned what may belong to the fisk , for it substitutes the fisk in place of the person condemned , but it takes not from him what cannot belong to the fisk . ea sola deportationis sententia aufert , quae ad fiscum perveniunt ; but so it is , that it was never designed , that the fisk should succeed in place of the person to whom the disposition was made , as is acknowledged by the substitute who now craves preference ; and if the fisk would be preferr'd to the womans children , much more would he be preferr'd to their substitutes , who succed only to them . and the reason of the decision , l. ex . facto . ff . ad . sc. trebel . is not founded in odium of the children , but of the fisk , maxime cum etiam bona , cum sua causa fisco sunt vindicanda . but the solid answer to that , and all these other laws , is , that by the old roman law , damnatus erat servus penae , & servus penae parere conditioni non p●terat , & pro nullo habebatur ; and therefore , by that law , parere conditioni non poterat , as is clear by the law cited : but justinian did abrogat that amongst many other unreasonable fictions , and by nov . . cap. . this servitus penae is clearly abrogated , and therefore since the foundation of the decision is taken away , the decision can now no longer take place , and by all the laws in christendom , those servitudes are now abrogated ; and our blessed saviour has by his coming to the world , set mankind at liberty in all respects , and we can be slaves to nothing now , but to our vices . nor doth the law look upon a person condemned , as a dead person , in all respects , which is the third great foundation of all that is pleaded against my client ; for it allowes her to propone her just defences , and it would punish him who kill'd her upon a privat revenge ; it would acknowledge her children to be lawfull , and untill she be really dead , her husband could not marry another : for though the law , to deterr men from committing crimes , doth oftimes raise its terrors by civil fictions , yet it is the nature of these civil fictions , that they cannot be strech't de persona in personam ; though then it will not allow such to be thought still alive who are struck with it's thunder , yet this fiction reaches only to the offender , in so far as concerns her civil capacities , and the punishment of her guilt ; and therefore seing the blood is not tainted by this sentence , she not being here condemn'd for treason , which is the only crime that taints the blood , her children , though born after the sentence , would still succeed to her , and since they would be acknowledged to be her children , she cannot be said decessisse sine liberis : which is the condition upon which the substitute craves to be prefer'd . the parliament of burgundy found , that a natural death could only purifie this condition , si sine liberis decesserit . for haining , against the fishers upon tweed . first pleading . how far a man may use his own , though to the prejudice of his neighbours . haining being prejudged by a lake which overflowed his ground , and which by its nearness to his house , did , as is ordinar for standing waters , impair very much the health of his family : he did therefore open the said lake , whose waters being received by whitticker , did at last run with whitticker into tweed . the fishers upon that river , pretending that the water which came from that lake , did kill their salmond , and occasion their leaving the river , do crave that haining may be ordain'd to close up that passage . this being the state of the case , it was alledged for haining , that since men had receded from that first community , which seem'd to be establish'd amongst them by nature , the law made it its great task , to secure every man in the free and absolute exercise of his property , and did allow him to use his own as he thought fit , and whatever did lessen this power and liberty , is by the common law term'd a servitude , or slavery : nor can a servitude be imposed upon a man without his own consent , and suitably to this principle , every man may raise his own house as high as he pleases , though he should thereby obscure the lights of his neighbours house : or if i should abstract from my neighbours ponds , that water which formerly run into them from my lands , the law doth not think him prejudged , nor me oblieged to prefer his conveniency to my own inclinations , as is clear by l. . ff . de damno infect . for as that law very well observes , he is not prejudged who looses a benefit which flow'd from him who was no way tyed to bestow it , l. . ff . de dam. infect . proculus ait , cum quis jure quid in suo faceret quamvis promisisset damni infecti vicino , non tamen eum teneri ea stipulatione : veluti si juxta mea adificia habeas aedificia , eaque jure tuo altius tollas , aut si in vicino tuo agro cuniculo , vel fossa aquam meam avoces . quamvis enim & hic aquam mihi abducas , & illic luminibus officias , tamen ex ea stipulatione actionem mihi non competere : scil . quia non debeat videri is damnum facere , qui eo veluti lucro quo adhuc utebatur , prohibetur : multumque interesse utrum damnum quis faciat , an lucro , quod adhuc faciebat , uti prohibeatur . and if i dig a well in my own house , which may cut off those passages whereby water was conveyed to my neighbours well , one of the greatest lawyers has upon this case , resolved , that my neighbour will not prevail against me ; for , saith he , no man can be said to be wrong'd by what i do upon my own ground , for in that i use but my own right ; l. . § . ff . cod . in domo mea puteum aperio quo aperto venae putei tui praecisae sunt , an tenear ? ait trebatius , me non teneri damni infecti , neque enim existimari operis mei vitio damnum tibi dari , in eare , in qua jure meo usus sum : where the gloss observes , that in suo quod quisque fecerit , in damnum vicini id non animo nocendi facere presumitur . and if by a wall or fence upon my land , the water was kept from overflowing my neighbours land , i may throw down my own fence , though my neighbours land be thereby overflowed , l. . ff . de aqua pluvia ; and therefore , seing the ground doth belong to haining , and that the fishers of tweed have no servitude upon him , he may use his own as he pleases , especially seing he doth not immediatly send his water into tweed , but into another rivolet , which carryes it very far before it doth disgorge there . so that if the fishers upon tweed did prevail against haining , they might likewise prevail against all , from whose ground any moss-water runs into tweed , though at fifty miles distance ; and they may forbid all the towns from which any water runs into tweed , to throw in any excrements , or any water employed in dying , lest it prejudge their salmond-fishing ; whereas , alteri prodesse , ad liberalitatem , non ad justitiam pertinet . it is ( my lords ) referr'd to your consideration , that publick rivers have been very wisely by providence , spread up and down the world , to be easie , and natural vehicles for conveying away to the sea , ( that great receptacle of all things that are unnecessar ) excrements , and other noxious things , which would otherwayes have very much prejudg'd mankind ; and that they may the better perform this office , providence has bestow'd upon rivers , a purifying and cleansing quality , so that after a little time , and a very short course , all that is thrown in there , doth happily loose their noxius nature , which is washt off by the streams by which they are carryed . rivers are natures high-wayes by water , and we may as well forbid to carry any thing which smells ill , upon our high-wayes by land , as we may forbid to throw in stinking waters into our rivers . the proper use of rivers is , that they should be portable , and fit for navigation , or for transporting things from on place into another ; and salmond-fishing is but an accidental casuality , and therefore the only interdicts , or prohibitions propon'd by the law , relating to publick rivers are , ne quid in flumine ripave ejus fiat , quo pejus navigetur , tit . . lib. . and , ut in flumine publico navigare liceat , tit . . ff . eod . lib. but in rivers that are not navigable , the law has forbidden nothing , but that their course and natural current be not alter'd , ne quid in flumine publico fiat , quo aliter fluat aqua , atque uti priore estate fluxit , tit . . ibidem . so that since the law doth not forbid the throwing in any thing into publick rivers , it doth allow it ; for it is free for every man to do what the law doth not prohibit , and if upon such capricius suggestions , as these , men were to be restrain'd from using their own , no man should ever adventure to drain his land , to open coal-sinks , or lead-mines , or to seek out any minerals whatsoever , whose waters are of all other the most pestilentious , because after he had bestowed a great deal of expense , he might be forc'd to desist , for satisfying the jealousie , or imagination of melancholy , or avaritious neighbours . and if this pursute find a favourable hearing , malice and envy will make use of it , as a fair occasion whereby to disturb all successfull , and thriving undertakers . but your lordships may see , that the world , both learn'd and unlearn'd , have hitherto believ'd , that such a pursute as this would not be sustain'd , in that though interest and malice did prompt men to such pursutes , yet not one such as this has ever been intented , for ought i could ever read , save once at grenoble , where an advocat did pursue a smith to transport his forge from the chief-street , because it did by its noise disturb not only him , but the people who frequented that street ; from which pursute the smith was absolv'd , as expilly observes in his pleading . yet , my lords , the fishers upon tweed want not some apparent reasons which give colour to the pursute ; and it is urg'd for them , that no man is so master of his own , but that the common-wealth has still an interest with him in it , and law being invented to protect the interest of societies , as well as to secure the property of privat persons , therefore though every privat man inclines to satisfie his own humour , and advantage , in the use of what is his own , yet it is the interest of the common-wealth , that he do not abuse his own property ; and therefore it is , that the law doth interdict prodigalls ; nor will the law suffer that a man use his own in emulationem alterius , . l. . ff . de . oper . pub . and a man is said to do any thing in emulationem alterius , when others looses more by what is done , then the proprietar can gain : as in this case , though quilibet potest facere in suo , yet non potest immittere in alienum , which is their case ; and all the arguments brought for haining do not meet , seing they only prove , that a man may use what is his own as he pleases , ubi nihil immittit in alienum ; as is clear by the instances given , of throwing down his own wall , or the digging up a well in his own land , which differs very much from our case , wherein haining doth pour in his poysenous water into the river of tweed . that men are restrain'd for the good of the common-wealth in the use of their own property , is very clear from many instances in our law , as men are discharg'd by acts of parliament to burn mures , to kill smolts ; the way and manner of fishing upon lochleven is prescribed to the heretors , by act of parliament , and men are forbidden to steep lint by publick acts likewayes . likeas , the common law will not suffer men so to use water running through their own land , as that they may thereby prejudge milns belonging to their neighbours , which use to go by that water , and whatever may be alleadged in favours of any innovation in running waters , yet lakes being appointed by nature , seem to have from nature a fix'd beeing ; nor should they be opened to the prejudice of others , contrary to their nature . these objections may , ( my lords ) be thus satisfied . to the first , it is answer'd , that the only two restrictions put upon men in the free exercise of their own , are , ne in alterius emulationem fiat , vel materiam seditionis prebeat , as is clear by the foresaid , l. . ff . de oper . pub . neither of which can be subsumed in this case . and when the law considers what is done in emulationem alterius , it acknowledges , illud non factum esse in emulationem alterius , quod factum est principaliter ut agenti profit , & non ut alteri noceat , l. fluminum . ffin . ff . de dam. infect . and the gloss formerly cited upon that law determines , that animus nocendi is not presum'd , if any other cause can be assigned : and in this case , haining can ascribe his opening this lake , to the prejudice it did to his land , and to his health , whereas it cannot be alleadg'd , that he ever exprest any malice against the fishers upon tweed , many of whom are his own relations . as to the instances given , wherein the law doth restrict the free use of property , the principle is not deny'd , but it is misapply'd . for the law only bounds the proprietars power in some cases , wherein his loss may be otherwayes supplied ; as in mureburn , and killing of smolts at such a season of the year , and in steeping lint in running waters , which may be as commodiously done in standing pooles ; but these pursuers crave this lake to be stopt at all times , nor is there an apparent reason here as there , this pursuit being sounded only upon a conjectural prejudice , and in these cases , the prohibition is made necessar by the generality , and frequency of occurrences , and yet though so circumstantiated , there is still a publick law necessar . and when a publick law discharges the free exercise of property , it ordains him in whose favours the prohibition is , to refound his expences who is prohibited : nor is the common-wealth here prejudg'd so much by this , as it would be by the contrare , for thereby all coal-heughs , lead-mines , and the winning of other minerals would be discharg'd ; whereas it is uncertain if this water chaseth away the salmond , which are at best but a casuality , and which will go but from tweed to other rivers in scotland , for they cannot stay in the sea. salmond-fishing is but an accident to rivers , but there being the common porters is their natural use . thus ( my lords ) you see that we contend for what is natural to rivers , they for what is but casual ; we are founded upon the nature and priviledge of property , they upon meer conjectures . the lords enclin'd to sustain hainings defence ; but before answer , they granted commission for examining upon the place , what prejudice was done . for the viscount of stormont , against the creditors of the earl of annandail . second pleading . whether a clause prohibiting to sell , will prejudge creditors . the deceast viscount of stormont , having by his majesties favour , and his own industry , acquired the lordship of scoon , he did tailie the same to mungo viscount of stormont , and the heirs-male of his body ; which failing , to john earl of annandail , and the heirs-male of his body ; which failing , to andrew lord balvaird , and the heirs-male of his body ; and to prepetnat his own memory , as the reward of his industry , he did cause insert this provision in the charter and seasine , viz. that it should not be lawfull to the said mungo , to dispone , or wodset any of the saids lands so tailied , or to do any deed whereby the saids lands might be evicted or apprised from them , without the consent of all the persons contained in that tailzie , or their heirs ; which if they contraveened , that they should , ipso facto , loose all right or title to the saids lands , and the right should accress to the next heir . the late earl of annandail , having very profusely and unnecessarily , spent not only his own estate , but likewayes contracted debts , for which the lordship of scoon is apprised , this viscount of stormont , as immediat heir of tailzie , craves that it may be declared , that the right to the said lordship of scoon is devolved upon him by the forsaid contravention , and that he should enjoy the said estate , free from any debts contracted by the earl of annandail . though this pursuit appears clearly to be founded upon the express will of the first disponer , who as he might not have disponed , so might have qualified his disposition with any conditions he thought fit ; and albeit such clauses as these tend effectually to preserve illustrious families , yet the creditors of the late earl of annandail do alledge , that though this his contracting of debt may furnish action against the earl of annandails heirs , for any prejudice they can sustain by his contraveening the foresaid provision , and though by vertue of this pactum de non alienando , all the persons in the tailzie were bound up from selling the saids lands ; yet no paction , nor provision could annull debts , which were bona fide lent by them , to a person who stood in the fee. which defence they urge by many specious reasons ; as first , that there is nothing so contrary to the nature of domintum , and property , as that he who is proprietar should not have the free exercise of his right and property , which free exercise consists in the liberty to alienat , and to make use of what is his own , for defraying his just debt , and answering his necessar occasions ; and they pretend , that it were most absurd and inconvenient , that a person should be raised to the title and dignity of a noble-man , and should be confest by the law , to have an absolute right to an estate , and yet that though he were captive in the turkish gallies , he should not be able to raise money for redeeming himself from that bondage ; and which seems yet more repugnant to the inclination , and interest of the disponer , that if a fine were imposed with assurance , that if the fine were not payed , the estate should forfeit , yet the proprietar behoved idly to stand , and see the estate sink . and though an advantagious occasion offered of buying his own superiority , his multers , or any such advantage ; yet the heir of tailzie could not raise money for that use , nay nor for alimenting himself , if the rents perish'd by war , or other accidents . this is to have , and not to have an estate , a paralitick property , and an useless right . to allow , that such a clause in a charter , might annull all the debts contracted by him to whom it is granted , were to destroy and ruine commerce , which is the very soul of a common-wealth , and which by how much it is incumbred by unexpected clauses , is by so much impared and burdened . commerce doth oftimes require speedier returns , and dispatch , then can allow a serious consideration , of all the securities and evidents of those , with whom we deal ; neither are these alwayes ready to be produced , nor doth the law in what relates to commerce , consider all that a lender may do for securing himself , but what is ordinarily done ; and it is most certain , that the most exact men do not enquire into the securities of those with whom they contract in lending money ; and though something may be pleaded in favours of ordinary clauses , which either law , customes , or decisions have allowed , yet it were extraordinarily prejudicial to commerce , to make a man forfeit his sum , because he did not guard against pactum de non contrabendo debitum , a paction as unsuitable to the nature of propriety , as unusal in this kingdom : and though the legislators do in some places allow such pactions as these , as is clear in lege majoratus in spain , yet they are made tollerable there , because being introduced by a publick law , they are universally known , and he who contracts with persons so prohibited there , forfeits his sum , because he neglects a publick law , and not because he contemns the privat prohibition of a disponer . nor are such pactions as these to be so severely observed , as necessar for preserving noble families , and so fit for our kingdom , which subsists by these ; for if the nature of propriety were to be alter'd , in so high a measure , as it is by this paction , it could in justice only be altered by a publick law , wherein the estates of parliament ( who are with us only judges of what is convenient for the nation in general ) might declare , that it were fit to turn such a paction as this into a law : and since for so many ages , the parliament has not thought this fit , nor have privat families ever introduced any such pactions till now , we must either judge , that these are not fit for privat families , or that those understood not their own interest . as to strict law , whereupon this pursute is only founded , the creditors do represent , that though lawyers have allow'd pactum de non alienando , yet they have extended it no further , then to annull dispositions made contrary thereto ; but they never stretch'd it so far , as to annull all debts contracted by the person prohibited to dispone , l. ea lege , c. de condict . ob . caus . dat . . though they allow'd these prohibitions , quando inductae erant à lege , à judice , aut à testatore per ultimam voluntatem ; yet they did not allow so much favour to prohibitions , which are only founded super pactis viventium , as is clear by craig . l. primo diages . . omnes terrae , ( inquit ille ) in feudum dari possunt , nisi quae à lege , judice , aut testatore in ultima voluntate dari prohibentur . . lawyers do not allow , that such prohibitions as these , though resolutively conceived , should absolutely annull all alienations made by the person prohibited , except the prohibiter reserve some dominium and property to himself in the thing dispon'd , by vertue of which reservation , he has power to quarrel all deeds done , and the person to whom he dispones is because of that reservation , not so absolutely in the fee , or property , as that his disposition should be unquarrellable ; as is clear by bartol . and baldus , both ad l. sancimus . cod. de reb . alien . non alienand . where they conclude , quod si is cui promissum est , de non alienando reservavit sibi jus aliquod in re , hypothecae , vel dominij , impeditur translatio , aliter non , & etiamsi pactum adhibitum sit in ipsa traditione , & cum pacto resolutivo , tamen non impedit dominij translationem , sed illo casu alienans tenetur tantum ad interesse . and therefore , seing the disponer reserved no right to himself , but that the late earl of annandail was fully in the fee , it were against the principles even of strict law , that debts contracted by him should be annull'd , as contrary to the prohibition . . when a person is prohibited to alienat , that prohibition is still restricted to voluntar and unnecessar alienations , the design of the disponer being to curb such of his successors , as should be luxurious , but not to bind them up when frugal , in occasions that are necessary and advantagious ; and the law is content to own such pactions , in odium of such as have fed the luxury , or prey'd upon the simplicity of those with whom they contracted , without any design to vex commerce , or to preclude those successours from being relieved in their honourable and necessar occasions . prohibita alienatione , tantum voluntariae prohibitae censentur , non vero necessariae , necessitas enim legem non patitur , as reiters observes , tract . de alien . cap. . sec. . which may be further clear , per l. . ff . de pet . haered . & l. . § . . ff . de legat . . and suitably to this , though in our law ward-lands recognise if they be voluntarily dispon'd without the consent of the superiour , yet he is allowed to sell the less half of his lands without the superiours consent , which is allowed by the law to relieve his necessities ; and though he cannot voluntarily alienat the greater half , yet all the few may be apprysed from him by his creditors , for satisfaction of his just debt . and therefore , seing the late earl of annandail was known to be a judicious person , and to have lived very soberly , and that these debts can be instructed to have been contracted for relieving him out of the necessities unto which he was thrown by the iniquity of the times , and his constant adhereing to his majesty ; it is by these creditors pretended , that these debts cannot be annull'd , as contrary to that prohibition , which they neither did , nor were oblieged to know . and since our law has thought , that inhibitions and interdictions should be published , and registrat for putting the subjects in mala fide , it can never allow , that such clauses as these which are neither published , nor registrat , should produce the same effect . to these arguments , they add , that god almighty has oftimes testified his displeasure against such clauses , whereby , his providence is insolently bounded by vain man , who endeavours to build himself a babel against heaven ; and by which clauses likewise , man will endeavour to perpetuat his own memory here , and call his land to all ages by his own name , against the express advice which the scripture gives . i do confess , ( my lords ) that those specious pretences , especially when prest with so much zeal , and eloquence , may make impressions upon such as are not intimatly acquaint with the principles of law ; but i hope , where we have such judges as your lordships , there can be little hazard from such objections : but before i endeavour to satisfie these , i crave leave to lay out before your lordships , those grounds whereupon my client founds his pursute . it is an uncontraverted , and first principle of law , that quilibet est dominus , & arbiter rei suae , and therefore may dispose upon his own as he thinks fit ; nor can any thing less then a law bound the exercise of this power ; and every man being judge of his own conveniency , lawyers do very properly term the conditions adjected by a disponer , leges contractus , and the feudalists call the conditions under which a few is dispon'd , leges feudi ; feuda ( saith zasius ) à pactis contra naturam suam sunt transmutata , pacto praegravante naturam feudi : and albeit our law has defer'd very much to equity , and to the principles of the civil law ; yet privat transactions betwixt parties , are not to be limited by those : but pactions are to be observed amongst them in their full extent , as is ordain'd with us by an act of sederunt , . law may be receded from by privat pactions ; and therefore , much more must privat pactions bind where they are contrary to no express law : and since pactum in refamiliari aequipollet juri publico , reg. maj. lib. . cap. . & lib. c. cap. . it necessarily followes , that as a law or decision might have establish'd their pactions , de non alienando , & non contrahendo debitum , which is acknowledged by the creditors themselves , that a condition insert in a charter may do the same as effectually : and if the pretence of publick equity and commerce , might alter the destination of a disponer , or mutual pactions of privat persons , what uncertainty would this occasion in humane affaires ? or who could be secure , that the transaction he made , should hold ? for there are few men who do not differ in their conceptions about publick commerce ; this were to unhinge all privat pactions , which persons had at first suited to their own necessities , and inclinations , and to make judges who should be ty'd to a fixed rule , unrestrain'd arbiters , over the affairs and fortunes of the people : for they might , almost in all cases , recede from privat transactions , upon pretext that they are contrary to publick good , equity , or commerce . but if any conditions adjected by disponers are to be observed , surely those which are adjected in a free gift and donation are most to be observed ; and it is certainly contrary to reason , that he who needs not dispone his own land except he please , may not dispone it as he pleaseth . as the law hath been very tender of the interests of all proprietars , so of all others , it hath been most tender of those rights , whereby men have declared how their will should be obey'd , and their memory perpetuated after their death . law designing thereby at once to encourage men to be frugal , because they may know that what they have gain'd by their industry , shall be disposed of according to their will ; and to comfort men against death , because they may know that their will shall be as exactly execute , as if they themselves were still alive , uti quisque de re sua legassit , it a jus esto . the law in all contracts , considers most , what was the design of the contracters , and when any thing is dispon'd for a particular cause , when that cause fails , the disposition falls as causa data , causa non sequuta , & si ea lege donavi , defectus causae impulsivae resolutionem contractus inducit , quia ea lege donavi cum alias non essem donaturus , l. cum te . c. de pact . inter empt . that such pactions as these are very lawful , and ordinary , is clear both from the civil , and feudal law. for by the civil law , though there were tailzies , yet the romans had their fideicommissa , which did very much resemble them , and by which the person cujus fidei res erat commissa , could neither dispone nor impignorat ; and if he did dispone or impignorat , that person in whose favour the fidei commissum was granted , might not only pursue the disponer for damnage and interest , but might likewise annull what was done contrary to the trust , as is clear , l. fin . cod . de reb . alien . non alienand . sancimus , sive lex alienationem inhibuerit , sive testator , hoc fecerit , sive pactio contrahentium hoc admiserit , non solum dominii alienationem , vel mancipiorum manumissionem esse prohibendam , sed etiam usus fructus dationem , vel hypothecam , vel pignoris nexum petitus prohiberi ; similique modo , & servitutes minime imponi , nec emphytenseos contractum , nisi in his tantummodo casibus , in quibus constitutionum auctorit as vel testatoris voluntas , vel pactionum tenor qui alienationem interdixit , aliquid tale fieri permiserit . these clauses , de non alienando , & non contrahendo debitum , are most allowable by the feudal law , where such tailzies are called feuda gentilitia , & feuda ex pacti providentia ; yea , and by the feudal law , it was not in the power of him to whom it was first disponed , to alienat or affect the few , either in prejudice of the superiour , or of him who was next to succeed : and what is more ordinar with us , then such obligations in contracts of marriage ? sir thomas hope is of opinion , that a right granted to a man and his heirs , secluding assignayes , could not be comprised by a creditor ; and sure that exclusion is not so valid , as a clause irritant and resolutive , which is actus maxime explicitus & geminatus . from these principles , there do arise very natural answers to the alledgeances proponed for the defenders ; for whereas it is contended , that such restraints as these are inconsistent with property , it is answered , that there is nothing more ordinar then to qualifie propriety , as appears clearly by the nature fidei-commissi , pacti gentilitii , and very many other instances ; and even in our law , ward-lands cannot be disponed upon without the consent of the superiour ; and it is more contrary to the nature of property and dominium , that a man cannot dispone upon what is absolutely his own , under what restrictions and qualifications he pleases , then that he who hath only a qualified dominium , should be in a capacity to dispone absolutely , upon what was not absolutely his own . that maxim whereupon we found , that quilibet est moderator & arbiter rei suae , has no exception exprest in it ; whereas the definition of dominium insisted upon by them , which is , that it is jus de re sua libere disponendi , has an exception adjected to it , which is , nisi quis lege prohibeatur ; under which word lex , the doctors alwayes comprehend pactum , and to prevent all mistake , some do expresly say , nisi quis lege vel pacto prohibeatur : so that in vain do they found upon the nature of dominium , since the very definition of it doth contradict what is alledged . to the second difficulty , bearing that these clauses are destructive of commerce ; it is answered , that the liberty of disponing upon our own , as we think fit , doth more nearly concern us , then the liberty of commerce ; especially in this kingdom , which stands more by ancient families , then by merchants ; and therefore seing these clauses tend necessarily to perpetuat families , and the other doth only tend to the better being of trade , we ought to prefer the pursute to the defence . and to what purpose shall we gain an estate by commerce , when we cannot secure it by such clauses ? nor are these clauses destructive of commerce , as is alledged , more then inhibitions or interdictions , and it is easier to read a charter , then to try the registers ; and england and spain , which are more interested in commerce then we , have by allowing such clauses , evidently declared , that they think them not absolutely inconsistent with commerce . but the truth is , real rights are not the foundation of commerce ; for commerce is maintain'd upon the stock of personal trust , and the main thing which traffiquers relye upon , is the personal trust which is amongst them , and not the consideration of any real rights . i do not conceive my self oblieged to take much notice of the creditors being in bona fide to contract with the earl of annandail ; for if annandail had no power to burden that estate , their bona fides could not give it him ; nor could a creditor apprise from him that to which he had no right , no more then i can comprise one mans estate , for another mans debt : and if annandail had only given a back-bond , declaring that the estate was only in his person by way of trust , the creditors could not have apprised it for their debt , though they might likewayes have alledged that they were in bona fide to lend . for , the law considers only bona fides , where those who alledged the bona fides , did exact diligence , which these creditors cannot alledge ; for if these creditors did not at all call for annandails rights to scoon , they cannot be said to have laid out their money in contemplation of those rights , but in contemplation of his other estate , or upon the account of a personal trust ; or if they did call for those rights , they might have very clearly seen his prohibition , and consequenly would have been secured against lending upon the faith of this estate . whereas it is urged , that such prohibitions as these , are only allowed , when they are introduc'd by testament , by a law , or by a judge ; but not when they are introduced by contracts or dispositions inter vivos , it is answer'd , that if it be allowable the one way , it should be the other ; for the design is rather more deliberat in a disposition , then in a latter-will : for the one uses to be an act of health , and the other of sickness , and the one is as contrary to commerce as the other is : and if any weight be laid upon the favour allow'd by the law to ultima voluntas , upon the accout of consoling the testator in obeying what he designs , this favour is equally communicable to both , for in both there is a designation made of the way and manner of succession , in which a dying man is as much concerned , when he makes a designation by a disposition , as when he makes it by a testament ; and therefore , les substitutions contractuelles ont les mesmes . effects en france , que les testamentaires , dans la prohibition d'aliener , as lowet observes , tit . . num . . and for which he cites many decisions ; and where he observes very judiciously , that the reason why the roman law did not allow these substitutions , and prohibitions in contracts , as it did in testaments , was , because testaments was the only way amongst them of disponing upon estates , and of making substitutions , and fidei-commissa ; to make which was not allow'd by contracts , quia auferebant testandi liberam facultatem , which subtilty is not now allow'd in this age : for on the contrary , tailzies and contracts of marriage , are now the ordinary wayes of disponing estates , and if men might alter such destinations of contracts , such as do contract with them would be in a hard condition . nor is there more weight in that part of the alledgeance , which bears , that those prohibitions do only annull deeds done in favours of him who has reserved some right in his own person ; for tailzies with such prohibitions , do imply a reservation in favours of those who are to succeed , and the tailzie is in that case but a right of trust to the behoof of the family ; and the provision in their favours is equipollent to a reservation . the design of both is the same , and therefore they should both operat the same effect . discourage not , ( my lords ) such as love to be frugal , because they hope their estate may remain with their posterity ; encourage not such as resolve to shake loose , by their prodigality , what was establish'd by their wise predecessours : by favouring the creditors defences , you will but gratifie the prodigality of heirs , or the laziness of creditors ; whereas , by sustaining my clients pursute , you will secure us as to our own pactions , and as to your decisions ; you will perpetuat noble families , and bound the luxury of such as are to succeed . the lords sustain'd the pursute , and repell'd the defences propon'd for the oreditors . for the lady carnagie and her lord , against the lord cranburn . third pleading . whether tax'd-wards be lyable to recognition . my lord chancellor , the late earl of dirletoun having no children , besides two daughters , and having an estate consisting of lands in scotland and england , did very judiciously at first resolve to marry one of them in scotland , and the other in england ; and in pursuance of this design , he bestowed elizabeth the eldest , upon william earl of lanerick , secretary of scotland , brother to duke hamiltoun , but which was more , a person admir'd for his heroick vertues , and whose alliance was courted at any rate , by the most eminent families of both kingdoms . the younger of these daughters , named diana , was match'd thereafter to the lord cranburn ; and as the earl of lanerick could not but have justly expected all , or at least the far greatest share of that estate , so the lord cranburn could scarce have expected thereafter any thing above an ordinar portion : yet , such is the capriciousness of old men , that the earl of dirletoun did , in anno , . by the impressions of some who were inveterat enemies to the family of hamiltoun , dispone the lands of innerweek , fenton , &c. failing heirs-male of his own body , to iames cecil his grand-child , and the heirs-male of his body . his majesty finding , that the said estate was most illegally dispon'd to iames cecil , without his consent as superiour , they holding ward of him , and that he had thereby defrauded the just expectations of so worthy a person as the earl of lanerick , and so the lands recogniz'd by the said disposition , did gift the saids lands to the lord bargeny , for the behoof of the earl of lanerick ; upon which gift of recognition , there is now a declarator pursued by the lady carnagie , eldest daughter to the said earl of lanerick , who thereafter became duke of hamiltoun , wherein she craves , that it may be declar'd by you , that she has the only right to these lands . there are very many defences propon'd for the lord cranburn , which i shall endeavour thus to satisfie . the first is , recognition has only place in feudo recto & proprio , whereas these lands hold tax'd-ward , in which manner of holding , all the casualities are taxed to a very inconsiderable sum , which sum is designed to be the only advantage that shall accress to the superiour : and the reason why ward lands recognize when they are sold without the superiours consent , is , because the superiour having so great interest in the lands which hold by simple ward , as to have the ward and marriage of the vassal , the law did therefore obliege him not to alienat that land , without the superiours consent ; which reason ceaseth , where the ward is tax'd , the superiours interest becoming very inconsiderable by the tax : nor can it be imagin'd , but that the superiour , having dispensed with the great casualities of ward and marriage , has consequently dispensed with the said restraint , cui datur majus , datur minus , praesertim ubi minus inhaeret majori & est ejus accessorium . for satisfying which difficulties , your lordships will be pleas'd to consider , that our law appoints all ward-lands to recognize , if sold without the superiours consent , and makes no distinction betwixt simple and tax'd-ward ; the general is founded upon express law , and there is no express warrand for excepting tax'd-ward . . seing these lands could not have been fold before they were tax'd , by what warrand can they be sold since they were tax'd ? seing though the casualities of ward and marriage were tax'd , and thereby these casualities expresly remitted , except in so far as they are tax'd ; yet there is no power granted to sell , without the superiours consent : nor is that priviledge remitted by the superiour , et fendum alteratum in una qualitate , non intelligitur alteratum in aliis & actus agentium non operantur ultra concessa . . the power of selling without the consent of the superiour , is different from the casualities of ward and marriage , which are here only tax'd ; for fewholdings are oft-times burdened with this restraint , and this restraint was of old taken off expresly by warrands under the quarter-seal , without taxing the other casualities ; so that this priviledge differs from these , and the one cannot be comprehended under the other . the second defence is , that by the feudal law , recognition ob alienationem feudi est crimen , & delictum feudale , against which error , etiam probabilis ignorantia excusat ; as is clear , lib. . tit . . the words are , quod enim dicitur alinatione feudum aperiri domino , intelligendum est cum à scientibus alienatum est beneficium , which are the words of the said law : whereupon , socinus , reg . . though he do give it as a rule , that emphyteuta rem emphyteuticam vendens a jure suo regulariter cadit , conform to the civil law , l. ffinal . c. de jure emphyteutico , he subjoyns these words , fallit ubi emphyteuta venderet ignorans rem esse emphyteuticam ; and accordingly , craig , de recognitione , lib. . diages . . and in the case of disclamation , lib . diages . . layes down for an undoubted principle , that ignorantia crassa excusat feudalia delicta . and here , the subject of the question is not in jure , & in thesi , whether ward-lands should recognosce ; but in facto , & hypothesi , his right being of the nature , and in the terms foresaid , he might dispone without hazard , as to which , an error in him , who was an illiterat man was very excusable , especially having consulted peritiores , and having been assur'd by very eminent lawyers , that there was no hazard in disponing those lands , without the superiours consent , they holding tax'd-ward , which was sufficient to have defended him in feudo amittendo . to which it is answered , that ignorance of the law excuses no man ; and the case having been at best dubious , the vassal should not have hazarded upon what the law might construct to be a disowning of his superiour ; and since every man is oblieged to know the nature of his own few , the law doth presume , that every man doth know it , nam quod inesse debet , inesse presumitur ; and therefore , craig doth very well conclude , pag. . tit . de recognitione , that ignorantiam , pretendens vix audiendus est , cum sit crassa ignorantia , feudi sui conditionem ignorare : and though he observes there , that excusabitur , qui feudum suum non militare credidit , cum militare est ; yet , that cannot be extended to this case , wherein the vassal certainly knew that his few held ward : and though the law sometimes doth excuse a vassal , who had reason to doubt the condition of his own few , because of some mysterious clause , or because he was a singular successor , and had not recovered the writes of the few as to which he transgressed , or was necessitate to do the deed , for which he was challenged , by poverty , or such other occasions ; yet , that in the general , ignorance did not excuse delicta feudalia , is very clear by the opinion of the learnedest feudalists , laur. silv. de . feud . recog . quest . . praepos . in cap. . § . praeterea de prohib . feud . alienat . and in our law , it was never found , that ignorance did defend against recognition , the falling of an escheit , disclamation , &c. and if the superiour were oblieg'd to prove the vassals knowledge , it were impossible ever he could prevail in any pursute ; knowledge being a latent act of the mind , which can never be proven but by oath ; and to refer knowledge to the oath of the vassal , were not only to frustrate the superiour , but to tempt the vassal to commit perjury ; and albeit the feudal law did allow the vassal to purge his guilt , by deponing in some cases upon his design , yet that was only allow'd in cases where the external act was of its own nature indifferent , such as the speaking of contumelious words , that were to receive their genuine interpretation from the design of the speaker ; and that did never take place in clear acts , such as this is , wherein the vassal hath sold his few without the consent of the superiour . the thrid defence was , that where there is no contempt , there can be no recognition ; but so it is , that as the presumption of contempt is taken off by the constant tenor of the earl of dirletouns respect for his master , the king ; so the disposition is given to be holden of the king , and that implyes as much , as if it had been expresly provided , that the alienation should be null , if the superiour should not consent and confirm the same ; and such an express provision should have certainly , in the opinion of all feudalists , defended against recognitions . to this it is answered , first , that the clause , si dominus meus consenserit , doth not defend against recognition , though exprest , verbis geminatis , & pregnantibus ; and unless it be resolutively conceived , bearing that it shall not be valid alias , nec alio modo , and although all these cautions be adhibit , yet many feudalists are clear , that this will not defend against recognition , where the person to whom the few is disponed attains to possession , as cranburn here did ; for they think , that in that case it is but protestatio contraria facto , & plus valet , quod agitur quam quod simulate concipitur : and if this were sustain'd to defend against recognition , no few should ever recognize , for the vassal should still defraud his superiour of any advantage , by inserting a clause si dominus consenserit ; upon which considerations , your lordships predecessours have , by a decision the . of february , . found , that lands may recognise notwithstanding of this condition . . the disponing of lands to be holden of the superiour , is not equivalent to the clause , si dominus consenserit ; for the disponing lands to be holden of the superiour , prov●nit non ex facto vassali , sed ex natura feudi , & ex stilo ; all fews being given in scotland , to be holden either of the superiour or the disponer , à me , vel de me , as shall best please the receiver ; so that the disponing the lands to be holden of the superiour , doth not shew any clear design the vassal had to require the superiours consent , and consequently cannot defend against recognition . to fortifie this point , it is urged by the defender , that where there is no prejudice to the superiour , there can be no recognition ; and there is no prejudice to the superiour in this case , seing the superiours prejudice is either upon the account , that the vassal redditur pauperior , or that the disponing without the superiours consent obtiudes upon the superiour a stranger ex al ena familia & inimica ; whereas in this case , the disponer was not pauperior , having reserved his own liferent , and in effect , the bee it self , and power to burden the same , and contract debt , and alter the tailzie , and dispose of the estate notwithstanding of the same ; and the lord cranburn cannot be said to be a stranger , being descended of the earl himself , and being his grand-child . to this it is answered , that in law , all such persons as are not alioqui successuri , sunt extranei ex tenore investiturae , and by two express decisions related by p. spotswood and hope , it was found , that dispositions made to the brother or grand-child did infer recognition , though they were likewayes ex familia , nec licet ( saith craig , pag. . ) vassalo anum ex liberis suis eligere , sed vel naturae , vel juris ordo sequendus , vel domini electioni res est permittenda . the fourth alledgeance was , that only perfecta translatio domini , can infer recognition ; whereas the sasine here is null , because it is given to be holden of the superiour , and sasines of that nature are intrinsically null , quo ad omnes effectus , except the superiour confirm the same . to this it is answered , that si vassalus fecit omne quod in se erat , to alienat the few without the consent of the superiour , that alienation will infer recognition , though the alienation was null otherwayes , as is clear by craig , pag. . quod si traditionem vassalus fecerit , ea tamen sit invalida & nulla exempli causa si chartam dederit , de fundi alienatione tenendam de domino superiore , quam sasina sequatur . et dominus superior neque confirmaverit , neque ratam habuerit , videtur hanc alienationem nihil periculi secum trahere , cum conditionalis videatur & sub hac conditione contracta , si dominus ratam habuerit , aut confirmaverit , quae conditio , cum non evenit & alienatio nulla sit ex defectu consensus superioris , & paria sunt in jure omnino non fieri , & non jure fieri ; sed profecto in hoc casu puto etiam feudum domino aperiri , nam quandocunque vassalus id omne fecit & exequutus est , quod in se erat , licet factum illud de jure non teneat , tamen quatenus in se est , domini mutationem se velle testificatus est fidemque fregit : in hoc etiam casu a feudo cadet , licet alienatio nulla sit . suitable to which , baldus has very well observed , that licet alienatio sit nulla , ob vitium litigiosi feudum tamen fit caducum , quia in prohibitis non requiritur juris effectus , quod enim prohibitum est effectum sortiri nequit ; and if only effectual alienations could infer recognition , it could never be inferred ; for all alienations , to which the superiour doth not consent , are null , and by the act of parliament , . all seasines of ward-lands granted to be holden few , are declar'd null , and yet are declar'd to be the ground of recognition . and whereas it is alledged , that craig , pag. . relates the case betwixt mackenzie and bain , in which it was found , that lands did not recognise , because not registrat within fourty dayes . it is answered , that there the vassal non fecit omne quod in se erat , not having registrat the sasine timeously , and so the tradition was compleat ; nor did the person to whom it was disponed possesse in the case cited , the land disponed , as cranburn did in this : and by the opinion of rosenthal , capite . . conclus . . feudum ( inquit ille ) absque domini consensu aperitur etiamsi alienatio ex alia aliqua causa forte omissa solennitate legis aut statuti , aut simili , esset nulla modo possessio vera & actu tradita sit nam doctores in hac materia considerant prejudicium ipsius domini magis in traditione reiquam in alienatione . vide curtium , jun. de feudis , pag. . num . . whereas it is alledged , that the sasine is null , as given upon a general letter of atturney out of the chancellary , nor are general mandats sufficient in prejudicialibus , and that this sasine was given to a minor , who was extreamly laes'd . to both these , the former answers are oppon'd , wherein i have endeavoured to prove , that the alienation may be null , and yet may infer recognition ; our law considers not minority , as to casualities competent to the superiour , as is clear in the cases of non-entry and rebellion : and since the act of the disponer , is that which only infers recognition , it imports not what the condition of the person was to whom it was granted . it is also pretended , that the sasine is null , as being actus legittimus qui non recipit aiem , nec conditionem , l. . ff . de regjuris ; for since executione actus statim perficitur , its inconsistent that actus should be perfectus , & exequutus , and yet should be suspended upon a condition , as this sasine is , which bears , failing heirs-male of the earl of dirletouns body . to this it s answered , that this sasine cannot be call'd actus legittimus , that being ordinarily a term appropriat to judicial acts , whereas there is nothing more ordinar then that sasines should be conditional , as we see in sasines , given upon warrandise lands , and in sasines following upon wodsets ; nor is it denied that sasines may bear resolutive conditions , and if so , why not other conditions , these being of all others most severe ? nor have any lawyers written upon this subject , who have not divided sasines in puram & conditionatam . the fifth alledgeance was , that there can be no recognition where the vassal had power to dispone , and the earl of dirletoun had by his charter , power to dispone ; for these lands are disponed in his charter haeredibus & assignatis , which implies potestatem alienandi , which the defenders learn'd advoc●●s do found upon tit . . lib. . feud . si quis enim ea lege alicui feudum dederit ut ipse , & sui haeredes , & quibus dederint habeant qui sic accepit poterit vendere , vel alienare sine consensu domini ; for which likewayes they cite craig , dicta . diag . . clarus , hottoman and other feudalists . to this it is answered , that this general clause haeredibus & assignatis , is only meer stile , and the word assignatis is used here improperly , as it is used in bonds , in which a man binds himself , his he●●s and assignayes , whereas it is impossible for a man to bind his assignayes . argumentum a stilo is not still probative , especially in this age , wherein stiles are become too laxe , and in our eldest stiles , there is a luxuriancy , which deserves rather to be corrected , then allowed ; thus inhibitions forbid us to alienat moveables , and single escheits give right to reversions , albeit our law reprobats our stile in both these ; and this clause was not designed to import a liberty to alienat , for els there could be no recognition in scotland , seing all charters bear that clause , and such as have that clause have oftimes been found to recognise , & generales clausulae non extenduntur ad illicitum : and that by the feudal law , the word assignatis is not equivalent to quibus dederit , is clear ; seing the feudalists use no such term as assignati ; and in our law haeredibus legittimis , & assignatis , must not be interpreted as if it were equivalent to quibus dederit , but to that clause used by doctors , quibus legittime dederit ; and all feudalists are positive , that the clause quibus legittime dederit , implies necessarily that the superiours consent is still necessar . likeas , generalis clausula non extenditur ad prohibita ubi fieri potest congrua interpretatio ; but so it is , that the word assignati may be understood of comprisers , or of such to whom the vassal should dispone the lesser half of the few : so that when a few is granted haeredibus , & assignatis , it is lawfull for creditors to comprise that few , or for the vassal to dispone any part thereof , not extending to the half ; but that clause can never import , that it should be lawfull for him to dispone the whole , without the superiours consent , that being an interpretation which the parties themselves never designed ; and priviledges which are inherent in the nature of a few , ( as this is ) are never understood to be discharged , except where they are discharged expresly . the defender , my lords , hath told you , that he propones all these defences jointly , which may discover to you , how frail his own advocats judge these defences to be : arguments which are weak , being join'd , may by their mutual assistance plead pitty , but they can never astruct the proponers right , no more then many cyphers can make a number , nor many uncertainties a certainty : this is a shift which eloquence , not law , has invented , and may prevail with arbiters , but should seldom convince judges . the lords found , that these lands , though holding only taxt-ward , did recognize ; and repell'd also all the other defences . for alexander carmichael , against the town of aberbrothock . fourth pleading . how far the borrower in commodato estimato , is lyable , if the thing be lost , vi majore . when the town of dundee was so fortified , that its inhabitants had reason to expect security to the ships which lay under their walls , either by way of defence , or capitulation ; the town of arbroth did crave the lend of some cannons from alexander carmichael : but because the said alexander , as a burgess in dundee , might have expected from the foresaid garrison , or from his being able to sail his armed ship where he pleas'd , perfect security to his guns , he therefore refused to lend the same , till patrick wallace and other privat burgesses of arbroth should estimat the guns , and oblidge themselves to re-deliver the saids guns free from all skaith , harm , or danger , or els to pay the sum of . l. as the price agreed upon : and that in respect he foresaw , that the guns were not only lyable to great danger , ex sua natura , but likewayes because arbroth was a naked town , wanting walls , men , and skill ; and albeit the town of arbroth did owe to the saids guns the resistance they made to cromwels ships in three several attaques , wherein if they had wanted guns , there town had been burnt , yet so unjust are the saids patrick wallace , and others , that when the foresaid liquid sum is charg'd for , they suspend upon this reason , viz. that this contract is commodatum , & commodatarius non praestat casus fortuitos : but so it is , they subsume , that these guns were lost casu fortuito , in so far as the defenders endeavour'd to carry them to dundee ; but being beat in by cromwels ships , they were forc'd to bury them in sands , out of which they were raised and taken by those enemies . to which it was answered , that though in commodato simplici , commodatarius non praest●t casus fortuitos , yet in commodato estimato , it is otherwayes , which is most clear from l. . § . . ff . commodato , the words whereof are , et si forte res aestimata data sit , omne periculum praestandum ab eo , qui aestimationem se praestaturum receperit ; which holds not only in commodato , but in all other contracts , where any thing is estimat , as is clear in the general , by l. . § . . ff . de estimatoria , estimatio autem periculum facit ejus qui suscepit , aut igitur rem ipsam incorruptam debet reddere , aut estimationem de qua convenit : many instances of which general may be given in several contracts , but it shall satisfie me to name dos estimata , wherein it is very clear , that the valuing of things delivered , did obliege the receiver to re-deliver either the thing valu'd or its price , though the thing valued did perish casu fortuito , as is clear , l. . ff . de jur . dot . plerumque ( inquit ulpianus ) interest viri res non esse estimatas , ideo ne periculum earum ad cum pertineat maxime si animalia in dotem acceperit , vel vestem qua mulier utitur , eveniet enim si estimata sint & mulier attrivit ut nihilominus maritus earum estimationem praestet : which is also most clear , l. . § . . ff . de jur . dot . and if at any time the law relax any thing of this alledged severity , in favours of him who receives the thing valued , it is upon the account that the thing valued was delivered for the use and advantage , not of him who received it , but of him by whom it was entrusted ; as if in our case , my clients had entreated the citizens of arbroth to receive their guns , and had valued them at the delivery ; the law in that case , would not have burdened the receivers with the loss , where they gave no occasion to the lend ; but in the case where the thing valued was lent at the desire of the citizens of arbroth , and for their advantage , without any possible advantage for the lenders , in that case , which is our present case , the law doth in express words tye the receivers to re-deliver either the thing lent , or the estimation , l. . § . . ff . de estimatoria ; si margarita tibi estimata dedero ut eadem mihi adferes , aut pretium eorum , deinde haec perierint ante venditionem , cujus periculum sit ? et ait labeo quod & pomponius scripsit , si quidem ego te venditorem rogavi meum esse periculum , si tu me tuum , si neuter nostrum sed duntaxat consensimus teneri te hactenus ut dolum & culpam mihi praestes . nor can this be well doubted , if we consider the nature of estimation or valuing , and the design of these who enter into such contracts , by their estimating the thing lent . all lawyers and others are of the opinion , that commodatum becomes by estimation , anomolum & irregulare , and the estimation were to no purpose if it did not bind the receiver of the lend to more then what would follow , ex natura commodati simplicis ; and therefore , seing commodatarius was here liable ex culpa levissima from the nature of the contract , because the lend was given only for the advantage of the lender : it must necessarily be infer'd , that the receiver of an lend that is valued and esteemed must be furder liable , els there would be no difference betwixt a thing lent simply , and lent after it is valu'd , and consequently , the valuing before lending should operat nothing ; so that seing in an ordinar lend , the receiver would be liable in culpam levissimam , the receiver must be liable in casus fortuitos , where the thing lent is estimat before lend●ng , there being no case ultra culpam levissimam praeter casus fortuitos . . the lender did secure himself by a bond and the foresaid obligation , to restore the price , if the thing lent were not free of skaith , hurt or damnage . . if there was any thing ambiguous in this case , yet the clause behoved to be extended , ad casus fortuitus , and that must be thought to be the meaning of the parties from the following rules , whereby ambiguous contracts are to be interpret , viz. first , a write is alwaies to be interpret against the subscriber , who should impute to himself , that he did not clear what he intended , and it were unreasonable that his obscurity should be a snare to another person , scriptura semper est interpretanda contra proferentem . . that in reason should be constitute to be the meaning of the write , which if it had been treated of , had certainly been condescended to by all parties : but so it is , that if at the time of the lending of the saids guns , the lender had refused to lend them upon any other terms , then that he should have been secur'd against all events ; it is not to be imagined , that the borrowers would have hazarded their lives and fortunes , and the honour both of their country and town , for the hazard of pound ; and it is as improbable , that the lenders would have given the guns , they being stated under all the circumstances above narrated . . it may appear both from the circumstance of time , and the nature of the thing lent , that they foresaw the risk these lent guns were like to run ; for none but idiots would not have foreseen the same : and it were against reason to think , that a man would secure himself against an open and seen hazard , especially being to lend them to persons who behov'd to buy others , if they had not got the lend of those , and who would have bought these guns , if the lender would have sold them , and if they had been sold , the buyers had run all risks . to this it was replyed , that first commodatum estimatum was only so called , when the lender did estimate the thing lent , and did take the commodatarius only oblieged to restore not the thing lent simply , but either the thing or value , at the option of the receiver , as was clear , because the receiver might have oppon'd compensation against the lender , when he was pursuing for the thing lent , or might make use of the thing lent as he pleased , which was not our case ; because the receivers of the guns could not have retained the same , or have rejected compensation against the lender , though the lend had been damnified ; but it was in the option of the lender to have call'd either for the guns , or the estimation , and this estimation and value was agreed upon , to the end that the value might be repeated , if the guns were lost through negligence , or deterioration , but not if they were lost vi majore , or casu fortuito . . by the expresse words of the bond , the value is only to be restored in case the guns be damnified , but there is no provision made against their being lost , nor can that be presumed to be the meaning of the parties , because ille presumitur sensus verborum qui est rei gerendae aptior , and casus fortuitus is very contrary to the nature of commodatum . . this is not only casus fortuitus , but insolitus , to which no contract is ever extended , and this case of the cannons being taken out of the sands , could never have been foreseen , seing it is absolutely extrinsick , both to the use of cannons , and to the ordinar hazards of cannons ; and it was unusual and ominous for a scots man to provide against their being over-run by the usurpers . . these guns had been lost , if the lender had retained them , seing the usurpers , after the taking in of dundee , made prize of all their ships and guns . to which it was duplied , that the former law was oppon'd , bearing that the receiver commodati estimati in general suscipit omne periculum , and that is properly commodatum estimatum ubi intervenit taxatio pretii : and though there may be such a commodatum estimatum as is mentioned in the reply , yet , that omne commodatum estimatum is of that nature is denied , and seing the answer is founded upon an express and general law , it cannot be taken away but by a law as express , clearing , that there is no commodatm estimatum but in the case instanced in the reply . likeas the interpreters , and particularly faber , ad h. l. give instances of commodatum estimatum , in the case where the thing estimat is to be restored , and estmatio in general produces that effect of transferring the hazard as will appear , per l. . 〈◊〉 . . ff . de estimatoria ; by which it is likewayes clear , that if the thing it self be not given back , the estimation must be delivered , and that the estimation extends not only ad deteriorationem , sed etiam ad interitum . likeas in the general , estimatio is called a kind of vendition , as is clear by calvin , in his lexicon upon that word , and the citations there adduced ; and in venditions , the receiver undergoeth all hazard , and therefore he should run the same hazard in commodato estimato . as to the second , it is answer'd , that he who is oblieged to deliver any thing free from all hurt and damnage , is much more oblieged to deliver back the thing it self , for it is probable , that he who guarded against the lesse danger , would guard against the greater . whereas it is alledged , that this must be the meaning of the parties , the former rules are oppon'd , and it is added , that this case could never be called casus insolitus , nor fortuitus , in respect that is casus fortuitus which the skillfulest or wisest man could not foresee ; but so it is , every wise or prudent man might have , and could not but foresee this ; and the brokard rei gerendae aptior is only extended to regular contracts , but not to irregular contracts as this is , wherein it is confest , by both parties , that they intended to transgress the ordinar rules and nature of commodatum estimatum , and to wrest the nature of this contract to their particular case ; and certainly , sensus aptior rei gerendae at that time was , that the lender , who might have secured his own guns , and who was not oblieged to lend them , did design to secure himself against all hazards , when he caused estimat his guns ; else , why should he have caused estimat them ? and to the third , where it is alledged , that the raising of guns out of sand is not the hazard which guns ordinarily run ; it is answered , that the burying and sinking of cannons is very ordinar ; but it being foreseen in general , that these guns might perish by the usurpers , and in that quarrel , that was sufficient , though every particular circumstance was not foreseen : for if the guns had been stollen away by night , or had been taken in the return , certainly the receiver would have been lyable ; and yet that is not a more ordinar way of lossing guns , then this now instanced . to the fourth , bearing , that those cannons had been lost however ; it is answered , that the charger is not oblieged to debate what hazard they would have run , he having secured himself by a bond , as said is , and that might be aswell alledged in venditions , and yet none ever alledged , that the buyer did not run all hazards of the thing bought , and was not oblieged to pay the price , because the seller would have lost the thing sold , if it had remained with him : but the truth is , the skipper , nor no burgess of dundee wants any of those guns which were aboard in their ships at that time ; and it is probable , that though the ship and goods had been taken from this pursuer , he had none to blame but these defenders , who by borrowing his goods , dissabled him to venture to sea with his ship : nor can it be imagin'd , that the burying of goods in presence of the whole town , and leaving their carriages open to the usurpers , was exact diligence ; nor did ever the receivers , after the guns were taken away , either inform the chargers that they might do diligence , or make application to the usurpers for restitution , as dundee , st. johnstoun , crail , and other towns did ; and wherein they prevail'd so , that these defenders are not only lyable ad casus fortuitus ex natura commodati estimati , but for not doing exact diligence , ex natura commodati proprii . the lords found , that the borrowers were not lyable to pay the price , since the cannons were lost casu fortuito , & vi majore . for sir thomas stewart of gairntully , against sir william stewart of innernytie . fifth pleading . how fury and lucid intervals may be proven . the deceast sir william stewart , finding his daughter jean fit enough to marry , did provide her to a portion of twenty thousand merks ; in which , though he substitute sir william her brother and others , yet your lordships did , by a solemn decision find , that she remained still in the fee , and might have disponed , notwithstanding of the quality of the substitution , and therefore you did sustain a right and assignation made by her in favours of sir thomas her brother . sir william resolving rather to hazard the honour of his family and sister , then the loss of the sum ; did at last alledge , that the assignation was not valid , seing his said sister was furious , both before and after the granting of that right : whereas sir thomas , in maintenance both of his sisters honour , and of the right made by her to him , did contend , that she had dilucid intervals , and at the time when the disposition was granted , she was sanae mentis ; for proving of which , mutual probation was allowed to both parties , and the testimonies having been published , it is now alledged for sir william , that albeit your lordships had found that his sister was in fee , when the case was at first debated , without relation to the condition in which she was when she made the said right ; yet , though the substitution was found by your lordships not to be a sufficient ground to take from her the power of disponing , it behoved at least to qualifie the said power , as that she should not be allowed to dispone upon that sum expresly against the fathers destination , except she were proven to be a person of an entirely sound judgement ; and it behoved to be thought , that the father perceiving the frailty of her wit and spirit , did only design she should have an aliment during her life , but that after her decease , the sum provided should descend to the person substitute by himself . . furiosity is a disease which so disorders the judgement , that those who labour under it are in law accounted unfit to make any right , or to adhibit any consent ; and fury being once proven , is still presumed to continue : so that it being proven that this gentlewoman was once furious , in so far as she tore her cloaths , and did beat them who attended her , it must be presumed that this fury did continue , except this were taken off by a most pregnant probation , wherein she could be proven , not only to have done acts of folly during the time that she was about the compleating of that right , but that she had for a long time , both before and after , enjoyed not only adumbratam quietem , but an entire soundness of judgement , neither tainted with , nor clouded by that fury , which did formerly incapacitat her to make the right that is now quarreled . for all lawyers , and particularly zaccke●s , do distinguish betwixt a madness , which hath only remissionem , sed-non intermissionem , where simplicity continues when the fury ceases , and that fury which doth sometime totally recede : in the first of which they require , that the persons quorum furor est intervallatus , do not only actus sapienti convenientes , sed etiam actus sapientis , and that they shew not only a present madnesse , but that they testifie by a long tract of continued recipiscence , a sagacity , which proves that they are fully returned to the vigour of their judgement , and which is able to take off the presumption which lyes against them , that semel suribundus , semper furibundus prasumitur . whereas , in the case here contraverted , it s prov'd , that the said jean was at best of a very weak judgement , never able to converse with others , nor to administrate her own affairs ; and at the time she made the disposition , there is nothing proven which could have demonstrate her to have been in such a lucid interval , as might have sustained the act she was then doing , she having discours'd to no man at that time , nor so much as read the disposition , which no wise person would have omitted , and having contradicted her fathers express will , without gratifying any of her other relations . but before any distinct answer can be return'd to the former representation , your lordships will be pleased to consider , that the two greatest priviledges of mankind are , that by nature he is a reasonable creature , and that by law he may freely dispone upon what is his own ; whereas , this unnatural brother , designs to rob his sisters memory of both these allowances , and by denying her every thing that is fit for a reasonable creature , burdens himself to prove her a brute . somewhat is due to the modesty of her sex , more to the being dead , ( that great sanctuary against all malice ) but most of all is due to the name of a sister ; and therefore , seing by how much the danger is great , that may result from the probation , by so much the probation ought to be the more concluding and pregnant : it doth necessarily follow , that the probation to be deduced in this case , ought to be most conclusive , seing it tends to take away the greatest priviledges which were competent to the defunct , either by law or nature . and albeit our law allows not the depositions of witnesses , to prove in cases exceeding one hundred pounds ; yet , by this method , dispositions of the greatest consequence may be enervat , upon the depositions of witnesses , and that just law not only disappointed , but cheated : and what danger are we exposed to , when two fellows may , by their assertions , prove us to be mad , after our death , and thereby disfame our memories , and alter our destinations ? the settlement whereof , is the most serious earthly satisfaction which we have in that last agonie . it is very remarkable , that law puts a difference betwixt fatuity and furiosity . fatuous persons , whom we call idiots , are these who want spirit enough , tardi , bardi , moriones , maccarones , qui inopia caloris & spirituum laborant : but furious persons are such , as have too much heat and spirit ; and our law hath placed a distinction betwixt these two ; for though neither idiotry nor furiosity can regulariter be proven , otherwayes then by the cognition of an inquest upon b●ieves rais'd out of the chancellary , as is clear by craig , and by the . act. . p. j. . which inquest must consist of fifteen neighbours , who knew the person who is alledg'd to be furious or idiot , and who must call for that person before them , and examine her ; so zealous our law hath been for our honour , and so jealous of witnesses . yet , sometimes it hath permitted open and notorious fury to be proven after the death of the furious person , as in the case cited ; but no instance can be given , wherein fatuity or idiotry , was ever sustained to be proven after the idiots death : which was most reasonable , for idiotry consisting in the want of wit and judgment , which habitude is not subject to the senses , but must be inferred by conference and consequences , therefore it should not be sustained upon the depositions of witnesses simply , but upon the knowledge of an inquest , who are in our law both judges and witnesses , and are in quality and prudence , above witnesses . and if a person can count their ten fingers , they are not accounted idiots , nor fatuous ; for , fatui sunt ( as zackeus observes ) illi tantum qui omni ratiocinatione & judicio carent . so that this gentlewoman cannot be proven to have been fatuous , being now dead ; but though she were alive , and that the probation led might be legally receiv'd , yet she cannot upon that probation , be said to be fatuous , seing it is proven , that she gave money to buy necessars , that she came to table , went to church , convers'd with neighbours , and ask'd for her friends at strangers who had seen them , and that she carry'd her self ordinarily as other gentlewomen did , or ought to have done . lawyers sometimes speak of imbecillitas & debilitas judicii eorum quae sensum aliquem habent , licet diminutum ; and such are by all lawyers allowed to marry , and make testaments , &c. as is observed by gomez . resol . tom . . c. . grass . in § test●m . quest . . and thus it was decided , . octob. . in frizland , as sand. lib. . def. . relates ; and this at worst is our case : for all that can be alledged against this unfortunat gentlewoman , is , that she was of a slow and dull humour , as melancholians are , these hypocondriack vapours being to their spirits , what storms are to the sea , which though they disturb them for a while , yet cannot they hinder them from returning fully to their former calm . before i come to clear , that she was not furious , your lordships will be pleas'd to know , that furor is defined to be dementia cum ferocia & horrenda actionum vehementia ; fromanus , de jure furiosorum , p. . in law he is said , omni intellectu carere , l. . ff . de officio , presid . qui nec scire nec discernere potest , l. . ff . de acq . haered . qui caret affectu , l. . § . . quib . ex caus . in possess . qui caret omni judicio , l. . § . . ff . de judici . and because prudence is qualitas quae inesse debet , ideo nemo praesumitur furiosus , sed potius sanae mentis ; and two witnesses , deponing de sana mente , are preferred and believed more then a hundred who depone upon fury , menoch . lib. . presumpt . . lawyers divide fury , in continuum , ubi animus continua mentis agitatione semper accenditur & interpolatum , seu intervallatum , qui dilucida habet intervalla , quorum furor habet indicias , & quos morbus non sine laxamento aggreditur , l. . c. qui test . facere poss . & quos furor stimulis suis variatis vicibus accendit , l. . c. de contr . empt . in whom fury is but an ague : madnesse is but a disease in the one , but it is the temperament and the complexion of the other ; in the one the judgment is but darken'd as by an eclipse ; but in the other , it lyes like the cimmerians under a constant night . that this was not a continued fury , is clearly proven ; for the depositions bear , that she was only seiz'd with these fits that troubled her , twice or thrice in a year , and that at other times she had , non solum remissionem , seu adumbratam quietem , sed etiam intermissionem & recipiscentiam integram , for they depone , at other times she was as well as gentlewomen are , or ought to be . that which is contended then is only , that the lucid intervals are not clearly proven , at least it is not proven that she at the time of the subscribing that assignation , and for a considerable time before and after , was in a lucid interval ; but the contrary will , i hope , appear from these positions . first , by the probation it will appear , that she was never mad and furious ; for she at no time wanted all sense and judgement , albeit she was at sometimes opprest with an overflowing and abounding melancholy , which distemper differs clearly from madnesse , as zackeus observes very well , lib. . quest . . melancholici ( saith he ) sunt timidi & merentes vel ridiculi ; furiosi vero in perpetuo mo●u audaces , ac praecipites . and it will appear from the probation , that she went to table , to the church , and to all societies , which is not allowed to mad people ; that in her fits , she did only laugh and sing , and when she did begin to talk idlie , the least sign would have made her recover her self , which is a clear sign of melancholy , but no wayes of madness . and the father , who best knew the condition of his own daughter , was so far from thinking her mad ( as is pretended ) that he left her a considerable portion , which implyes not only a liberty , but an invitation to marry : whereas if he had thought her mad , doubtlesse he had only left her an aliment , but no portion , and would have recommended , that she should not marry ; for what father desires to have his family disgraced , by giving out a mad daughter ? and the physitian also depones , that she was only troubled with a melancholy ; which humour , though when it boils over , will occasion great distempers , yet , that stock of vapours being spent , the brain returns , or rather continues , in its natural and exact temper . . the witnesses who depone can give no such account of their causa scientiae , as can infer madnesse , for she being , as they confess , alwayes removed to her chamber , when her distemper did shew its first twilights , they could not exactly know that habit of the minde , that is necessar to be known in such cases ; whereas , the causa scientiae they give is , that they heard her commonly repute mad : and one depones , that passing by her chamber-door , he saw her laugh and sing , and heard her talk idly , which was too transient a way to know the nature of a distemper , which the law ordains to be known by conference , and frequent conversation . . albeit in law , semel furiosus semper praesumitur in furore perstitisse , yet when lucid intervals are once proven , as is very clearly proven here , quod actum erat , potius praesumitur in dilucido intervallo , quem in furore gestum , si actus ita gestus fuerit , ut nullum stultitiae signum appareat . this mascard . gives for a rule , conclus . . and there he cites , afflicit . decis . . jason . ad . l. furiosum , c. qui testamentum facere possunt ; and covarr . de sponsal . part . cap. . and thus the roman senat decided of old in testamento tuditani , cited by val. max. lib. . cap. . so that albeit where the intervals are not proven , it is requisit , that actus sapientis , and the condition of the person before and after for a considerable time , be proven , to make the act appear to be wisely done ; yet , where the lucid interval is proven , actus sapienti conveniens for the precise time is sufficient , for els the proving prior lucid intervals should be unnecessar , seing though prior lucid intervals were not proven , yet it would be sufficient , that the act were actus sapientis , for that per se is exclusive of madness . . the nottar doth assert in the assignation , that at the time she was of a sound judgement , upon which certainly he would have depon'd , had he been alive , so that he is now a proving witnesse : and froman . p. . thinks the nottars assertion in such a case of great moment . but above all , that which convinces me is , that sir thomas being interrogat upon his oath , whether he believ'd she was then of a sound judgment , doth depone affirmative , and though this be only an oath of calumny , yet it is equivalent to an oath of verity , nor do they differ ; nor could an oath of verity be more express , and so not more proving . and whereas it is contended , that this act was of its own nature , rather a sign of madness , then of prudence ; seing she did not read over the assignation which she subscrib'd , and seing she oblieged her self therein , not to marry without her fathers consent , and that she therein altered that destination made by her father : it is answered , that at the time of her subscribing that paper , she desired that a nottar might subscribe for her , because she could not write ; and when the nottar told her that she behov'd to subscribe her self , else the paper would be null , she called for it then and subscribed the same , which shew that she could reason and deduce consequences , and that she desired earnestly to have her brother sir thomas secure of what she did ; and albeit women can ( because of there sex and imployments ) show but little sagacity ; yet in this she discovered actus sapientis , as well as sapienti conveniens . and albeit it be not proven , that the paper was not read over , yet since the contrary is not proven , it must be presumed to have been done , per argumentm à solitis . and seing sir thomas was the eldest brother , and had entertained both her and her mother , it was most reasonable that she should have left him her estate , being the stock of the family ; and she being bred up in a kindness for him by their mother , whose choice she was oblieged to approve , being then in one family with them , and her only parent . and it was most just , that her eldest brother coming in place of her father , she should have taken his advice in her marriage : which advice was not in law binding , nor would she have fallen from the right of her provision , though she had refused his advice ; so that in this , she honoured her brother , and pleased her mother , without prejudging her self . secure then ( my lords ) in this precedent , our names against infamy , and our estates against the lubricity of witnesses , and arbitrariness of judges ; and give not occasion to witnesses in one act , to perjure themselves , and ruine us and our posterity : and gratifie not the avarice of a brother , who digs up the ashes of his defunct sister , to find that sacrilegious prey which he hunts after ; but let him see by your sentence , as an earnest of gods just judgement , what he deserves who calls his brother a fool , much more , who for money takes pains to prove his sister such . this case was submitted to the lords , and the sum was divided equally by them , as arbiters . for the laird of miltoun , against the lady miltoun , november , . sixth pleading . in what case a sentence may be reduc'd , by a reprobator of the depositions of the witnesses whereupon the sentence was founded , and by what probation sentences may be reprobated . i tremble ( my lord ) to think , that the fortunes of the best of his majesties subjects , should be , by the fatal necessity of our law , laid open to the malice and avarice of the meanest , and worst witnesses : and though we know , there be thousands who would hazard their own damnation ; to satisfie either their revenge or avarice ; yet if any two of these witnesses , should conspire to satisfie their designs , either by deponing that which is absolutely false , or by concealing what is really true , to the ruine of our lives or estates , it is pretended , that our law hath invented no civil remedy . this ( my lord ) were to make the law authorize the robbing of innocents , and to suffer no man to possesse his fortune , longer then two rascalls pleases ; wherefore , it is my design , to vindicat both our law , and my own client , and to show that your lordships justice is appointed as a city of refuge , and that you can , by your reprobators , defend us against their depositions . but because this subject hath been but very unfrequently and darkly handled amongst us , albeit it have in it very much both of intricacy and concernment ; i hope your lordships will allow me so much more of time ; and seing ex facto jus oritur , i shall , to the end the point of law may be the better understood , thus open to you the matter of fact. the deceast laird of miltoun did match himself in a second marriage to this lady , to whom he did , with the greatest part of his estate , give his chief house in jointure ; and after his decease , she having married john maxwell her present husband , they did take as much pains to destroy the house , as the law oblieges them to take in preserving it : which abuses did put a necessity upon sir john whitefoord my client , to whom the estate belongs , as son and heir to the deceast miltoun , to buy the said maxwells right , which he had to her jointure jure mariti ; and after that her husband and she had received a sufficient price for it , they did enter upon an unworthy design , of retaining both the land and the price ; and in order thereto , it was plotted , that the husband maxwell should go off the the countrey , and that this lady his wife should pursue a divorce against him , as having committed adultery ; during the dependance of which process before the commissars , finding , that the reduction of this right ( which fell in consequence of the reduction of the jus mariti ) was chiefly aim'd at , miltoun offer'd to appear , and object against the witnesses , who were led to prove the husbands adultery , and which witnesses were persons known to be of very torn and unsound fame , and very lyable to all impressions ; but he was not admitted : whereupon he rais'd reduction of the commissars decreet before your lordships , upon several reasons ; two whereof were , . that the lady had brib'd the witnesses . . that she had suggested to them what they should depone , instructing them what faces and cloaths these women had ; which reasons your lordships found not competent by way of reduction , but by way of reprobator . when this reprobator was , in obedience to your ordinance rais'd , it was alledg'd , that there could be no reprobator now pursued , since it was not protested for , at the time when the witnesses were led ; but this was repell'd , both because your lordships had reserved a reprobator already , which was equivalent to a protestation ; and because the grounds of this reprobator are but lately emergent , since the receiving of the witnesses , and were not then known . and as durandus , that learn'd practitian observes , tit . de reprob . testium , num . . quod si actor paratus sit jurare , quod ad hoc , ex malitia non procedit , vel quod post publicationem , didicit id quod nunc objicit , tunc auditur sine protestatione ; and cites for this , cap. presentium extra de test . the lady finding her self in hazard to loss both her jointure and reputation by the event of this pursute , she now alledges , that these grounds of reprobator are not relevant , nor receivable ; . because when witnesses are sworn they are purg'd of partial counsel , of the receipt or expectation of good deed ; so that this being res hactenus jurata , it cannot be thereafter search'd into by him who referr'd the same to oath , & detulit juramentum ; nam dum detulit , transegit . . though the corrupter or suggester may be punish'd paena falsi , yet the sentence pronounced upon these depositions , can never be reduced . . if this were allow'd , there should be no end of pleas , sed lites essent immortales ; for the first witnesses might be reprobated by other witnesses , and these by others , and these by others ; & sic daretur progressus in infinitum . . though corruption were receivable , yet it were only probable by the oath of him who obtain'd the decreet . before i come to make particular answers to the difficulties proposed , i shall remember your lordships in the general , that probation being defined by lawyers to be , fidem facere iudici , to convince the judge of what is alledged , probation by witnesses is no infallible , but only a presumptive probation ; for it is founded upon no other warrand , then that it is presumable , that two dis-interested persons will not , by loosing of their own souls , gain any thing for a third party ; so that this kind of probation seems rather to be introduc'd by necessity , then choice . and albeit at first , when the fear of a deity did sway the world , and before men had absolutely lost their primitive innocence , and in place of it had learn'd those cheats and falshoods , which have grown up with time ; that probation seem'd to be very well founded , and two witnesses were sufficient in all cases : yet , lawyers finding infidelity daily to grow , have accordingly daily lessened their esteem of that proof ; so that the civil law did begin to require sometimes five , sometimes seven witnesses : our old predecessors establish'd assizes of fifteen sworn neighbours , who because they were both judges and witnesses , had liberty to allow as much of the deposition of witnesses , as they thought fit ; and thereafter , upon furder experience , it is statute with us , that no witnesses can be received in cases above a hundered pounds : and in holland , italie , and several other countries , the deposition of witnesses cannot prove a crime , and are made no further use of , then to subject to the torture , the person against whom they are led . lawyers have likewise , as a furder check upon these depositions , even in these cases when they are necessar , ordain'd the punishment of perjury to be severe , ob vindictam publicam , and allow'd an action of reprobator for redressing of the parties wrong'd , suitable to the two wrongs which witnesses comm●t in their false testimonies ; in the one whereof they prejudge the common-wealth by the example , and by the other , the privat party , in the deposition it self . reprobator is by lawyers defined to be , an action , whereby the judge rescinds a former sentence , because of the falsenesse of the deposition , or because of the corruption of the witnesses . and the deposition of every witness hath in it two parts , viz. initialia testimoniorum , & dicta testium : initialia testimoniorum , are , the previous circumstances premised by the practique to the depositions , whereof the chief are , whether the party be married ? of what age they are ? where they dwell ? &c. which would be very impertinent interrogators , if the law did not intend to make use of these , as marks , whereby to try the faith and trust of the deponers . there are likewise other interrogators , which , though they be used as initialia , yet certainly are essentialia , and grounds of reprobator , though the witnesses do not at all depone upon them ; such as , whether the party hath suggested to them what they should answer ? or hath corrupted them ? yet , the parties use ordinarily to depone , if they get good deed , or were instructed . the dicta testium are the body or matter of the depositions , which relate principally to the thing contraverted ; and albeit some lawyers dispute , whether the depositions of the witnesses can be reprobate quoad dicta testium ? because the witnesses are there contestes , and when two of them agree in one , to reprobat these were in effect to overturn a formall probation ; yet in initialibus they are not contestes , but every one depones singly upon what concerns himself , and is likewayes concern'd himself in what he there depones ; so that in these , both singularity and interest derogat very much from the truth of what is depon'd ; and in this case , i intend not to quarrel the dicta testium , but the initialia testimoniorum . these grounds being laid down , my answer to the first difficulty is , that the first defence , wherein it is contended , that the witnesses having been interrogat , whether they were brybed or instructed ? and having denyed the same upon oath , their depositions cannot be now reprobated , upon the heads of suggestion or corruption , is most irrelevant , for these reasons ; . the party against whom the witnesses are led , hath no time allow'd him to enquire what the witnesses are , who are to be led , and though he have relevant objections , v g. if he be inform'd , that they are instructed or corrupted , he must instantly verifie these objections , els they are not receivable ; so that to deny him the liberty of causing the judge purge the witnesses , by their oath , of any suspition , were in effect to take from the party his greatest security ; and sure , no person would desire that purgation , if he thought that he would be thereby cut off from the benefit of reprobator . . if this were allow'd , it were easie to cut off all reprobators ; for the leader of the witnesses might still cause purge them , and oftimes the judge doth it , ex proprio motu ; neither is it marked in the deposition , whether the witnesse is purg'd by the judge at the desire of the pursuer or defender , but singly , that he being interrogat , depon'd , &c. so that in this case the person , against whom the witnesses are led , should be prejudg'd without any act of his own . . though a witness have purg'd himself of partial counsel , yet if he depone falsly , he may be pursued by him , against whom he depon'd , for perjury ; ergo , it is much more competent to the person , to pursue reprobator in that case ; for reprobator being but a civil action , is far lesse dangerous . . juramentum purgationis is not juramentum decisivum , and is taken , as lawyers say , non ad finalem decisionem , sed ad majorem cautelam , and being introduc'd for the advantage of the party against whom the witnesse is led , it were most unjust that it should be detorted to his prejudice . . a witnesse who purges himself of partial counsel , is but unicus testis , and depones upon his own innocence , and consequently doth not prove ; and it were most unjust , that he should in that case be better believ'd , then two famous witnesses omni exceptione majores , and who depone upon his prevarication ; and if this priviledge were given to an oath of purgation , it would tempt men to le 〈…〉 debauch'd witnesses , and them , when they are led , to depone arbitrarily ; knowing that they can by their own oath , clear themselves of any thing that might be objected against them , and that the oath which they give , cannot only secure the party for whom they depone , but themselves against all hazard . and lastly , lawyers who have treated very largely of this subject , have made no such distinction as this , but on the contrair , by doubting only , whether dicta testium can be reprobat , because the witnesses there are contestes , as said is ; they clearly insinuat , that in all cases , where the witnesses are not contestes , their depositions may be reprobat . to the second defence , wherein it is contended , that the effect of a reprobator is not to reduce civilly the sentence , nam sententia semel lata pro veritate habetur ; but that the only effect of it would be , to punish the parties corrupters , or the witnesses corrupted , by a criminal sentence . to this it is answered , that the alledgance is contrary to the grounds of all law , and to the opinion of all lawyers . . a reprobator is in their opinion , species revisionis ; as is clear by farin . durandus , practica ferarien . and many others , and revisio , in the dialect of lawyers , is the same thing that reduction is with us . . seing witnesses wrong both the common-wealth by the example , and the privat party by the deposition , and since it is very just , that every wrong should have a suitable remedy , and seing the prejudice done by the example , is only remedied by the criminal action ; it is necessar , that the party laes'd should be assisted by a civil reduction : and it seems very unjust , that the witnesses should be punish'd criminally , and that it should be acknowledged , that the party was wronged by the flase witnesses , and that yet the losse should not be repair'd . . per l. . ff . de re judicata ( which i may call the fundamental law of reprobators ) it is clear , that both a civil and a criminal remedy are granted : the one , in these words , rem severe vindica , and the other , in these words , in integrum restitue . the law it self runs thus , hadrianus aditus per libellum à julio tarentino , & judicante eo , falsis testimoniis , conspiratione adversariorum , testibus paecunia corruptis , religionem judicis circumventam esse , in integrum causam restituendam ; in haec verba rescripsit , exemplum libelli dati mihi à julio tarentino , mitti tibi jussi , tu , si tibi probavaris , conspiratione adversariorum , & testibus paecunia corruptis , oppressum se , & rem severe vindica ; & si quae à judice , tam malo exemplo circumscripto judicata sunt , in integrum restitue . which is likewise confirm'd , per l. si quis c. de adult . et ita voluerunt alexander , consil . . & lud. bologn . consil . . and by our practique , sentences have been reduc'd , and the party repon'd , when the depositions whereupon the sentence proceeded , were convell'd by a reprobator : clear instances whereof are to be seen , the . of june , . and . of december , . and upon the . of march , . in an action of reprobator rais'd against a divorce , it was found , that the offering to corrupt one of the witnesses , was sufficient to reduce the decreet of divorce : whereas , here it is offered to be proven , that both the witnesses were corrupted , and if the deposition could not be quarreled in order to a civil effect , there needed no reprobator at all ; for the criminal action of perjury would reach the other effect , and the lords of session , before whom reprobators are intented , would not be at all judges competent . . this opinion , both of the civil and of our law , is founded upon very just principles ; for the sentence being in that case founded upon the depositions , these being removed , the other should fall in consequence , nam sublata causa , tollitur effectus ; and therefore , lawyers say , that testes reprobati pro non testibus habentur , durand . ibid. and to allow a decreet after witnesses were reprobat , were in effect , to allow a decreet without probation . . when a decreet is founded upon a writ , if that writ be found false , the sentence is reduced ; as is clear by the whole title , cod. si falsis instrumenmentis , &c. and therefore , much more should decreets be reduced , depending upon the depositions of witnesses which are reprobat , there being at least eadem paritas rationis . as to the third difficulty proposed , which is , that this would progredi in infinitum , and there should be no end of plea's , which objection is propon'd by abbas , ad cap. proposuisti de probat : it is answered , that this argument , if it prove any thing , will p●ove that no perjury should be pursu'd , nor proven ; becau●e , it is urg'd in this case , it may be urg'd there likewise , that these witnesses who prove the perjury , may be proven perjur'd by others , and these by others ; and by the same argument also , we should have no assises of error , because , if a first assise may be tri'd for error , why not that assise by another , &c. but this difficulty is easily sav'd , for reprobators should not be sustain'd in all cases , and it is only remedium extraordinarium ex nobili officio proveniens , and should only be granted , when the reason of rep●obator is found most relevant , and is offered to be proven by witnesses omni exceptione majores ; and to deny it in that case , were great injustice . as for instance , if i should offer to prove , that albeit it were proven by two fellows , that i married bertha in paris such a day , whereas i offered me to prove , that the same day i pleaded before your lordships in this house , and which were notour to all your number , were it not unjust to refuse to reduce a sentence , which were founded upon that first probation ? it is most groundlesly alledged in the last place , that though corruption of witnesses were allowed to be reprobated , by an action of reprobator intented before a decision in the principal cause ; yet no reprobator could be pursu'd , after a decreit obta●n'd in the principal cause ; for els no singular successor could be secure , since his right might still be reduced or reprobated by w●tnesses , and so sentences could be no sufficient security to such as were assigned to them ; as also , post publicata testimonia & sententiam , the losser of the cause should still intent reprobator , knowing what the witnesses depon'd ; at least the corruption of the witnesses , should not be then probable any other way , then by the oaths of the corrupter himself . to which it is answered , that reprobators are in law allow'd , aswell post sententiam , quam durante primo processu , as is clear by farinacius and others ; and there is no hazard of the publication of the testimonies , because the question is not , whether the testimonies & dicta testium can be reprobated ? for that is not here contended , but whether the initialia can be reprobated , which initialia use to be interrogat in presence of the parties , and so there is no hazard of publication there : nor did ever any lawyer alledge , that corruption was only probable by the corrupters oath , and this were most unreasonable , as will appear from these arguments , . corruption is facti and falleth under sense , and therefore is of its own nature probable by witnesses . . corruption could cast or set a witness , before he were examined , and co casu would be probable by witnesses , why not then after he has depon'd ? for by our law , as by the civil , noviter provenientia ad notitiam & emergentia , are receivable and probable , eodem modo & ordine , as they ought to have been , if they had been sooner known ; and seing all objections against witnesses , are only receivable with us , if they be presently proven , it were unjust not to admit emergent objections or proofs . . this were to make witnesses most licentious and arbitrary , for the parties may give , and the witnesses take bribes , sub spe impunitatis , if they knew that they could not be found out , but by their own confession , and in effect this were to allow perjury , and to invite men to it . it is most presumable , that these who have brib'd , will perjure , and so their oaths cannot be believ'd ; and therefore , the law must either declare , that corruption is no ground of reprobator , els that it is probable by other witnesses , and media probandi , then the oaths of the bribe●s , or bribed . it was never denied , but that a decreet obtain'd by collusion of advocats or clerks , might be reduc'd , upon full probation of the collusion by the oaths of those advocats or clerks , else any of these by compearing , or omitting a defence , might bind one hundred thousand pounds upon any of the lieges : and since it is confest , that the civil law and the doctors do in this case allow probation by witnesses , i see not why our law should not admit it . they were as zealous for the authority of sentences , as we are , and perjury is more frequent now then of old ; and though our law doth not allow probation by witnesses , in cases above one hundred pounds , yet that law was only made to regulate the original probation of debts in the first instance , but not the reprobating sentences . and it were against reason and justice , that a decreet that was obtained upon the depositions of witnesses , should not likewise be quarrelable upon the depositions of other witnesses proving corruption , these reprobating witnesses being above exception , and such persons as the judges may think fit to admit , whose choice will in this case , cut off the hazard of a processus in infinitum : seing it is not probable , that judges will allow any such persons , as may endanger the interest of him against whom they are led , this power can be no where more securely depositat , then in this illustrious senat , whose frailty is much less to be jealous'd , then is that of witnesses ; and though the constitution of a debt cannot be prov'd by witnesses , where there is no other probation ; yet it follows not , that a decreet founded upon a matter of fact , and upon the depositions of witnesses , may not be taken away or reprobated by other witnesses : for , though where debt is lawfully constitute , it cannot be taken away by witnesses , yet the case here contraverted is , whether the debt was lawfully constitute ? and the alledgeances are corruption , alibi and other matters of fact ; and though a decreet has interveen'd , yet that doth not so alter the nature of the thing , as to make it leave to be a matter of fact , and the defences emergent , since the decreet and matters of fact are still probable by witnesses . it is unjust , that what was first purchased by witnesses , should not be tryed by the depositions of witnesses , eum debet sequi incommodum , quem sequitur commodum ; & nihil est tam naturale , quam unumquodque eodem modo resolvi , quo colligatum est . and as when i pursue upon a false bond , the falshood of that bond is to be tryed by witnesses , our law doth not force the defender to refer the truth of the debt , or of the matters of fact , to the oath of the pursuer : even so , when a man is pursued upon a decreet , which is obtain ▪ d upon false grounds or corruption , why should our law force me to refer the truth to the pursuers oath ? sure , if ever reprobator was granted , it ought to be in this case ; wherein my client offers to prove , that this lady ( whose sex i am loth to wrong in her person ) did bribe these witnesses , and instructed them verbatim what they should depone ; this is offered to be proven , not only by their own confession , but by the deposition of many , who are more numerous , and more famous , though their own confession proves them to be vaccillant , and faithless rascalls , and who though they should not be believ'd in any case , yet ought to be believed as well in this retraction , as in their first deposition , and who can enervat , though they cannot astruct , their own testimonies ; and this probation ought to be received , against the deposition of two villains , who stand condemned by common fame , which is sufficient to hinder them from being witnesses omni exceptione majores , and are condemned by the k●●k-session for keeping baudy-houses , wherein they have shak'd off that fear of god , which is the ground of the faith we give to witnesses , and have learned by pimping persons , to pimp plea's . i am here in defence of a marriage , quae est causa maxime favorabilis , and the dissolution whereof requires a probation per testes omni exceptione majores ; and it is very probable , that a woman who is so impatient in those holy bands , and so malitious against her own husband , as to asperse him with every thing that may lessen his reputation with your lordships , would not spare to have dealt so with the witnesses , as might best effectuat her designs , knowing that if she prevail'd not , she behoved to return to the society of a husband , whom she had so highly disoblieged , to misse the enjoyment of that jointure , which she so ardently expected ; and to be justly branded , for having so malitiously and causelesly defam'd so sacred a relation . the lords sustain'd the reasons of reprobator to be proven by witnesses , omni exceptione majores . for the lord balmerinoch , against the lady coupar , feb. . seventh pleading . how far a disposition , made by a man , in favours of his lady , of his whole estate , is reduceable , as done in lecto aegritudinis . my clients ( my lord chancellor ) this day , are not the lord balmerinoch only , but all such as either may be heirs , or husbands ; and by how much greater there estates are , by so much the more they are concern'd in this discourse : wherein i design to assist them when they are upon death-bed , which is an occasion , at which not only their wit and memory leave them , but wherein they are oft deserted by all other friends , besides these who design to prey upon them . and i am so zealous in this service , that i cannot detain my self any longer , from opening to you the matter of fact in this cause , which may be saved by its very merits , if ever any was . the case ( my lord ) stands thus . the late lord cupar had , by his fathers kindnesse , and out of the estate of the family , a considerable fortune bestowed upon him , and what addition it has receiv'd since , is rather the product of so considerable a stock , then of that lords industry : so that he having died without heirs , this estate should have return'd to the family , not only by a legall succession , but by the rules of gratitude . yet having in a second marriage , at the age of threescore and ten , married a lady , by whom he got no great fortune , she induc'd him to dispone his whole estate , honours and title in her favours , and in favours of the children to be procreat betwixt her and any other husband ( the first bribe was ever given by a dying husband , to invite a wise to a second marriage , and though a brother may raise up seed , yet we never hear , that a woman rais'd up seed to her husband ) of which disposition , there is a reduction rais'd by the lord balmerinoch , who is nephew to the defunct , and should have been his heir , wherein he quarrels this disposition , as made upon death-bed by the lord coupar , after contracting of that sickness , whereof he died , and as done in prejudice of him as appearand heir . my lord , i know , that legis est jubere , non suadere , and that omnium quae fecerunt majores nostri , non est reddenda ratio ; yet , this law , or rather ancient custom , whereby persons upon death-bed can do nothing in prejudice of their heirs , can justifie it self equally well , by reason and authority . the reasons inductive of this excellent law , are first , that after men are sick , their judgements grow frail with their bodies ; and the soul of man wants not only then , the pure ministry of well-disposed organs , but is likewise disordered by the infection of the languishing body ; wherefore the law observes , lib. . reg. maj. cap. . vers . . quod si quis in infirmitate positus , quasi ad mortem , terram suam destribuere caeperit , quod in sanitate facere noluit , praesumitur hoc fecisse ex fervore animi potius , quam ex mentis deliberatione . which presumption seems to be very well founded ; for it is not imaginable , that any man who is reasonable , would pull down his own house ; and nature and reason being the same thing varied under different expressions , he who overturns the one , cannot be sound in the other . the second reason is , because men ordinarily upon death-bed , being surpris'd with the approach of death , and terrified with the prospect of what follows it , do so little value the affairs of this world , which they begin now to find so little able to repay their criminal pains and love , that to evite the importunity of such assistants , as are like vultures , busie about the carrion upon such occasions , they are content to ransome time and quiet , with the carelesse losse of their estate ; and who would not buy time then at a dear rate ? so that this law is the great fence of our sick-bed , as well as of our infirm judgments . the third reason is , the great respect our law bears to ancient and noble families , who are the corner-stones of the kingdom , to whose valour , our law has oft ow'd its protection , and so could not refuse it s to them . and sure , if either the importunity of mothers , for their younger children , or of wives for themselves , could be successful , the heirs would succeed to a heavy and empty title : and upon this consideration , the parliament did lately refuse to allow parents the power of providing their younger children to small portions , upon death-bed . i know also , that some adde , as an original reason for this law , the avarice of monks , and church-men , who perswaded men to wodset for themselves rooms in heaven , with great donatives to pious uses ; to restrain which excesse , venice and other kingdoms have taxt the value of what can be so bestow'd . and albeit the restriction imposed by this law , may seem destructive of dominium , which is jus disponendi , and that by the law of the . table , ut rei suae quisque legassit ita jus esto ; so that this seems to want all foundation either in common , feudal , or the laws of other nations . yet , if we examine , we will find dominium is in very many moe cases then this , and in more favourable , restricted by all laws ; and that quaerela inofficiosi testamenti , is sounded upon the same reason with this law ; and that by the laws of spain and flanders , ( so great is the favour of noble families ) noblemen cannot at any time dispone their estates , but must transmit to their posterity , what ever lands they got from their predecessors . but though no nation joyned with us in this law , this should rather induce us to maintain it , as being truly a scots law ; and we must be so charitable to our predecessors , as to believe , that they would not without very cogent motives , have restricted their own power of disponing , and have receded from the custom of all other nations ; and we should be as carefull of our fundamental lawes , as the spainiards are of their privat estates . and of all persons , against whose importunity the law should guard us , sure our wives are the chief , for they have the nearest , and frequentest accesses , the most prevailing charms and arguments , and of all creatures women are most importunat , and are most dangerous when disoblieged ; wherefore the law hath wisely forbidden all donations betwixt man and wife , fearing in this , mutual love and hatred , though in modesty , it hath only exprest the first . and sure if this donation should subsist , every woman would think her self affronted , as well as impoverished , if she could not elicit a disposition from her husband , of some part of his estate . and to what condition should a poor man be reduc'd , and with what inconveniences urg'd , when he behoved either to disobliege his wife , or ruine his heir , and to load his fame or his estate . so that the lord coupar hath in this , prejudg'd husbands and heirs , and hath violated & jus parentale , & maritale . it is alledged for the lady , that the reason is not relevantly libelled , seing we do not condescend upon a form'd disease , under which the lord coupar labou●ed the time of the disposition , and of which disease he thereafter died : nor is tenderness and infi●mity sufficient of it self , to m●intain this reason of reduction , especially in old men , whose age is a continual infirmity , and yet is not by lawyers called a sickness , sickness being a preternatural , whereas age is a natural infirmity . and this law being mainly founded upon the presumption , that these who are upon death-bed , have their judgments and memories so clouded , and disordered by the sickness which presseth them , that they are either altogether disabled from doing affairs , or at least from doing them judiciously , and according to the rules of reason : therefore such a disease should be condescended on , as influences the judgment , and incapacitats the disponer to understand his own affairs . whereas it were absurd that old men who keep the house , should be generally interdicted , meerly because they come not abroad , and are somewhat tender , albeit they be otherwise very ripe and mature in their judgment , as ordinarly old men are , nature having bestowed prudence upon them , in exchange of that bodily vigour , which remains with those who are young : and it were unreasonable , that if any person were a little tender , and had not occasion thereafter to come abroad , that a disposition made by him should ex eo capite be reduced , albeit it cannot be qualified that he died of that disease . wherefore our law having restricted the power of heretors so far , that as they cannot dispone their estate upon death bed , in prejudice of their heirs , it hath most justly appointed , that the disease wherewith they are insected should be condescended upon ; to the end it may be known , whether it could influence the judgment or not , or whether or not the disponer died of that disease : and in all the decisions which concern cases of this natu●e , it is remarkable , that the disease is still condescended upon . likeas , by the . cap. lib. . reg. maj. the reason whereupon this law is founded , is said to be , quia tunc posset in modico contingenti ejus haereditatem destribuere , si hoc permitteretur , ei qui fervore passionis instant is , & memoriam , & rationem amittit . to which it is reply'd , that it is libel'd in the reason of reduction , that the lord coupa● disponer had contracted a sickness , before he had granted the disposition , which is all is necessar ; and it were most absurd , to th●nk that the pursuer should be necessitat to condescend upon a particular disease , and design it by a name : for this were to make two physitians absolutely necessar in all diseases , since none are presumed to know the names and natures of diseases but they ; and there is sometimes such a complication of diseases , and new diseases do so often creep in amongst mankind , that hardly even a physitian can design them exactly by a particular name . and it is very observable , that when the name of a disease is condescended upon in any decisions , it is not by the pursuer , but by the defender , who condescends upon the same , for clearing either that the disease was not mortal , or that it did not effect the brains . but yet when we consider these decisions , we will find , that if the person had been proven to have been once sick , the disposition is still reduced , though the disease be not proven to be such as could affect the brain . thus a disposition was reduced , albeit it was offered to be proven , that the disponer was mentis compos , february , . robertson against fleeming ; and that he did his affairs , and sat at table as at other times : nor is it requisit the disease be morbus sonticus , pen. july , . and . july , . the alledgeance of judicij minime vaccillant is was also repell'd , and a provision was not sustain'd made to a child , though the father had only a palsie in his side , and liv'd . months , july , . and this is most reasonable , because the soundness of the judgment being that which is not subjected to the senses of witnesses , they cannot properly cognosce thereupon , and they would in that case be rather judges , then witnesses . for if it were otherwise , servants who are the only ord●nar witnesses that are present , would have it left arbitrary to them , to make the disposition valid or not , as they thought fit , and they m●ght depone very boldly , because without hazard , since in such guessings as these , they might assume to themselves a very great liberty ; and thus though the law thought it fit , not to put it in the power of the heretor , to prejudge his heir upon death-bed , by dispositions , your lordships should by your decision , put it in the power of servants to prejudge them , by their depositions . and if it were necessar to prove , that their judgment was disordered by the sickness , then this law had been absolutely unnecessar , for whatever disposition is made by any person , whatever condition he be in as to health , yet if he be not sanae mentis , it is still reduceable ; and as unsoundness of judgement without sicknesse in that case , were sufficient , so the law hath made sicknesse without unsoundness of judgment , to be sufficient in this . for , to the end there might be nothing arbitrary in this case , where the greatest of the subjects ( such as are the nobility ) are concerned in their greatest interest , which is the disposition of their old heretage ; the law hath appointed , that if the person be once sick who dispon'd , the proving that sicknesse without any thing els , shall be sufficient for reducing that deed , except it can be proven , that the person who granted the disposition went thereafter to kirk and mercat ; to which none go , till they be intirely recovered , and fit for businesse , these being places , wherein sound men are still presumed to be serious , because these places are not fit for recreation , and so not fit for such as are sick , and which are acts that falls under sense ; and so may be deponed upon by witnesses , and are acts exposed to the view of very many : and the heir cannot be thereby prejudged , by either the want of witnesses , or by being tyed to the deposition of domestick , packed witnesses ; for such only are usually admitted to v●sit the defunct ( and so are only the persons who can be witnesses ) by these , who had him so much in their power , as to elicite such dispositions from him . the defender ( my lord ) finding her self straitned by this debate , joyns , to her former defence , another , which is , that going to kirk and mercat are not absolutely necess●r qualifications of health ; but it is sufficient if the defunct might have gone to either of these , or did equivalent de ●s , whereby it might have been known that he had recovered his health , for that is the scope and design why the others are condescended upon ; and it were unreasonable , that the going down a stair within burgh , and the buying of an apple at a crame , should be a greater sign of health , then the riding of a journey : so that going to kirk and mercat may be supplyed by equivalent acts ; and the lord coupar did equivalent acts , for evidencing that he was in health , at , and after the granting of the disposition , in so far as he rose from , and did go to his bed at his ordinar times , did come to table , entertain strangers , wait upon them without doors to their horses , sell his corns , take in his accounts , and writ long letters all with his own hand ; in which letters , he shew a former design he had to make that disposition . likeas , former letters can be produced long prior to his sicknesse , wherein he shew'd his design ; whereas your lordships have by former decisions found , that equipolent acts were sufficient , as in the case betwixt sym and grahame , in anno , . wherein it was found , that the writing of the disposition of a sheet and a half of paper , all with the disponers own hand , was sufficient to sustain the same , and to defend against the reason of reduction upon death-bed : and in february , . in the action pargillis against pargillis , it was found , that the riding on horse-back , though the disponer was proven to be sick , and that he was supported upon his horse , were sufficient qualifications of health ; and if the going to kirk and mercat were still requisit , the lieges could never be in tuto when a disposition is made to them , seing very many men , who are in perfect health , do oft die suddenly , before they have occasion to go to kirk and mercat , and when the persons to whom the dispositions are made , cannot suspect there is any need of their going there . but though kirk and mercat were requisit , yet it can be proven that the lord coupar went to both ; and albeit he was supported , yet that was only in a piece of the way , which was rough , and at which he used to be supported at other times , when he was in health , and was therein supported now , not because of the sicknesse , but because of the way . to which it is replyed , . that the law and continual decisions having fixt upon kirk and mercat , as indicia sanitatis , no other acts can be sustain'd as equivalent ; for , where the law requires solemnities , such as these are , solennia non possunt per aequipolentia adimplere ; thus earth and stone being required as symbolls in sasines , three oyesses at mercat-croces , &c. acts equipolent to these would not be sustain'd ; and the law having appointed that a child should be heard cry , to the end marriage may not be dissolved , though the woman die within year and day , the law sustains not that the child was a lively child , or might have cryed ; for , saith that law , it was fit that some certain sign should be fix'd upon , to prevent the arbitrarinesse of witnesses : and seeing it would not be sustain'd to elide the reply of kirk and mercat , and the alledgeance of health founded thereupon , that the defunct was not in health , though he went not to kirk and mercat ; so the reason of reduction founded upon sicknesse , because he went to kirk and mercat , ought not to be elided , by alledging that the defender was in health , though he went not to kirk or mercat ; and if equivalent acts were sustain'd , this law might be easily eluded , and the effect of it would become altogether arbitrary . . the acts condescended on , are not equivalent signes of health , to the going to kirk and mercat ; . because these acts of going to kirk and mercat , are fixt upon by a long tract of decisions , and so are solennia jure recepta ; but these other acts are not such as have been found equivalent by any former decision : but on the contrar , acts of more adjusted equipolency then these , have been repelled , when propon'd to take off the reason of death-bed ; and thus in the foresaid decision , february , . . it was alledg'd that the disponer was able to go to kirk and mercat , and that he went about his affaires within doors , and came to his own table , as formerly . and though it was alledg'd upon the penult . june , . that the granter of that disposition then quarrel'd , and which was made upon most deliberat grounds , was able to mannage his own affaires as formerly , having only a palsie in one arm , which did not affect the judgement . and the . july , . it was alledg'd , that the disponer who had granted a bond of provision to his own son , had no disease which could be impedimentum rebus agendis , and that he lived . months thereafter , and went about his affairs , yet all these condescensions upon health were repelled , though the time of surviving were much longer there then here , the case of the granting of the disposition much more favourable ( and indeed , none can be lesse then this defenders case ) and the persons who did dispone , of a much greater consistency both of health and spirit , then the lord couper , who was known to have needed little sicknesse , and much lesse importunity and design , was used in this case , to make him do acts both irregular , and unwarrantable . as to the decision , sym against grahame , it is answered , that it was proven there , that the defunct went upon his own feet to the apothecaries shop , and to his physitians house , which implyes necessarily in edinburgh , a going thorow the mercat , whereby the law is satisfied , and a publick act was done , which might be proven by unsuspect witnesses . and as to pargillis case , the disposition there , was made in favours of a grand-child , with whose mother the grand-father had promis'd the estate at the contracting of the marriage , he having been party-contracter for her , though that promise was not insert in the contract ; likeas , the disponer went to the ground of the lands unsupported , and gave the sasine himself : and albeit he rode to the mercat , because he was goutish , which is the only disease that was proven , and which is in the opinion of the physitians , rather a pain , then a disease ; yet he went to the mercat unsupported from his lodging . . all these acts condescended on were done at several times , and might have been very easily done singly , by a person who was sick , and none of them are such acts as require health both of body and mind , as doth the going to kirk or mercat , nor did they require the coming abroad to open air , which is the severe tryal of health ; and all these acts were transacted intra privatos parietes , and so subject to suggestion , and collusion , the witnesses being such as were under the power of the defender , who did elicit the disposition , and the appearand heir being absent , and very remote , as is ordinar in such cases : whereas the going to kirk and mercat , are acts wherein the appearand heir may hear a conjunct probation , and wherein though the witnesses to be led for the defender , design to prevaricat , yet the fear of being control'd by a multitude , would hinder them to adventure upon the deponing an untruth . . all the acts condescended on seem to be done ex affectata diligentia , & affectata diligentia pro negligentia habetur , nor can any acts be esteemed equivalent , except they were such , as clearly evidence , that if he had design'd to have gone to kirk and mercat , he could have done the same ; whereas in this case , when the defunct design'd to go to kirk or mercat unsupported , as law requires , he could not perform the same , but behoved to be supported as said is , by which it clearly appeares , he did not any acts that were equ●polent . to his actual going abroad to the kirk or mercat , i make no answer , since our law requires his going unsupported , which cannot be alledged in this case ; for as going to kirk and mercat , is an exception which takes off the reason of death-bed , so the being supported elides the exception of going to kirk and mercat . and so unfavourable have their reductions alwayes been in our law , that the pursuer offering to prove supported , is preferred to the defender , who offers to prove unsupportable , as was found , . july , . albeit regulariter the defender is preferred to prove his own defence ; not needs the pursuer debate from what cause the supportation proceeded , for it cannot be known to witnesses upon what account he was supported , and that might have proceeded from infirmity , as well as from the ruggednesse of the way : and so this law would in its execution and application , return still to be arbitrary , if witnesses or judges might guess at the occasion of the supportation . but without debate , the pursuer contends that this priviledge of eliding a reduction ex capite lecti , being only competent to the going to kirk and mercat unsupported ; he who is supported , gains not the priviledge , because he fulfills not all the qualities , and it is very well known , that the way is ordinary calsay , and that the house and mercat are not distant three pair , and the lord coupar used ordinarily to walk there unsupported ; so that when he took support , especially at a time when he designed so much to go unsupported , it shewes convincingly , that his infirmity , though not himself , remained still disobedient to all their designes , and though they could force him to dispone , yet they could not force him to be sound ; and your lordships may easily judge , that these who were at so much pains to make this disposition subsist , were not wanting to use all indeavours for carrying him over this last difficulty , so that this support proceeded not from chance , but from necessity . seing then your lordships have been so rigid observers of the law , in prejudice of poor children , and poor relicts , who were unprovided , i hope you will not prostitute it in favours of a stranger who had formerly gotten all the defuncts estate in jointure : reward not thus the importunity of wives , and bryb not avaritious persons to trouble us at a time , when we shall think all time too short , to be imployed in the service of him , whom we have so much , and so often offended ; and take not from us in one decision , the protection of the law , when our judgments are frail , the quiet of our souls when we are sick , and the love of our successors when we are dead . the lords reduc'd the disposition . for the countesse of forth , &c. against e. c. eighth pleading . how far restitutions by way of justice , are prejudged by acts of indempnity . i might stand in the next degree of guilt , to those who forfeited the earl of bramford , if i thought that his merit , or your lordships loyalty needed , that i should urge much the favour of his case : he was a person who carried the honour of our nation , as far and as high as could be expected , from the happiest subject in much better times : for after that his merit , arm'd meerly by his own valour , had rais'd him to be a general in sweden , he was chosen general in england , in a war , wherein all his nation were suspected , and did there , actions worthy of our praise , and their wonder . but whilst he had refus'd to draw a sword against his country-men , even whilst they were rebels , they forfeited him , for fighting in a kingdom , over which they had no jurisdiction , and forfeited him by his majesties lawes , and at the pursute of his majesties advocat , when he was hazarding his life for his majesty , by his own command , and in his own presence ; and the very day after he had gain'd that battel for him , which if prosecuted according to that brave generals advice , might have secured to him , that just power , which those rebels were scruing out of his hands . the earl of forth being with his majesty , restor'd to his own , his lady and daughter pursue such as intrometted with his estate , and insist now against e. c. who for being general to the then estates , got pounds out of the estate of the earl of forth , which was a part of that sum , which was due to his lordship upon an heritable security , by the earl of errol and his cautioners . in which debate , if i use terms which may seem indiscreet and zealous , i must be paroned , since i shall use none but what are forc'd upon me by that act of parliament by which i plead , since e. c. is a person to whom i wish much success in every thing , save this debat , and to whom my respects are above jealousie . it is alledged for e. c. that though such as are restored against forfeitures , by way of justice , may by vertue of their restitution , repeat all that is extant of their estate , yet they cannot repeat what money belonged to them ; for money being res fungibilis , and naturally subject to consumption , it passeth from hand to hand , without bearing any impressa , whereby such as intromet with it , may know how it came , and whose it was : nor doth the nullity of a title in the first obtainer , infer repetition of money from such as derive a right from them , as may be clear'd in many instances , for if money had been payed to one , who obtain'd an unjust sentence from the late usurpers , yet they would not be liable in repetition , after that sentence were revived and declared null . if one should serve himself heir unjustly , and as heir assign a sum to one of his debitors , though his service were thereafter reduc'd , as unjust , yet could not his assignay be oblieged to restore what he recovered by vertue of that assignation . if the exchequer should presently gift an escheat , though the escheat , and horning whereupon it proceeded , were thereafter reduc'd , yet a sum payed by vertue of that gift , when standing , could not be repeated , and if this principle were not sustain'd , all commerce would be destroyed ; and though e. c. his title be now ●educ'd , yet it was valid the time of his intromission , which is sufficient to astruct his bona fides : and lawye●s , even in introm●ssions with money , which was at fi●st ●obbed , consider only vim illam quae intervenit tempore numerationis ; whereas here , though the est●tes did most unwarrantably and rapinously forfeit the earl of forth , yet his money being brough● in to the publick t●easure , and confounded with their ca●h , it ceas'd to be his , and became theirs ; and therefo●e , e. c. being creditor to them , as he might have taken any precept justly from them , payable out of their treasure , so might he have taken p●ecepts upon his estate , which ceas'd to be his : nor can the earl of forth be said to be a loser by e. c. seing the estates for the time would have brought it in , and converted it to their own use , in which case , forth would not have go● repetition against the persons to whom it were payed . to these grounds , it is ( my lords ) replyed ●or the earl of forth , that there is a difference stated in law , betw●xt restitutions by way o● grace , and restitutions by way o● ju●t●ce ; in restitutions by way of grace , the guilt remains though the punishment be remitted , and the person forfeited is restored , not to his innocence , but to his estate , and therefore he recovers only what ●s extant of his estate . but in rest●tutions by way of justice , the sentence forfeiting is declar'd never to have been a sentence , and therefore , it can never be susta●n'd as a warrand to an● 〈◊〉 , sed comparatur juri postliminii & fingitur nunquam 〈◊〉 〈◊〉 , & tantum restituit 〈◊〉 quan●um abstuli● injus●●ia . and 〈◊〉 , not only what is extant , but all that belonge● 〈◊〉 〈◊〉 there is resto●ed . but sentences fo●●e●t●ng may be 〈◊〉 〈◊〉 , as b 〈…〉 s obse●ves , 〈◊〉 , d 〈…〉 med . 〈◊〉 ▪ into 〈◊〉 , as though they were ●njust , y●t every p 〈…〉 t person was not ob●●ege● to know the injustice o● the ●or●eiture : as if a man had been forfeited in a justice-court for murder under trust , or a landed-man for theft ; against which sentences , though the person forfeited were restored , yet it might seem hard , that such as intrometted by vertue of warrands or assignations from the estate , should be forc'd to restore all they received ; but others may be forfeited , as the earl of forth was , by vertue of sentences , which were no sooner pronounced , then they became treason , by an execrable inversion , not in the pannel , but in the pronouncers , and were not only treason of their own nature , but behoved to be acknowledged treasonable by all such as heard of them , and such sure was that sentence pronounc'd against the earl of forth ; which was against the fundamental laws of this and all nations , and which is declared by the act of parliament restoring him , to have been , at the time it was pronounc'd , an act of rebellion , and an invasion upon his majesties royal prerogative . this being the state of this restitution , it is , my lords , answer'd to the defence , that it is defective in the aplication of all its parts ; for , that this money was not res fungibilis , appears , because the law distinguishes all estates in mobilia ( quae sunt fungibilia ) immobilia , & nomina debitorum . nomina debitorum are bonds due to the creditor , which are of a middle nature , betwixt movables and immovables , and these fall certainly under restitution by way of justice , even according to the defenders own principles , for they bear the n●me and impressa of him to whom they belong , and so the intrometter is warned to bewar of them : and that this money crav'd here to be repeated was such , is very clear , for it was due upon ●n heretable bond to the earl of forth , by the earl of errol and h●s cautioners , and came never in , nor was confounded with the publick treasure ; for e. c. got a precept upon ●t , before the publick obtain'd a sentence for it , and got a w 〈…〉 nd for that specifick sum owing by that bond to the earl of forth , and got payment of it from the earl of forths de 〈…〉 s , 〈◊〉 debitors to him : so far did just heaven allow this hast to be its own punishment . as to the second member of the defence , which is founded upon his bona fides , to intromet with the sum for payment of a debt due to him , ( he having been general at that time ) from an authority then in being ; it is reply'd , that bona fides in the intrometter , doth not extinguish and take away the right of the true proprietar , nam quod meum est , sine facto meo à me auferri nequit . and lawyers determine , that to denude a man of his property , there must be some fact of his , either se obligando , or delinquendo , neither of which can be alledged in this case ; and if the earl of forth was never denuded , then calendar could have no right ; for , duo non possunt esse domini in solidum unius & ejusdem rei , which maxim holds still in specibus & nominibus debitorum , for though sometimes it may fail in numerat money , the dominion whereof is , for the good of commerce , sometimes transmitted by simple numeration ; yet it never fails in specibus , seu corporibus : and that money due by bond , is not of the nature of pecunia numerata , is clear from l. si certus ff . de legat . . and if a robber take away may cloak , and give it to a stranger , yet i would per rei vindicationem get it back , notwithstanding of the defenders bona fides ; but here there was no bona fides , seing e. c. was oblieg'd to know , that the earl of forth was injustly forfeited , and that the act of parliament , against which there is no disputing , has declar'd it to have been treason ; and if e. c. were pursued for opposing his majesty at that time , or for concurring to the forfeiting of the earl of forth , he could not defend himself otherwayes , then by the act of indempnity : ergo , in the case of restitution of forths estate , which is excepted from the act of indempnity , that warrand proceeding upon forfeiture , cannot defend him ; for how is it imaginable , that his bona fides , which could not defend him against the losse of his own estate , shall be able to defend him against the restoring of forths , to which he had aliunde no right ? there is no bona fides , but where it is founded upon a title , et ubi non subest titulus , ibi non est admittenda bona fides ; but so it is , that e. c. his title , viz. the forfeiture of the earl of forth , is declar'd by parliament , never to have been a title : but e. c. who was a member of that parliament which forfeited the earl of forth , and general of that army which defended them , is in the same case , as if two robbers had taken a bond from a free liege , and had given it to one of their own society , who was at least a spectator ; in which it is most certain , that the free liege so robbed , would recover payment from him who intrometted . by this unwarrantable intromission with the earl of forths money , e. c. became his debitor , and the supervenient act of indempnity could no more defend e. c. against this , then it could against his other debts . indempnities are design'd to secure against the princes pursutes , who gave them , but not to ruine innocents , else were these indempnities , acts of injustice , not of clemency . si criminaliter caeptum judicium interventu indulgentiae scriptum est , habes tamen ressamen indagationem , & potes de fide scripturae civiliter quaeri , l. . c. ad l. cornel. de fals . amnesties are but general remissions , and so cannot be stronger as to all crimes , then a particular remission is as to one : but so it is , that a particular remission can only dispense with the princes interest ; nor doth it cut off the pursutes of privat persons , as the former law observes very well ; and the emperor in another law tells us , nec in cujusquam injuriam beneficia tribuere moris nostri est , l. . c. de emancip . libero . from these grounds , your lordships have an easie and just prospect of the answers which may be made to the instances adduced ; for we are not in the case of such as obtain gifts from the present exchequer , nor rights from heirs once lawfully serv'd : for the jurisdiction whereby these rights are establish'd , are not funditus taken away , nor were the singular successors oblieged to know the sentences , whereupon their rights were founded , to have been null , as e. c. was in this case ; nor can this prejudge commerce , except among such as are oblieged to know the grounds of their commerce to have been unwarrantable , and rapines and violence sunt extra commercium , which is so far from being an absurdity , that it is an advantage ; for this may help to stop all commerce amongst rebels and usurpers , and to loose these cords by which they are tyed : and from this , i beg leave to represent to your lordships , that by this decision you will do more to hinder rebellion , and to encourage loyalty , then armies can do ; for since no man will hazard hanging and damnation by rebellion , without he be baited to it , by the certain expectation of a prey ; so , if rebels find , that they can never be secure of any prey so obtain'd , they will certainly neither be so eager to have such as are loyal forfeited , nor so desirous to settle upon themselves , estates so rob'd . as to that principle , that whatever defect was in the title here , yet there was none in the numeration of the money , and defects in the numeration are only objected against singular successors ; it is answered , that vis est vitium reale , & afficit rem ipsam licet transierit per mille manus . and this original sin insects the whole issue , for the states could not transmit a better right then they had themselves , nemo potest tribueri alteri plus juris , quam ipse in se habet : and plin. lib. . epist. . informs us , that caecilius classicus having robb'd the province which he commanded , and having payed his creditors with the sums extorted , pecuniae quas creditoribus solverat , sunt revecatae . but though this might be alledged where there remains still some colourable title in the author , and where the singular successour was not oblieged to know the defect , yet in this case it can never be pretended by e. c. whose right is funditus taken away , and who was at the time the mony was assign'd , or was nume● at to him , oblieged to know that defect in his right , which is now the ground of this restitution . i shall not trouble your lordships , with answering those objections , founded upon the earl of forths ratifying and homologating his own forfeiture , by giving in a petition , . when he was content to accept back his heretage , without these sums ; for it is known , that petition was not sign'd by himself , nor did he ever appear before those usurpers ; and what was done by his friends , cannot bind him , especially whilst that usurpation continu'd , under which he first suffered ; nor to the act , . wherein some intrometters are declared free , for that act was only conditional , and upon provision that his majesty should pay the earl of forths successors pounds sterling , out of the fines , which condition was never purified , and i wish it had , for that was much better then what is here expected : these grounds are such , upon which none but such as are ready to drown would fasten : but , my lords , if i needed to prepossesse you with what the parliament designed in this restitution , i might easily clear , that they design'd these intrometters should be lyable ; for when duke hamiltoun and the earl of errol were absolv'd as the immediat debitors , it is very well known , that they were absolv'd upon expresse provision , that they should deliver to the earl of forths successors , such papers as might prove the int●omission of these defenders , which had been unnecessar if the intrometters had not been liable , and the reason why these debitors were absolved had been groundlesse , if intrometters had not been liable . but to what purpose should the parliament have restor'd forth , if they had not design'd the intrometters should be liable ? for the parliament knew , that there was nothing else , which could have been reach'd by this restitution , except these moneys now pursued for , and so their justice had proved an a●y and empty fanfara , bringing nothing with it but the occasion of certain spending , upon an uncertain expectation : to avoid all which debate , the parliament have expresly ordain'd the first debitors to produce these papers , for proving against these intrometters , who are hereby declared lyable ; which words are so expresse , that they preclude all cavil , as well as difficulty . this being the nature of our pursute , and these the answers to any pretended difficulties , it is humbly recommended to your lordships , to give a testimony of your hatred against those violent courses formerly practised , and to teach posterity what such invasions may expect . i know well , that no man has deserv'd better of his majesty , then e. c. hath of late ; and i hope , that when you have decided against him , he will heartily acquiesce to your sentence , as a furder proof of his sincere loyalty , nec tollitur peccatum , nisi restituatur oblatum . i confesse , that he did not yield to those impressions , till they had overcome the whole nation , and that nothing but the perswasion of his being then employed in the service of his conscience and countrey , could have with-drawn him from the service of his prince : but this can plead no further , then that his prince should pardon these escapes , not that he should reward them , especially to the prejudice of his faithful friends . the lords sustain'd the pursute , and repell'd the defences . a debate in favours of the earl of forth , against e. c. ninth pleading . how far a person unjustly forfeited and restored , may repeat annual-rents from the intrometters . if i were not ( my lord chancellor ) very confident of the justice of my own cause , and of your lordships learning , as well as integrity ; i should be somewhat jealous , that the learn'd discourse you have heard , in favours of my l. c. might leave some impression . but , my lord , i think it impossible that any , beside those unjust judges who forfeited the earl of forth of his principal sum , would again forfeit him of his annual-rents ; nor do i imagine , that even those would have done it , if they had not been distemper'd by their own feaverish zeal , and that national fury : so that if your lordships should folow their example , you should share their guilt , but want their excuse . it is ( my lord ) now alledg'd , that e. c. is not liable in payment of annual-rent to the earl of forths successours , because money is of its own nature res sterilis , and in law bears not naturally annual-rent ; and therefore an intromettor , though predo , though male fidei possessor , is not liable for annual-rent , for no man is oblieged to improve another mans money : and by the civil law , ( which was more ready to give annual-rents then ours ) in corporibus ex quibus fructus naturaliter proveniebant malae fidei possessor , was liable in fructus productos , but in corporibus quae non producebant fructus de sua natura , nec predo , nec latro tenebatur in fructus ; and though a person who impropriated publick money was punishable , ratione repetundarum vel ex residuis , and so was there most unfavorable , of all intrometters , yet he was not liable in usuras ; nor by our law are annual-rents ever due , sed ex lege , vel ex pacto , neither of which can be alledged in our case ; and the act of indempnity hath made intrometters with publick money liable in repetition , and though their intromission be most unwarrantable , yet are they not made liable by that act in annual-rents . likeas , though these moneys due to the earl of forth , did at first bear annual-rent , yet they being once uplifted , became a sum lying in cash , which e. c. was not oblieg'd to re-imploy upon annual-rents , and by the act , . whereby his majesty was to repay the earl of forth , he was only to be repayed of his principal sum , but not of his annual-rent . to which , ( my lord ) it is answered for the earl of forth , that since your lordships have found e. c. his title to have been unjust , we must debate now against him tanquam , at least , male fidei possessorem ; for the act of parliament has declared this forfeiture an invasion upon his majesties prerogative , and you have by your sentence , found it not to be shelter'd under the act of indempnity . let us therefore , in the first place , consider that the law never design'd to favour oppressors , nor suffer the innocent to be prejudged ; it never design'd that men should enrich themselves by their guilt , and be rewarded for their violence . and since the fear of punishment is scarcely able to restrain that wickedness , to which we are naturally prone ; it were absurd to highten our vitiousnesse by rewards ; whereas , if malae fidei possessores should not be lyable to repay annual-rents , they should be enrich'd by their oppression , and should be baired to commit violence , and to maintain themselves in it ; for they should be sure lucrari ( at least ) usuras rei , per vim & injuste ademptae . and therefore , my lords , though the law makes a distinction etiam in malae fidei possessore , inter corpora , ex quibus fructus naturaliter proveniunt , & corpora sterilia ? yet , they do not this upon design to favour vitious or violent intrometters , but in order to the several wayes of taxing the restoration of the person injured ; for , where the bodies unjustly intrometed with bear fruits , they ordain the fruits to be restor'd , but where they bear not naturally fruits , the law doth not ordain the intrometters to be free , but to be lyable in damnum & interesse , & in omnem causam ; this the law defines to be all the advantage could have arisen out of the thing intrometted with : this being an uncontraverted principle , i humbly conceive , e. c. should be lyable to these annual-rents acclaimed , and that upon these three considerations . first , this sum intrometted with by e. c. was a sum bearing annual-rent ; and therefore , forth being restored by way of justice , he ought to be put in the same case he was in before the forfeiture : and if the money were now lying unuplifted , forth would be preferred to e. c. quoad these annual-rents , which clears , that they were never due to e. c. and if they were not his , he ought to restore them . the forfeiture is declared to be no warrant , and so , though e. c. were in the same condition as a stranger is , who intrometts with another strangers money without a warrant , yet sure he would be lyable in annual-rents , if he intrometted with a sum bearing annual-rent ; much more then ought he to be lyable , who hath intrometted with a sum , which was unjustly and predoinously intrometted with . for here , e. c. is in the same case , as if a man had broke my house , and had taken away my bonds with blank assignations lying beside me , and had uplifted for many years , the annual-rents of these sums ; or if a man had , upon a false token , taken up my moneys which bear annual-rent ; in which cases it is most undenyable , that the vitious intrometter , would be lyable in re-payment of the annual-rents ; and to invert one of the defenders own instances , it is not imaginable , if any should uplift a sum belonging to a person lately forfeited , and which did bear annual-rent , that the exchequer would not exact annual-rent from the intrometter . i might hear urge likewayes , that a minors money intrometted with , bears annual-rent by the civil law and ours ; and it is most clear , that pinguius succuritur restituto , per modum justitiae quam minori , as bossius well observes , tit . de remed , just . num . . & . jason . ad l. gallus ff . de liber . & postlim . for , as they are equal , in that neither did consent to the intromission , so he who is forfeited for his countrey , deserveth more favour then a minor doth ; and many things are in law allowed ob bonum rei-publicae , but we are not here in the case of corpus sterile , for money bearing annual-rent is not corpus ex sua natura sterile , but habet fructus ex se facillimè provenientis ; usura est 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 seu partus pecuniae , and should rather be restor'd then fructus prediales ought to be , for in these the intrometter bestow'd his industry , but here annual-rent doth grow very easily : and that annual-rent is due , even where it was at first sterilis , is clear from § . quid si l. item veniunt ff . de haered . petit . quid si post venditam haereditatem hic ipse res venient , fructusque earum , sed si forte tales fuerunt , quae vel steriles erant , vel tempore periturae & hae distractae sunt vero pretio , tunc potest petitor eligere ut sibi pretia & usura praestentur . upon which law , the doctors observe , that malae fidei possessor tenetur rem ipsam restituere , si extet , vel pretium & usuras , si non extet : but much more , where money bearing annual-rent is ●ntrometted with , for there the proper damnum & interesse is annual-rent , and our law calls annual-rent the interest of money : so that though the money had been sterile , yet the vitious intiometter would have been lyable in damnum & interesse , and the damnage and interest of money is annual-rent : nor is this money of the nature of that money , which the law makes sterilis , for here was an heretable bond bearing annual-rent , nomen debitoris , and which in our law is not accounted inter mobilia , and such a bond pro feudo habetur ; nor can it be ever said , that this heretable security was lawfully loosed , no requisition having ever been made . another ground i go upon is , that malae fidei possessor ; tenetur non solum in fructus perceptos , sed in percipiendos , l. sed & partus ff . quod metus causa ; where the law determines , that when any thing is vi , vel metu taken , partus ancillarum & fetus pecorum , & fructus restitui , & omnem causam opportet ; nec solum eos qui percepti sunt , verum si plus ego percipere potui & per metum impeditus sum hoc quoque praestabit . and when lawyers consider fructus illos percipiendos qui sunt restituendi à malae fidei possessore , which they call fructus civiles , they define them with bartolus , ad l. ex diverso ff . de rei vindicat . to be vel quos petitor percepisset , si ei possidere licuisset , vel quos possessor quo alius diligentior non est , percipere potuisset . according to which characters ( worthy of their wonderful author ) these annual-rents are to be restored upon both accounts ; for they might have been uplifted by the earl of forth , if this forfeiture and intromission had not interveen'd , and by e. c. had he continued these sums for after-years , as in the beginning , in the cautioners hands , or if he had re-imployed them in other hands upon the first termes ; and if he , studying either his own gain or convenience , has inverted the primitive use of forths money , should either his gain or humour prejudge forth ? incuria sua in rebus alienis nocere non debet . and copus parisiensis doth excellently observe , that sicut ille qui culpa desit possidere pro possessore habetur , ita & ille qui fructus percipere potuit pro percipiente habetur , si culpa ua desiit non possidere , what can be more solid , or plain , though e. c. had not employed them upon land , whereof he has reaped the f●uits constantly , since they were so imployed ? if a man be violently ejected out of a miln which was grinding , a coal-heugh , or salt pan which was going , he would certainly be restored , not only to his coal-heughs or salt-pan , but to all that they might have yielded ; much more then ought he to be restored to his annual-rent , which was a more sure product then these . and whereas it is pretended , that an intrometter , though wanting a just title , is not oblieged to improve the money so intrometted with by him , and so cannot be lyable to pay annual-rents for it ; it is to this answered , that though he be not oblieged to improve them , yet he should be lyable , if he altered the natural improvement of them : this would not be allowable in bonae fidei possessore , much lesse ought it to be indulged in malae fidei possessore ; and though the intrometter in crimine repetundarum , be not lyable in usuras , yet he is lyable in quadruplum , which much exceeds these , and would also be lyable in usuras , if he intrometted with publick money bearing annual-rent , which is our case . and whereas it is pretended , that annual-rent is in our law only due , ex lege , aut ex pacto ; it is answered , that annual-rent is here due , & ex lege , & ex pacto ; ex lege , because in restitutions ex justitia , the party ought to be restored in integrum , cum omni causa , in which annual-rent is included : & ex pacto , because c. hath given his bond to secure the debitors , as to all damnage or interest they could sustain . the third principle i fix upon is , that e. c. gave his bond to relieve the earl of kinnoul and errols cautioners , of all damnage and interest they could sustain by paying these moneys to him ; and therefore , seing they are now absolved by the parliament , upon express provision , that they should make out the intromission of such to whom they payed the money ; it follows by an infallible inference , that they are lyable to the earl of forth for what damnage he sustain'd , and he by this sentence , is surrogat in their vice ; and e. c. having given this bond , should have alwayes lookt upon this money , as that which he was moe wayes then one tyed to improve , and should have known , that this talent was not to have been la●d up . i will not burden your lordships , with satisfying the clamours rais'd against the rigidity of this pursute . it is not craved , that the king would bestow e. c. his estate upon forth , but that forth should be restored to his own , e. c. his life and fortune being at his majesties disposal , as excepted from the act of indempnity : the ransom craved , is only to restore the earl of forths estate . we desire not e. c. should be made poor by his crime , and it were unwarrantable to desire that he should be enriched by it , especially when his being enrich'd will necessarily starve them , who had never any requital for their loyalty , save this act of justice . forths lady and family have been forced to borrow money at dear rates ( as all starving people do ) to supply their want of these annual-rents , and if they be not restor'd to these , they are still to be beggars , for the principal will not pay their debts ; and so they must wander the indigent instances of their princes unkindnesse , and countries injustice , whilst their oppressors do warmly possesse their estates , as the reward of their opposition to his majesty . not decided in jure . for bartholomew parkman , against captain allan . tenth pleading . whether ships taken after they have carryed contraband-goods , can be declared prize . my client is , i confesse , ( my lords ) taken as an enemy to his majesty in this war , but it is by a privateer , , who makes all rich ships so ; his ship is adjudg'd prize , but it is by the sentence of a judge , who having the tenth of all ships as his share , was too much interested to release her when she was taken : but our law being jealous of that court upon that account , has allow'd a remedy by your justice , against what injustice they could commit ; and when we are concern'd with strangers , and to let forreigners know what justice our country dispenses , it was fit that they should have entrusted the decision to your illustrious bench , whose sentences may convince , if not satisfie , even such as are loosers by them . the sentence adjudging that ship prize , is by the admiral , founded upon these two grounds , first , that his maj●sty has , by his declaration ordain'd , that all ships which were sail'd by his m●jesties enemies the hollanders , should be seiz'd upon as prizes , and this ship was sail'd by hollanders , at least three of them were of that nation . the second ground was , that he carry'd contraband-goods for supplying his majesties enemies , viz stock-fish , and tar ; and though he was not taken with these contraband-goods , yet he was taken with that salt which was the return of these , having loaded in salt as the product of these goods . my client has rais'd a reduction of this decreet , as injust , and reclaimes against it upon these reasons . as to the first reason of adjudication , bearing , that the ship was sail'd with three hollanders , he alledges that the swede being an allye , was not oblieg'd to take notice of the king of englands proclamation of war , which is indeed lex belli , quoad his own subjects , and may warrand them in what they do against the hollanders , who are declar'd enemies ; but no lawes made by him can tye allyes , furder then is consented to by express treaties amongst them : and it were injust , that because the king of britain designs to make war with holland , that therefore it shall not be free for swede to use any hollanders in their service , especially since without hollanders , it is impossible to them to manage their trade ; and were it not injust , that all the swedes , spainiards or others , who had employed the hollanders before the war to sail their ships , and had rely'd upon their service , should be forced immediatly , upon declaring a war , to lay aside all trade ; and if it were injust for any in britain to take prisoner a hollander , who serv'd a swede in england , much more injust it is to take their ship and themselves as prize , because they were serv'd at sea by hollanders : nor is it advantageous for the interest of england , that this glosse should be put upon the proclamation , since it is englands interest , that the hollanders should all desert their countrey , and serve abroad amongst strangers ; whereas , by this glosse , they would be forc'd to stay at home , since none else could employ them ; and this will extreamly gratifie holland , who commands under severe pains , by publick placats , that none of their subjects , especially sea-men , should serve abroad . it is also humbly represented to your lordships , that some of the three who are hollanders are only young boyes , who have no constant domicile , but serve where they can have employment , and servants are , by the laws of oleroon ( which are now the lex rhodia of europ ) accounted inhabitants of that place where they serve ; and we consider not domicilium originis in servis , for they in all senses , and amongst all nations , follow the domicile of their master , else the power of masters would be much impair'd , and commerce much entangled . likeas , it is fully proven , that these men were not employed upon design by my client , but were hired by him upon the death of such as serv'd him when he was in denmark and holland , which necessity is sufficient to defend subjects , and much more allies ; nor is it imaginable that a swede , who is not concern'd in the war , should , if his men die in holland or denmark , lye idle there and loss his trade , and stay from his countrey , because he cannot employ his majesties enemies , nor would england allow this , if they were allies , and the swedes only concern'd in the war : and though in a former case , your lordships adjudg'd a ship called the castle of riga , because sail'd by hollanders , yet the greatest part of the sailers were hollanders in that case , who might , because of their number , have commanded the ship and taken her to holland , or have with her fought against his majesties ships , and have made them prize , when they were secure . nor doth it follow , that because his majesty in his treaty with spain , has allow'd the flandrians a liberty to sail with hollanders , that therefore it must be regularly lawfull to sail with hollanders ; for the design of that was not so much to allow the flandrians to sail with hollanders , as to secure them against seizures , upon the presumption of their speaking dutch , because of the vicinity of their language , sayes the treaty ; and if this had not been granted to the flandrians , all their ships might have been brought in , upon pretext that they were sail'd with hollanders . the second reason of reduction , upon which my client craves to rescind that pretended adjudication , is , that though he had carryed in stock-fish and tar to his majesties enemies , yet except he had been taken when he was actually carrying these contraband-goods , his being taken with the return of these goods was no sufficient ground of seizure , which i shall endeavour to evince by many reasons ; first , that by no law , stock-fish nor tar can be call'd contraband , seing contraband-goods are only such as are determined to be such by an express treaty , or by the general custom of nations ; neither are contraband-goods still the same everywhere , but are by private treaties with allyes , establish'd to be such , in respect of such termes as are agreed upon betwixt them ; and generally these are only counted contraband-goods quoad allyes , which have no use in the place to which they are carryed , but for carrying on , and maintaining the war ; and seing the reason why contraband-goods are prohibited , is only that allies may not assist in the war against the confedetats , it is therefore very consonant to reason , that the law should only interpret those goods to be contraband , which serve p●operly , and immediatly for maintaining the war , and tar cannot be call'd such , seing it serves more for peace , then war ; and though an naval war cannot be carryed on without tar , yet tar cannot be said to be contraband , no more then cloath , stuffs , linning , or such things , can be call'd contraband , seing a war cannot be carry'd on without these : and if we look to the treaty betwixt the crowns of britain and sweden , we will find , that tar is not enumerat in that article , wherein it is declared what goods can be accounted contraband , and in such special articles as these , inclusio unius est exclusio alterius , especially where it appears to be designed by both parties , that their subjects should be inform'd , what should be lookt upon as contraband ; and it was very fit that their subjects should have been inform'd expresly , else that treaty could but prove a snare ; and if we look narrowly unto the nature of the particulars there enumerat , we will find , that there is nothing there expressed to be contraband , but what is only and immediatly usefull for the war ; and there is no general in all that article , but only instrumenta bellica , which cannot be extended to tar , whithout an evident wresting of the word . . though by an expresse article , the carrying in victuals to enemies be discharg'd as contraband-goods , and that under the word of comeatus , yet victual is only declared to be contraband , in case it be carry'd to any of the enemies cities when they are besieg'd , si civitas sit obsessa ( saith grotius ) which restriction was very reasonable , for then the carrying in that victual was the relieving and the maintaining of an enemies town against the faith of the league ; for there , he who doth feed , doth defend : and though pesh . relates , that the dantzickers did confiscat , in anno , . sixteen sail of lubeckers for carrying victual to the enemies , yet he forgets to tell whether the enemies were besieg'd , but he expresly relates , that there , the carrying in victual was expresly prohibited . neither was there any such considerable quantity of these stock-fish carryed in here , as might shew any design of assisting the hollanders by victuals , seing it was carryed in a very small quantity , and might have been necessar for the pursuers own company ; and if they had design'd to have carryed these as commodities , they had carry'd them in greater abundance ; and tar is the product of sweden , and so commerce in it is necessar for them . and whereas it is contended , that the ship had formerly carried enemies goods , and consequently had transgressed that article of the treaty , whereby bona hostiam tuto advehere non licet ; it is answered , that if they had been taken carrying these enemies goods , the goods could have been confiscat , but not the ship ; it being very clear by the law of all nations , that it is lawfull even for allies to fraught their ships to strangers , in order to civil commerce , and that to hinder this liberty , is a breach of the law of nations , as is very clear by the constitutions of several nations , printed lately at venice , where amongst other articles , it is determined , si & navis & merces hostium sint , fieri ea capientium , si vero navis sit pacem colentium merces autem hostium ( which is our case ) cogi posse ab his qui bellum gerant navem ut merces eas in aliquem portum deferat , qui sit suarum partium ita tamen ut vecturae pretium nautae solvat . since then by the law of nations , the skipper behoved to have had this fraught pay'd , though he had been taken carrying enemies goods , it were against all sense and reason , that his ship could have been confiscat for carrying them : and camden in the year , . tells us , that pole did , by their ambassador complain , that the law of nations was violat , in that the english had in their war with spain , challenged their natives for carrying their goods to spain . and serviens relates a decision , . december , . wherein some hamburgers were declared free , though they were taken carrying corns and other commodities to spain , and because they were allies ; for the parliament of paris thought , that allies deserved better then others . if we consider the treaty with sweden we will find , that ships carrying contraband-goods are only to be seiz'd on , si deprehendantur , which ( like all words in treaties amongst princes ) must be taken in augustiori sensu ; nor suits it with the generosity of kings to take little airy advantages of one another , and to debate like pedantick formulists , who ensnare one another , in thin cob-webs , as spiders do flees : but in no sense can these words si deprehendantur , be extended to the ships being taken in any former voyage , for els they had been superfluous and impertinent , since no ship can be adjudg'd , except she be taken in some voyage : the genuine interpretation of words is , interpretari secundum subjectam materiam ; and therefore , since these words are insert in a treaty , wherein his majesty is to indulge favours to the swedes , they must be in reason so interpret , as that they may be a favour ; and there is no favour indulg'd here , if these words be not taxative , and if they declare not any ship free , which is not seiz'd carrying contraband the time of the seizure . by our law it has been very wisely provided , that we should use strangers in our admiral court , as they use us in their countrey , act . ia. . par. . and it is offered to be proven , by the law of sweden , tar is not esteem'd contraband , nor can ships be declared prize , for what they carryed in a former voyage ; and since our natives would complain of such usage in sweden , let them not meet with it in scotland ; which is very suitable to that excellent title , in the digests , quod quisque juris in alterum statuerit , ut ipse eodem jure utatur : by the law also of england , ( as judge jenkins reports , in a return to your lordships commission ) no ship is confiscated upon this ground . be pleased ( my lords ) to consider , what great prejudices would arise to trade , if ships might be seiz'd , upon pretext that they carryed contraband in a former voyage ; for by that allowance , all ships might be seiz'd upon , since this pretext might lye against all , and every poor merchant might be left a prey to the ravenous privateers , who might force them to ransome themselves from the very hazard of a seizure : in which case , whatever were the event of the confiscation , yet still their time and expense would be lost , and their secrets and papers would be made open ; which is so great a prejudice to merchants , that by the rhodian law , secreta 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , non licebat introspicere , & introspicientibus ultimum supplicum irrogabatur . it was likewise very fit , that the swede , and all princes should tye the privateers to a probation that fell under sense , and such is the having contraband-goods presently aboard , & ubi constare potest de corpore delicti , and not lay poor merchants open to the hazard of the testimonies of two rogues , who being tempted by malice or avarice , might depone falsly , that the ship carryed contraband-goods formerly : in which they might the freelier transgresse , because they could not be control'd ; whereas no such falshood is to be fear'd , if only actual carrying can confiscat a ship ; since there , the existence of the goods precludes all possibility of error or falshood . were it not also very absurd , to seize a ship which possibly carryed contraband in a former voyage , and thereby ruine a great many merchants who were the present fraughters of her , and who neither did nor could know what she had carryed formerly ? and yet , she being seiz'd , their voyage would be broke , and their fortunes ruined . or , if another skipper or owners had bought her from the first offender , were it not injust to seize the ship ? and yet the ship were prize , if this opinion could take place ; this were to pnnish ignorance , and commerce requires more latitude , then such principles can allow . it is , i preceive , urg'd for this opinion , that the commissions granted now , and of old , bear expresly a power to take ships which have carryed enemies goods ; and there is a commission produced , in anno , . of this tennor , together with two decisions of our admiralty to the same effect , neither of which are concluding ; for strangers and allyes are not obliegd to take notice of privat commissions , which are not leges belli promulg●●ae ; these may warrand against damnage and interest , but not against restitution ; and as to the decisions , they are founded upon other grounds also . it is also urged , that the carrying contraband being a crime against the prince or state who make the war , there is jus quaesitum to them , by the very commission of the crime , though the defender be not then actually deprehended ; as we see in other crimes , which are punishable , though the offenders be not actually deprehended : but to this it is answered , that princes may otherwayes use their own subjects , then they should be allowed to use strangers ; the having offended is sufficient in the one case , but actually offending is necessary in the other , for els our king might at any time , even after the war , seize upon one of these ships , because ( forsooth ) there was jus once perfectè quaesitum to him by the very offence , which is too absurd a consequence to be allowed : and albeit all that was done in the course of the war , be ordinarily caveated by the subsequent treaties , as to the nations who were ingaged in the war , yet allies being secured by no such treaties , their subjects might still be lyable to seizures , and hazards of this nature , which were both injust and inconvenient . consider that there is a difference betwixt such allies , as are tyed in a league offensive and defensive , and such as only enter in a treaty for their own advantage , as swede has now done : the first are oblieged to assist , and therefore , all correspondence in them were a breach , but in the other it is not so , and in them that maxim holds , that cuilibet licet uti jure suo , modo hoc non fecerit principaliter in aemulationem alterius : though all this traffique that is alledg'd were true , yet it clearly appears , that the great design of my client , was not to serve the dutch , but to maintain their own poor families , in a way which the severest lawyers could justifie . remember how little swede is oblieged to holland , who kept them lately from conquering denmark ; so that it is improbable they would have serv'd them , upon design to promote their war. remember how much our countrey-men were honoured lately by their great king , who preferr'd two of them to be generals , and thirty two to be collonels at once in his armies : and i must likewise remember your lordships , that the probation in such cases is very suspicious ; for there , a mans whole estate depends upon two mean fellows , and such two , as are under the impressions of their enemies , and who may expect at least their liberty as a bribe , and that their depositions come to us by an interpreter ; so that though he did not mistake them ( as he may ) yet the trust resolves at most in his single assertion , who is but one man , and who by being the ordinary servant of that court , is much to be suspected ; and therefore , your lordships may call for the witnesses , declare their persons free , and thereafter examine them . let us not be more cruel then the sea , and more mercilesse then storms , and after that these poor men have escaped those , it were inhumane that they should shipwrack upon our laws , which were to them , like hid rocks , upon which there stood no known beacon . figure to your selves ( my lords ) how these poor mens longing wives , send dayly their languishing looks into the ocean , as they can , to find them , or how the creditors , who advanced necessars for their aliment , expect payment from their return ; and how it must prevent the starving of their poor babes , whose craving apetites and cryes , do probably now astonish their indigent mothers ; it is those you punish , and not only our appealers : and how would we use enemies , who had murdered our country-men , when we thus use our allies . we alledge , that this is ( my lords ) a case wherein justice will allow some respect of persons ; and since politick advantages have given their first form and being to this law and proclamation , whereupon this seizure is said to be founded , consider , i intreat you , how inconvenient it were to disobliege by a decision , the king of sewden , whom your royal master , who understands best the advantages of this crown , has taken pains to obliege by a treaty , and how hard were it , if upon your decision , that prince should be forced to grant letters of marque , or lay an arrest upon all the vessels of our nation trading there , by which the innocent might be opprest for the guilty , many might losse for the gain of few , and the present unity of the two crowns might be dissolved , by a sentence of your court. the lords jointly sustain'd the adjudication , notwithstanding of this debate . for the burghs of regality , against the burghs-royal . eleventh pleading . whether it be free to all the lieges to trade with forreigners , or if this priviledge be only competent to burghs-royal . may it please your grace , since freedom , is one of the greatest blessings , and pleasures of mankind , those laws which design to abridge or lessen it , must be very unsupportable , and unfavourable ; except they bring other advantages , which in exchange of this bondage , can either convince our reason , or gratifie our interest . but if we consider the laws here founded on , whereby it is pretended , that none but the indwellers of burghs-royal can trade with forreigners , we will find , that these laws are so far from being advantagious , either to the publick , or to privat persons , that they are a great bondage on the one , and a great impediment to the other . the pursuers who desire to lessen the freedom of trade , are the sixth part only of scotland , who desire to retrench the priviledges of the other five parts , and the priviledge wherein they desire to retrench us , is our freedom , the very words of the priviledge they crave are , that we should be declared unfree-men , and unfree-men imports , slaves , in all languages ; and in reality , not to have liberty to export our own commodities , is to be slaves to such as may stop us , for in so far as they may stop us , they are our masters . that they are destructive to every mans interest , appears from the restraint they lay upon his inclinations , and upon his property ; as to his inclinations , they are very much restrained , in so far as though any of the lieges did never so ardently desire to trade , and though his breeding , and the situation of the place where he liv'd , did favour extreamly therein his inclinations , yet , except he live constantly in a burgh-royal , he cannot trade . they lay likewise a restraint upon his property , because though the situation of his estate be very advantagious for trading , and his estate consist in money , yet can he not imploy that money in trade , which is the natural use of it ; and thus in effect , these acts tend to enslave both our inclinations and our estates . nor do they lesse prejudge the publick interest , as will clearly appear by these considerations ; . by this priviledge , five parts of six in the kingdom , are debarr'd from trading ; whereas it is a known maxim in all nations , that the moe traders , the richer allwayes is the kingdom ; and upon this consideration , the english and french , have invited all their gentry to trade , by declaring , that merchandising shall be no derogation from their nobility and honour . . the more money be imployed upon trade , and the lesse upon annual-rent , the kingdom is alwayes the richer , for though privat parties may gain by annual-rent , yet the publick stock of the nation is not thereby improved , the one half gains there from another , but neither from forreigners ; and if all except burgesses be debarr'd from trade , then the money of five parts of the nation must lye idle , or els must be lent to merchants , which is not ordinar ; and to force us to lend , were unjust . . by this , the places in scotland fittest for trading , are kept bound up from using the natural advantages of their situation , to the great prejudice , of the nation , as we see in many instances , and particularly in lews and burroughstounesse , to keep which from being burghs , the burghs have spent a great deal of money . . this has ruin'd many little towns , who because they were debarr'd from all priviledge of trading , were forc'd to get themselves erected in burghs-royal , and after that they were erected , were forc'd to be at the expenses of keeping prisons , being magistrats , sending commissioners to parliaments , making publick entertainments , and so did ruine themselves without any advantage to the countrey : and by this , the number of burroughs are so far encreased , that it is a shame to see such mean creatures as some of them , sent to our conventions and parliaments , who , notwithstanding they want both fortunes and breeding , yet must sit as the great legislators of the kingdom , and must have a decisive voice , in what concerns the lives , fortunes , and honour of the greatest peers in it . i design not by this to disparage all burroughs , for most are represented by most qualified persons ; but to tax these laws , which have forc'd many little towns , either to send none , or to send such as are unfit . . all the countrey is ill serv'd , for in some shires , there are but very mean burghs , and in these burghs , merchants yet meaner , and if these want credit , to buy and carry out our native commodities , they must lye upon the owners hands , and the countrey wanting necessar returns , such as salt , iron and timber , must buy from very remote places . . if two or three merchants in better towns conspire , not to buy or sell , but at rates agreed upon amongst themselves , then the poor countrey must be at their devotion , and this were to grant monopolies , not only in one place , but in every shire , not only as to superfluous commodities , ( as use is , when monopolies are granted ) but as to all , and even the most necessar commodities ; after this , no man shall dare buy a skin , wine or sugar , but a burgesse , and which is yet harder , this will furnish a pretext to burghs to oppresse all such as they envy , under the notion of unfree traders . . his majesties customes will be thereby much impair'd , for the fewer traders be , the lesse will be both exported , and imported , and whatever lessens export and import , lessens doubly his majesties customs , of the which those are two hands . . other nations , who understand trade in its perfection , such as holland , do allow all their subjects to trade without difference , and it is a maxim amongst them , that many hands and many purses , make a rich trade . and it imports not to say , that their common-wealth differs from ours in its constitutions , and that they have vent for their commodities all over europe , whereas our vent is no larger then our consumption ; for whatever difference be in our fundamental constitutions , yet in the matter of trade , they are still the universal standart : and sure , it is the advantage of our countrey , even in order to our consumption , to have the priviledge of trade , in necessar commodities extended to all , for the moe importers be , we will get our necessar commodities at a lower rate , and the moe exporters be , our corns , fishes , &c. will give the greater rates , and those are the two great advantages of a kingdom . i confesse ( may it please your grace ) that the erecting of societies , as to some trades , and at sometimes , is necessar , but the ordinar rule extends there , no furder , then that trading to remote nations , and in rich commodities , should at first have some priviledges as to their erections , for else , privat stocks would not be able to compasse it ; but even as to these , when the trade is once secured , and becomes easie , and managable , then these priviledges cease , with the cause from which they had their origine : and therefore it is , that albeit trade with forreigners seem'd at first above the reach of our first traders , when to sail to spain , seem'd as har'd as an east-india voyage now doth , then trade needed some priviledges ; yet now , when experience and encrease of money has lessened those difficulties , i conceive the priviledges should expire . it is known , that the bishop of glasgow gave only his burgh then liberty to trade into the shire of argyl , and that the burgh of edinburgh had a special priviledge of old , to trade in the isles : but that now they need these , will not be debated even by themselves . i confesse , that all incorporations in a common-wealth ought to have different designs , and different priviledges suitable to these designs , as is pretended ; but it can by no clear inference be deduced from this , that the sole liberty of trading in all commodities with forreigners , should belong to burghs , but only that they should have some staple-goods , wherein they only may trade . and we are content to allow them , the exporting and importing of what is superfluous , such as wine , silks , spyces , &c. let all , even countrey-men , have the export and import of what is necessar for their own station and employments , let them export corns , cattel , &c. since the having these commodities signifies nothing without power to sell them , and the liberty of importing timber , iron salt , and these other commodities , without which they cannot live in their own station . and whereas it is pretended , that they are content we should export the natural product of our own countrey , providing we bring home money only for them , it is conceived , that this concession destroyes what is conceded , for if unfree-men can only bring home money , then free-men and burgesses may easily undersell them , for few abroad buy them with ready money , and money is the dearest of all returns ; so that these who barter commodities for what they export , may sell much sooner , and cheaper , if they bring home nothing in return of what they export ; for export by it self , without import , occasions great losse , and the advantages of merchandizing is ordinarily in the returns . whereas it is contended , that the lesse diffuse trade be , it prospers so much the better , for it may be easier govern'd according to the just rules . and our old law appointed wisely , that none but worshipfull men , and men of considerable stocks should trade abroad , that thereby poor people , by running over seas , might not by their necessity of selling , or want of skill , low the prices of what they exported , and buy unskillfully at high rates what they imported ; and that to defend trade against this dishonour and prejudices , guildries were appointed in burghs to supervise the conduct of merchants , and restrain abuses , which burghs of regality and barrony wanted , and so were lyable to many escapes . to this it is answered , that though at first , these rules were necessary , yet now when trade is raised to some consistency , this necessity fails with its occasions ; for there are no where poorer traders , then within burghs , to which ordinarily the meanest and poorest amongst the people retire , when they cannot live elsewhere , and when they are once setled there , they , because of the easie conveniences of trading , do indiscreetly run upon it ; whereas , none who live either in burgh of regality , barrony , or in the countrey , will be tempted to adventure upon trade , except they have considerable stocks , and be secure of a full vent . and without debating what was the design of our legislators , in erecting guildries , yet we now find by experience ( which is a much surer guide then project ) that guildries have conduced so little to advance trade , that they tend rather to secure the monopoly , which they at first procur'd , and to establish by mutual compacts , those exorbitant prices for commodities , which are now exacted : and if deaconries amongst malt-men and others , were discharged , to prevent combinations , i see not why guildries , which are but deaconries amongst merchants , should not be discharged for the same reason . but ( may it please your grace ) the great refuge against these convincing reasons , is , that these might have been urg'd , in jure constituendo , but not in jure constituto , for reasoning ends , where law begins , & omnium quae fecerunt majores nostri , non est reddenda ratio . but this may , i humbly conceive , be easily answered , if we consider , . that laws are mortal like their makers , and they who would bind up their reason to a constant adhering to what was once made a statute , behov'd to renounce that reason by which they should be govern'd , and leave off to be reasonable men , that they might be lawyers : and therefore it is , that because legislators might take an untrue prospect of future events , lawyers have determin'd , that where laws never grew unto observance , they did really never become laws , the being once observed is one of the greatest essentials of a law , statuta usu non recepta , nec observata , pro non factis reputantur , voet. de statut . cap. . sect. . arg . l. . § . . c. cad . toll . & alex. consil . . vol. . and if the not observance of laws for ten years after they were made , is in the opinion of lawyers , sufficient to repudiat them , much more ought they to be rejected , after they have for many hundreds of years , languished in a constant contempt ; for els they are but like these idols , of which the scripture tells us , that they had eyes , and saw not , ears and heard not , and feet but could not walk : and if we consider these laws , we will find , that even authority of parliament which can do all things in scotland , has not been able to maintain them in those ; for these statutes oftimes begin , that for asmuch , as there had been diverse acts of parliament , made in favours of the royal-burghs , ordaining they should have the only benefit of sailing abroad , &c. yet these laws have not been in observance , therefore , &c. as is very clear by the narrative of the . act , . parl. i. . and why should the act have been renewed so oft , if the former had been observed ? and if in spight of all these acts , the subjects could never be brought to compliance with them , why should we offer so much violence to our native countrey , as to force upon them that from which they have so much aversion ? if acts which have been strengthened by obedience and observation , may be repell'd bydesuetude , and a contrary custome , how much more may desuetude overcome acts which are not yet arrived at their due strength , and perfection ? . though these acts had been once in observance , yet they are now antiquated by desuetude and non-observance : that desuetude may antiquat and abrogat laws , is very clear from reading our acts of parliament , of which the full half are in desuetude , and are only considered now by us as matters of antiquity , as roman medulls , or old histories : and particularly , can the burghs-royal deny , but most of these acts limiting their trade and government , are gone in desuetude , as that officers within burgh should not be continued from year to year , i. . par. . act . they should not sail in winter , nor oftner then twice in the year to flanders , i. . par. . act . nor should they sail , except they be worshipfull men , and have at least three serplaiths of wool , or half a last of goods , i. . par. . act. . i. . par. . act. . frustra opem legis implorant , qui in legem peccant : and it were injust , that they should obliege others to obey , what they will not submit to . and that the acts whereupon the priviledges now craved , are founded , are gone in desuetude , appears very convincingly , from the constant practice of all the corners in the nation , not by single , or clandestine acts , but openly , upon all occasions , and in all places , and ages , even under the neighbouring observation of whole fleeces , and of all their succeeding serieses of magistrats : have not musselburgh , and borroughstounnesse near edinburgh , hamiltoun near glasgow , the greatest burghs of this kingdom , exercised this freedom which is now contraverted ? and though they made frequent applications to your lordships , yet till now was their never a decreet in foro in their favours , and decreets in a●sence , are rather founded upon the omissions of the defender , then the justice of the pursute . so that it appears clearly , that the magistrats have been ashamed to crave , the judges unwilling to allow , and the people stiffly refractory from submitting to the priviledges here crav'd to be declared . to this it is replyed for these burghs-royal , that desuetude cannot abbrogat laws under monarchies , though it could under common-wealths , nec potest tacitus populi consensus abrogare , quod expressus populi consensus non introduxit , l. . ff . de . leg . nam cum ipsae leges nulla ratione nos teneant quam quod judicio populi sint receptae , merito & ea quae populus sine ullo scripto probavit , tenebunt omnes . . though desuetude might abrogat such laws as respect only privat rights , yet the people by breaking penall statutes , cannot by repeated transgression , secure themselves against laws made for restraining their insolencies ; else by frequent usury , or attending conventicles , these delicts might passe in desuetude , and by the acts founded upon , the half of the offenders goods are declared to belong to his majesty , and these laws are in effect penal statutes . . where laws may run in desuetude , it is required , that the desuetude or contrary consuetude , be founded upon clear and open deeds , and not upon clandestine or precarious acts , as in this case , wherein all the trade with forreigners , to which these burghs-royal or of barrony can pretend , was either carry'd on under the name of free burgesses , or was tollerated by the neighbouring burghs-royal . . it is requisit , that the consuetude which is oppos'd to law , be judicio contradictorio vallata , which cannot be alleadg'd in this case , where not only no decreet can be instanced , finding these laws to be abrogated , but where there are decreets produced conform thereto . to the first of which it is answered , that though those laws seem to respect a common-wealth , yet it is generally received now , that a contrary desuetude may abrogat even laws introduced by monarchs , and that the taciturnity or connivance of the prince , is equivalent to a consent . thus perez , tit . quae sit long . consuet . sunt qui scientiam principis desiderant , quia in illum omnis potestas condendi juris translata , ego tamen existimo sufficere , ne princeps contradicat : and for this he cites , c. . de constitut . de . where a consuetude is sustained to abrogat law , though the pope ( who is a soveraign prince in his own dominions ) did not expresly allow it , dummodo sit rationabilis , & legittime praescripta ; and with us , do not our old laws die out by desuetude ? and do not new consuetudes dayly spring up , without any other warrand , then meer reason , and prescription : but in our case , his majes●y has so far allowed this custom , and has so far contributed with it to the abrogation of these laws , that he has under his own royal hand , granted many signatures in favours of burghs of regality and barrony , allowing them to trade with forreigners , and extending their priviledges as far as those of burghs-royal ; which signatures are pass'd in his exchequer , and authorized with his seal , which states this consuetude in a very different case from consuetudes which may abrogat penal statutes , or such publick laws as are made against conventicles ; the one his majesty opposes , in the other he concurrs . and this likewise answers that other objection , founded upon the clandestinnesse of these acts , for what act can be more publick , then these which passe his majesties hand , the publick judicatures , and common seals ; and as to extrajudicial acts contrary to the laws , they have been too many and universal to be latent ; but it is offered to be proven , that burghs-royal and burghs of barrony , have been in use openly and avowedly to drive on this trade , which they endeavour to maintain . and whereas it is alledged , that consuetudinis non vilis est authoritas , verum non usque adeo sui valitura monento , ut aut legem vincat , aut rationem , l. . c. quae sit long . consuet . to this some lawyers answer , that though it cannot over-power a law , whilst the law stands , yet it can abrogat and make the law fall , cont. ad dict . l. and others interpret so this law , as that they extend it only to a growing and unripe consuetude , which cannot indeed abrogat a law , that has not fully lost its vigor , as cujac . and others affirm . as to the fourth objection , it is answered , that a contrary consuetude can abrogat a law , sine judicio contradictorio ; for , judicium contradictorium is not that which abrogats the law , but only finds that the law is thereby abrogat , and it doth not strengthen , but declare the consuetude ; and the lords of session , by refusing frequently to declare this priviledge , have therein done what was equivalent to a judicium contradictorium ; and if this be not sustain'd , then the burghs-royal may crave , that all the lieges may be debarr'd from tapping wine , spices or other things , absolutely necessar for the accommodation of travellers ; for , the selling of those is as expresly prohibited by the laws founded on , as is the trading with forreigners : nor is the consuetude whereby these are abrogat , any otherwayes firmata judicio contradictorio , then this is ; and though the burghs-royal declare , that they insist not at this time to have their priviledges quoad these extended , yet certainly when they have prevail'd in the one , they will crave the other . and what an absurd thing were it , that all travellers behoved either to lye in burghs-royal , or to want that accommodation which is necessar , or to buy it at exorbitant rates ; and that not so much as a candle or penny-point should be sold , for the conveniency of the countrey , outwith a burgh-royal . i may likewise represent to your grace and lordships , that his majesty is not only , because the author , therefore the absolute arbiter of this priviledge , and may dispose upon what he hath given ; but that likewise by the . act of the . session of his majesties first par. it is declared , that his majesty has the sole prerogative , of ordering and disposing trade with forreigners ; and therefore , since his m●j●sty has granted to all burghs of regality , and many bu●ghs o● barrony , as full liberty in trading with forreigners , ●s h●●●th granted to any burghs-royal , i see not who in law can dispute this privledge with them ; at least , how the burghs-royal can in gratitude debate the extent of a priviledge with their prince , who at first gave it . nor can these concessions , in favours of burghs of regality and barrony be alledged to be subreptitious , as is pretended , since they are not only past in the ordinary way , but are frequently past , & actus geminatus facit actum censeri non esse subreptitium ; but likewise , after it hath been represented to his majesty from the burghs-royal , and their agents in court , that this concession was contrary to the priviledges granted to them by the parliament , notwithstanding of all this , his majesties predecessors and himself have still continued to grant these concessions . and that the burghs of regality and barrony have enjoyed this priviledge of traffique and merchandizing , is very clear by the . act , . par. i. . wherein it is declared , that for somuch as divers burghs of barrony and regality were in use to exerce the trade and traffique of merchandize ; therefore , that priviledge and freedom shall be continued to them . it hath been oft inculcat , that this priviledge granted to the burghs-royal , of the sole trade with forreigners , is not the meer effects of his majesties favour , and is not only founded upon the parliaments concession , but that it is granted to them , upon the account they pay the sixth part of all the publick impositions of this kingdom , which makes their contributions within burgh to rise so high , that if they had not this priviledge to ballance that inconvenience , they would not be able to ease the countrey , by paying so great a proportion : and if burgesses within burgh had no special priviledge above others , they would not live within burgh ; for , it were unreasonable to imagine , that when they might trade as well elsewhere as within burgh , that yet they would continue to live there , under great burdens , and without any priviledges . to this it is answered , that the . act of parliament , i. . par. . whereby it is declared , that their part of all general taxations shall extend to the sixth part allanerly , bears no such quality ; nor do the acts of parliament bear any such onerous cause ; but the true reason of their bearing the sixth part of the kingdoms burdens , is , because they are intrinsecally the sixth part of the kingdom , if we look either to the number , or riches of their inhabitants : and if the burghs-royal were accounted the sixth part of scotland , under the reign of king iames the first , how much more great a proportion are they able to bear now , when the burghs are six times more numerous , and each particular burgh six times more rich and populous , then they then were ? their riches have encreased with our luxury , and the luxury of our age doth far exceed what it was in that kings time ; so that since now the nobility and gentry only toil to get money , to buy from burgesses what they import from forreign countries , i conceive those burghs may easily bear a sixth of our burdens , since once a year they get in all our stock . and to any thinking man , it may easily appear , that all the money in scotland doth once a year circulat and passe thorow the hands of citizens : for money serves only either to pay our annual-rents , or buy us necessars ; and that which is payed for annual-rents , is by the receivers given out to others , to satisfie their present necessities , and all is ultimatly employed for food or rayment , and little money is bestowed upon food or rayment in scotland , except only within burgh . since then this priviledge doth divide scotland in two parts , since equity in it seems to oppose law , and since both parties pretend to national advantages : i shall humbly move , that if this illustrious senat be unwilling to interpose in so universal a difference , that this debate should be transmitted by them to the parliament which is the full representative of all the kingdom , and the natural judge of equity and convenience . the session referr'd this case to the parliament , who extended this priviledge to all the lieges . for the earl of northesk , against my lord treasurer-depute . twelfth pleading . whether a novo damus secures against preceeding casualities . my lord president , it is one of the chief advantages of our nation , in this age , that we live under a prince , who covets more the hearts of his subjects , then their estates ; and who loves rather to see his laws obey'd , then to have his advocat prevail : what measure then can his fisk expect , when in general , all lawyers have even under tyrants delivered , as their opinion , semper contra fiscum in dubio est respondendum ? and since flattery or fear may encline some , to favour the princes interest too much ; it is fit , that judges should be jealous of the●● own spirits in such cases , and should bend them , rather to the other side , that they may fix at last in a straightnesse . the case propos'd is , whether the novo damus not expressing the casuality of marriage specially , but all casualities in genera● doth by our law , ●e●end against the marriage ? that i● 〈◊〉 . i presse for my client , upon these grounds f●●st a n 〈…〉 〈◊〉 is that , which the feud●lists , call re●●va●● feudi , and 〈◊〉 feudi doth import , liberationem ab om 〈…〉 caducitate ; nay , the very nature of a disposition or alienation doth imply , a liberation from any burden , with which the disponer could affect it , else he should alienat and yet retain , give and not give ; and therefore , by the civil law , he who dispon'd land , was interpreted to have dispon'd it tanquam optimum maximum , free from all the disponer could lay to its charge . if any person should dispone his land to me , and should thereafter crave a ward or marriage , as due out of these lands tanquam debitum fundi ; certainly it would be an absurd pursute , and i would be absolv'd ; nay , if a superior enter me to my lands , eo ipso , i am free from all preceeding casualities ; nor did ever a vassal take discharges at his entry of any former casualities , but his entry was alwayes judg'd sufficient ; why then should not his majesties vassals be in the same condition ? for since this is clear in other vassals ex natura feudi , there being no statute in their favours , it must be due to all vassals ; for , à quatenus ad omne valet consequentia ; and that which is natural to few's , must be inherent in all few's . the design of a novo damus is , to secure the receiver against nullities ; the law thought to set this as a march-stone , and let not us remove it . the stile of a novo damus in our law , which is equivalent to expresse law , is very exactly adapted to this design , as may appear by all its clauses ; for , when his majesty de novo dat , that chartor must be equivalent to an original disposition ; and sure , if these lands had belonged to his majesty , and if he had disponed them , that original right would secure the receiver , against all his majesty could crave out of these lands , except in so far , as he did exp●●sly reserve at the making of the disposition ; nor do i see , 〈◊〉 reservations of former rights were necessar in dispositions , if these rights were rese●v'd without them , and if they were not cut off by the alienation it self . but , not only doth this novo damus dispone in favours of my client , the land out of which these casualities are sought , but it dispones them , cum omni jure , & titulo , interesse & jurisclameo ; tam petitorio quam possessorio , quae nos , aut predicessores , aut successores nostri , habuimus , habemus , vel quovis modo habere possumus , in , & ad , dictas terras . what can be more expresse ? for if his majesty had any claim to , or right in , these lands , any manner of way , he here dispones it , and transfers his right , in , and to my client ; if his majesty have any right at all , it must be vel jus , vel interesse , vel jurisclameum , and if it be either of those , it is dispon'd : but lest it might be pretended , that this clause extended only to secure the property ( which is not its only effect . as i shall clear hereafter ) therefore , the stile of a novo damus bears omne jus , non solum quoad aliquam ejus partem , sed & ad omnes census , firmas , & proficua , ratione wardae , purpresturae , foris facturae , non introitus , eschetae , &c. vel quocunque alio jure , vel titulo : from which general clause , i draw these inferences ; first , that this general clause must seclude his majesty , since tantum valet genus quoad omnia , quantum species quoad specialia , bald. consil . lib. . gemin . consil . . & l. si duo ff . de administ . tut . and therefore , since a special gift of this marriage would have secluded the king or his donator , a general concession must do the same , especially since this general was designed to secure against all , in respect particulars could not be remembred ; even as we see in general discharges , or renunciations , which are as valid quoad all , as any particular discharge can be , as to a special debt or deed ; and since this general discharge of all former casualities , is so oft repeated , and represented under so many various terms , which can signifie nothing , if they did not expresse the exuberant will and inclination of the prince , to denude himself , and secure his vassal , aginst all former casualities , as well marriage as others : and this clause is equivalent to that clause spoken of by the doctors , quovis modo vacet , which comprehends omnem modum vacandi , & omnes formas excogitabiles renunciationis , cap. consil . . . general clauses subjoyn'd to specials enumerat , must be extended at least to all such specialities , as are of the nature of the specialities enumerat ; for , the subjoyning a general to specials , is designed to supply the not enumeration of other specialities which are homogeneous , clausula generalis quae sequitur casus speciales enumeratos , extenditur ad similia specificatis , socin . consil . . but so it is , that the casuality of a marriage is of the same nature , with many casualities he especifically exprest , such as ward , non-entry , escheat , &c. to which the superior having right in the same way as he has to marriages , it is presumed , he would discharge it in the same way with them . . general gifts must be extended to such particulars , as probably the granter would have gifted if they had been exprest ; but so it is , that it is beyond all doubt , but , that his majesty , if he had been asked , whether he was content to dispone and gift the marriage , he would have consented very freely to gift the marriage , as well as the other casualities , this marriage must therefore passe under the general ; and how can it be thought , that he who granted all other casualities , would have refused this ? or what speciality was there in this casuality , which might have occasioned this refusal ? nam geineralis clausula idem operatur , quod specialis , ubi non subest ratio diversitatis , curt. consil . and upon this ground it is statute , that general clauses in remissions , shall be extended to all crimes of lesse gravity , then the chief crime which is exprest , act. . i. . par. . and if great crimes can be taken away by general clauses , sure it cannot be denyed in civil casualities , which are of their own nature easier pardon'd , and of lesse consequence : and by that act , it is clear , that the general clause was extended formerly to all , even greater crimes then the crime specified ; a●d if a statute was nece●sar there , it is much more necessar here , els the general clause cannot be restricted . sure he who granted the property , would not stick at a casuality , he who granted the greater , would not stick at the lesser ; he who granted so many casualities , would not stick at one ; he who granted all the others of that same nature , would allow this to passe with its fellows ; and he who granted ward , which is the cause of marriage , would not have refused , to grant the marriage , which is but an effect and consequent of that ward : and this leads me into another argument , upon which i lay very much weight ; his majesty has here gifted omnia proficua & devorias quae contigerunt ratione wardae ; but so it is , that marriage is a casuality proficuum & devoria ; which falls by reason of ward-holding : and so contingit ratione wardae ; for , ward here is taken not as a naked casuality , but as a holding , and therefore it is , that when by the stile of a novo damus , all casualities are enumerated , marriage only is not specified in the old signatures , because that casualitiy was still lookt upon , as comprehended under the general , omnia proficua ratione wardae . not only do many general terms of this novo damus secure against this and all other casualities , but his majesty in his concession , expresses all the wayes of transmission , whereby these casualities could be given by him to his vassal , viz. renuntiando , transferendo , & extradonando eadem , cum omni actione & instantia : and in contemplation of this right , his majesty has a considerable composition in exchequer , which makes this to be not only a gift , but a bargain , not only meer law , but equity . to ballance these reasons , it is represented for his majesty , and his donator , that all his majesties concessions are gratuitous , and must not be too largely extended , for what compositions are payed , are rather payed as fees to his majesties officers and attenders , then as a price , and these are too low , and unproportionat , to what is given , to deserve that name . . that his majesty cannot be prejudg'd by the negligence of his officers , and what he passes in favours of his vassals , deserve a far other construction , then what is done by other superiours ; and though general clauses may carry away casualities from them , because it is presum'd , that they have leisure to ponder every word , in any right they grant , yet his majesty being loaded with the weighty affairs of the nation , cannot vaick to so exact observations ; and therefore it was thought fit , that the negligence of his officers , nor the importunity of parties , should not prejudge him . . that the gift of a ward , per se , would not carry the casuality of marriage , if it were not exprest ; ergo , marriage could not be comprehended , under the casuality of ward which is here exprest . . that general clauses are in many cases but error stili , and are restricted by the decisions of all our courts ; thus though the stile of a gift of escheat , doth dispone all moveables which the rebel had , or shall acquire ; yet , these gifts are restricted by our decisions , to what the rebel had , the time of his rebellion , or should acquire within a year after the rebellion : though gifts of ward and marriage bear , ay and till the entry of the next lawfull heir , yet these gifts are restricted to three terms non-entries , subsequent to the ward ; and though gifts granted do bear relief , yet they would not carry a right to the relief . . that the design of a novo damus is to secure the property , but not to transmitt a right to any casualities not exprest ; and thus the king might , notwithstanding of a novo damus crave bygone few duties ; nor would it debar his majesty from craving taxt-wards or marriages , as was decided in the case betwixt his majesties advocat , and pierstoun , where it was found , by the exchequer , that marriage was not comprehended under the novo damus , because it was not exprest . i am not , my lords , willing to lessen his majesties fa●ours to his subjects , who were not worthy of them , if they undervalued them ; and therefore , i beg leave rather to magnifie them so far , as to think , that they should not be interpret so narrowly , as to bear a proportion to our deserts , ( for the favours of princes cannot , like his whom they represent , be merited ) but so augustly and opulently , as may bear a proportion to the greatnesse of him who dispenses them , as clarus and all the feudalists observe ; and if the word can admit a large interpretation , the grants of princes ought to have it : so , that since these general clauses would carry all casualities in gifts granted by privat superiors , much more ought this to be allowed in augustioribus principum concessionibus , especially in discharges granted by them of all former incumberances , which being of the nature of indempnities , ought like them to be interpret all possible wayes to defend the poor vassal . nor do i deny , but the negligence of his majesties officers should not prejudge his interest , yet , gifts granted cannot be called negligence ; for the one is an omission , and the other a commission ; the one is a privation , and the other a positive act ; the design of that statute was to defend his majesty against the omission of his officers , such as the suffering his rights to prescrive , or omitting to propone defences for him ; and the words of the act . par. . ja. . are , that in the pursuing or defending any of his actions or causes , the negligence of his officers omitting any exception , reply , &c. shall not prejudge him . but god forbid that every gift granted by his majesty , and past by his exchequer , might be thereafter questioned , because a sufficient composition was not payed , or that it was not founded upon a sufficient cause ; for else , all our signatures and rights might be questioned ; this were to unhinge all our securities , and to endanger all his majesties officers ; but how can what is past his royal hand , be thought to be past by the negligence of his officers ? and how impertinent were it , for his officers alwayes to stop what his majesty commands ? i confesse , that the gift of a ward per se , would not carry marriage ; but if his majesty did grant omnia proficua ratione wardae contingentia , though in a single gift , i think it would give right to the casuality of marriage ; and yet , that case would not be so strong as ours ; for in single gifts , it is proper to expresse casualities dispon'd , but in a novo aamus it is otherwise ; for the design there , is by the enumeration of all special casualities , and by subjoining a general to these , thereby to secure against all these casualities . to what is founded upon the errors , that are in many of our stiles , i need only answer , that regulariter stilus aequipollet juri , & pro lege habetur , l. si quando c de injur . bart. in l. peritos ff . de excus . tut . and therefore , though as laws may be abrogated or restricted , so stiles are subject to the same frailty ; yet , unlesse it can be made appear , that these stiles are restricted by the constant current of decisions , or by some expresse laws , certainly , stile must rule us : stiles are the product of common consent , and are introduced after much experience , by such as understand ; they are to lawyers , what the cart is to geographers , or the compass to sea-men ; and this is so far from being convell'd , that it is established by the instances adduced , by the donator for gifts of escheats and non-entries , did take place according to the latter , till they were restricted by expresse acts of exchequer : and sure these acts had been needlesse , if the stile had not been binding , before these statutes drawn backwards , but having a future obligation only , every man knew how to compone or transact for them accordingly . as to the instance of reliefs , by-gone few-duties , taxtduties of ward and marriage ( which was pierstons case ) it is clear , that the reason why these passe not under general gifts is , because they are liquid , and so cannot be compon'd for , in exchequer , as hope well observes , for these are no contingencies ; and since the law gives right to any thing in a signature , because it is compounded for ; therefore , in justice these things cannot be comprehended in a signature , which are not compounded for . we have likewise an expresse act of parliament , appointing that reliefs should not be compounded for , which draws out these from the common objection , and states reliefs in a case far different from ours . and though it be much urg'd , that his majesty having taxt the casuality of ward and marriage in this gift , it is most presumable , that he would have exprest the casuality of marriage , if he had designed to have transmitted it , since that casuality was then under consideration : yet , this is but a remote conjecture , and must cede to the stronger presumptions urg'd in the contrair ; and since the signature is not drawn by his majesties order , but by the vassal , the presumption ceases ; and it is more presumable , that the vassal would have exprest this casuality , had he thought it necessar : and whatever might be urg'd , if this casuality of marriage had been exprest , but had been delet ; yet there can be little difficulty , where the signature was presented without it , and where the vassal rested upon the general clause . all the lawyers of our nation have advised , that this novo damus did seclude marriage , though not e●prest ; all the people have esteem'd so , and upon that esteem , they have bought and sold accordingly , rights carrying such a novo damus ; so that whatever may be done as to the future , yet since so many have compon'd with his majesty for such gifts , in contemplation they carryed all casualities , and that so many have given considerable sums to such as had compon'd for them , upon that consideration ; since this opinion was so old and universal , and since ignorance in it ( if it be an error ) was so invincible , being warranted by the advice of the ablest lawyers ; i cannot see how in law quoad preterita it can be otherwise interpret , whatever fate it may have for the future . the lord found , that a right granted by the king , with a novo damus , did not only secure the property , but secluded all casualities that were exprest ; but that it did not defend against casualities which were not exprest . for john johnstoun , againstjames hamiltoun . xiii . pleading . whether a contract entered into by a minor , who averr'd himself to be major , and swore never to reduce , be revocable . the law might seem a severe master , if it only impos'd upon us what we were to obey , and exacted from us an intire submission to what it did command : but in recompence of our submissions , it returns us its protection , it doth supply want of strength in the weak , when they are ingaged against the strong ; want of wit in the simple , when they are ingaged against the subtile ; and want of age in minors , who would otherwayes be very easily circumveened : it appoints its judges to be their tutors , and whilst such as rely upon their own wit , may be circumveened , they are by its assistance plac'd beyond all hazard . amongst those other minors , who dayly come to crave from you , the reduction of what they did in their minority , none was ever more favourable then my client , he being a person , who because of the lownesse of his parts , and meannesse of his breeding , is like to continue very long a minor. and if sharpnesse , & malitia , can in some cases forestal majority , and almost meet it half way , certainly want of wit and ordinar sagacity , should extend the priviledge of minority . the person by whom he is laes'd being his own kinsman , and one in whom he confided very much , pleads likewise for a more liberal reparation , and the same principle which makes murder under trust to be treason , should likewise make the lesion here to be more easily reparable , and should not only weaken the defences , but should likewise be a sufficient ground to repell such as were of themselves relevant : and the lesion here , is not one of these small injuries , but is a great and considerable losse , wherein the minor has not only been induced to sell his land , though the law appoints , that a minors land should not be sold , but by the authority of a judge ; but to sell his fathers heretage , transmitted to him by a long series of ancestors , and to sell it too without the consent of his curators , who are the only persons who should defend and supply his infirmity . against these reasons , it is debated for the defender , that though minors have great priviledges allow'd them in law , yet many causes may occurre , wherein it were unjust to proportion exactly the prices of what they sell , with the ordinar prices of what is sold ; and the same equity whereupon their priviledge is founded , may make such exactnesse , not only to appear to be , but really , to be rigour . as if a minor should , to free him from the gallies , obliege himself to sell land at an easie purchase , to one of his countrey-men , who were then in a forreign country with him , and from whom he could only expect money , and which money being to be bestowed upon merchandize in these countreys , might produce far greater advantage to the merchant , then the land could ; which , and many other instances , may clearly evince , that if minors had not some way whereby they might secure such as would contract with them , the law would secure them , but as it doth prisoners , and which was designed to keep them free , would take their freedom from them ; and therefore , the law has introduc'd , that minors being in confinio majoritatis , may subjoyn an oath to their contracts ; which oath is , because of its divine character , and of the reverence that 's due to that great god , who is called upon as witnesse in it , by all christian lawyers declared to be sufficient to fix and corroborat the contract to which it is subjoyn'd . for , the law of god oblieging every man to observe what he has sworn , even though to his prejudice , it were unfit that the laws of men should be more binding than those . likeas , by the common law , l. . c. si adversus venditionem , an oath confirming vendition is declared binding , nullam te esse contraversiam moturum , neque perjurij me auctorem tibi futurum sperare debuisti . and authent . sacramenta puberum , doth expresly tell us , that sacramenta puberum sponte facta , super contradictibus rerum suarum non retractandis , inviolabiter custodiantur . which is likewise observed by our law , the last of february , . and by a late decision , . february , . mr. george wauch contra bailie of dunraggat . but not only has this minor oblieged himself upon oath , not to revocke , but he hath likewise declar'd upon oath in the same bond , that he was major , and majority being that which cannot be known by the eye , and there being no liquid and present proof of a minors age , the law should have prejudg'd commerce very much , if it had not allow'd that a minor asserting himself to be a major , should notwithstanding be restor'd against his own declaration : for by this , not only should minors be disabled from getting money to do their necessar affairs , but likewise majors behov'd still to wait till they should get an exact probation of their age ; which probation is very difficult with us , where there are no certain registers ; and consequently , majors might , because the probation of their majority could not be presently instructed , be very much prejudged , and sometime the probation of age , being that which cannot appear convincingly to the sight ; and that being a case , wherein such as contract with minors might be cheated , it was very just , that since the law designed only to assist minors that were cheated , that it should not give the same priviledge to such minors as cheat others , by asserting themselves to be majors , l. . si min. se major . dixerit . si is qui minorem nunc se esse adseverat , fallaci majoris aetatis mandacio to deceperit , cum juxta statuta juris , errantibus non etiam fallentibus minoribus publicajura , subveniant , in integrum restituti non debet . and since dioclesian , who was not only no christian , but a persecuter of them , did bear such respect to an oath , what respect ought it to have from christian judges , who if they suffer this oath to have no effect , are the occasion that the name of god is taken in vain ? minors may be punish'd for perjury , falshood , and cheating , and therefore , it followes necessarily , that they may much more be bound by oaths ; for it were injust to punish them for perjury , if they understand not perfectly the strength and efficacy of an oath , and if they do understand that , there is no reason to absolve them from it : and if it can bind them to severe and corporal punishments ; it can bind them much more to the performance of civil contracts . nor can it be deny'd , but that our law respects so much an oath ; and finds it so obligator , that deeds done by women in favours of strangers , stante matrimonio are null , though ratified by an oath , as was decided . february , . brisband contra douglas ; at which time , the lords were of opinion , that all obligations which are ipso jure null , such as obligations made by women stante matrimonio , and by minors having tutors and curators , but without their consent , are still null , though they be ratified by an oath : and if this be true , as is acknowledged , they contend , that there is no reason why all contracts entred into by minors should not be valid , for the obligation of an oath lyes in the hazard of perjury , and in the religious respect which lawyers have to oaths ; and in point of conscience , what difference is there betwixt contracts ipso jure null , or such as are not so ? god takes no notice of such subtile differences , and since the oath is the same in both , why should it not produce the same effect ? it is the oath which in this case oblieges , and therefore , though the contract were null , yet the oath still binds , and subsists , though annext to an null contract , even as a null contract may be ratified , or homologated . and that contracts upon oath , do bind minors , though they have curators , and though they subscribe without their consent , is maintain'd by most famous lawyers , as andreolus , contravers . . est enim haec opinio ( inquit ille ) fundata in religione juramenti , quae semper militat , sive minor habeat curatorem , sive non , & censequenter cum religio juramenti , & odium perjurii in utroque militat casu , in utroque etiam debet manere effectus . other lawyers assure us , that juramentum minorem , representat majorem , and therefore , since majors are bound , and minors swearing are majors in the construction and interpretation of law , minors swearing should be also tyed by these contracts . nay some have said , that juramentum fingit minorem non habere curatorem . bald & corn. ad auth . sacramenta pub . and according to the canon law ( which craig sayes , we follow in what concerns our consciences ) juramentum semper est servandum , quotiescunque potest servari sine dispendio salutis aeternae . it is likewise alledged for him , that minoribus deceptis , non decipientibus est succurendum ; because there , the want of wit , which is the ground of restitution , ceases ; and it were also unjust , that this remedy should be abused against the design of the legislator ; nor should the minor have the protection of that law , which he has offended : but so it is , that its offered to be proven here , that the minor was a person traffiquing upon his own account , and such cannot be restored , fortia de restit . min. part . quaest . . how dangerous were it , if such as were merchants , and common traders , should be repon'd ? for then , who should contract with them , or how could innocent people be secured ? that same necessity and publick interest , which introduced the priviledges of minority , has likewise introduced many other priviledges in favours of commerce ; and since it were disadvantageous to debar minors from trading , it were unreasonable to state them in a condition , in which their trade would be ineffectual ; for who would bargain with them , or bestow trust upon them , if their transactions could be rescinded upon the pretext of minority ? it is ( say they ) to be presumed , that experience and art ( learned by them whilst they were practisers ) doth supply the imbecillity of their greener years , and since by learning and art , such as are very young do outstrip very far such as are of riper years , and attain to very much exactnesse in the subtilest sciences , why may not application refine them also to a sufficient consistency in merchandizing , in which there are no such mysterious points ? upon which account , even our law has introduced , that advocats , nottars , and others in publick offices , cannot revock what they do in their minority , as was decided , . july . . if , say they , the minor was forced to sell his heretage , it was to redeem his person from prison , and freedom is preferable to heretage , because liberty can please without heretage , but heretage signifies nothing to one who wants liberty ; and for this heretage my client gave out his money , by which he had raised himself to a considerable fortune , and being forced by want of this money to quite his trade , he did loose hope of gaining a greater estate , then that which the other sold : but this he did to prefer his friend to his hopes , and so this frendship and relation which the pursuer would make the foundation of a cheat , was indeed the foundation of this favour , and the law presumes , that his cousen would not have cheated him . notwithstanding of all which plausible representations , i humbly conceive , that the minor my client ought not to be tyed by this oath ; and that what i debate in his favours may be the better understood , your lordships will be pleased to consider , that all civil polish'd nations , have in effect resigned so far their liberty to their legislators , that these in their contracts , are to be ruled by those in their statutes : and god almighty is more concerned in the oeconomy and government of the world , then in the observation of privat oaths ; and therefore , we must consider more the force of a law , then of an oath ; and if privat oaths amongst parties could derogat from publick laws , then the publick laws should be absolutely evacuat , and remain as the empty shadowes of what they ought to have been . and from this i infer , that since the law has thought fit to declare all deeds done without the consent of tutors and curators to be null , that no deed done by any minor having curators , can bind him , except he be authoriz'd by their consent . and from the same principle , i likewise infer , that the former distinction made in law , betwixt such deeds as are ipso jure null , and such as are not ipso jure null , but are only reduceable , is so far reasonable , in relation to this contraversie , that though deeds that are ipso jure null be not reduceable , if they be not confirmed by an oath , yet deeds that are ipso jure null , are reducable though sworn ; for in case the deed be ipso jure null , it is reprobated by law , and so is no deed in the construction of law ; and if it be no deed , it cannot be confirmed by an oath , for a confirmation presupposes a pre-existing deed , sed non entis nullae sunt qualitatis nec accidentia ; and so this oath wants here a basis upon which it can be fixt . . it were unfit , that what the law has expresly condemned , it should allow others to evite , for it should thus cheat it self out of its own authority , by such indirect courses , et quod directè fieri non licet , nec per ambages fieri licet . in vain were laws to be made , if every privat man might enervat its force , and evite its sanction by such subterfuges ; this were to invite men to break and scorn laws , to allow them to tear off their own yoak , and to place every privat man above the legislator . for , as oaths exacted by magistrats obliege not , when they are contrair to the laws of god ; so the oaths of privat persons obliege not , when they are expresly contrair to the laws of our rulers , who are gods upon earth . and as vows are declared null by god himself , if given by a maid without the consent of her father , so should oaths for the same reason not obliege such as have curators , for these are the parents in law. . no oath can be vinculum iniquitatis , the tye of injustice ; but so it is , that where a deed is declared null by the law , that deed is in so far injust ; and to allow a deed that is injust because it is sworn , were to establish injustice by an oath , and to put it in the power of every privat person , to alter the nature of things , and to make that just which is injust . . this would disappoint the cares and pains of the civil magistrat ; for , his design being to secure our posterity , because of the imbecillity of their judgment , that would be absolutely eluded , and poor minors would by that same want of judgement and sagacity , for which their deeds are reduceable , be induced to swear , and so the remedy will become effectual , nam eadem facilitate ju●ant qua contrahunt . and since minors cannot be oblieged in their minority , because of their imbecillity , oaths should not bind them , except it could supply that ; and since the law has given them curators , it is just the deeds done by these minors should not be respected in law , since the forms prescribed by law are not observed , nor the reason satisfied whereon it is founded . . this would open a door to perjury , for such as could not cheat minors , because of their lesse age , would cheat them by their oaths ; and thus , oaths which should not be given but upon solemn and extraordinary occasions , would become cheap , and would be taken in every ale-house , administrat by every nottar or his servant , and the best of tyes would oftimes be us'd in the most sinfull occasions : and how can such oaths as these obliege , since they want all the three qualities of an oath , and for which , oaths are declared in scripture to be obligator ? and these are , that they should be in truth , in judgement , and in righteousnesse . i know , that every man may renunce what is his own interest , but this maxime holds only where men understand their own interest , but not in minors , who want that ripenesse of judgment , by which their renunciations are sustain'd . and that the oath is obligatory , though not the contract , is but a meer quible , for there is no action arising in common law from an oath , qua tale , bart. ad l. si quis c. de fidejuss . imol. ad c. cum contingat de jure-jur . such an oath oblieges in conscience , but not in law , and though it be the substance in the one , it is but an accident in the other . i need not debate here , that the authentick sacramenta puberum , ascribes only this cogency to oaths which are given tactis sacrosanctis evangeliis , which though it may seem but a solemnity , yet has great force with it , in my opinion ; for solemnities do raise up the attention , and obliege more the swearer to advert to what he is promising : and if witnesses and others come to age , need these advertisments , much more do minors need them , since they are oft overtaken by inadvertence . and as this caution seems not to have been unnecessarily adjected by that excellent law ; so seraphinus and others have required necessarily , that solemnity in such oaths as these , antiqui quo major esset jurisjurandi religio , plerasque adinvenerunt ceremonias , quae jurantibus terrorem ac formidinem incuterent , ann. robert. pag. . and swearing by touching somewhat that was sacred , was very old . virgil. tango aras mediosque ignes & numina testor . justin. also , l. . relates , that agathocles swore a confederacy with the carthaginians , expositis tactisque ignibus cereis : and by all our old evidents it is clear , that swearing upon the bible or altar , was used in all extraordinar cases . and for the same reason , oaths in writ have been oft-times little respected by lawyers , because the writ is oft-times not read nor considered , and passeth by too transiently to have all the force which a solemn and judicial oath deserves , vid. bart. and l. qui jurasse , ff . de jure-jur . & fachin . contrav . lib. . cap. . so that we should either not seek the benefit of these laws , else we should make use of the forms and ceremonies which they prescribe . as to the assertory oath , by which the minor swore that he was major , it is answered , that such oaths ought not to be respected furder then as the above-cited laws declare , which is , that these oaths ought to be believ'd , except the contrair can be proven by writ , and that the truth and strength of this probation cannot be taken off , and enervat by witnesses , for a writ is a more binding , and concluding probation then witnesses , who may be mistaken , or may be corrupted . si tamen in instrumento per sacramenti religionem majorem te esse adseverasti , non ignor are debes , exclusum tibi esse in integrum restrictions beneficium , nisi palam , & evidenter ex instrumentorum probatione , per non testium depositiones te fuisse minorem ostenderis . but here it is offered to be proven , by the register of the church-session where my client was baptized , that he was minor the time of the transaction , and by this your lordships may see , how dangerous it were to make such oaths as these binding , and how easily minors may be induced , not only to bind , but to damn themselves , and how little this person deserves , who was the occasion and sollicitour of the perjury : were not this to baffle that sacred tye , by which princes bind their subjects to a secure obedience , by which judges obliege men to reveal the truth , and by which every privat man is secure , when he referreth to his adversars oath , the truth of what is contraverted amongst them . nor can the defender maintain this contract , as entered into by my client , who was a merchant by his profession , since though that may defend such as contract with him , in things relating naturally to his commerce , yet that should not be extended to such contracts as these , wherein my client is bound to sell his heretage at too low a rate , et quae ex necessitate per modum privilegii introducuntur , ultra casus necessarios non extenduntur . lands are not the subject matter of that traffique which the law doth priviledge ; but on the contrar , lands is not allowed to be sold , without the consent and sentence of a judge : nay , and even these qui veniam aetatis à principe obtinuerunt , will be restored against the prejudice sustained by them in selling their heretage , l. . c. de his qui veniam aetat . albeit no man could impeterare veniam aetatis , till he was past eighteen , and was proven to be prudent and frugal , l. . c. eod . which is all that can be alledged against this minor. nor should our law respect much confinium majoritatis , since they have shortened too much the years of minority , in making it end at twenty one ; whereas , the romans and others who were sooner ripe , and more sagacious then we , extended minority to twenty five : and since our times are more cheating then theirs , it was fit that our minority should have been longer then theirs . but however , both of us agree , that minorennitas computanda est de momento in momentum . to conclude then ( my lords ) sure that opinion in all contraversies should be followed , which may do good , and can do no harm ; and that is to be reprobated , which can do harm , and is not necessar towards the doing what is just . but so it is , that not to restore a minor in such cases as these , may , and will necessarily destroy all minors , who may be over-reached , and cannot be repon'd , because of such oaths ; whereas , such as contract with them , can suffer nothing by such reductions ; for , either the minors with whom they contract , are laes'd , and then they will not be restor'd , and therefore , such as contract with them cannot be prejudg'd : but if they can make it appear that they are prejudged , it will necessarily follow , that the minor is not laes'd , and so the contract will not be lyable to reduction ; and thus these oaths will infallibly prove to be either unnecessar , or unjust . this cause came not to a debate . against forfeitures in absence . xiv . pleading . my lord chancellour , we have subjected to our consideration , an overture , which ought to be seconded by very convincing arguments , before we pass it into a law , seing it innovats a custom , which is as old as our kingdom , and older then our positive laws . and customes , like men , may be thought to have had excellent constitutions , when they last long ; and this act , if past , seems to infer the greatest hazard upon the two highest of our concerns , for such are our lives and fortunes . the old inviolable custom of scotland was , that no probation could be led against absents , either in treason , or any other crime , in any court , save the parliament ; but the only certification in all criminal letters , was the being denunced fugitives ( or out-law'd as the english speak ) which custom hath maintained it self for many hundreds of years , by its own reasonablenesse , without the necessity of being fenced with any other authority : and albeit the parliament did reserve to themselves , a liberty to proceed against traitours , in case of absence , yet they never granted that to any other court ; whereby it clearly appears , that our predecessors have thought that power incommunicable to all such as were not legislators , that procedure being rather a priviledged transgression , then an execution of the law. but it is now craved by this act , that in case of perduellion , and rising in armes against the prince , it shall be lawfull to the justices to lead probation against absents , and forfeit them accordingly ; which seems to me most inconvenient , for these reasons . . because the stiles in all courts are equivalent to fundamentals , and by an expresse act of parliament with us , stiles are not to be altered : but so it is , there is no stile in the justice court , bearing any other certification against absents , but the being denunced fugitives . . there was never any instances of it since the foundation of the justice court , and a negative practique being so old and uniform as this , is most binding , especially where all the conveniences , reasons and advantages which are now prest , were then obvious ; our predecessors were sure as loyal as we , and let us not be more cruel then they were . . the old custom was founded upon most convincing reasons ; for when persons are proceeded against in absence , they want the benefit of exculpation , for proving those just defences which are of so great consequence to them , and their posterity ; such as are , that though they were present upon the place , yet they were taken prisoners , and carried there , and were only going loose upon parroll , or fell accidentally amongst those rebells , who had gathered themselves together , or went there by a command from some of his majesties officers , for reclaiming those who were in armes , with many other defences which ( the party being absent ) none can know , and though known , none dare propone , it being a maxime in our law , that none dare propone any thing to defend one , who being pursued for treason is absent . another great disadvantage , under which these will fall who are pursued in absence , will be , that such witnesses may be received against them , as are lyable to just exceptions , and whom they would decline , if they were present ; which objections likewayes , none know , nor dare propone ; and it is likewayes very well known , that there are many witnesses , who will depone upon suggestion , very many things which they durst not assert , if they were confronted with the party against whom they were to depone , being sometimes overawed , and sometimes through pitty driven to speak only truth , when they look upon his countenance who is to live , or die by their depositions . upon which accompt , confrontation of witnesses and parties hath , in the civil law , been used as a successful remedy , and in ours the witnesses are ordain'd to look upon the pannells face when they depone . and albeit it may seem , that there is little hazard of a probation , where the case is so notour , as that of rising in armes ; yet , the mistake lyes in this , that though the rising in armes be notour , it may be it is not notour who were present , and the persons may be doubtfull , though not the thing it self . a third great inconvenience is , that whereas those who are present may by interrogators , restrict , or explain , what seem'd disadvantageous in the deposition of such as depone against them , they will by this innovation , forfeit this advantage amongst other losses . . no other nation receives concluding probation against absents ; many instances whereof might be given , but i shall satisfie my self with that of freisland , cited by sand. lib. . def . . praxis nostra habet ut criminosus si fuga se substraxerit , ad instantiam procuratoris generalis citetur , & si praefixa die non comparet , fiducialiter bona in contumaciae paenam annotantur : which is exactly our custom ; and by the civil law , tantum annotabantur bona rei non comparentis , ita ut si post annum venerit , & satis dederit de stando juri , ea recuperat si non , bona perdit non tamen de delicto habetur pro confesso , l. . & gloss . l. pen. & fin . ff . de requiren . reis . which title begins thus , divi-fratres rescripserunt ne quis absens puniatur , & hoc jure utimur , ne absentes damnentur . and hottoman tells us , that majestatis crimen in foro apud suum praetorem , perduellio vero à populo romano comitiis centuriatis in campo martis judicabatur ; which was much more reasonable , then our present overture , seing the greater the crime is , it should be the more solemnly , and slowly judg'd : from which procedure of the romans in perduellion , it seems our old practique of judging only absents in the matter of treason by a parliament hath taken its origine , for comitiae centuriae was to them , what a parliament is to us . i might here likewayes , alledge the authority of mathaeus , the learnedst civilian who ever wrote upon that subject , tit . . num . . whose words are , denique cum leges vetant absentem damnari , crimen perduellionis non excipiunt erit igitur & hic observandum , quod in aliis crimintbus , ut absens requirendus adnotetur , & bona obsignentur , publicentur denique , si intra annum non responderit . l. absentem , . c. de poems . l. absentem . . c. de accusat . l. ult . d. de requir . vel abs . damn . nam quanquam perduellio gravissimum crimen est , videndum tamen ne in occasionem sevitiae atque calumnie habeatur ; & pag. . dicit math. falsum esse absentem in hoc crimine posse damnari , nec ullo juris loco excipi crimen majestatis . dicitque supradictam extravagantem constitutionem , nullam authoritatem obtinere apud interpretes juris civilis . . by the . act. parl. . ia. . it is most justly statute , that all the probation should be led in presence of the pannal , and the assyze , which showes clearly , that our law hath been alwayes jealous of probation led in absence , and that probation is only to be led in presence . this innovation is recommended to us upon these reasons ; . that these who are contumacious , and flee from justice , should be in no better condition then those who appear , and they cannot complain of any of the foresaid disadvantages , seing these are occasioned by their own absence and fault . to which it is answered , that a person who is pursued for treason may be absent , not upon the accompt of any guilt , but because the citation never came to his knowledge ; as if he be at the time abroad in forraign countryes , where citations at the mercat-crosse of edinburgh , and peer and shore of leith ( which is all our law allowes ) seldom reach ; and sometimes the persons summoned , may be either sick , or in prison , and not be able to appear , or being lyable to other accusations , or fearing rather the present influence of some enemies , then their own guilt , dare not . for though treason , as the most comprehensive of all other crimes to us , be of all others most abominated , when proven ; yet , of all other crimes , most innocents are , by either malice or design oftest ensnared , upon pretext rather , then by the guilt of treason . for , as lipsius observes of the times wherein tacitus wrote , fraequentatae tunc temporis accusationes majestatis , unicum crimen eorum qui crimine vacabant . tertullian in his apol . sayes , non licere indefensos omnino damnari , & à carolo magno institutu est , lib. . cap. . ne quis absens in causa capitali damnetur . plutarch in alcibiades life , makes alcibiades to have given this prudent answer , to one who challenged him for not appearing to defend himself , cetera ( inquit ) omnia libenter , sed de capite meo , ne matri quidem , ne forte is , pro albo atrum calculum imprudenter injiciat . notat . & liberius pontifex romanus constantio imperatori , judicem non posse , absente reo , de crimine ejus judicare , nisi aut iniquus judex sit , aut privato odio saevit . hist. tripart . l. . cap. . seneca saith , lib. . de beneficiis , cap. . quantum existimes tormentum , etiamsi servatus fuero trepidasse , etiamsi absolutus fuero , causam dixisse . and as cicero very well observes , these who are accused before any judge for life , consider oftner what that judge may do , then what in justice he ought to do , oratione pro quintio . and thus we find , that athanasius and chrysostom would not appear at councils , to which they were cited , albeit they feared their judges more then their guilt , niceph. lib. . c. . it were therefore very hard in any of these cases , to forfeit an absent of his property , seing in these , innocence and absence are very compatible . nor doth his majesty suffer great losse by this , as is urged ; for if he who is pursued for treason compear not , he is denunced fugitive , and by that denunciation , his majesty possesses his whole estate , till he die , or compear ; and after death , he may be forfeit . the second argument is , by the . act. par. . ia. . traitours may be forfeit after their death , in which case they are absent , and want all the advantages above related . but to this the answer is , that the law is so just , and mercifull , that after a person is denunced fugitive in the case of treason , it allowes him all the dayes of his life to purge his contumacy , by appearing to reclaim his innocence ; and it never dispaires of the one , till the other be elapsed : and when it proceeds against any man to forfeiture after his death , it ordains the nearest of kin to be called to exculpat him , by proponing defences , or objections against the witnesses , and for doing every thing els which is usual in such cases , or which might have been done by the defunct himself , whereas he who is pursued in his own lifetime , cannot defend after that manner , as said is . after death likewayes , death it self , which is the greatest half of the punishment , is over , and there is not so great hazard , as there is in his case , who is forfeit dureing life , who is by that sentence ( without any possibility of hearing ) execute immediatly upon his being apprehended . after death also , malice , and design ordinarily ceases , so that the errors or prejudices of either pursuer or witnesse are not so much to be feared . the third argument is , that probation may perish in the mean time , if it cannot be received till after death . to which it is answered , . that this argument , aut nihil , aut nimium probat ; for , upon this account , pursutes should be sustain'd for all other absents , this prejudice being common to all : but , . it is safer , that a just probation should perish , then that a suspected one should be received ; and this one inconven●ence should not weigh down the many , which are laid in the ballance of the other side . parliaments are ordinar , and necessa●y a●t●r publick rebellions , wherein that horrid crime may receive its legal , as well as its just punishment ; or if they meet not , this may be otherwayes remedied ; for , probation may be led ad futuram rei memoriam , though the party be absent , reserving to him all his other defences , by which the kings right may be preserved , and the lieges rights not prejudged , and of all probations , that can least perish , which is to be led in the case of publick rising in armes . the fourth argument is , that the civil law admits forfeiture in absence , in the case of perduellion ( for so the common law names that kind of treason which is committed against the prince , or state ) and our criminal law being founded upon the civil law , ought in this , as in most other cases , to be squared by it . to which my answer is , that there is no warrand for that assertion from the law of the romans ; for , by that law , bona tantum annotabantur , as hath been said , in place whereof , banna hodie locum obtinent , which is equivalent to our denunciations . but because citations of the civil law , would resemble pedantry too much , i shall recommend to such as doubt this , the . verse , . chap. of the acts , where festus , a great roman lawyer , sure , ( as all their presidents of the provinces were ) tells us , that it is not the manner of the romans to deliver any man to die , before he who is the accused , have the accuser face to face , and be heard to defend himself concerning the crime laid against him . i confesse , that forfeiture in absence is allowed per extravag . henrici septimi ( and it is well called an extravagant constitution ) but that is accompted no part of the civil law , and if we follow its model , we ought to allow forfeiture in absence in all points of treason , as this doth ; and even that constitution acknowledges , that this was not allowed by the romans , and if it had , this constitution had been unnecessar , as it is now unreasonable . and i remember , that app. alex. in his third book of the civil warrs , relates an eloquent harrangue made by lucius piso , in favous of antonius , maintaining , that no person who is absent could be condemned , though upon probation , which was accordingly found by the roman senate . and though our parliaments use to proceed against absents , in case of treason ; yet , that is so seldom , and solemnly done , that there is little hazard to the pannals , and every man hath still some friends in so great a number , who may defend him ; nor is it probable that the parliament , who are the great curators of the common-wealth , and who are so much entrusted by us , as to have reposed upon them the legislative power , will prejudge any privat party ; remembering it may be their case one day , which is now the pannals : and that being a supream court , is not stinted to follow a probation which is suspect , though privat assizers might , for fear of an assize of error ; which makes a vast difference and disparity of reason . let us then ( my lord ) consult , the interest of our posterity , which is a generous kind of self-defence : for the italian proverb observes well , that it is better to live in countries which are barren , then in countries where there are rigid laws . let us guard against what is cruel , as we wish what is just ; and let us lawfully be carefull now of these our lives ; and fortunes , of which we have been too often unnecessarily anxious . god himself would not condemne adam , till he heard him , and though he knew the sins of sodom , and gomorrah , he would not pronunce sentence against them , till he went down and saw their abominations . let us not then make snares in place of laws , and whilest we study only to punish such as are traitors , let us not hazard the innocence of such as are loyal subjects . the learned reasons adduc'd for this overture , and the opinion of the session , prevail'd against this discourse ; and the parliament did ordain , that absents might be proceeded against in the justice-court , for publick rising in armes . for the late marquess of argyl , immediatly before his case was advised . xv. pleading . whether passive complyance in publick rebellions , be punishable as treason . my lord chancellor , i wish it may be the last misfortune of my noble client , that he should be now abandoned to the patronage of so weak a pleader as i am , whose unripenesse both in years and experience , may , and will take from me that confidence , and from your lordships that respect , which were requisit in an affair of this import . in our former debate , which is now closed , we contended from the principles of strict and municipal law : but here i shall endeavour to perswade your lordships , from the principles of equity , reason , conveniency and the custom of nations ; which is the more proper way of debate before a parliament , who make laws , but are not tyed by them , and who in making laws , consider what is fit and equitable , and then ordain what shall be law and justice ; and if your lordships consider strict law in this case , it were in vain for the loyalest subjects , who liv'd in these three kingdoms during those late confusions and rebellions , to defend his own actions by that rule : for , since intercommuning with traitors , concealing of treason , and acknowledging their authority , are by strict law , in regular times , undenyable acts of treason , i am no more to debate abstractly my clients innocence as to these , for who amongst us did not share in that guilt ? all did pay sesse , all did raise summonds in the protectors name , we were all forc'd to be the idle witnesses of their treasons ; and therefore , i shall only contend , that in such irregular times as these were , wherein law it self was banisht with our prince , meer compliance can amount to no crime in him , and that as to this he lyes under no singular guilt ; especially , seing his majesty has , by a letter under his royal hand , declar'd , that he will not have his advocat insist against him , for what was done by him , or any els , preceeding the year , . ( in which time he was only an eminent actor ) having retired himself from all publick imployments under cromwels usurpation , being known for nothing all that time , but a sufferer , and being forc'd by self preservation to do those things for which he is now accused , which being undenyably acknowledged by all the nation , cannot but recommend these few particulars , which i am now to offer for him . complyance ( as the very word imports ) is only a passive connivance , et praesupponit crimen in suo esse hactenus constitutum ; and in law , when a multitude offend ( as in our case ) the contrivers , and such as were most active , are , and should only be punish'd , detrahendum est severitati ubi multorum hominum strages jacet : and therefore , this noble person being acknowledged to be none of the first plotters , nor having been singular amongst that vast multitude of complyers , cannot be brought in amongst such as ought to be punished . for , albeit where many may commit a crime , there the multitude of offenders should highten the punishment ; yet , where the crime is already commited collectively by a multitude , there the number of offenders takes off the guilt , and in such cases , none should be punished ( saith aflictus ) but in flagranti & recenti crimine ( or with rid hand , as our law terms it ) dum durat crimen , nec sine quorundam nece extingui potest seditio , or where the renewing of the crime is justly to be feared ; for punishments being of their own nature inflicted , not for what is past ( seing that cannot be remeeded ) but for example in the future , certainly where the rebellion is extinguished , and needs no more be feared , as in our case , ( god be praised ) it were cruelty to punish ordinar complyers . it is remarkable , that in the . . . acts of the . parliament of queen mary , such scots-men as did ride with english-men , even where her majesties authority stood in its integrity , are ordain'd only to be lyable for what skaith they did to scots men who served the country , and that they being charged , to leave assurance with english-men , and disobeying , should have no action againg true scots-men for any wrong done to them . if then such lenity was us'd , and such commiseration extended , to such as were involved in a publick opposition to lawfull and standing authority , and in a compliance with the english , who were at that time , born and sworn enemies both to this crown , and countrey ; what may such expect as complyed only when no visible authority was able to protect such , who were forc'd to comply , not out of any design to defend usurpation , but rather out of a design to preserve themselves for doing his majesty furder service ? and as in the body-natural , the ordinar rules of physick take no place , when there is a violent and universal conflagration of humors ; so the ordinar rules of law should have as little place in the body-politick , when a whole nation have run themselves head-long into a common distraction . to which purpose i cannot but represent to your lordship , that excellent law , made in the reign of henry the seventh of england , and with consent of that excellent prince , wherein it was enacted , that no subject should be guilty of treason , for obeying one who was called king , though known to be an usurper , because the people do there not rebell , but submit . necessity may likewise be adduc'd for extenuating this complyance , which is therefore said to have no law , because it is punished by none ; without complying at that time , no man could entertain his dear wife , or sweet children , this only kept men from starving , by it only men could preserve their ancient estates , and satisfie their debts , which in honour and conscience they were bound to pay , and without it , so eminent a person as the marquess of argyl , and so much eyed by these rebells , could not otherwise secure his life against the snares were dayly laid for it ; and so this complyance did in effect resolve in a self-defence , which inculpata tutela , seing it can exempt a man from murder , and these other crimes that are contrair to the law of nature , it should much more defend against the crime of treason , which is only punished , because it is destructive to the government of our superiours , and statutes of our country ; and since crimes are only punishable , because they destroy society and commerce , how can this complyance be punished , which was necessar for both these ? mans will is naturally so frail , and man because of that frailty so miserable a creature , that to punish even where his will is straight , were to add affliction to the afflicted , the want of this will defend mad men against paricide , and the degrees of this distinguisheth slaughter from murder ; and in the acts of parliament whereupon the lybel as to compliance is founded , it is requisite , that the compliance be voluntar , thus in the act , . parliament , ia. . it is statute , that no man will●ully receipt rebels , and by the . act , . par. ia. . these who apprehend not such as mis-represent the king , are as guilty as the leasing-makers , if it be in their power to apprehend them , as the act very well adds . likeas , by the . act , . par. ia. . the lieges are only prohibited to intercommune with such traitors as they might crub ; for that act , as it forbids all commerce with rebels , so it commands all the subjects to advertise his majesty of their residence , and to apprehend them ; whereby it is clear , that this last act is only to have vigour , when the authority of the soveraign stands in force , & per argumentum à contrario sensu , seems to excuse such as submit to traitors , when there is either nothing to be advertised , or when advertisments of that nature , are either imprestable , or at least unprofitable , as in our late troubles , at which time , the residence of these rebels was notour , and all correspondence betwixt the king and his people , was daily betrayed and intercepted . consonant to which , is that excellent law , l. . ff : de receptatoribus , where it is said , that ideo puniuntur receptatores , quia cum apprehendere potuerunt dimiserunt : and bald. ad l. delictis , ff . de noxal . act . is most expresse , that receptans rebelles , non voluntarie , sed coacte , quia sunt plures rebelles simul : & eos expellere non potest sine suo periculo , non punitur aliqua paena . thus likewise in the statutes of king william , cap. § . . it is said , pro posse suo malefactores ad justitiam adducent , & pro posse suo justitiarios terrae manu tenebunt . and § . . it is ordain'd , quod magistratus pro posse suo auxiliantes erunt domino regiad inquirendum malefactores , & ad vindictam de illis capiendam . by all which it is clear , that not only should complyance be voluntar before it be criminal , but that likewise it must be a complyance against lawfull authority , able to protect such as revolt from it . i remember in anno , . james gordoun being challenged for corresponding with alexander leith , and nathaniel gordoun , declared traitors for burning the house of frendraught , they were assoylzied , because the intercommuning challenged was not lybell'd to have been-voluntar , and thereafter the assize who assoilzied them , having been pursued for wilfull error for absolving as said is , they were likewise absolved from that process of error , in the which process , that same argument was urg'd , but not so strong in point of fact as in our case ; and because the design is that which differences the actions of men ( propositum crimina distinguit ) and seing designs being the hid acts of the mind , are only guessed at by the concomitant and exterior circumstances , i shall only intreat your lordship to consider these few presumptions , which being joyned , may in my apprehension , vindicat this noble person from the design of voluntar complyance . . he is descended from a stock of of predecessors , whose blood hath prescribed by an immemorial possession , the title of eminent loyalty , and that same law which presumes , that the blood and posterity of traitors is infected with a desire to revenge the just death of their predecessors , and an inclination to propagate their crimes , doth likewise presume loyalty and a desire to be thankfull , in the the children of such as have received great favours , and performed great services , to such as have been the benefactors . . these with whom he is said to comply , were known and avowed enemies to nobility , had quite exterminated in england , and begun to exterminat in scotland , all memory of nobility , and badges of honour ; so that in this complyance , he must be thought to have plotted against his own interest : nor can i see what advantage he could expect from a common-weath , which valued , nor preferr'd none but souldiers , a trade , which suited neither with his breeding , nor years . . they were enemies to presbyterian government , of which he has alwayes shewed himself so tenacious , and of all governments they did most abominat that one , for which he had exposed himself to so many hazards . . that usurper had never oblieged him neither by reward , nor complement . . he was sworn their enemy both in parliament and councel , and charity as well as law , presumes against perjury . . he was pursued by them most unjustly , both at councel of war , and elsewhere , and was known to have been hated extreamly by their commander in chief , for complyance with whom he is now challenged : by all which it is most improbable , that his lordship would have linked himself with that abominable crew of miscreants , by whom he might losse much , but gain nothing . his majesty hath recommended this case to be judg'd by your lordships , whom he knew the iniquity of these times did ( though without any cordial assent ) involve in the same guilt , and albeit it were a guilt , there will be hardly any found to cast the first stone at him ; and his majesty hath not delivered him up to be proceeded against , till by his act of indempnity ( granted even to such as were eminently engaged in the contrivance and execution of the most horrid plots , that were perpetrat against him ) he had first cast a copy to your lordships of that meek procedure which he allowes , and not till he had ( even notwithstanding of their compliance ) preferr'd some to be councellours , some to titles of honour , and many to employments of great trust. and were it not unjust , that he should suffer for acts of frailty ; when the ring-leaders , and malicious plotters pass unpunished ? and were it not unkindness to our countrey , to have it thought that we had subjects who deserved worse , then lambert , lintil , and others ? i shall to all this add , that the guilt charg'd upon this noble person , is such as was thought prudence in those who were most loyal , and this complyance was so customary , and so universal , that it was thought no more a crime , then the living in scotland was criminal : whereas in law , qui sequitur comunem errorem , non delinquit , & consuetudo facit actum de sua natur a punibilem impunibilem , & excusat à paena ordinaria , & extraordinaria , farin , quest. . de pen. temperandis . custom is a second nature , and example a second law , and he who obeys them , obeys quasi legem naturae , & patriae : and in all civil wars and uproars , especially where such have lasted for a considerable time , as in portugal , france , germany , &c. none have been punished for mingling with the multitude , if they did not pervert them . and if we consult the ancients , when justice and equity were not yet opprest by interest , and design , we will find , that julian the emperor having only punished the chief rebells , residui omnes abierunt innoxii , quos in certaminum rabiem necessitas aegerat , non voluntas . and themistius praises valens the emperor , because non paena dignos existimavit , qui bellum non suaserunt , sed qui abrepti sunt à morum impetu , & qui succubuerunt ei qui jam rerum potiri videbatur . and joseph . lib. . tells us , that in such universal rebellions , titus used only to punish the ring-leaders , unum criminis ducem puniebat reipsa , multitudinem vero , sola verborum increpatione , seditionum concitatores , & duces factionum dicuntur , l. . ff . quando appell . it is likewise universally received by the law of nations , that such as submit after universal rebellions , either upon conditions , or who put themselves in the mercy of their magistrats , ( as grotius doth most wisely observe , lib. . cap. . ) are still secure , and therefore , since the marquess did immediatly upon his majesties return , go to court , to attend his majesty amongst his other loyal subjects , judging from the dictats of his own conscience , that he was in the same case with your lordships his present judges , it were strange that he should fall , when others are in great multitudes pardoned , who fled out of a consciousness to their own guilt , especially since he offered to prove , that he testified to many hundreds during his majesties absence , a deep sense of that misfortune , and an absolute aversion from that present usurpation ; and that he assisted his majesties friends , both with money and advice : and who would think , that in equity he ought to dye , by these whom he wish'd restor'd , and for which restoration , he prayed daily in his family ; and die for complying with those , whose ruine he beg'd daily upon his knees ? and though he did not joyn with some who were commissionated by his majesty , yet that proceeded not in him , more then in others , from any unkindnesse to the cause which he alwayes allowed , as can be prov'd both by themselves and others , but from a perswasion he had , that such courses as they took , would ruine the design which was proposed ; and any thing he did in opposition to them , was to defend himself and his poor countrey , against injuries , which were designed against him upon privat quarrels , as he still offered to prove . if we consider that same interest of nations , for which treason is punishable , we will find it unfit to punish ordinar complyers after a tumult is quieted ; for if every man that were involv'd in the guilt , did think that he were punishable , all would be forc'd pertinaciously to continue the rebellion they had begun , and to expect from successe only , that impunity which the law denyed : and thus your lordships should make all future rebellions to be both cruel , and perpetual . i come now to the probation adduced by his majesties advocat , for proving this compliance , and in order thereto , i shall lay before your lordships these following considerations ; . that the weaker the relevancy is , the probation should be proportionably the stronger , gravatus in uno , levandus in alio . . that in criminals , probation should be very convincing . . the more illustrious the pannel is , the proof should be so much the more pungent , because the law presumes noble persons less inclin'd to commit crimes then others . . where there is no penury of witnesses , probation should be so much the clearer , because the law presumes that all is known , which can be known : but so it is in this case , sixty witnesses have been led ( albeit our law allowes only in criminals ) and a long time hath been taken , and many invitations given to all persons , in all corners , to come and depone , and it is believed by most of these silly persons , that it will be most acceptable to his majesty , and may procure a reward to themselves , that they depone against his lordship ; which remembers me of these slaves in juvenal , who at sejanus fall , invited one another to offer indignities to his dead body , dum jacet in ripa calcemus caesaris hostem . . the law requires in these attrocious crimes , witnesses omni exceptioni majores , and these are in law expon'd to be such as the jealoufie of the greatest enemy needs not suspect ; whereas most of all the witnesses adduced , are either the servants of such as have been debarred themselves from witnessing , for fear of partiality , or the usurpers souldiers , who have so oft foresworn solemnly their alledgeance to their prince , that no judge can rely upon their depositions ; for it is presumable , that semel perjurus , will be semper perjurus : and albeit his majesty , by his indempnity , hath vail'd their crimes , yet he hath not taken them away , as is clear , per 〈◊〉 . ffin . c. de generali abolitione ; the excellent words run thus , indulgentia ( patres conscripti ) quos liberat , not at , nec infamiam criminis toll it , sed paenae gratiam facit ; whence i argue , that infamous persons cannot be witnesses , but so it is , that perjured persons ( non abstante amnestia & remissione ) are infamous by the foresaid law ; the criminal registers likewise tells us , that one who had been condemned for forging of false writes , was refused to be received as a witness in frendraughts process , albeit he had obtained a remission ; and certainly , perjury in the crime of treason ( whereof these soudiers are guilty ) is a more odious crime , then that of forging of false writes . . i hope your lordships will consider , that most of what these witnesses have deponed , are speeches , which the best of men may have forgot , after so long a time , and in a time when both men and manners have been much confounded , by the strangeness and number of interveening accidents : most of these witnesses have deponed upon that which fell under sense , and so have acted rather the parts of judges , then witnesses . thus some depones , that the marquess's boats did bring the english up lochfine , and that they could not have got up without his assistance , which last part , as it is negative , so is an act of the judgement , and not the object of any exterior sense , and they presume they had an order from the marquess , because else they durst not have gone , and is not this to imagine , and not to depone ? . most of them are persons , whom the d●ttay acknowledged to have been wronged by the marquess ; most of these poor persons who have deponed , were to my certain knowledge , so confounded by appearing before a parliament , and by interrogators , that they scarce knew what to answer . . not any two of these numerous witnesses concurr in their depositions , all vary , and most do clash , and are either vaccillantes , or singulares ; neither can the deposition of one witnesse , as to one particular circumstance of a crime , and the deposition of another as to another , be joyn'd for making up a clear probation , for there the judge is certified of neither of these circumstances , seeing one witness is none , whereas proving witnesses should be contestes ; and if a pannel were accused of moe crimes in one lybel , the deposition of one witness to prove one , and of another to prove another of these crimes , would not prove the lybel ; so neither can the singular deposition of two witnesses upon different points , prove one crime . such spelling is not lawfull in probation , and this is that which the doctors call singularitas diversificativa , which in law hinders conjunction in probationibus , as well as singularitas obstitativa , alexand. consil . . hippol. in sua praxi , § . diligenter num . . farin . tract . de oppos . contradicta . testium . . the law makes a difference , as to the probation betwixt perduellion , or open treason , in which they require most convincing probation , and in conspiracies or occult crimes , in which the rigour of probation is remitted , because the possibility of proving is much restricted , in respect of the clandestinesse wherewith such conspirations are managed ; and therefore , seing in this case the acts to be prov'd were committed publickly , such as joyning in open hostility with the usurpers , assisting at their proclamations , levying forces against his majesties generals ; certainly the probation should be most illative of what is alledged , and the provers should be omni exceptione majores . i must tell you my lords , that some have been so unjust to you , as to fear , that though the probation be not concluding , that yet ye will believe , to the great disadvantage of my noble client , the unsure deposition of that as foul , as wyde-mouthed witnesse , publick brute and common fame , which as it is more unstable then water , so like water it represents the straightest objects as crooked to our sense ; and that others of you retain still some of the old prejudices which our civil and intestine discords , did raise in you against him , during these late troubles : but i hope , generosity and conscience will easily restrain such unwarrantable principles , in persons who are by birth , or election , worthy to be supream judges of the kingdom of scotland . it is unmanly to destroy your enemy unarmed , but unchristian when you represent god as judges ; for then you endeavour to make him a murderer ; and in my judgment , he revenges himself but meanly , who to ruine his enemy , destroyes his own soul , and tashes his honour . my lords , as law oblieges you to absolve this noble person , so your interest should perswade you to it . what is now intented against him , may be intended against you ; and your sentence will make that a crime in all complyers , which was before but an error and a frailty ; your royal master may with our saviour then say to you , thou cruel servant , i will condemn thee out of thine own mouth : or , if your lordships be pardon'd , he may say to you as his master said to the other , sure i did pardon thee , why wast thou so cruel to thy fellow servant ? but , not only may this prove a snare to your lordships , but to your posterity . who in this kingdom can sleep securely this night , if this noble person be condemned for a complyance , since the act of indempnity is not yet past ? and albeit his majesties clemency be unparallel'd , yet it is hard to have our lives hung at a may-be , and whilst we have a sentence-condemnator standing against us . phalaris was burnt in his own bull : and it is remarkable , that he who first brought in the maiden , did himself suffer by it . i do therefore humbly beg , that since this process was intented upon informations given to his majesty , of the marquess's being very extraordinarily active for the usurpers , that your lordships would transmit the process as it now stands to his majesty , that thereby he may have a fair occasion to give a generous testimony of his clemency , that the people may be secured against all jealousies and fears , and that your lordships may be rescued from so invidious a tryal . for maevia , accused of witchcraft . xvi . pleading . i am not of their opinion , who deny that there are witches , though i think them not numerous ; and though i believe that some are suffer'd by providence , to the end that the being of spirits may not be deny'd ; yet i cannot think , that our saviour , who came to dispossesse the devil , who wrought moe miracles in his own time , upon possest persons , then upon any else , at whose first appearances the oracles grew dumb , and all the devils forsook their temples ; and who promised , john . that the princes of this world was now to be cast out , would yet suffer him to reign like a soveraign , as our fabulous representations would now perswade us . this person for whom i appear , stands endicted as a witch , upon several articles , the first whereof is , that she did lay on a disease upon a. b. by using a charm. . that she took it off by another . . that it is deponed by two penitent witches , that she and they did flee as doves to the meeting place of witches . as to the imposing or taking off diseases by charmes , i conceive it is undenyable , that there are many diseases whereof the cures , as well as the causes , are unknown to us ; nature is very subtile in its operations , and we very ignorant in our inquiries ; from the conjuncti●n of which two , arises the many errors and mistakes , we commit in our reflections upon the productions of nature : to differ then from one another , because of these errors , is sufferable , though to be regrated ; but to kill one another , because we cannot comprehend the reason of what each other do , is the effect of a terrible distraction ; and if this were allow'd , the most learned should still be in greatest danger , because they do oftimes find mysteries which astonish the ignorant ; and this should give occasion to the learned to forbear deep searches into natural mysteries , lest they should loss their life in gaining knowledge , and to persecute one another : for every physitian or mathematician , who is emulous of another , but cannot comprehend what his rival doth , would immediatly make him passe for a wizard . it is natural for men to think that to be above the reach of nature , which is above theirs . if this principle had taken place amongst our predecessors , who durst have us'd the adamant ? for certainly , nothing looks liker a charm , or spell , then to see a stone draw iron ; and men are become now so wise , as to laugh at these who burnt a bishop , for alledging the world was round , so blind and cruel a thing is ignorance : and if this principle , of believing nothing whereof we do not see a cause , were admitted , we may come to doubt , whether the curing of the kings evil by the touch of a monarch , may not be likewise called charming . this then being generally premised , to curb the over-forwardnesse of m●nkind , it is alledged , that the lybel is not relevant , in so far as it is founded upon my clients having threatned to do her neighbour an evil turn , that she went in to her house , and whispered something into her ear , whereupon she immediatly distracted : for , though threatning , when mischief followes , hath been too much laid weight upon by us , yet the law hath required , that many particulars should concurre , ere this be sustained , as that the person who threatned did ordinarily use to threaten , and that mischief constantly followed her threatnings , minae ejus quae jolita est minas exequi , that these threatnings appeared rather to be the product of a settled revenge , then of a boiling and airie choller , which doth oftimes , especially in women , occasion very inconsiderat extravagancies . . it is required , that the threatnings were specifick , as if she had promised that she should cause her distract , and the distraction accordingly followed : but it were too lax , to ascribe every accident to a general threatning , as is clear by dallrio , lib. . sect . . lawyers likewise consider , if the occasion of the quarrel was so great , as might have provockt to so a cruel a revenge as that which was taken ; whereas here the occasion was very mean , not exceeding two pence . and though all these do concurre , yet farin . quaest. . num . . acknowledges , that these are not sufficient to infer the crime of witchcraft , but only to load the person accused with a severe presumption , or to infer an arbitrary punishment ; and in the process against katharine oswald , the . of november , . those threatnings , though the effect followed , were not found sufficient to infer witchcraft , but only to be punishable tanquam crimen in suo genere , that is to say , as an unallowable and scandalous kind of railing . the second defence against this article is , that it is not relevant to lybel , that the malefice was occasioned by my client , except it were condescended by what means it was occasioned ; for in law , when i am said to have produced any effect , there must be a necessary contingency shewed betwixt what i did , and what followed , for else , the very looking upon her might have been said to have been a cause , and when si knesses are alledged to have been occasioned by witches , the ordinar signs given , are , that the disease be in it self such as cannot be occasioned by nature , as the vomiting up of nailes , glasses , and other extraordinar things ; that the person maleficiat do go in an instant , from one extremity to another ; as from being extreamly weak , to be immediatly extreamly strong ; or use extraordinar motions , which cannot be occasioned by nature , as d. autum . in his discourse of witchcraft doth most learnedly observe . but so it is , that neither of those can be observed here ; for distraction is a very natural disease , and has oftimes fallen upon a man in an instant , especially upon an excesse of fear ; and who knows , but this woman , who by her sex and humour , is known to be very fearfull , might have been so surprized at my clients coming into her , after the threatning , that this excesse of fear might have thrown her into that distraction , under which she now labours ; and yet my client might have had no influence upon her as the cause , but as the occasion only of this her distemper . all conclusions in criminal cases should be very clearly inferr'd , since the crime is so improbable , and the conclusion so severe . and therefore , lawyers are of opinion , that if the inferences be not demonstrative , and undenyable , conclusio semper debet sequi debiliorem partem , that which but may be , may not be , and lawyers do constantly conclude , that we must only conclude that ●n crimes to have been done , which could not but have been done . and who can say , that necessarily this was done by her here , which could not but occasion this distaction , and therefore , perkins , cap. . do's assert , that no malefice can be a sufficient ground to condemn a witch , except she either confess , o● that it be proven by two famous witnesses , that she used means that might have produc'd that effect . and though where charms and other means expressly discharg'd are used , these unlawful means are by the judge repute , as if these means might have been effectual , in odium illiciti , and that the users have only themselves to blame in that case , who would use these charms , spells , and incantations , of which the law is jealous : yet where none of these are used , but a simple whisper , the effect in that case cannot be said to have flow'd from it , nor do's any severe presumption lye against a thing that is ordinar . and bodin . lib. . concludes , that in capitali judicio ex praesumpti onibus veneficas non esse condemnandas● , ut si sagae deprehendantur egredientes ex ovili cum ossibus , bufonibus , vel aliis instrumentis magicis instructae licet oves statim moriantur . all conclusions must be necessar or presumptive ; but so it is , that this conclusion is not necessar , since all these remedies might have been used , and yet the user might have been innocent : for , a necessar conclusion is à qua veritas abesse non p●test ; and if this inference be only presumptive , it is as undenyable , that witchcraft cannot be inferr'd from such a presumptive conclusion , as is clear by farin . quaest . . num . . perkins , bodin and others above-cited : and if it were otherwise , judges might condemn upon guessing or malice , and so moe would be in danger to die by injustice , then by witchcraft ; and may you not as well punish such as stay bleeding by applying a stone , or who prevent abortions by gliding the woman with a belt , now much in fashon ? and therefore it is very remarkable , that by the . act , . par. queen mary , witchcraft , sorcery , negromancy , and sicklike arts for abusing the people , are only forbiden ; nor can it be subsumed that any art , or exterior thing , whereby people use to be abused , were here used , and therefore this article cannot be said to fall under the prohibition of the act of parliament . the second article is , that my client did cure the said person whom she had formerly distracted , by ●pplying a plantane leaf to the left side of her head ; and binding a paper to her wrest , upon which was write the name of jesus . which being done by her who was an ignorant person , being done to the person who formerly distracted upon her whisper , and the cure being perfected in lesse time , then nature uses to take for composing such gerneral and horrid distempers , might necessarily infer , that this cure was performed by witchcraft . against which article , it is alledged , that the conclusion here should demonstrat , that necessarily this cure was performed by no natural cause , whereas the mean here used , viz. the applying of a plantane leaf , is a natural thing , and may cure in a natural way , it being known that there is nothing so cold as a plantane leaf , and so it might have been very fit for curing a distraction , which is the most malignant and burning of all feaverish distempers . or who knows , but that this distraction having been occasioned by the excessive fear she had of my clients revenge , but that how soon she was reconciled to her , and that she had by the same strength of fancy which made her sick , conceived that she would likewise restore her against that sicknesse , her distraction might have abaited with her fear ? . the law-givers having punished crimes , because these crimes are destructive to their subjects , and common-wealth , have for the same reason only punished such indifferent inchantments , as did either kill men , or ensnare them to unlawfull lusts , but not those arts , where the health of man and the fruits of the ground were secured , against diseases and tempests , as is clear , per l. . cod. de malef. & math. eorum est scientia punienda , & severissimis merito legibus vindicanda , qui magicis accincti artibus , aut contra hominum moliti salutem , aut pudicos ad libidinem delexisse animos detegentur , nullis vero criminationibus implicanda sunt remedia , humanis quesita corporibus , aut aggrestibus locis , ne maturis vindemiis metuerentur imbres , aut ventis grandinisque lapidatione quaterentur : innocenter adhibita suffragia , quibus unius cujusque salus , aut existimatio lederetur , sed quorum proficerent actus , ne divina munera & labores hominum sternerentur . which law being a statute made by constantine , who was a christian emperor , being conceived in so devote terms , and insert by justinian , who was a most christian prince , amongst his own laws , cannot but be a law very ●it to be observed in a christian common-wealth . and though it be allegded , that this constitution was abrogat by leo , nov . . yet , it is very remarkable , that this constitution made by leo , is not insert in the basilicks , so that it seems it has been thereafter abrogated . it is not probable , that the devil , who is a constant enemy to mankind , would employ himself for their advantage ; and the name of jesus being used , so much respect ought to be had to it , that the user should not be punished with death , except it could be clearly proved otherwise , that she had received this charm from the devil ; in which case , the author , and not the thing , occasions the punishment , or else , if she had been discharged by the church , or any judicatory , to use that cure , as that which was in it self dangerous ; but to burn a poor ignorant woman , who knew not that to be evil which she used , were to make ignorance become witch-craft , and our selves more criminal , then the person we would condemn . and all these laws and citations which can be brought to prove , that magical incantations are punishable by death , though imployed for the well-fare of mankind , must be interpret so , as to relate only to some of these unlawful cases above related . and i admire , that those who inveigh so much against this constitution of constantine , have never taken notice , that these charms are only allowed , even for the wellfare of man and beast , ubi sunt innocenter adhibita suffragia , where devotion was used , though erroniously , as in this case . and we know , that a whole family in spain pretend to be able to cure diseases by the toutch , as being descended from st. katharine , and are therefore called , saludadores ; and that another family in france , who alledge they are descended from st hubert , do cure such as are bitten by mad dogs , and yet neither of these are punished by any law , since they ascribe their cures to devotion : and there are but few men who have travelled any where , but use some charm or other , out of innocence or railery ; and to burn these , or the common people , who think they may follow their example , were an act of great cruelty . and since the cross is allowed by the canonists to be applyed to any part of the body , per c. non licet . . quaest . i see not why the name of jesus may not be applyed , in the same way : nor can i think that the devil would allow the using of that sacred name at which he is forc'd to tremble , and by the very naming whereof , all ecclesiastick histories tell us , that the devil has been dispossest , and therefore , ghirland . de sortil . num . . gives it as a general rule , that ubi alia nomina ignota ultra dei nomina inveniuntur , tunc superstitiosa dici possunt & ita puniri . cassiodorus relates , that multis efficax remedium fuit , trina recitatio versiculi , psal. . dirupisti vincula mea , &c. and bartholinus in his anatomy , defends , that these verses repeated with a loud voice in the ear of one affected with the epilepsie , will cure him , gaspar fert mirham , thus melchior , balthasar aurum , haec tria . qui secum portabit nomina regum , solvitur à morbo , christi pietate caduco . and though some have disallowed even pious sentences , or names , when joyned to superstitious circumstances , as when they are only to be writ upon parchment , and cut too in such a figure , or bound by so many threeds only , yet to condemn the users as witches , when they are used simply , as here , seems to be the other extream . in things that are abstruse and dubious , the law should still favour that which tends to the good of the common-wealth : yea , and though it sometimes may punish charms , when used to the disadvantage of men , though it know them not certainly to be unlawfull ; yet , it doth not follow , that it should punish that which may tend to their advantage , except they know it to be certainly unlawfull . and though our act of parliament punishes such as seek help by unlawfull meanes of sorcerers , or necromancers , yet they must first be prov'd to be sorcerers , or necromancers , who make a trade of abusing the people , as that statute sayes , which cannot be drawn at all to a dubious cure used in one case , and by the application of natural means ; and therefore , though drummond was burnt as a witch , albeit he had never committed any malefice , but had only cured such as were diseased , yet having in a long habit and tract of time , abused the people , and used spells and incantations , which had no relation at all to devotion ; and having continued that trade , albeit he was expresly discharged , his case was very far different from this , and deserved a far more severe punishment . the same may be likewise answered to the condemnatory sentence pronunced against john burgh , who was convicted of witchcraft in anno , . for pretending to cure all diseases , by throwing into water an unequal number of pieces of mony , and sprinkling the patients with the water ; so that it may be justly said , that these died rather for being publick cheats & falsarii , then for being witches , & venefici . upon which account ars pauliana also is punishable , by which some cheats pretend to cure diseases , by spells and pious characters , revealed ( as they pretend ) to s. paul , when he was carryed up to the third heavens ; for , here the foundation makes the cures known to be cheats . i might likewise alledge here , that it is against the confest principles of all criminal●sts , that una venefica non potest esse ligans & solvens in eodem morbo , cannot both put on , and take off a disease ; for , it seems that the devil thinks , that it were too much to bestow such favours upon one of his favourits , so that he is juster then those , who affect plurality of benefices ; or else he thinks it would lessen too much the esteem of those faculties , if one could exerce both ; or else it is not probable , that she who had the malice to lay on the disease , would condescend to serve in the taking it off . but however , i find much weight hath been laid upon this principle , by those who did debate margaret hutchesons process , and so let it have its weight . the third article of my clients endictment is , that it is deponed by two dying and penitent witches ; that she flew like a dove with them to their meeting places . this article seems to me very ridiculous ; for i might debate , that the devil cannot carry witches bodily , as luther , melanchton , alciat , vairus and others assert , because it is not probable , that god would allow him the permission constantly to work this miracle , in carrying persons to a publick place , where they joyn in blaspheming his name , and scorning his church . nor is it proper either , to the nature of heavy bodies to flee in the air , nor to devils who are spirits , and have no armes , nor other means of carrying their bodies : but i may confidently assert , that he cannot transform a woman into the shape of a dove , that being impossible ; for how can the soul of woman inform and actuat the body of a dove , these requiring diverse organs , and administrations ; and to believe such transmutations , is expresly declared heresie by the canon law , and to deserve excommunication , cap. episcopi , . quaest . . and is condemned by st. augustin , lib. . de civit . dei , delrio lib. . quest . . girland . § . . and though the scripture tells us , that nebuchadnazor was transformed from a man to a beast by god , yet it follows not that the devil hath that power ; or as some divines assert , he did but walk , feed , and cry like a beast , and had brutish thoughts . we must then conclude , that these confessions of witches , who affirm , that they have been transformed into beasts , is but an illusion of the fancy , wrought by the devil upon their melancholy brains , whilst they sleep ; and this we may the rather believe , because it hath been oft seen , that some of these confessors were seen to be lying still in the room when they awak'd , and told where , and in what shapes they had travell'd many miles : nor is this illusion impossible to be effectu●ted by the devil , who can imitate nature , and corrupt the humours , since melancholly doth ordinarily perswade men , that they are wolves ( licanthropi ) dogs , and other beasts . since then these confessions are but the effects of melancholy , it follows necessarily , that the depositions of these two witches amounts to no more , but that they dreamed that my client was there : and were it not a horrid thing , to condemn innocent persons upon meer dreams , as is concluded by frans , ponzan . tract , de lamiis . cap. . num . . sunt illusae , ergo non est standum ipsorum confessionibus : confessio enim haec deficit in sui● principiis , & est contra naturam , & ita impossibilis . i confess , that such confessions may be a ground to condemn the confessors , because though they were not actually where they dream'd , at these meetings , yet it infers that they had a desire to be there , and consented to the worship , and believed that transformation to have been in the devils power ; but all these are but personal guilts in the confessors , and cannot reach others . and besides this , it is very clear , that the depositions even of confessing and penitent witches , are no concluding probation ; for they are sociae criminis , and such are not to be believed , they are infamous persons , and such ought not to be believed ; and they can give no sufficient causa scientiae and reason of their knowledge , the want of which doth in law enervat the deposition of a witness : and with us , the depositions of dying witches were repell'd , in the case of alison jolly , pen. oct. . divines , whose punishments reach no furder then ecclesiastick censure , may punish not only certain guilt , but scandal ; yet lawyers , being to inflict so severe a punishment as bu●ning , and loss of all their moveable estate , should not punish but what they know infallibly to be a real guilt , nor should they punish that guilt , till it be convincingly prov'd . for , though this woman were guilty , yet if she be so , she will suffer by the sting of her conscience here , and will be reserv'd for a greater fire hereafter , then you can ordain for her ; whereas if she be innocent , your sentence cannot be reformed . and why should you take pains to augment the number of the devils servants in the eyes of the world ? nor doth the civil law punish alwayes what divines condemn ; for thus , though it be murder by the divine law to kill a wife taken in the act of adultery , yet the civil law allowes it : and though it be unlawfull by that law to cheat our neighbour in buying or selling , yet the civil law allowes all such bargains , except the cheat amount to the value of the half . thus , the one of the laws respecting mainly the good of souls , and the other the good of commerce , as they have different ends , so they take different measures ; and therefore it is , that politick laws , have allowed cures even by suspected means ; which principle is also allowed by bartol . salicet . azo : and others , ad dict . l. . and even according to the principles laid down by divines , except there were a paction prov'd , or confest , all remedies should rather be ascribed to nature , then to witchcraft . consider how much fancy does influence ordinar judges in the trial of this crime , for none now labour under any extraordinar disease , but it is instantly said to come by witch-craft , and then the next old deform'd or envyed woman is presently charged with it ; from this ariseth a confused noise of her guilt , called diffamatio by lawyers , who make it a ground for seizure , upon which she being apprehended is imprisoned , starved , kept from sleep , and oft times tortured : to free themselves from which , they must confess ; and having confest , imagine they dare not thereafter retreat . and then judges allow themselves too much liberty , in condemning such as are accused of this crime , because they conclude they cannot be severe enough to the enemies of god ; and assisers are affraid to suffer such to escape as are remitted to them , lest they let loose an enraged wizard in their neighbour-hood . and thus poor innocents die in multitudes by an unworthy martyredom , and burning comes in fashion ; upon which account i cannot but recommend to your lordships serious consideration , that excellent passage of a learned lawyer , baldwinus , ad § item lex cornelia jnstit : de publ . ju● . sed quo gravius , & ab hominis ingenio magis alienum est hoc malum , co major adhibenda est cautio , ne quis ejus praetextu ab adversariis temere obruatur , facile enim hic quid vis confingere potest ingeniosa simultas , ut & multitudinem credulam statim emoviat , & judices irritet adversus eum quem cum demonibus rem habere mentietur . ante annos sexaginta , sensit infoelix nostra patria , magno suo malo , hujusce generis calumniis , magna erat waldentium mentio , quos adversarii jactabant nesci● quid commertii habere cum innumeris spiritibus , hujus criminis praetextu optimi quique statim opprimebantur , sedtandem senatus parisiensis , causa cognita , vidit meras esse sycophantias & infoelices reos liberavit . for titius , accused before the secret council for beating his wife . xvii . pleading . as nothing but the last degree of passion could have provockt my client to correct this unfortunat woman , so no creature which doth not feel his grief , can expresse the reasons , which forced him to it . nor could the fear of punishment , if it were not joyned with the sense of honour , move him to lay open before your lordships , the sad story of these persecutions he has for seven years suffered , and the dishonourable secrets of his own family , which during all that time , he has laboured to conceal . nor can i ( my lords ) but regrate , that i should be forced to lead your reflections into my clients house , and to shew you there a woman burning , not with fl●mes of love , but revenge ; embracing her husband , not out of kindnesse , but to throw him into the fire ; watching him in his sleep , but that she might even disturb him in his rest ; inviting his friends to her house , but that she might highten his infamy , in letting them hear her rail against him : and all this done , not for a day , or under the excuses of passion , but for seven whole years ; nor done so passingly , as that he could entertain any hopes of her reconciliation to allay his grief ; but she begun to torment him the next day after the marriage , beating him with her slipper , so that only his marriage wanted its honey-moneth , and so malitious was her humour , that she could not bridle it for one day . and these affronts were dayly continued , most deliberatly , and owned after all the remonstrances her friends could make for reclaiming her , at which occasions she used to speak kindly of nothing to him or them , but her passions , justifying her lying of him as wit , her railing against him as eloquence , her revenge as justice , and her obdurednesse as constancy . this being the person against whom i am to plead , i am oblieged to give your lordships some character of him for whom i appear , who was not only born a gentleman , but by being a souldier , has made himself so , and by both these qualities , has so strong an aversion against beating any woman , that the great respect he had for that lovely sex , made this pursuer , after ten years intimat acquaintance , choose him for her husband ; and for seven years , he hath not only suffered , but concealed his wrongs , to that depth , that his hair hath by grief changed its colour twice , the strength of nature , and grief , overcoming each other by their several turns . nor doth he think himself concerned to answer his wifes calumnious reproaching him , as having been her husbands servant ; for it is most true , that after he lost his estate in his majesties service , her first husband choos'd him for his friend , and after his death , she choosed him for a husband ; which shews , that he had some worthy qualities about him , which were able to supply that great want , the want of riches ; and is it not clear , that when women begin to complain of so sacred a relation , they will make faults where they cannot find them ? and these wives who would divulge what is true , would invent what is false . i confesse ( my lords ) that there is very much due to that excellent sex , when they are , what they ought to be ; but our love to wine , must not hinder us to call it vinegar when it corrupts ; nor should we flatter tyrants , because we love monarchies . but judges must look more to justice , then complement ; and therefore , i must beg pardon to alledge for my client , that he cannot be punished for beating his wife , because , the wife is by law under the power and authority of her husband , which subjection is not only the punishment of her sin , nor will all this power repair to man , the losse he had by the injury done him when he got this power ; but this power is put in the husbands hands , for the good , not only of the common-wealth , but of the women themselves : as to the common wealth , it was fit , that in every family the husband should be empowered to correct the extravagancies of his wife , and not to bring them before the judge , and in publick , this would have divided families , raised publick scandals , and many will be content to receive correction in privat , who would never be reconciled after a publick correction . and as to the women themselves , it was fit , that she being the weaker vessell , a creature naturally passionat , and wanting experience , should therefore be governed by , and subject to , her husband ; and as the head may resolve to chastise or mortifie any part of the body , when it thinks that discipline will tend to the general advantage of the body ; so may the husband , whom the scripture calls the head of the wife , correct the wife , when that correction may tend to the advantage of the family . let us but look back upon the first ages of the world , and we will find that the husband had generally power of life and death over their wives , even amongst the best of men , the romans , and thus plin. lib. . cap. . reports , that egnatius mecennius kill'd his wife , for having drunk too much wine , and that her death was not enquired into , as that which the law then allowed . and caesar tells us , lib. . that the germans in uxores , sicut in liberos , vitae necisque potestatem habebant . and till this day , the southern nations ( whose wits ripen more then ours , as nearer the sun ) have still the same power continued to them , by which the women loss litle , for it keeps them from adventuring upon these extravagancies , for which our complementing nations hate their wives , which to a kind wife , should be worse then death . but if these laws think this power of life and death fit for the husband , it should at least teach us to bestow upon him the power of correction , for which i only plead ; which power of correction , is by bonaventur said to be allowed them by the law of nations , . sentent . distinct . . masuer . tit . de possess . § . item maritus . by the canon law , the wife is declared to be more in the power of the husband , then of her father , can . sicut alterius . quaest . . and that the husband may imprison her , or keep her in the stocks , can placuit . . quaest . . and if we consider our law , we will find , that husbands have the same power over their wives , that a father hath over his child , c. . leg . burg . which law saith , that he should correct her , as not knowand what she should do , and as a bairn within age , seing she is not at her own liberty . and as the council would not hear a child complaining that his father had beat him , so neither should they hear a wife . we have also an express statute , . dav. chap. . wherein it is appointed , that no accusation shall be received against a man for having occasioned the death of his wife , except it be notoriously known , that he gave her wounds whereof she dyed ; by which it is necessarily implyed , that he is not punishable , nor cannot be accused for any wounds given which were not mortal ; where likewise there is a decision of the said king david , related in thesete●ms . in the time of king david , a case happened in this manner ; an man of good fame gave to his wife , descended of great blood , an blow with his hand , of good zeal and intention to correct her , and she being angry with her husband after that day , would not for no mans request , eat nor drink till she deceased , and entered in the way of all flesh . the friends of the woman accused the husband for the slaughter of his wife : and because it was notour and manifest that he did not slae her , nor gave her no wound of the whilk she died , but gave her an blow with his hand , to teach and correct her , and also untill the time of her death loved her , and entreated her as a husband well affectionat to his wife ; the king pronounced him clean and quit , and thereanent made this law. but , i find it is answered by the wifes advocats ( who can better maintain , then they could suffer what she has done ) that though the laws of other ages and nations , did , and do allow this power to the husband ; yet , our present customs , as well as our inclinations , hate that stretch'd and ungentle power : and though our law did allow some power to the husband for correcting his wife ; yet , that power could not be extended to defend such violent courses as were here used , where the husband did hold her head to the fire till her face was burnt , and did thereafter beat her with a slipper . nor do any law or lawyers allow more then modica coercitio for her correction ; but such an excesse as this would be punishable in a father towards his child , or in a master towards his servant . to which answer the poor husband acquiesces as much as they , and by his patience and continued kindnesse , in spight of all these disgraces and affronts , he has testified more respect then the law could have commanded . but since it is acknowledged upon all hands , that the husband might have corrected his wife , and that he is only punishable for having exceeded the just measures which the law allows , i shall first relate the matter of fact , and shall then examine , if he did not proportion the punishment to the injury . after my clients wife had swore she would starve her self , if he would not renunce all her estate , he ( good man ) condescended to her extravagant desire ; but not satisfied with this , she swore she would kill him , if he did not leave the country : and finding that he came in at night , she beat him with her slipper , but finding he only smiled at this , she came running up to him with a knife in her hand , whereupon he threatned to hold her head to the fire , if she would not calm , and so took the knife from her . notwithstanding of all which , both kindnesse , and threats , she did a third time flee in his face , but at last , fearing his patience might not only prejudge himself , but her , he did take her and hold her face a little to the fire , but without any defign , save of terrifying her ; but she being strong , and malice supplying what strength her sex denyed her , wrestled out of his hands , and in wrestling , threw her self upon the fire , and burnt a little her own face . all which shall be proved by witnesses , who saw the whole tract of that unhappy bussle , for it was an aggravation of her guilt , that she used him thus publickly . this being the state of the case , i hear such as stand behind me swear , had she been mine , i had drowned her , or starved her , and i conjure your lordships to reflect what any man would have done in that case ; but i shall only debate , that this guilt deserved a more severe punishment , then what he inflicted . for , . in proportioning the punishment to the guilt , your lordships will be pleased to consider , that the husband never having punished her former extravagancies , was here to punish at once , all that she had formerly done , and if every offence deserved correction , ten thousand offences deserved one that was very great ; and if the law after it hath punished the first two small thefts , punishes the third with death , and after it hath punish'd breaking yards with small pecunial mulcts , maketh the third capital ; may not the hundreth offence in beating a husband , and laying snares for his life , deserve all done , where the former faults were also to be punished ? and since no judge could have refused to have burnt her in the cheeck for three such riots , sure the husband cannot be punished for punishing a hundreth at the same rate ; and i hope your lordships will imagine , that a husband who suffered so many affronts , would not have been too violent in punishing the last , and that she hath her self to blame , having contemned the warning given her by her husband , and in giving of which warning , it clearly appears , that he was master of his passion , and proceeded both kindly and judiciously ; or though he did deserve a punishment , yet by-past-sufferings , torments and affronts , may do more then satisfie her , for that one injury , of which she can only complain : and as in ballancing accounts , so in ballancing mutual crimes , we must not look to the debt and credit of one day , but considering all that either party can lay to one anothers charge , we must at the ballance only determine who owes most , and if that method be followed , then sure your lordships will find , that as injuries may be compensed amongst the parties themselves , in so far as concerns their privat interest , so here , my clients wife having been more guilty towards him a thousand times , then he can be said to have been towards her , though this riot were acknowledged , her interest ceases , and her complaint doth become thereby most unjust . though the law designs to restrain our vices , yet because it cannot root out our passions , it pitties them ; it employes its justice against our crimes , but its clemency against our passions : and so high did this clemency run in the roman law , that he who in passion kill'd his wife , being taken with her adulterer , was not punished as a murderer , qui impetu tractus doloris interfecerit : and the reason the law gives for remitting the crime is , cum difficillimum sit justum dolorem temperare , l. . ff . ad . l. jul . de . dult . and if any passion deserves pardon , it must in him who has bestowed pardons for seven years ; or if it may plead against any , it must be against her who raised injustly , the passion of which she complains . injuries from a wife are crimes ; and if injuries can justifie passion amongst strangers , much more can they do it in a husband . i hope your lordships will likewise consider , that self-defence is not only a priviledge introduced by law , but a duty imposed upon us by nature ; and without this , this world were nothing but a scaffold , and every man with whom we conversed , might prove an executioner . nor doth this self-defence only secure us when we kill such as would attacque our life , but it secures us likewise when we chastise such as would stain our honour ; for life without honour , is but as a dead carcass , when the soul is fled , or a king when he is dethroned . and since the law has p 〈…〉 lel'd life and honour in every thing , it is most just , that seing we may kill such as invad the one , we may at least chastise such as invad the other ; especially seing these who are here punished , have only themselves to blame , as the authors and occasions of all those accidents of which they complain : and therefore , my lords , i shall intreat you to figure to your selves , what a man could do , if his wife should constantly resolve to spit in his face when he were amongst strangers , or constantly awake him when he resolved to rest : were it not ridiculous to put the husband alwayes to complain to a judge in those cases ? and yet to suffer such injuries to be unpunished , were not only to make a man miserable , but to force him to an impertinent clemency , which might breed up his wife to an insufferable insolence . and if mean people , ( who wanting generosity and vertue , are curbed by nothing but awe and fear ) should come to know that the councill allowed such an indulgence to women , and that there were no place for the justest complants of injur'd husbands , what ruptures would this occasion in privat families , what numerable suits before your lordships , and how many separations betwixt husband and wife ? do then , my lords , by this decision , let the people see , that as vertuous and deserving women may expect the highest and purest respects imaginable , so such as shew themselves unworthy of these favours , may expect punishment answerable to their crimes . nor is it a small aggravation of their guilt , that they endeavour as far as in them lyes , to draw contempt and disgrace upon that amiable , and deserving sex. thus good women will be complemented , when they find they owe not the respect they get to the law only , but to their own merit , and unworthy women will find , they may expect a happier life by taming their own insolencies , and by living in concord with their husbands , then they can from their insolent , and outragious abusing of them . the counsel imprisoned the husband for one night . for charles robertson and his two sons . xviii . pleading . how far minors may be punished for crimes . . whether complices may be pursued before the principal party be found guilty . . whether socius criminis may be received in riots and lesser crimes . the crime for which my clients are accused , is , that in january , . the said charles robertsons brother and two sons did convocat the lieges , and throw down a house belonging to elizabeth rutherford , which they did at their fathers desire , or at least , that their father did ratihabit the same . against this indictment , it is alledged , that the two sons , the one being of the age of fourteen , and the other of fifteen , cannot go to the knowledge of an inqueist , for throwing down this house , since they offer to prove , that they were informed by their uncle , that this house belonged to their father , and that it was their fathers desire they should go along with him to throw it down ; for though minors may be punished for attrocious crimes , committed against the law of nature , such as murder , incest , &c. and to abstain from which , the youngest conscience doth advise : yet , such acts as cannot be known to be criminal , but by such as understand positive law , are not punished as criminal , but in such as are oblieged to understand that law. none will contravert , that the throwing down such a little house , not exceeding six pounds scots of value , and to which , they and all the countrey had heard their father pretend right , cannot be called a crime against the law of nature ; and it is only a crime in positive or municipal law , when it is done by such , as are oblieged at the time to understand they are doing an injury , and that the house belongs not to him , at whose command they are throwing it down , and these children were not oblieged to know this ; for since they are not in law oblieged to understand their own rights , till they be majors , much lesse are they oblieged to understand the rights of other men ; and in this case the undestanding the matter of rights , is that only which infers the crime , for if the father had right , this had been no crime in him , nor them . i am sure , there is a great distinction betwixt acts , which are of their own nature indifferent , such as throwing down of houses , taking men prisoners , &c. and these which are of their own nature vitious , and criminal , and need no extrinsick thing to clear that they are so , such as murder , and robbery ; the first doth require the knowledge of something that is extrinsick to the act which is done ; nor is the guilt infer'd but by reasoning , and judgement , and therefore that guilt should not fall upon minors , except they are dolosi , and are presumed to have done it intentionally and upon design , and how can design be presumed in these minors , since the committing this act did not take its rise from them , but from their uncle , and father , and they were to gain nothing to themselves , immediatly by it ? nor can it be imagined , why the law will for want of understanding , lessen the punishment in the most attrocious crimes , such as witchcraft , murder , &c. in such as are thriteen years of age , if it will not remit absolutely the guilt , in such cases as these , where the guilt was neither palpable ; nor the prejudice great . and if minors be to be restored adversus delictum in any case , as is clear they are , they ought to be restored against this , where the guilt doth consist in a punctilio or nicety of law , such as , that though the father had right to the house , yet he could not have thrown it down by his own authority ; a principle which few countrey men understand , when they have reached twenty one years , si delictum fuerit commissum sine dolo potest minor juvari ope restitutionis in integrum , etiam ad hoc ut à totapaena excusetur , clar. quaest . . & anan . in cap. . num . . de delict . puer . nor can i see a reason why crimes by the unanimous opinion of lawyers are said not to be punishable in minors when they are perpetrat non committendo , sed omittendo , if it be not because omissions are juris , and fall not under sense , and proceed from a weaknesse of the judgement ; but yet i think the former distinction more just , since omissions of what nature requires , should bind them , but nothing should bind them which proceeds from a weaknesse in judgement , since law allowes minors to have no judgement . but whatever be alledged against other minors , yet these having obey'd their father , in an act which was of its own nature indifferent , they cannot be punished for the guilt though he may , for that were to make poor children unhappy , in subjecting them to double punishments , for if they obeyed not their father , they could not escape their fathers anger , or if they did obey , they fall under the laws revenge . and it were very unjust , that the law which has subjected them to the power of their father , should not secure them when they obey that power to which it has subjected them . and upon the other hand , it would lessen much that power which the law hath taken so much pains to establish in the persons of fathers , and masters , over their children , and servants , if it gave them occasion to debate their commands ; and though a son , or a servant , are not obliegd to obey their father or master , in things palpably attrocious , and wicked ; yet , where the thing commanded is not necessarily , and intrinsecally unjust , they should either obey there , or no where ; and what a great prejudice were it to the common-wealth , if a son or servant should refuse to assist , in bringing back cattle , which others were driving away , to labour land , or assist poindings , or even throw down houses at their father , or masters desire , because they might pretend his right were not sufficient ? and so the father and master should be still oblieged to give an account to his son or servant , of his right and title upon all occasions , and his commands , which require oftimes a speedy execution , should be delayed in the interim . to prevent all which , the law hath for the good of the common-wealth , allowed sons , nor servants , no will of their own , making them in effect but the tools and instruments of their fathers and masters will , non creditur velle qui obsequitur imperio patris , vel domini , l. . ff . de . reg . jur . and if the law allowes them to have no will of their own , it cannot punish them when they obey their master , for all guilt is only punished , because it is an effect of the will ; and therefore , john rae was not put to the knowledge of an inqueist , as art , and part of theft , because he went only along with his father , when he was about twelve years of age , . of januar , . and by the . cap. num . . stat . will. the servant is only declared punishable , if he do not detect his master , or desert his service : and per. l. lib. homo . ff . ad . l. aquil . it is expresly decided , that si jussu alterius manu injuriam dedit , actio legis aquiliae cum eo est qui jussit , si modo jus imperandi habuit , quod si non habuit , cum eo agendum est qui fecit . though minors may be punished for a guilt , yet they ought not to be indicted till they attain to the years of majority , because if they were to be tryed in their lesse age , they might by want of wit and experience , omit their own just defences , and mismannage the debate in which they were ingaged , as to which , our old law appears to be very clear , r. m. lib. . c. . lib. . cap. . quia dicere vel tacere potest calore juvenili , quod ei nocere potest : suitable to which , skeen doth in his annotations observe a decision , betwixt his majesty , and the abbot of parbroth , anno , . & l. pen. cod . de autor . tut . & . l. . s. occisorum ad s. c. sillan & cap. . de delictis puerorum . extrav . since a minor may be restored against such omissions , or against a confession omitted by him , quando non potest aliter contra eum probaricrimen , or may omit to object against witnesses , it is more just and convenient , that he should not be tryed till he be major . for , if he be tryed , he must be once punished , and then his being restored is both impossible and improfitable : and it were very inconsequential for our law to have so far priviledged minors , as that they are not oblieged to debate super haereditate paterna , and that too upon these same reasons i here alledge , and that it should not much more secure them against criminal tryals in the same minority , where the hazard is greater , especially where the common-wealth is not concerned ( as here ) to have the guilt immediatly brought to open punishment , and where the crime is not attrocious , reaching no furder then privat revenge , and a pecuniary punishment . nor is the publick in this case disappointed of a just revenge ; for it can reach the father or uncle , who are alledged to be the principal actors . for the father , i alledge , that he cannot be pursued , as he who was accessory to the committing of the crime , in commanding or ratihabiting it , except it were condescended from what particular acts his ratihabition can be inferr'd , whether by words , deeds , concealing , or otherwise ; and it is not sufficient to lybel in the general , that he did ratihabit , no more then a lybel would be relevant , bearing , that my client were guilty of treason , without condescending how , as is clear by the opinion of all lawyers , who require , that lybels should be special , which is required by them , to the end that the relevancy of the lybel may be debated and determined by the judges , before it go to a tryall , which should be rather done amongst us , then any other nation , because the probation is in this kingdom tryed only be an assize , and these are ordinarly men who understand not the intricacies of law ; whereas if the particular way and manner of ratihabition be not condescended on , and discust by the judges , it must come to be debated after the probation before the inqueist ; and thus not only relevancy , and probation , matter of law , and matter of fact , but even the distinct offices of justices , and assizers , will be here confounded . as for instance , if the pursuer should prove , that the father said that all was well done , we would be forced to debate before the assize , that such passing words as these cannot infer a crime , for else many thousands in a nation might be found guilty of crimes to which they had no accession : or if it were only alledged , that he received his sons into his house , it would be likewise debated , that the receiving of a mans own sons into his house , cannot infer a crime in delictis levioribus , though it may be debated to be criminal in treason , and more attrocious crimes . upon which , and many other points , the doctors have writ very learnedly , and to debate such points before ignorant assizes were very dangerous . it is likewise alledged for the father , that he being only pursued as accessory to this crime committed by his brother , in so far as he did either command or ratihabit , it is therefore necessar , that the brother be first pursued and discust , it being a rule in all law , that the principal should be pleaded and discust , before him who commanded the same to be done , or before the receipter , as is clear by r. m. lib. . cap. . intituled , the order for accusing malefectors for crimes ; which agrees likewise with the opinion of the civilians , and particularly clar. quaest . . num . . whose words are , scias etiam quod quandoque proceditur contra aliquem tanquam quod praestiterit auxilium delicto , debet primo in processu constare principalem deliquisse . mars . quaest . . gives an example of it just in our case , a father is pursued as accessory to his sons guilt , in which case he alledges the father could not be tryed , till the son was first discust ; & alexand. consilio . vol. . dicit , quod nisi prius constet de manaatario , procedi non potest contra mandantem ; with which the english law agrees fully , by which the principal ought to be attainted by verdict , confession , or by outlawry , before any judgement can be given against accessories , bolton cap. . num . . and therefore , except the uncle , who was the principal actor here , were first found guilty by an assize , my client as commander and ratihabiter cannot be punished . to this it is answered , that the foresaid law of the majesty holds only in theft , but not in other crimes , and that as to all crimes it is abrogat by the . act. . parliament , ia. . by which it is appointed , that all criminal lybels shall be relevant , bearing art and part , without making any distinction betwixt principal and accessories , and the father is called here as a principal , having given a warrand , as said is , for else the giving warrand for doing treasonable deeds , or to commit murders , could not be punishable , though nothing followed ; whereas in all law , such deeds are criminal in themselves , and the mandant might be immediatly punished . to which it is replyed , that this maxim holds not only in theft , but in all other crimes ; for as there can be no reason of disparity given to difference theft from other crimes , as to this point ; so the rubrick of the former chapter . is general , and in the fourth verse of that chapter , it is said generally , that 〈◊〉 is manifest , that the commander or receipter shall not be ch●rged to answer , till the principal defender be first convicted by an assise . which is likewise quoad all crimes ordained indefinitly by the . act. stat. david . nor can it with justice be pretended , that these laws are abrogated by the foresaid statute of king iames the sixth , for these reasons ; . that act doth not expresly bear an abrogation of the former laws , and standing laws cannot be abrogat by consequences : nor can it be , but if the parliament had designed to abrogat so old and fundamental laws and customs , they would have exprest their design , especially since in criminal cases , all lawyers endeavour to make their laws clear and perspicuous . . no laws are interpret to abrogat one another , except they be inconsistent , so infavourable is abrogation of laws ; and it is generally received , that leges in materia diversa sese non tollunt , nec abrogant : but so it is , that these laws here founded on , are most consistent with the act of king iames the sixth , and these two are materiae diversae ; for it is very consistent , that a libel bearing art and part should be relevant , and yet that the principal should be first discussed ; for though the principal be first to be discussed , yet , when the accessories are to be accused , it is sufficient that it be generally libelled against them , that they were art and part , the one of these regulats only the way of procedure , & ordinem cognitionis , the other regulats the relevancy , and shows what lybel shall be sufficient . nor was there any thing more designed by that act , ia. . but that lybels in criminal cases should not be cast as irrelevant , as is clear by the narrative of the act. and by the civil law , ordo cognitionis , & accusatio eorum qui opem auxilium prestiterunt , are alwise accounted different titles , and are differently treated ; so that these two laws are very different , and very inconsistent . . if that law , ia. . had abrogat the former laws , whereby it is appointed , that the principal should be discust before the accessories , then it had followed by ▪ necessar consequence , that these laws could not have taken place after that act ; but so it is , that defences are dayly sustained upon these laws , as in the case lately of george graham , which shewes very convincingly , that they are not abrogated . the reasons likewise whereupon that law was founded , ordaining that accessories should not be pursued before the principal be discuss'd , are still in vigor , and are so just and necessar , that it were injust to abrogat a law founded upon them ; for the law considered , that if the principal were called , he might know many defences , which i● they were known to these who are alledged to be accessories , would certainly defend them ; as in this case , if the uncle were called who threw down the house , it may be he would alledge , that he did not throw down this cottage , till the accuser had consented , which consent he possibly hath : and this may be necessar in a thousand cases , as if a person were pursued for having been accessory to the driving away sheep , or neat , he might be convicted , though he were innocent , if the principal were not called , which principal if he were called , might produce a disposition from the party , or a legal poinding , either of which being produced , would defend both : whereas upon the other hand , if it were lawful or sufficient to accuse any persons as accessories , without pursuing the principal , the accuser might collude with the principal , and suffer him to go unpunished , providing he would keep up the defences and warrands , and so suffer the innocent accessories to be condemned . is it not a principle in nature , that accessorium debet sequi suum principale ? and doth not the law still require , that prius debet constari de corpore delicti ? and how can a man be pursued for hunding out another to throw down a house , untill it were first known that the house was thrown down ? nor is the giving an order to throw down a house criminal , though it were proven ; except the house were according to that order thrown down , and that it was thrown down by vertue of that order , and upon no other account . by all which it clearly appears , that the throwing down of the house , which is the principal guilt , must be first tryed , before it can be enquired , who gave the command . the last , and one of the great arguments , i shall use to prove , that the principal who threw down the house must be first discust , before my client can be pannell'd for commanding or ratihabiting , is , that by this method , probation should be led against absents , contrar to the known principles of our law , and by the connivance or ignorance of the accessories , the fame of an absent person may be wounded , and witnesses suffered to depone , who dared not have deponed if he had been present ; and though that probation led against him in absence would not be concluding , yet it would leave a stain ; and would engage the deponers to adhere to these prejudicat and false depositions in another process , to secure themselves against perjury . whereas it is pretended , that sometimes command is a crime , though nothing follow , it is answered , that where a mandat is of it self criminal , though nothing follow , as in treason , there the giver of the mandat must not be pursued as a complice , or accessory , but as the principal transgressor ; nor would the king be prejudged ( as is alledg'd ) if the principal behoved first to be discust , because it is pretended , that that principal might abstract himself , and thereby cut off the publick revenge , which would otherwise justly fall upon the accessories if they could be apprehended . for to this it is answered , that it is easie for his majestes advocat to raise a pursute against the principal , and if he compear , to proceed against him , or if he compear not , he may be denunced fugitive , which is a sufficient discussing of him as a principal , and will open sufficiently a way to proceed against the complices . it is likewise alledged , that the witnesses which are offered to be adduced against my clients , for proving that they committed this crime , are not testes habiles , and cannot be admitted , because i offer to prove by their own oath , that they were at the pulling down of the house , and did actually pull it down , and so are socii criminis , and consequently are repelled from witnessing , by the . cap. stat . . rob. . where there is an enumeration made of those who cannot be admitted to be witnesses , amongst whom are socii & participes ejusdem criminis . to which exception ; the accuser answers , that though socius criminis , cannot be admitted pro socio , yet he may be admitted contra socium , that he may be witness against , though not for those who were ingaged with him . . though socius criminis may not be admitted as a witnesse contra socium , where the crime in which they were ingaged fixes infamy upon the committers , as treason , witchcraft , murder , &c. yet in delicts or rather riots , such as is the casting down of a house , that tends to infer a pecuniary , and not a capital punishment ; there socii criminis may be received as witnesses ; for , the reason why they are ordinarily repell'd , is , because in deponing they confesse a crime against themselves , & se infamant , which reason ceases in delicts or lesser crimes , quae non infamant . it is likewise represented , that it is most clear from law , that the only reason why socii criminis are repelled from being witnesses is , because deponendo se infamant , and so they forfeit the capacity and confidence of integrity that the law reposes upon all persons that ought to be believed as witnesses ; by the whole contract of the whole titles , ff . & c. de testibus . and by clar. quaest . . num . . dictum socii criminis ad hoc ut fidem faciat , requiritur , ut sit confirmatum in tormentis , cum enim ex proprio delicto sit infamis , nec debet admitti pro teste sine tortura ; and the foresaid text of the majesty , ought as is alledged , to be interpret only so , as to take place ubi crimen infamat , and that dilicta non infamant is endeavoured to be prov●d by the statute of king william , de his qui notantur infamia , where it is said , that fures , sacrilegii , homicidii . and others , qui sunt irretiti capitalibus criminibus , repelluntur a testimonio . 〈◊〉 witnesses in delicts and riots should not be admitted because they are socii criminis , no delict ( sayes the pursuer ) should ever be prov'd ; for ordinarly none are present but the committers . and since after their confession they may be pursued themselves , it is not probable that they will depone against others falsely , especially when they may be overtaken upon their own deposition . to which it is duply'd , that it is a rule in law , that socius criminis , nec pro , nec contra socium admitti potest , l. quoniam c. de test . mascard . conclus . . by which it is clear , that the law makes no distinction whether he be adduced , for , or against his commorads , whether he be adduc'd in crimes , or delicts ; and socius criminis is not only repell'd from being a witnesse , because he stains his own fame , whilst he depones against his companions , but because the law presumes that being himself under the mercy of the pursuer , he will by an unjust deposition ransome himself from the event of the pursute , and therefore the law casts him as a witnesse ; for the law is unwilling to use those who hath offended it , and lawyers have alwise been unwilling to tempt men , by forcing them to depone upon their own errors , for they judged , that these who would commit a crime , would easily forswear it . and the law of the majesty formerly cited doth repell à testando socios criminis , & infames , whereas it needed not have exprest both , if it had comprehended the one under the other , and only repelled socios criminis , because they were infames . i perceive by lawyers , that sometimes they allow witnesses in attrocious and great crimes , whom they would not have admitted to prove crimes of lesse consequence , which proceeds both from the hatted they carry to these great crimes , a part of whose punishment it is that the crime can be easily prov'd : but likewise to the end the common-wealth may be the better secured ; whose great concern it is , that judges be not too nice and scrupulous in receiving witnesses against its enemies . nor did the law think , that men would be so base and malitious , as to seek the death of their enemies by a false deposition , even where possiblie revenge would be content to reach their estates . therefore , by the common law of nations in attrocious crimes , such as treason , simonie or sacriledge , socii & participes criminis admittuntur , l. quisquis c. ad l. jul . majest . glossa in l. ffin . c. de accus . specul . tit . de prob . § . . boer . quaest . . and according to our law it is appointed by an expresse act of sederunt , anno , . that socii criminis may be witnesses in the cases of treason , and witchcraft ; but i do not at all read , that socius criminis is allowed to be led a witnesse in delicts , and all the reasons that militat for the former cause , do militat against this . nor is it possible to believe , that the law which allowes socii criminis to be witnesses in great crimes , because they are great , would likewise allow them to be led witnesses in small crimes , because they are small ; for so the law would contradict it self , and would build contrarieties upon the same foundation : and since the foresaid act , . allowes them to be led witnesses in crimes of witchcraft , and treason , they ought not to be admitted in any other crime , how small so ever , for in privilegiatis , inclusio unius , est exclusio alterius . it is very clear , that the law would not admit the testimony of a partaker of the crime , to have the force of a presumption , nor to be the ground of an accusation , salicet . in l. ffin . c. de accus . nor gives it any credit to his deposition , though he were otherwise esteem'd a most credible person , probatissimae fidei , grammat . consil . . num . . nor doth it believe him though he were deponing against a person suspected to be guilty , bert. consil . . nor doth it believe a thousand such witnesses , though they agreed in their depositions , for all these joyned together weigh not one presumption , mascard . ibid. num . . by all which it may appear very clearly , that the law which respects socios criminis so little , doth in no case design to receive them in a criminal court , what ever may be debated for receiving them in civil courts , for proving civil conclusions . as to the inconvenience adduced , wherein it is contended , that if such witnesses were not admitted , no crime could be proved ; it is answered , that this argument would urge judges to receive socios criminis to be witnesses , as well in all crimes , as in small crimes ; for it is a brocard commonly received amongst the doctors , that quod admittitur ob incommodum , eo magis admittitur , quo magis urget incommodum ; and yet here it is confest , that they could not be admitted witnesses in murder , and those greater crimes . but the only natural conclusion that could be drawn from this inconvenience , is , that socii criminis should be admitted witnesses in occult crimes , such as conspiracies , but not in such crimes as this where there could be no penury of witnesses , being alledged to be commited in open day , in the midst of a town , and with a convocation . but to conclude all , i need only say , that my objection against these witnesses is founded upon an expresse law , and therefore it cannot be taken away by this distinction , except this distinction can be establisht upon , and maintained by another law as expresse . the justices found , that these minors being puberes , might be try'd , and so found that they should passe to the knowledge of an inqueist . . they found the father should passe to the knowledge of an inqueist , as art and part , though the principal actors were not yet discust . . they found , that socius criminis could not be received a witnesse in any criminal pursute , though the punishment could only reach to a pecuniary mulct . an answer to some reasons printed in england , against the overture of bringing into that kingdom , such registers as are used in scotland . in the first ages of the world , when man had not fallen so intirely as now from his original innocence , laws were made rather to govern reasonable men , then to prevent cheats . but when fraud did begin to grow up with subtilty , legislators being warned to guard against future abuses , by these they had seen committed , did in all places endeavour to reform their people , by reforming their laws , & sic ex malis moribus bonae ortae sunt leges ; and because wise men look upon themselves as sprung from the same divine original , therefore they have still been intent to borrow from one another , what excellent constitutions they found to have been invented by them . thus though scotland did adopt the laws of the romans ( called now the civil law ) into the first place next their own ; yet , such esteem hath that kingdom alwayes had for their neighbours of england , that they have incorporated into the body of their own laws , very many english forms and statutes . and as some sciences , trades and inventions flourish more , because more cultivat in one nation then another , humane nature allowing no universal excellency , and god designing thus to gratifie every countrey that he hath created ; so scotland hath above all other nations , by a serious and long experience , obviated most happily all frauds , by their publick registers . and though they are not furder concerned to recommend this invention to their neighbours , then in so far as common charity leads them , yet finding their registers so much mistaken in a discourse , entituled , reasons against registring reformation , i thought it convenient to represent a short account and vindication of them . registers are appointed in scotland , either for real rights ( for so we call all rights and securities of land ) or for personal obligations , by which a man binds his person , but not his estate . men sell their land in scotland , either absolutely , or under reversion ; if absolutely , it must be either to the sellers own superior , or to a stranger ; if to his superior of whom he holds his land , it is transmitted with us by an instrument of resignation in the hands of his superior , ad perpetuam remanentiam , whereby the propriety is consolidated with the superiority , and this instrument must be registrat . but if he sell it to a stranger , then the acquirer must be seased , and this sasine must be registrat within sixty dayes . or if a man do not absolutely dispone his estate , but retain a power to redeem the same , upon payment of the sum for which it is wodset or morgaged , then the paper whereby this power is allowed , is called a reversion , and it must be registrat within sixty dayes also . if any heretor be suspected by his friends to be prodigal , or unfit to mannage his own affairs , he interdicts himself to his friends in a paper , wherein he oblieges himself to do no deed without their consent : or , if a creditor who lent his money to an heretor , find that heretor intends to sell his estate , without paying him , albeit he did lend his money in contemplation of that estate , which the borrower then had ; he makes an application to the supreme judicature of the kingdom , called the lords of the session , and from them obtains a warrand to inhibit his debitor to sell that estate , till he be payed , which interdiction or inhibition must be first published at the mercat-cross where the lands lye , and then registrated within fourty dayes . there are two of these registers , or publick books , one in the chief town of the shire , and another at edinburgh , which serves for all the shires , and in either of these , all these sasings , reversions , interdictions , and inhibitions may be registrated : so that when any man intends to buy lands , he goes to the keepers of these registers , who keeps a short breviat of these in a book apart , called the minute book , ( bearing the day when any inhibition was presented against such a man , at the instance of such a man ) and there he finds for a crown , what incumbrances are upon the estate he intends to buy , and if he find none , he is secure for ever . as to personal bonds , they need not be registrated , but if the creditor resolve to secure his bond against lossing , or if his debitor refuse to pay his money , when he calls for it , then he gives in the original , or principal bond to the register , who keeps it still , and gets out an extract or coppy of it , collationed by my lord registers servants , and subscribed by himself or his depute ; for there is a register for bonds in every shire , town , and jurisdiction , as well as at edinburgh . this registration hath with us the strength of a judicial sentence , and warrands the creditor to charge his debitor , to pay under the pain of horning ( or out-lawry ) and if he disobey , the horning is registrated . and thus every man knows in what condition his debitor is , as to his personal estate , if he begin not to keep his credit ; and this register serves both for execution and information . this being the state of the registers in scotland , the usefulnesse of that institution , may appear from these following reasons . . there is nothing discourages men more from being vigilant in their employments , then when they apprehend that the money which is that product , by which their pains uses to be rewarded , cannot be secured to their posterity , for whose advantage they disquiet themselves , and coil so much . and thus the common-wealth will be but lazily served , trade will be starv'd , and ingenuous spirits discouraged . not is it to be imagined how purchasers will be , or are induced to be at much pains and expences , to improve their grounds , and adorn their dwellings ; when the loosnesse of their right layes them open to renewed hazards , nor can they enjoy with pleasure , what they cannot possesse with certainty . and what frail securities have such as are forced to rest upon the ingenuity of sellers , who of all people are least to be trusted ? for such as sell lands , are either prodigals , who are too vitious , or distrest persons , who are ordinarly under too many necessities to be believed . . registers are of all others , the greatest security against the forging of false papers ; for forgers use to conceal for some time , the papers they forge ; whereas the necessity of registrating them within such a time , will either fright the contrivers , from doing what they must expose to the light , or will at least furnish such as are concerned to have the fraud detected , with means which may be effectual , seing it is much easier to expiscat truth whilest the witnesses are alive , and all circumstances recent , then after that a long interval of elapsed time hath carried away the persons , and obscured the circumstances , from which truth could have received any light . . purchasers being fully secured by the publick faith of registers , need not burden the seller with a necessity of finding surety to them for the validity of the rights sold , which as it resolves still in an personal ( and consequently an unfixt ) security , for the buyers , so vexes very much the seller and his friends . . the security , which flowes from registers , cuts off much matter of pleading , and thereby defends against those feuds and picques , which last ever after amongst such as are concerned , and keeps gentlemen at home improving their estates , and merchants and tradsmen in their cantors , and shops , enriching the nation . . when men are to bestow their daughters , they are by our registers , informed , and assured of the condition of those with whom they deal , and by their means , men are kept from giving their daughters and their fortunes , or a considerable share thereof , to bankerupts , and cheats . likeas , the daughters are by them , secured in their joyntures , and not exposed after their husbands death , to tedious suits of law , the dependance whereof draws them to publick places , unfit for their sex , and the event whereof drives them to begging and misery . . by these , the price and value of land is much raised , for by how much more the purchase is certain , by so much more it is worth . . by these , heretors who are opprest by debt , are relieved by the sale of their lands , upon which buyers now adventure freely ; whereas , if they were to rely upon the faith of the sellers , their estates might continue unsold , till the rent of their money should eat up the stock . . by these , usury and unfrugal transactions with brockers and others , are much restrained ; for if purchases of lands were not secure , men would rather choose to hazard their money so , then upon land. . by these , parents know when their children , and kinsmen , when their relations debord , and burthen their estates , and are thereby warned to check , or assist them . . by these , strangers and forreigners are secured who resolved to match with us , or to purchase amongst us , for our registers are equally faithfull to all . . by these , commerce is very much secured ; for , if a merchant , or ordinary transacter refuse to pay his debts , then his bond is put in the publick register , by which the creditor is secured of payment , and the debitor is deterred from owing too much . . by these registers , papers are secured against fire , loss and accidents , to which they are exposed whilest they are kept in privat hands : whereas , after regstration , nothing can destroy them , but what ruines the whole kingdom , and even in that case , there is still hope of recovering publick registers , as in our last revolutions . in this last place , i must crave leave to wonder , why england hath already taken so much pains to secure against fraudulent cheating of creditors , and of buyers , as is clear from the statutes cited by the author , if they intend not to prosecute that worthy design . but as an evident mark to know whether registers be necessary , they may consider , that if any man in england can for a crown , know in the space of a day , the condition of these from whom he purchases , then registers are not necessary , but if otherwise , they are : if any lawyer in england can assure his client , that the purchase he makes is secure above all hazard , then registers are not necessary ; but if they cannot , then registers are necessary ; so that it seems england hath done too much already , or else that they should do more to secure their people . yet , since i only design to defend our own law , and not to impugn theirs , it were impertinent for me to recommend too zealously , that wherein i am not much concerned . against this so just and so necessary a constitution , founded so strongly upon reason , and approved so firmly by experience , the author of the reasons against registering reformation , hath put his invention and wit ( both which i confesse are very fertile ) upon the rack , to find out , and muster up some arguments , which owe their number and beauty to the unacquaintednesse of his country-men with the model he impugns , and which the author hath beat out by too much industry , to a thinnesse , that is not able to bear the weight he layes upon them . his first argument is founded upon the dangers that arise from innovations , wherein legislators are not able to have a full prospect of all inconveniences which may follow : but to this it may be answered , that the law of england had not deserved the honour done it by the author , nor had it swelled to its present bulk , if it had not been frequently augmented by new additions . and as to this project of keeping registers , england may be wise upon the hazard of their neighbours , who by being first practizers , have run all the risque , and taken all the pains which was necessar for accomplishing so great a design . the second reason bears , that by registers , the lownesse of the fortunes of such who suffered for his majesty , would be discovered , and they thereby exposed to much rigour from their creditors : but this i humbly conceive , proves more the contrary opinion , then that for which it is adduced ; for as it were injust to gratifie such as have suffered for his majesty , with the liberty of preying upon such as probably lent them , because they were of their principles , and of devouring poor widowes and orphans , whose necessities will doubtlesse load one day very much , the consciences of such as might have secured their petty fortunes by the help of the registers now proposed . and this argument presses no more against registers , then it doth against all those laudable and well-contrived statutes , which are already invented in england against fraudulent conveyances , forgeries and impostures ; for registers will not debar them from courses which are legal and honest . whereas it is in the third place urged , that commerce would be a great sufferer by registers , seing they would lay open the lownesse of mens fortunes , who do now enrich the kingdom , and themselves too , upon meer credit ; and that they would discover to forreigners , the low estate of england at present , and make every privat estate too well known . it is answered , that all these inferences are drawn from the authors unacquaintednesse with what he impungs , as was formerly observed ; for no man is oblieged to registrat a bond , which oblieges only to pay money ; nor do men registrat such , except where the debitor refuses to pay , and so these registers will not weaken commerce nor credit , seing commerce is not immediatly concerned in real estates : and even as to personal estates , or money , no man suffers by registers or is concerned in them , but such as have no respect to their credit , and commerce owes little to such ; whereas upon the other hand , the fear of this will be yet a further tye upon men to pay punctually , without which commerce will soon be starv'd . and by the registers , bankerupts will be soon discovered , whereby honest men who are the true nurses of trade will be much cherished and secured . and by this answer it appears clearly , that the riches of england , neither personal nor real can be made known by the registers ; for only the bonds of bankerupts are to be registrated , and though all real rights must , yet the quota of the real estate is not exprest in the papers to be registrated . after the author of that discourse against registering reformation found , that so unanswerable advantages arise from reg●sters , as that they could not be ballanced by the inconveniences which he laid in the other scale , he is pleased ( which is ordinary for such as cannot prevail by reason ) to reflect upon scotland , as a poor countrey , and against the scots as an unmercifull people , and to alledge , that their poverty , and feverity introduced those registers , and made them necessary with us , but that they would never agree with the rich , and tender-hearted english ; which reflections deserve rather our pitty , then our answer . leaving then this womanly way of arguing , as unfit for the scots , who study to be philosophers in their writings , as well as in their humours ; it is humbly conceived , that registers do restrain no mans compassion , for no man doth vertuously indulge his creditor , but he who knows the lownesse of his condition , which he cannot without registers ; ignorance is lesse the mother of vertue , then of devotion . registers prejudge only such as are cheats , and such deserve little compassion ; nor are our laws more severe against debitors who pay not , than the laws of england ; for both imprison such , and the only weak side in our law is , that it allows too much our judges to suspend the payment of debts , and i never heard the english , who live amongst us , complain of any other defect in our laws . our laws are extracted from the civil law , and such doctors as writ the law of nations ; and strangers understand our law sooner than any other law in the world , except their own ; and our captions for imprisoning debitors , who refuse to pay , are expresly warranted by that law of the romans ; which though it was the best law in the world , and is universally acknowledged to be such , yet was more severe then ours . the comparing of nations as to their poverty and riches , brings more heat then light ; nor can any difference betwixt the nations in these , make any difference as to this design ; or if it doth , it may be debated with reason , that registers are fitter for a rich , then a poor nation ; for where there are most buyers , and most land to be bought , registers are there most necessary , seing they were invented to inform buyers , as to the incumbrances wherein estates are involved by the multiplicity of purchasers . where there is but little land , and where the creditor is poor , there the creditor may have time , and leisure sufficient , to watch the small estate of his debitor . our nation supplies their neighbours with corns , and cattel , lead , copper , timber , coal , salt , and many other necessaries ; whereas in exchange of these , it receives only from them wine , spices , silks , and other superfluities , which as england , no more than scotland , hath growing within their countreys , so it is probable that both nations would live more happily without them : and thus it appears , that scotland is not so poor , as these reasons are . i would here put an end to these observations , if i were not unwilling to suffer that gentleman to continue in his error of thinking , that our registration of movable bonds ows its origin to the caursini , the popes brokers in england , and to the camera apostolica , under the reign of henry the third ; for as it is most improbable , that our nation would borrow so fundamental a constitution , from what was practis'd in a nation that was in enmity with them at that time ; so it is no way probable , they would have followed the methods of the popes agents at that time , when they were opprest by their master the popes endeavouring to subject their clergy of scotland , to the see of york , and by these agents themselves , in such mercilesse exactions . but the truth is , that though the compleating of this excellent constitution , is an honour due to scotland ; yet , its first origine is rooted in the roman law ; and most nations of the world do at this day use registers , which may be thus cleared . the romans , to restrain excessive donations , appointd them insinuari apud judicem , ut obviam iretur fraudibus , which insinuation was the same with our registrations ; thereafter they used regesta , quae vulgo registra , quasi regestaria dicuntur , illa erant acta tabulae publicae , which were at constantinople ; and in the eastern empire , called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as prat. observes : and by vopiscus in probo , are called registra . usus est enim ( inquit vopiscus ) registris , scribarum porticus prophyreticae . the romans had likewise publick books , wherein papers were preserved , which were under the western empire called archiva tabularia & tablina , but under the eastern empire were called grammatophilacia , ubi instrumenta publice deponuntur , as ulpianus observes , l. moris . ff . de paenis , § . that other nations besides scotland use to preserve their papers in publick places , and appoint their privat rights to be made publick and known by registering them , appears from alex. consil . . wherein he treats of the registers civitatis rheg . and by his consil . . wherein he treats of the registers civitatis arimini ; and at rome they use regestrum supplicationem apostolicarum ; and another register literarum apostolicarum , castr. consil . . but the registers used by us , have been allowed , and imitated by the french most exactly ; for a constitution , anno , . made by hen. . provides , that all dispositions , contracts and obligations exceeding fifty livres , shall be registrat ; and if it be not registrat , it shall be null , in so far as concerns third parties ; the narrative of which law , proves the advantageousnesse of registers ; for it bears , that after all other means have been essayed , we find that there was none save this of registers to make our subjects live in assurance , to obviat all debates , and to prevent cheats : in which , and these other constitutions which follow upon it , all the methods used by us are exactly set down , such as the marking of registers in every leaf , the having particular registers in every inferior jurisdiction , and the marking of the principal , or original papers upon the back ; there also the coppies collationed are called extracts . but that in this they imitated us , is clear , for we had registers before the year , . because by the twenty seventh act , fifth parl. ia. . reversions are appointed to be registrated ; which act speaks of registers as then in being , and fully established . i find also , that in the old hansiatick maritime laws , tit . . art . . it is provided , that nullus nautarum , ullam silliginem , aut alia bona navi importet , vel exportet , sine scitu naucleri , & scribae navalis ubi etiam in registro poni debent . which i observe to clear , that all ages and nations , traffiquers by sea , as well as lawyers by land , have thought registers advantageous for commerce , and a sure fence against cheats : and if registers be necessary in such mean , and transitory occasions , as loadings and moveables , much more are they necessary in lands , which as they are of the greatest importance , so are of the longest duration . since then registers have been found so advantageous , and that experience hath herein seconded reason , it is humbly conceived , that scotland is much to be magnified for their registers ; and that england may , without disparagement , introduce this new amongst their old statutes , whereby they cannot be so properly said to innovat , as to enrich and augment their own law , nec pudet ad meliora transire . but , i know that nation to be so wise and provident , that if they understood our registers , as well as they do their own concern , they would easily prefer them to those reasons , which this gentleman has offered against them . finis . adde before the figure . lin . penult . page . in answer to the french pleading . and that this condition can only be purified , or satisfied by a natural , and not by a civil or fictitious death , is clear by very expresse laws , as l. . ff . de . cap. dimin : where it is said , eas obligationes quae ' naturalem praestationem habere intelliguntur , palam est capitis diminutione non perire , quia civilis ratio naturalia jura corrumpere non potest . thus gaius , one of the best roman lawyers hath said , that such interpretations doth corrupt the law , and in effect mix things that are very different , invading the limits of nature , and stretching fictions furder than they ought to go : and therefore , such criminal sentences as do not really kill , sed fictione civili caput diminuunt , are not termed death , but a punishment next to death , deinde proxima morti paena , damnatio in metallum , l. capitalium , ff . de paenis . this likewise papiniam decides , l. . ff . de verb. oblig . in insulam deportato reo promittendi stipulatio ita concepta cum morieris dari non nisi moriente eo committitur . and upon the same ground , l. cum pater , § hereditatem , ff . de legat . . he determines our case expresly , and asserts , that such sentences cannot in fidei-commissis , be accounted death , haereditatem filius cum moreretur , suis vel cui ex his voluisset restituere fuerat rogatus , quo interea in insulam deportato , eligendi facultatem non esse paena peremptam placuit ; nec fidei commissi conditionem , aut mortem filii haeredis existere : with whom agrees , paulus l. statius § . cornelia foelici , ff . de jure fisci , cornelia felici mater scripta haeres rogata erat restituere hereditatem post mortem suam , cum haeres scripta condemnata esset , & à fisco omnia bona mulieris occuparentur ; dicebat foelix se ante paenam esse , hoc enim constitutum est , sed si nondum dies fidei commissi venisset , quia potest ipse mori , vel etiam mater alias res acquirere repulsus est interim à petitione . thus we see , that all the roman lawyers have conspired to allow only natural death , to satisfie such conditions as this is ; death is the last of all things , rerum ultima linea , and therefore these sentences leaving still room to hopes and expectations , cannot be called death , which with the person cuts off all these . it is thought by the best of men already , that death comes too soon , why then should we precipitat it , and force it upon men before its time ? and since one death is thought by all a severe enough punishment , why should we multiply a thing that is but too oft too unwelcome ? death is too serious a hing , to be counterfei●ed by such ●fictions , and too severe thing to be quibled upon , by such interpretations . adde to pag. . lin . . at these words , after victuall was expresly prohibited . i find , that by the roman law , l. . c. que res export . non deb . it is declared unlawfull to carry or sell arms to the enemies of rome ; but though in law , all that is not forbidden is allowed , and that there be there a full enumeration of what should not be carryed into enemies , yet corn is not at all specified . and by the canon law , all such as supply turks , and the other enemies of christian religion , with guns , swords , & aliis metallorum generibus , & instrumentis bellicis , are an thematiz'd ; yet , there is no execration pronunced against such as supply them with victuals : and though to carry wine or oyl to barbarians was punishable by the roman law , l. . c. e●d . ne quidem gustus causa , aut usus commerciorum , least the delicacies of the italian fruits should have tempted those to invade it , yet , that law did not at all reach their allies , nay , nor did it so much as prohibit even in subjects , the sending corn to enemies who were not barbarians : so that what ever may be alledged against allies , who buy corns to carry into enemies ; yet it seems most unjust that the swedes , who carry in only their own product , either corn , or stock-fish to sell them , should be proceeded against as enemies upon that account , and at this rate , sweden could no where sell their corn , nor other native commodities , for they can only vent them either in holland , france , england , or denmark , and all those being now ingadged in this war , the poor swedes behoved to loss all their own rents , and want all these necessaries with which they can only be supplied from the product of these , and here the swedes cannot be so properly said to supply the hollanders , as to entertain themselves , and his majesty would sooner starve thus his allies , then his enemies . and though princes may impose these hard terms upon their own subjects , yet it were hard they could tye their allies to the same terms : which makes me believe , that the decisions related by boer , decis . . and by christinaens , decis . . wherein they relate , that the exportation of corns in time of war is a sufficient reason for confiscating both ship and goods , frumenta , vina & olea , existente prohibitione ad exteros , praesertim inimicos , exportare non licet , christian. ibid. for exportation being only prohibited , it can only extend to subjects ; for none can export properly , but they ; for allies cannot be said to export when they trade , for to export is to carry out of the place where the prohibition was made . i confesse , that the carrying in corns to holland may seem a greater supply to them , then it would be to any other nation , because their countrey cannot supply them with its native product ; yet , since they have the ●bine , the me●z , and other rivers open to them , in which his m●jesties ships cannot stop their commerce , they will be abundantly supplied with corns , though sweden could be bound up by this treaty from supplying them : so that his majesty will prejudge thus his allies the swedes , in their commerce , without wronging his enemies , as to corn or other provision . and to clear , that the comeatus here prohibited , is only corn carryed in to citties besieged , or to armies of the enemies , but that our allies are not absolutely prohibited to carry corns to any who are in enmity with us ; your lordships will be pleased to consider , that comeatus signifies properly , a liberty granted to souldiers to go and return salvum conductum , as is most clear by the whole title , c. de commeatu . and though some have taken the word thereafter in a translatitious sense , pro cibariis & alimoniis exercitus , yet to extend that to all corn carryed in by way of commerce to an enemies countrey ; seems very hard ; especially where it is not carryed in alimoniae sed commercii ergo , and though corn as the staff of life ; be sometimes specially prohibited , yet that should not be extended to stock-fish and other lesse necessary provisions : and though it were extended to these , yet the carrying so small a quantity could no more be esteemed a contravention of the treaty , then the carrying a little money ( without which there can be no trade ) could be esteem'd a breach of that part of the treaty , whereby pecunia or money is ordained not to be carryed ; si quis ab initio sui usus causa exportaverit , postea vero quia non indigeret partem vendidit legem non offendit , ludovic . conclus . . circa modum usus tunc praesumitur cum modico quantitas vendita est , tuld . tit . c. quae res export , num . . from which i conclude , that the prohibition of carrying in money , or victualls , can only reach those who carry them in great quantities , or to besieged citties , or armies , or principally for the advantage of the enemies , and for strengthening them in war against his majesty ; for since to restrain this , is the only design of the treaty , the words in the treaty should be interpreted suitably to this design : and thus this poor ship can only be condemned for its original sin , having carryed contraband in the former voyage . the institutions of the law of scotland by sir george mackenzie ... mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing m estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the institutions of the law of scotland by sir george mackenzie ... mackenzie, george, sir, - . [ ], p. printed by john reid, edinburgh : . first edition. includes legal citations. reproduction of original in cambridge university library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- scotland. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - olivia bottum sampled and proofread - olivia bottum text and markup reviewed and edited - pfs batch review (qc) and xml conversion edinburgh , march . . it is ordered by the lords of his majesties most honourable privie council , that none shall re-print , or import into this kingdom , the book intitutled , the institutions of the laws of scotland ; by sir george mackenzie of rosehaugh , his majesties advocat , for the space of nineteen years , after the date hereof , without the consent of the author ; under the pain of confiscation of the whole copies to john reid printer of the said book . extracted by me pat. menzies , cls. sti. cli. the institutions of the law of scotland by sir george mackenzie , of rosehaugh , his majesties advocat . edinburgh , printed by iohn reid , anno dom. m dc lxxxiv . to the earl of middleton , my lord , the natural way of learning all arts and sciences , is to know , first , the terms used in them , and the principles upon which they are founded , with the origins of the one , and the reasons of the other . a collection of these terms and principles is in law called , institutions ; and the natural and easie way of writing these , is by going from the first principle to a second , and from that to a third : the admir'd method of euclid in his elements , though much neglected by all , who have written institutions of law ; in which , not onely many things unnecessary are insert , as almost all the third book of justinians institutions ; the differences betwixt the sabiniani and proculiani , &c. many fundamental titles are ommitted , as all the matter of restitutions : and many things are taught in the first book , which cannot be understood till the fourth be read . i have therefore in these my institutions treated nothing save terms , and principles , leaving out nothing that is necessary , and inserting nothing that is contraverted ; in all which i have proceeded , building alwayes one principle upon another ; and expressing every thing in the terms of the civil law , or in the stile of ours respectively ; so that if any man understand fully this little book ; natural reason , and thinking , will easily supply much of what is diffused , through our many volums of treatises , and decisions ; whereas the studying those , would not in many years give a true idea of our law ; and does rather distract than instruct . and i have often observed , that moe lawyers are ignorant for not understanding the first principles , than for not having read many books ; as it is not the having travelled long , but the having known the way , which brings a man to his lodging soon , and securely . my lord , you observ'd very justly to me , that institutions are a grammar ; and therefore , ( which is a great encouragement to all readers of institutions , ) they who understand the institutions of any one nation , will soon learn the law of any other : for though terms , forms , and customs differ ; yet the great principles of iustice and equity are the same in all nations . i send mine therefore to your lordship , not because you need them , but that you may judge , if my institutions , will be able to justifie your parallel . nec phoebo gratior ulla est , quam sibi quae vari praescripsit pagina nomen . the index of the titles . part i. title i. of laws in general page title ii. of iurisdictions , and iudges in general page title iii. of the supream iudges , and courts of scotland page title iv. of inferiour iurisdictions and courts page title v. of ecclesiastick persons page title vi. of marriage page title vii . of minors , and their tutors and curators page part ii. title i. of the division of rights , and the several wayes of acquiring property and dominion page title ii. of the difference betwixt heritable , and moveable rights page title iii. of the constitution of heritable rights , by charter and seasin page title iv. of the several kinds of holding title v. of the casualities due to the superiour page title vi. of the right which the vassal acquires by getting the feu page ● title vii of transmission of rights by confirmation , and of the difference betwixt base and publick infeftments page ● title viii . of redeemable rights page ● title ix . of ser●itudes page ● title x. of ●eynds page ● title xi . of inhibitions page ● title xii . of comprysings and adjudications page ● part iii. title i. of obligations and contracts in general page title ii. of obligations by write , or word page title iii. of obligations and contracts , arising from consent , and of accessory obligations page title iv. of the dissolution or extension of obligations page title v. of assignations page title v. of arr●stments and poi●●ings page title vi. of prescriptions page title vii . of succession in heritable rights page title viii . of succession in movea●●es page title ix . of ●●st heir and bastards page part iv. title i. of actions page title ii. of probation page title iii. of sentences and their execution page title iv. of crimes page the institutions of the law of scotland . first part . tit. i. of laws in general . justice , is a constant and perpetual will , and inclination to give every man what is due to him . law , is the science which teacheth us to do justice . this law , in a large acceptation , is divided , in the law of nature , law of nations , and the civil , and municipal law of each particular countrie . the law of nature comprehends those dictats , which nature hath taught all living creatures , instances whereof are self defence , education of children : and generally , all those common principles , which are common to man , and beasts , and this is rather innate instinct , than positive law. the law of nations , is peculiar to man-kind onely , dictated by right reason , and is divided into the original and primarie law of nature , that flows from the first and purest principles of right reason ; such as reverence to god , respect to our country , and parents . and the secundarie , and consequential law of nature , consisting of these general conclusions , in which ordinarly all nations agree , and which they draw by way of necessary consequence , from those first principles . and under this part of the law of nations , are comprehended , the obligations arising from promises , or contracts , the liberties of commerce , the ransoming of prisoners , securitie of ambassadours , and the like . civil , or municipal law , are the particular laws , and customes of every nation , or people , who are under one soveraign power . the romans , having studied with great exactness , the principles of equity , and iustice. their emperour iustinian , did cause digest all their laws into one body , which is nowcalled by most polit nations , ( for its excellency ) the civil law ; and as this civil law is much respected generally , so it has great influence in scotland , except where our own express laws , or customes , have receded from * it . and by the common law in our acts of parliament is meant the * civil law. the popes of rome , in imitation of the civil law , made a body of law , of their own ; which , because it was compiled by church men , it was called , the cannon law ; and though it has here no positive authoritie , as being compiled by private persons , at the desire of the popes , especially since the reformation ; yet our ecclesiastick rights , were settled thereby before the reformation : and because many things in that law , were founded upon material justice , and exactlie calculated for all church men ; therefore , that law is yet much respected among us , especially in what relates to conscience , and ecclesiastick rights . our municipal law of scotland , is made up partly of our written , and partly of our unwritten law : our written law comprehends , first , our statutory law , which consists of our statutes , or acts of parliament . secundo , the acts of sederunt , which are statutes , made by the lords of session , by vertue of a particular act of parliament , * impowering them , to make such constitutions as they shall think fit , for ordering the ●rocedur , and forms of admini●trating justice , and these are called acts of sederunt ; because they are made by the lords sitting in judgement ; but are not properly laws , the legislative power being the kings prerogative . tertio , the books of regiam majestatem , which are generally looked upon as a part of our law , and they , and the leges burgorum , and the other tractates , joyned by skeen to them , are called the old books of our law , by many express acts of parliament * . tho the books of regiam majestatem , were originally but the works of one private lawyer , writing by way of institution , and are now very much abrogated by custome . our unwritten law , comprehends the constant tract of decisions , past by the lords of session , which is considered as law ; the lords respecting very much their own decisions ; and though they may , yet they use not to reced from them , except upon grave considerations . secundo , our ancient customes , make up a part of our unwritten law , which have been universally received among us . the tacite consent of the people , operating as much in these , as their express consent does , in making laws ; and such is the force of custome , or consuetude , that if a statute , after long standing has never been in observance , or having been , has run in desuetu●e ; consuetude prevails over the st●●●●e , till it be renewed either by a succeeding parliament , or by a proclamation from the council : for though the council cannot make laws , yet they may revive them . generally , all laws should look foreward † though declaratory laws regulat what is past , since their design is , to declare what was law prior to the statute , and to direct iudges , how to decide in cases that needed the decision of a parliament . laws should command , not perswade ; and though the rubrick ( or title ) and narrative of the statute , may direct a doubting iudge , yet if the statutory words be clear , they should be followed in all cases . all laws should be so interpreted as to evite absurdities ; and as may best agree with the mind of the legislator , and analogie , or general design of the common law. correctory laws ( so we call these which abrogate , or restrict former laws ) are to be strictly interpreted , for we should reced as little as can be from received laws . honourable laws are to be extended , and the paritie of reason , often prevails with our judges , to extend laws to cases , that are founded on the same reason , with what is expresly determined by the statute . tit. ii. of iurisdiction , and iudges in general . having resolved to follow iustinians method , ( to the end , there may be as little difference found , betwixt the civil law , and ours , as is possible : and that the reader may not be distracted , by different methods ) i do resolve , first , to lay down what concerns the persons of whom the law treats : ●at ●do , what concerns the things themselves treated of , such as rights , obligations , &c. tertio , the actions whereby these rights are pursued , which answers to the civilians , objecta juris , viz. personae , res , & actiones . the persons treated of in law , are either civil or ecclesiastick , the chief of both which are iudges , with whom we shall begin . and for the better understanding of their office , it is fit to know , that iurisdiction , is a power granted to a magistrate , to cognosce upon , and determine in causes , and to put the sentence or decreet to execution , in such maner as either his commission , law , or practice does allow . all iurisdiction flows originally from the king * so that none have power to make deputs , except it be containd in their commission ; and if a depute , appoint any under him , that sub-depute is called properly a substitute ; and every iudge is answerable for the malversation of his depute . iurisdiction is either cumulative , or privative ; cumulative jurisdiction , is when two judges , have power to judge the same thing ; and generally , it is to be remembred , that the king is never so denuded , but that he retains an inherent power , to make other judges , with the same power that he gave in former * commissions ; and thus he may erect lands , in a regality , within the bounds of an heritable sheriff-ship , and burghs royal , within the bounds of a regality ; and these bounds , within which , a judge may exerce his commission , is called his territory ; so that if any judge exercise iurisdiction , without his territory , his sentence is null : and among those who have a cumulative iurisdiction , he who first cites , can only judge ; and this is called , jus praeventionis . privative iurisdiction , is when one judge has the sole power of judging , exclusive of all others ; such power have the lords of session , in judging of all competitions , amongst heritable rights , and here there can be no prevention . iurisdiction , is founded to any judge , either , because the defender dwels within his territory , which is called , sortiri forum ratione domicilij : or secund● because , the crime was committed within his territory , which is called ratione delicti ; or tertio , if the person pursued , have any immovable estate , within his territory , though he live not within the same , he may be pursued by any action to affect that estate , which is called , sortiri forum ratione rei sitae . a iurisdiction , is said to be prorogate , when a person not other wayes subject , submits himself to it , as when he compears before an incompetent judge , and propons defences . all judges with us , must take the oath of allegiance , * and the test ; ‡ whereby they swear , to maintain the government of church and state , as it is now established ; and an oath de fideli administratione , before they exerce their office , and no excommunicate person , nor rebell against the government , can judge by our law. if a person be pursued before a judge , who is not competent , he may complain to the lords of session , and they will grant letters of advocation , whereby they advocat , that is to say , call that cause from the incompetent judge , to themselves ; and if after the letters of advocation are intimat to that judge , he yet proceed , his decreet will be null , as given spreto mandato . iurisdiction is either supream , inferior , or mixt : these courts are properly called supream , from whom there is no appeal to any higher iudicatory , such as the parliament , privy council , lords of session , the criminal court , and exchequer : inferior judges are such ? whose decreets , and sentences are lyable to the reviewes of the supream courts , as sherriffs , stewards , lords of regality , inferior admirals , and commissars , magistrates of burghs royal , barrons , and iustices of peace . mixt iurisdiction , participats of the nature , both of the supream , and inferior courts ; such a jurisdiction have the high admiral , and commissars , of edinburgh . both which are in so far supream ; that maritim affairs , and confirmations of testaments , must come in and be tabled , before the high admiral , and commissars of edinburgh , in the first instance . as also , they both , can reduce the decreets of inferior admirals , and commissars ; but seeing their decreets are subject to the review , of the lords of session , they are in so far inferior courts . no inferior iudge , can judge in the causes of such as are cusin-germans to him , or of a nearer degree , either of affinity , or consanguinity ; but there is so much trust reposed in the lords of session , that by a special * statute , they can only be declined incases relating to their fathers , brothers , sons , nephews , or uncles ; which by a late statute * , is likewise extended to the degrees of affinity , and to the lords of privy council , and exchequer , and the commissioners of iusticiary , and to all other iudges within the kingdom . the members of the colledge of iustice , have this priviledge , that they cannot be pursued before any inferior iudge ; and if they be , the lords will advocate the cause to themselves . tit. iii. of the supream iudges , and courts of scotland . the king , is the author , and fountain , of all power , and is an absolute prince , having as much power , as any king , or potentate , whatsoever , * deryving his power from god almighty alone * , and so not from the people . the special priviledges that he has , are called , his prerogative royal ; such as , that he only can make peace , or warr , call parliaments , conventions , convocations of the clergy , make laws * ; and generally all meetings called without his speciall command are punishable * , he only can remit crimes , legittimate bastards , name iudges , and councilors , give tutors dative , and naturalize strangers ; and is supream over all persons , and in all causes , as well ecclesiastick as civil * . the parliament of old , was only the kings barron court , in which all free-holders were oblidged to give sute , and presence in the same manner , that men appear , yet at other head courts . and therefore , since we had kings before we had parliaments , it is rediculous to think , that the kings power flowed from them . the parliament is called by proclamation , now upon fourty dayes , tho it may be adjourned upon twenty , but of old , it was called by brieves , out of the chancellary . it consists of three estates , viz. the arch-bishops and bishops ; and before the reformation , all abbots , and mitred-priors , sat as church men . secundo , the barrons , in which estate are comprehended , all dukes , marquesses , earles , viscounts , lords , and the commissioners , for the shires ; for of old , all barrons , who held of the king , did come ; but the estates of lesser barrons not being able to defray this charge , they were allowed to send commissioners for every shire . * and generally , every shyre sends two , who have their charges born by the shyre . tertio , the commissioners for burghs royal , each whereof , is allowed one and the town of edinburgh two ; though all the three estates must be cited , yet the parliament may proceed , albeit any one estate were absent , or being present would disassent . the legislative power is only in the king , and the estates of parliament only consent , and in parliament , the king has a negative voice , whereby he may not only hinder any act to pass , but even any overture to be debated . the acts of parliament must be proclaimed upon fourty days , that the lieges may know them * . to secure the crown against factions , and impertinent overturs in open parliament : our parliaments choose before they proceed to any bussiness , four out of each state , who with the officers of state determine what laws , or overturs , are to be brought in to the parliament ; and they are therefore called , the lords of articles . we have another meeting of the three estates , called the convention of estates , which is now called upon twenty days , and proceeds in the same way that the parliament does , diffreing only from it , in that the parliament , can both impose taxations , and make laws ; whereas the convention of estates , can only impose , or rather offer taxations , and make statutes for uplifting those particular taxations . but can make no laws . and of old , i find by the registers of the conventions , ( the eldest whereof now extent , is in anno . ) that the conventions of estates consisted , of any number of the three estates , called off the streets , summarly by the king ; and yet they cryed down , or up money , and judged processes , which now they do not . the privy council is constituted by a special commission from the king , and regularly their power extends to matters of publick government ; in order to which , they punish all ryots , for so we call breach of the peace . they sequestrate pupills , gives aliments to them , and to wives , who are severely used by their husbands , and many such things , which require such summar procedour , as cannot admit of the delays necessary before other courts ; and yet if any of these , dipp upon matter of law , ( for they are only iudges in facto , ) they remit the cognition of it to the session , and stop till they hear their report . the council delay criminal executions , and sometime change one punishment into another , but they cannot remit capital punishments ; they may also adjourn the session , or any other court : it has its own president , who preceeds in the chancellours absence , and it has its own signet and seal : all who are cited to compeat there , must be personally present , because , ordinarly the pursuer concluds , that they ought to be personally punished . all dyets there are peremptor , all debat is in writ , no advocat being allowed to plead , because the council only iudges in matters of fact . the lords of council and session , are iudges in all matters of civil rights ; of old , they were chosen by the parliament , and were a committy of parliament : but the present modell was fixt and established by king iames the fifth , after the modell of the parliament of paris * . of old it consisted of seven ecclesiasticks , and seven laicks and the president was a church ▪ man ; but now all the fifteen are laicks . and there sits with them four noble — men , who are called extraordinarie lords and were allowed to sit to learn , rather then decide ▪ but now they vote after the ordinary lords . all the lords are admitted by the king ▪ and by statute cannot be admitted , till they be twenty ▪ five years of * age , and excep● they have a lib. or chalders of victual in yearlie rent . nine are a quorum . crimes of old , were judged by the iustice general , iustice clerk , and two iustice deputes ; but now five lords of session , are joyned to the iustice general , and iustice clerk , and they are called the commissioners of justiciary ; because , they sit by a special commission only : four of which number make a quorum in time of session , three in time of vacance , and two at circuit courts * . the exchequer , is the kings chamberlain , court * wherein he judges what concerns his own revenues ; it consists of the theasurer , ( in whose place are sometimes named commissioners of the theasury , ) the theasurer depute , and as many of the lords of exchequer , as his majestie pleases . the high admiral , has a commission from the king , to judge in all maritime affairs , not only in civil , but also in criminal cases , where the crime is committed at sea , or within flood-mark ; nor can the lords of session advocat causes from him * ; tho they can reduce his decreets , as he does the decreets of all inferior admirals , or admiral deputes , for many heritors are constitute admirals , within themselves , by a right from the high admiral , since his gift , or from the king before it . tit. iv. of inferior iurisdictions , and courts . the sherriff , is the kings chief and ancient officer , for preserving the peace , and putting the laws in execution * , he has both a civil and criminal iurisdiction , and his commission is under the great seal ; he is obliged to raise the huy and cry after all rebels , and to apprehend them when required : to assist such as are violently dispos●est : to apprehend such as say mass , or trouble the peace , and take caution for their appearance * : he nor no inferior iudge , can hold courts in time of vacance , in civil cases , without a dispensation from the lords of session ; but in criminal cases , he needs no dispensation , because crimes should be instantly punished . he is iudge in all crimes , except the four pleas of the crown , to wit , murder , fir● rasing , robery , and ravishing of women * ; but murder he can judge , if the murderer was taken with red-hand , that is to say , immediately committing the murder ; in which case , he must proceed against him within three suns ; and in theft , he may judge , if the thief was taken with the fang . the shireff , is also judge competent , to punish bloodwits , for which he may syne in pounds scots ; but no higher , and for contumacy , he can fine no higher than . pounds . a lord of regality , is he who has the land whereof he is proprietar or superior , erected with a iurisdiction , equal to the justices , in criminal cases , and to the shirreff , in civil causes ; he has also right to all the moveables of delinquents , and rebels , who dwell within his own iurisdiction , whether these moveables be within the regality , or without the same ; and because he has so great power , therefore no regality can legally be granted except in parliament † . the lord of regality , has also by his erection , power to repledge from the sherriff , and even from the iustices in all * cases except treason , and the pleas of the crown , that is to say , to appear , and crave ; that any dwelling within his iurisdiction , may be sent back to be iudged by him , and he is obliged to find caution , that he shall do justice , upon the malefactor whom he repledges ▪ within year and day , and , the caution is called cul ▪ reach * . the stewart , is the kings sherriff , within the kings own proper lands , and these were erected , where the lands had been erected , before in earledoms , or lordships ; for else the king appointed only a baillie in them , and these iurisdictions are called bailliaries , the baillies of the kings proper lands having the same power with the sherriff . and all these , viz. the sherriff , the stewart , and the lord of regalitie , proceed in their courts after the same way , and each of them , has a head burgh , where they hold their courts , and where all letters must be executed and registrate . the prince of scotland has also an appange , or patrimony , which is erected in a iurisdiction , called the principality . the revenues comes in to the exchequer , when there is no prince ; but ▪ when there is one , he has his own chamberlain . iustices of peace , are these who are appointed by the king , or privy council , to advert to the keeping of the peace , and they are judges to petty ryots , servants fies , and many such like , relateing to good neighbour-hood , exprest in the instructions , given them by the parliament * and are named by the council ; allbeit , be the foresaid statute , the nomination is to be by his majestie , and his royal successors , which the king has now remitted to the privy council . the iustices of peace do name constables , within their own bounds , from six months to six months ; their office is , to wait upon the iustices , and receive injunctions from them , delate such ryots and crimes to the iustices , as fall under their cognisance , apprehend all suspect persons , vagabounds , and night walkers , as is at length contained in their injunctions , given them be the foresaid act. every heritor may hold courts for causing his tennents pay his rent ; and if he be infeft , cum curijs , he may decide betwixt tennent and tennent in small debts , and may judge such as commit blood on his own ground ; tho his land be not erected in a barronie ; but if his land be erected in a barronie , ( which the king can only do : ) he may ( like the sherriff ) unlaw for blood-wits , in lib. and for absence in . and if he have power of pit and gallows , he may hang and drown in the same manner as the sherriff can . tit. v. of ecclesiastick persons . since the reformation , the king is come by our law in place of the pope * , and all rights to kirk-lands , must be confirmed by him , else they are null ; * . his majestie only can call convocations of the clergie ; ( for so we call our national assemblies * ) and his commissioners sits in them , and has a negative . we have two archbishops , and twelve bishops , and they are thus elected , the king sends to the chapter a conge de eslire ; ( which is a french word , ) signifying a power to elect , and with it a letter recommending a person therein named , and the chapter returns their electing : whereupon the kings grants a patent to the persons , and a mandate to the archbishop , or bishops , to consecrate him : both which pass the great seal * . the archbishops and bishops , have the sole power , of calling synods within their own diocies * , and in these , they name the brethren of the conferance : who are like the lords of articles in the parliament , and by their advice the bishops , depose , suspend , and manage . bishops have their chapters , without whose consent or the major part , the bishop cannot alienate * , which major part , must sign the deeds done be the bishops ; and it is sufficient if those of the chaper , sign at any time even after the bishop ; but it must be in his lifetime : nor are minors , or absents , counted ; and one having two benefices , has two votes ; but the appending of the seal , is by special statute , declared to be sufficient in deeds done be the archbishop of st. andrews , without the subscriptions of the chapters * . a person or rector ecclesi●e , is he who is presented to the teiths , jure proprio ; but because of old , parsonages were bestowed on monastries , therefore they sent vicars , who served the cure for them ; and who got a share of the stipend , for their pains , either ad placitum ; and they were called simple vicars , or for life , and they were called perpetual vicars . and after the reformation , the churches , which so belonged to them continued vicarages still , the titular , who came in place of the convent , retaining the right to the parsonages duties . there were in time of poperie , collegiat kirks built , and doted by kings , and great men , for singing of mass , which were governed by a provost , and some for singing , who were called prebends ; and because , some parishes were wide , some were allowed , to build a chapel for their private devotion ; and since the reformation , these chaplanaries , and prebendaries , are allowed to be bestowed by the patrons , upon bursers in colledges , notwithstanding of the foundations * . for understanding all these , it is fit to know ; that the primitive church , either to invite men to build , or dote , or to reward such , as had , did allow such as either had built , or had bestowed the ground whereon to build , or had doted a church , already built , to present alone if , they were the only benefactors , or by turns , if there were moe , and they were called patrons , or advocati , ecclesiarum according to that , patronum faciunt , dos , aedificatio , fundus . when a church vaikes , the patron must present within six months , a fit person to the bishop ; else the right of presentation falls to the bishop , jure devoluto ; * but if the bishop refuse to admit and collate the person presented , the patron must complain to the archbishop , and if he also refuse , or delay , the privy council will grant letters of horning against the bishop , to receive the person presented * , and during the vacancy upon that refusal , the patron may retain the vacant stipends . upon this presentation the bishop causes serve an edict , on nine dayes ; wherein all persons are after divine service , advertised , to object , why , such a man should not be admitted to the benefice ; and if none object , the bishop confers the church and benefice upon the person presented ; and this is called a collation , after which , the bishop causes enter him , who is so collated , by causing give him the bible , and the keyes of the church , and this is called institution , presentation , gives only jus ad rem , and institution , jus in re , and is as a seasme . if the bishop be patron himself , he confers pleno jure ; and the presentation , and collation , are the same : bishops also have mensal churches , so called ; because , they are de mensa episcopi , being a part of his patrimony , in which he serves by his viccars , and plants as diocessian bishop ; and if a town , or paroch , resolve to make a second minister , when they are not patrons , he is called , a stipendiary minister , and he is collated , and instituted also ; but the patrons presentation is sufficient in prebendaries , and other benefices , which has not curam animarum ; and that without the necessitie of collation , or institution , the bishop having no other interest in the benefices , but in so far as they concern the cure of souls . by act of parliament , all ministers must have a competent stipend , not below eight chalder of victual , or . merks or above . merks or . chalders of victual : ( except there be just reason to give less ) * together with a manse and gleib . the manse , a manendo , is the place where the minister is to dwell , the gleib , from gleba terra , is a peece of land for corn and fother to his beasts : if there was a manse of old belonging to the parson , or viccar , the minister has right to it ; if there was none , the parochiners must build one , not exceeding lib. and not beneath merks * , at the sight of the bishop of the diocie , or such ministers as he shal appoint , with two or three of the most discreet men in the paroch : as also the heritors are lyable to repair the manse ; but the present incumbent is obliged to leave it , in as good condition as they gave it to him * . the ministers glieb , is to comprehend acres of arrable land , or sixteen sowms-grass , where there is no arrable land , which is to be designed out of the lands , which belonged of old to abbots , priors , bishops , friers , or any other kirk ▪ lands within the parish * with freedom of foggage , pasturage for a horse , and two cows , fewel feal , and divot , which gleibs are to be designed be ministers , named by the bishop , with the advyce of two of the most honest and godly of the parishoners , and the designation is to be signed be the designers * . if a bishop or minister , be consecrated , translated , or entered , to his benefice , before whitsonday ; he has right to the whole years fruits , because they are then presumed to be fully sown , and if he be deposed or transported before whitsonday , for that same reason he hath no part of that year ; but if he serve the cure a while after whitsonday , and be transported or deposed before michalmas , he hath the half of that years stipend ; and if he serve till after michalmas , he hath the whole years . so that the legal terms of benefices are whitsonday , at which time the sowing is ended ; and michalmas , at which time the fruits are reaped . they have likewise right to the annat after their death , which was introduced by the cannon law , and by a special statute with us , is declared to be half a years rent of the benef●ce , or stipend , over and above what is due to the defunct , for his incumb●ncie ; so that if he survive whitsonday , he has the half of that year for his incumbencie , and the other half a annat , and if he survive michalmas , he has the half of the next year for his annat . there is a committie of parliament , alwayes sitting , called the commission for plantation of kirks , or valuation of teinds , ( consisting of so many of every estate of parliament ; ) who have power to modifie , and augment ministers stipends , and to unite and disjoyn churchs , &c. whose decreets ; because they are a commitie of parliament cannot be reduced by the session , or any other inferior iudicature . the primitive christians remitted the cognition of all cases that related to religion , as the matters of divorce , bastardi● , the protection of dying mens estates , to their bishops ; or such as they imployed , under them , who were called officialls , and with us are called commissars ; and are called therefore iudices christianitatis : and they are therefore the only judges in divorce ; because , it is the breach of a vow : and to scandale , because , it is an offence against christianity , and of teinds and benefices ; because , these are the patrimony of the church : and of all matters referred to oath , ( if the same exceed not lib. scots ) because , an oath is a religious tye . every bishop has his commissar , who has his commission from the bishop only ; and this extends no further , than the constituents diocy . but the archbishop of st. andrews , has power to name four commissars , who are called the commissars of edmburgh ; because , they sit there , and they only are iudges to divorce upon adultery , and can only declare marriages null , for impotencie and to bastardy , when it has any connexion with adultery , or marriage : and they only may reduce the sentences of all inferrior comm●ssars * , though the lords of session may reduce even their decreets and sentences ; they have instructions from the king , which are their rule . and these are likewise recorded in the books of sederunt of session ; tit. vi. of marriage . having spoken fully of persons , at they are considered in a legal sense ; we shall now treat of marriage , which is the chief thing that concerns persons , and their state in law. maarriage is def●ned to be , the co●●uncto●n of man and wife , vowing to live inseparably together , till death . by conjunction ▪ ●ere , consent is understood , n●m cons●nsus , non ●oactus , facit matrimonium . consent , is either de futuro or de presenti , consent de futuro , is a promise , to solemnize the marriage , which in law , is called spousalia ; and this is not marriage ; for either party , may resile , rebus integris , notwithstanding of the interveening promise , or espousals , consent , de presenti , is that in which marriage does consist ; and therefore , it necessarly follows , that none can marry , except these who are capable to consent , and so idiots , and furious persons , durante furore , cannot marry , nor infants , who have not attained the use of reason : that is , when they are within the years of pupillarity ; which is defined in law , to be years , in males , and in foemales , nisi malitia suppleat aetatem . the law , in decencie , requires the consent of parents , though a marriage without it , is valid , if the persons married be capable of consenting . by our law , none can marry who are nearer relations than cousin germans ; which is suitable to the iudicial law , of moses * , and the same degrees porhibited in consanguinity are also forbidden in affinity . marriage , is either regular , and solemne , or ●landestine ; the regular way of marrying , is , by having their names proclaim'd in the church , three several times , which we call proclamation of banns , without which , or , a dispensation from the bishop , the marriage is called a clandestine marriage ; and the parties are finable for it ; but the marriage is still valid * ; cohabitation also , or dwelling together , is presum'd to be marriage † , if the parties were repute , man and wife , dureing their lifetime , and so the children are not bastards ; though they cannot prove that their parents were marryed ; unless it be clearly prov'd that they were not married . from the coniugal society , arises , the communion of moveable goods betwixt man and wife ; but the administration thereof during the marriage is solly in the husband ; which reaches even to alienation , and disposing upon the moveables , at his pleasure though they be not dispon'● to him by her ( marriage , being a legal assignation , as to thi● effect ) but he has no further right to her heritage , save that he has right to the rents of it , and to administra●● and manage it , during th● marriage , and this is called ius mariti , and is so inseparable from the qualitie of ● husband ; that he cannot b● our law , renounce his pon●● of administration , so that the● are both domini , by this communion ; but the husband h●● a dominium actu , and th● wife only habitu . the husband is lyable dureing ●he marriage to pay her moveable ●ebts ; but how soon the mar●iage is disolv'd , he is no ●urther lyable to pay her debts ; than in as far as he was a gainer by her estate . if the wife contract any debt , or doe any other deed , after the proclamation of banns , the husband will not be thereby prejudg'd . the husband is also oblig'd ●o aliement his wife , and if he ●efuse , the privy council , or lords of session , will modific ●n aliement to her out of her husbands means , suitable to ●is qualitie , which they will ●lso grant , ob saevitiam , if he ●reat her inhumanely . the husband is tutor , and ●urator to his wife , and there●ore , if she had tutors , or curators , formerly , their powe● is devolved over by the law upon the husband ; and whatever deeds she does withou● his consent are null , & when s●● is cited , he must be cited fo● his interest ; or if she marri● during the dependence of a● process , the samen must upon supplication be continued against him . because , the sole administration , during the marriage belongs to the husband ; law hath secured the wife , th●● she cannot oblige her self when she is cloathed with ● husband , albeit with his consent , and therefore all bands and obligations , granted by ● wife stante matrimonio , are 〈◊〉 jure , null ; but if she oblige h●● self , ad factum prestandum , s●● will be lyable , as if she shoul● oblige her self to infest any man in lands properly belong●ng to her self . during the marriage , all donations made betwixt husband and wife are revokable , at any time in their life , ( except in so far as they are suitable provisions ) least otherwayes , they might ruine themselves , thorow love , fear , or importunity ; and that either expresly , by revocking what is done ( though they obliged themselves not to revoke ) or tacitly , by disponing to others , what was so gifted . all rights made by a wife to her husband , or any third partie with his consent and to his behoof , are valid rights ; if they be ratified by her before a iudge , before whom she is to declare without the presence of her husband , that she was not compelled to do that deed , and swear , that she shall nev●● quarrel the same : whereas ▪ if they be not ratified , they may be quarelled , as extorted vi & metu , or may be revokes as donatio inter virum , & uxorem , which the ratification before a iudge does absolutely exclude , propter religionem sacramenti , the ratification , being extra presentiam mariti . marriage is disolved either by death , or divorce , and 〈◊〉 the disolution of the marriage be by death there is a difference , if the samen be within year and day of the marriage , or thereafter ; for if either the husband or the wife die within the year , all things done in tuitu matrimonij , become void ▪ and return to the same condition they were in before the marriage ; except there be a living child , procreat of the marriage , who was heard cry . if the marriage be disolved by death , after the year expyres , then the wife surviving , has right to a third of the moveable estate ; if there be children ; and to the half , if there be none , and this is called jus relictae ; and tho this right does not hinder the husband , to give or dispose upon his moveables in his life , yet he cannot do any deed to defraud his wife of this right , the fraud being palpable ; she has also a right to the liferent of the third of the lands , wherein he dyed infest , and this is called a widows terce ; and to any other provisions contained in her contract of marriage , which provision if it exceeds the terce , it excludes * it ; and the husband surviving has right to the tocher : and if he marry an heritrix , he has right to all her lands , after her death , during his own life , if there be a child of the marriage who was heard cry , and this is called , the courtisie of scotland * . marriage is disolved by divorce , which is granted either for wilful disertion , and non adherence , to be procured by a process before the commissars of edinburgh for non adherence ; when either partie refuse to cohabite together , and remains in their malicious obstinacie four years , and are thereupon excommunicate * , or for adultery , in both which cases the persuer must give his oath , that the process is not carryed on by collusion , and after a decreet of divorce is obtained , in either case the partie innocent may marry ; but the partie that is guilty cannot , and besides looses all the benefite that they could expect by the marriage . tit. vii . of minors , and their tutors , and curators . whilst persons are within twenty one years , the law presumes them to want that firmeness of iudgement , which is requisite , for the exact manadgement of their affairs ; and during that time , they are called minors , by a general terme ; though properly , such onely are to be called minors , who are past pupillarity , which lasts in males till fourteen , and in females till twelve . tutory may be defined , a power and faculty , to govern the estate and person of pupils ; and the law gives tutors , and curators , for the manadgement of their affairs . there are three kinds of tutors , viz. tutor nominate , tutor of law , and tutor dative , tutor nominate , ( who is likewise called tutor testamentar , ) is he who is left tutor by the father in his testaments , or any other write , and he is not obliged to find caution , or give his oath , de fideli administratione ; because it is presumed , the parent hath chosen a sufficient person . the father onely can name tutors ; but if the mother , or even a stranger , give or dispone any thing to a child , he may name a tutor to manadge what he gives ; but if there be no tutor nominate , or if he accepts not , then there is place for a tutor of law , who is so called , because he succeeds by law , and generally , the nearest agnate ( for so we call such as are related by the father ) who is to succeed to the minor , being past twenty five years , and would be heir to him , is his tutor in * law : he takes a brieff out of the chanc●llary , and serves himself before a iudge , to whom it is directed , and the tutor of law must find caution before he administrate . if he do not s●rve within a year after the time he might have served , then any person may give in a signator to the exchequer , and he gets a gift under the privie seal , of being tutor dative , and finds caution , acted in the books of exchequer : but of old , they found caution in the commissars books : this tutor and he onely is oblidged to make faith , de fideli administratione . if there be more tutors than one , the major part must all consent ; but the pupil needs not subscrive : but if there be a tutor , sine quo non , he must alwayes be one of the consenters . after the years of pupillarity there must be a summons raise● at the pupils instance , summonding some of the fathers-side , and some of the mothers-side , upon nine days warning ▪ to appear before any iudge and at the day , the minor gives in a list of those he intends to choise to be his curators , and those who accept must subscrive the acceptation , and they must find caution de fideli * , upon all which the clerk extracts an act , which is called , an act of curatory : there uses to be sometimes , curators , sine quo non , and the major part with him is still a quorum ; except the minor in his particular election hath appointed otherwise ; for the quorum is arbitrarie , and the act bears how many shall be a quorum . there are these differences betwixt tutors and curators , that tutor datur personae , curator rei , a tutor acts , and subscrives for his pupill , a curator with him ; but both must make inventarie of all the pupills estate before they administrate , with consent of the nearest of kinne on both sides , and if they neglect to make inventary , they will get no expenses allowed them during their administration , and may be removed from their offices as suspect * ; neither have sallaries : and both are lyable to compt , but not till their office expyre , as both have action against their minors , for what they profitably expended during their administration , which is called , actio tutelae contraria . if the minor have curators , and do any thing without their consent to his prejudice ; ( for he may make his condition better without them , but not worse , the advantage being evident and without hazard ) then that act is , ipso jure null , that is to say , he needs not revoke ; but if he have no curators , then any act he does to his own prejudice is valid ; but he must reduce the same thus , viz. he must writ a revocation and subscrive it before two witnesses , and registrate it , and thereupon he must raise and execute a summonds of reduction of that act , ex capite minoritatis , & laesionis , before he be years of age , wherein he must make appear , he was both minor , and was laes'd ; otherwayes , the lords will not repone him : though this revocation be not absolutely necessarie , yet the executing of a summonds before is absolutely necessary : and though a minor swear not to revoke , yet this oath is declared null by law , and the eliciter of it punishable , and infamous * ; but if he fraudulently circumveen● another , by saying he was major , he will not be restored against his own fraud . a tutor or curator , cannot persue his pupill , ▪ till he has compted for his intermissions ; for it s presum'd he has his pupills estate in his own hands , and whatever right he buyes of what belong'd to his pupill is presum'd to be bought with his pupills means ; and so the advantage must accress to the pupill . so carefull has our law been to protect minors , and to secure old estates , that minor non tenetur placitare super haereditate paterna * , that is to say , a minor is not obliged to answer any process concerning his fathers heritage ; but , yet if his fathers right be quarrelled for his fathers crimes , or delicts , as in the cases of falshood , forfeiture , or recognition , these cases are excepted , and he is obliged to answer . secundo , this priviledge extends not to actions concerning marches , or division of lands . tertio , it defends not against the superiour perseuing for his casualities . quarto , where the minors right is only quarrell'd consequentiallie , the chief right quarrolled belonging to a major , there is no place for this priviledge . quinto , it defends not in cases where the heritage was deryv'd from collaterals , such as brothers , or uncles . sexto , it defends only where the heritage descended even from the father , or grand-father , if they dyed in peaceable possession , and if no process was intented against them in their own life time , septimo , it takes only place , where the father was actually infeft ; but then it is accounted heritage , tho it was conquest by the father . the priviledge of minoritie , is in some cases allowed to the minors heir : which are comprised in these following rules . if a minor succeds to a minor , the time of restitution is regulated by his own minority , and not by his predecessors . . if the predecessor be major , and intra quadriennium utile restitutione , is competent during the heirs minority ; but he has no further of the anni utiles , than remained to the defunct , the time of his deceass . . if a major succeed to a minor , he has only quadriennium utile , after the minors deceass , or so much thereof as was unexpyred at that time . minoritie ends both in men and women , when they are . years of age compleat ; but after that there is . years granted , wherein they may reduce what they did revoke before they were . years compleat , and these years are called , quadrienneum utile . if a man be an idiot , or furious he must be found to be so by an inqueist , and thereafter his nearest of kinne may serve themselves tutors ; or the exchequer may grant a tutor dative , if they serve not , but the tutor in law , will be preferred to that tutor dative offering to serve quandocunque , and it must be proven to the inquiest at the time of the service , that he is furious , and when he began to be so , and all deeds done by him after that are null , not only from the date of the service , but from the time that he was found to be idiot , or * fuirous . if a person be prodigal , or spend-thrift , he interdicts himself , either voluntarly , which is done by a band , whereby he obliges himself to do nothing without the consent of such friends as he therein condescends upon ; and these are therefore called the interdicters , and if this narrative be false , so that the person is not improvident , as he relates in the band , this voluntar interdiction will be reduc'd . secundo , interdiction proceeds upon a persute , at the instance of the nearest of kin , against the prodigal whom the lords will interdict if they see cause ; or . though there be no persute ; yet if in another process they find he has been often , or is obnoxious to be cheated , they will interdict him , ex proprio motu , and these are called iudicial interdictions ; and no interdiction lasts longer than the levitie and prodigality which occasioned it , but this requires also the sentence of a iudge . upon this voluntar band , the lords of the session grants letters of publication , and after these letters are published , at the mercat cross of the head burgh of the shire , where the person interdicted dwells , and are registrat ; the person interdicted can do nothing to the prejudice of his heritable estate , otherwayes the interdicters may reduce these deeds as done after the publication of the interdiction ; ( for interdictions extend only to heritage ; but yet the person himself is stil lyable to personal execution , even upon these deeds done after interdiction . a father , is likewise in law administrator to his own children , that is to say , is both tutor , and curator , to them , if they fall to any estate during their minoritie , and if either pupill or minor have any legal action to prosecute , and want tutors or curators , the lords will upon a bill authorize curators , who are therefore called curators , ad lites . all tutors and curators can act and do whatever the pupill might do if he were major ; except in selling of land , which they cannot sell without a sentence of a iudge● ; finding the vendition necessar for payment of debt , or setting tacks to last beyond their own office. all these tutors , curators , and administrators , or any who behave as such , and who are called in our law pro-tutors , are lyable to do exact dilligence , and therefore ; if any of their pupills debitors becomes bank-rupt , or their tennents break , they are lyable and the pupill may pursue any one of the tutors for the negligence of all the rest , but he has his relief against the rest : they are likewayes lyable to put the minors rents , out upon annuallrent , within half a year , or a term after they receive them , and to put out his money ▪ upon annuallrent within a year , both which times are allowed to get good debitors but if his bands bear annuallrent , they are only obliged to take in these annuall-rents once during their office , and to turn them in a principal summ , bearing annuall-rent . after tutors and curators have once accepted they cannot renounce ; but if they miscarie in their administration , they may be removed , by an action , as suspect tutors . if there be moe tutors or curators , the office upon the death of any of them accresses to the survivers ; except they be named joyntly ; for then the first nomination is disolved by the death of any one of them , the defunct not having trusted any one , and for the same reason , if a certain number be declared a quorum , the nomination fails , if so many dye as that this number survives not , nor does the office accresse to such as survive . we have little use in scotland , of what the institutions of the roman law teach , concerning slaverie , or patria potestas , for we as christians allow no men to be made slaves , that being contrare to the christian liberty ; and the fatherly power or patria potestas , has little effect with us ; for a child in familie with his father , acquires to himself and not to his father as in the civil law. part second . tit. i. of the division of rights , and the several wayes by which a right may be acquired . being to treate in the second book of things themselves , to which we have right , and how we come to have right to them , it is fit to know . that some things fall not under commerce , and so we cannot acquire any propertie in them , such as are things common , as the ocean , ( though our king has right to our narrow seas , and to all the shoars . ) secundo , things publick , which are common only to a nation or people , as rivers , harbours , and the right of fishing , in the saids rivers . tertio , res universitatis , which are common only to a corporation or citie , as a theater , or the mercat place , and the like : quarto , things that are said to be no mans , but are iuris divini , which are either sacred , such as the bells of churches , for though we have no consecration of things since the reformation , yet some things have a relative holiness and sanctity , and so fall not under commerce , that is to say , cannot be bought and sold by private persons . quinto , things that are called sanctae , so called because they are guarded from the injuries of men , by speciall sanctions , as the walls of cities , persons of ambassadours , and laws , sexto , things religious , such as church-yeards . as to those things which fall within commerce , we may acquire right to them , either by the law of nature , and nations , or by our civil and municipal law , dominion or propertie is acquired by the law of nations either by our own fact and deed . or secundo , by a connexion with , or dependence upon things belonging to us , the first by a general term is called occupation , and the last accession . occupation , is the apropriating and apprehending of those things , which formerly belonged to none . and thus we acquire propertie in wild beasts , of which we acquire a right how soon we apprehend them , or are in the prosecution of them with probabilitie to apprehend them , as also we retain a right to them whilst they remain in our possession , and evenafter they have escapt , if they be yet recoverable by us . secundo , propertie comes by accession , as for instance , a house built upon , or trees taking root in our ground , and the product also of our beasts belong to us , and ground that grows to our ground becomes insensibly ours , and is called , alluvio by the civilians . and it is a general rule in law , that accessorium sequitur naturam sui principalis ; and yet a picture drawn by a great master upon another mans sheet or table , belongs to the painter , and not to the master of that whereon it is drawn , the meanness of the one ceding to the nobleness of the other . there are many other wayes of acquiring right and property , which may be referred either to occupation , or accession ; as if a man should make a ship of my wood , it would become the makers , and would not belong to me , to whom the wood belonged , and this is called specification , in which this is a general rule , that , if the species can be reduced to the rude masse of matter , then the owner of the matter is also owner of the species , or thing made ; as , if a cup be made of another mans silver , the cup belongs not to the maker , but to the owner of the mettle ; because it can be reduced to the first mass of silver , but if it cannot be reduced , then the species will undoubtedly belong to him that made it , and not to the owner of the matter , as wine , and oyl , made of anothers grapes , and olives , which belongs to the maker , seing wine , cannot be reduced to the grapes of which it was made . propertie is likewise acquired when two or moe persons mixe together in one , what formerly belonged to them severally , and if the matterials mixed be liquid , it is called by a special name , confusion , as when several persons wines are mixed and confounded together ; but if the particulars mixed , be dry and solid , so as to retain their different shapes and forms , it is called commixtion , and in both cases , if the confusion , or commixtion be by consent of the owners , the body or thing resulting from it , is common to them all ; but if the commixtion be by chance , then if the matterials cannot be separated , the thing is yet common ; as when the graine or corns of two persons are mixed together by chance , here there must necessarly be a community ; because , the separation is impossible ; but if two flocks of sheep belonging to different persons should by accident mix together , there would be no community ; but every man would retain right to his own flock , seing they can be distinctly known and separated , and these two ways of acquisition are by accerssion . the last , and most ordinarie way of acquiring of property , is by tradition , which is defyned a delivery of possession by the true owner , with a design to transfer the property to the receiver , and this translation , is made either by the real delivery of the thing it self , as of a horse , a cup , &c. or by a symbolick delivery . as , is the delivery of a little earth and stone in place of the land it self ; for , where the thing cannot be truely delivered , the law allows some symbols , or marks of tradition , and so far is tradition necessary to the acquiring of the prorerty in such cases , that he who gets the last right , but the first tradition is still preferr'd by our law. if he who was once proprietar does willingly quite his right , and throw it away , ( which the civil law calls , pro derelicto habere , ) the first finder acquirs a new right , per inventionem , or by finding it , by which way also men acquire right to treasures , and to iewels lying on the shoare ; and generally to all things that belonged formerly to no man , or were thrown away by them ; but it is a general rule in our law , that what belongs to no man is understood to belong to the king. prescription , is a chief way of acquiring rights by the civil law ; but because , that title comprehends many things , which cannot be here understood , i have treated that title amongst the ways of loosing rights , it being upon diverse considerations , modus acquirendi & amittendi . we also acquire right to the fruits of those things which we possess , bona fide , if these fruits were gathered in or uplifted , and consumed by us , whilst we thought we had a good right to the thing it self , for though thereafter our right was found not to be good ; yet the law , judged it unreasonable to make us restore what we lookt upon as our own ; when we spent it , and therefore , whenever this bona fides ceaseth , which may be several wayes , especially by intenting an action at the true owners instance , we become answerable for these fruits ; though thereafter they be percepti & consumpti , by us . tit. ii. of the difference , betwixt heritable , and moveable rights . having in the former title cleared , how we acquire rights , we come now to the division of them . the most comprehensive division of rights amongst us , is , that whereby they are divided into heritable , and moveable rights . heritable rights in a strict sense , are only lands , and all summs of money , and other things which can be moved from one place to another are moveable but that is only counted heritable in a legal sense , which belongs to the heir , as all other things which fall to the executor are moveable , and so sums of money , albeit of their own nature they are moveable ; yet if they were lent for annualrent they were of old repute heritable . for understanding whereof it is necessar to know that albeit by the cannon law all annualrents were forbidden , as being contrare to the nature of the thing , money being barren of its own nature : yet the reformed churches do generally allow it ; nor were the iews prohibited to take annualrent from strangers . before the year all bands , and sums , bearing annualrent , were heritable , as to all effects so that the executor , who is haeres in mobilibus , had no interest in , nor share of such bands , but they belonged intirelie to the heir ; but that parliament finding that the rest of the children , beside the heir had no provision by our law , except an equall share in the moveables , they therefore ordained that all bands for summs of money should be moveable , and so belong to the executors ; except either the executors , were secluded , or the debitor were expresly obliged to infest the creditor , which is likewise renewed since the kings resturation * : for in these cases , it was clear that by the distination of the defunct , ( which is the great test in this case ) these sums were to be heritable ; and yet all sums bearing annualrent , are still heritable in so far as concerns the fisk , or the relict ; so that if a band bear annualrent , to this day the fisk cannot claime any right to it , as falling under the rebells single escheate , ( whereby when he becomes rebel all his moveables fall to the king ; ) nor has the relict any right to a third of it , as she has to a third of all moveables , the law ▪ having presumed that relicts will be still sufficiently secured by their contracts ; but whether the sum be heritable , or moveable , all the bygone annualrents , and generally all bygones are moveable , as to all intents and purposes , and so fall to executors , and to the fisk , and to the relict ; because bygone rests are lookt on as money lying by the debitor , they being already payable , as all obligations bearing a tract of future time belong to the heir . so far does the law defer to the will of the proprietar , in regulating whither a sum should be heritable , or moveable ; ( the law thinking that every man is best iudge how his estate shal be bestowed ; ) that if a man destinate a sum to be imployed upon land or annualrent , this destination will make it heritable , and to belong to his heir ; or though the sum was originally secured by a moveable band , yet it may become heritable by the creditors taking a superveening heritable security for it , or by comprising for his security ; but yet the creditors design is more to be considered , than the supervenient right ; as for instance , a sum may be moveable ex sua natura , and yet may be secured by an heritable surty ; as in the case of bygone annualrents , due upon infeftment of annualrent , which are unquestionably moveable of their own nature , and yet they are heritably secured ; and even executors may recover them by a real action of poynding of the ground : and , if a wedset bear a provision , that notwithstanding of requisition , the wedset shall still subsist , the requisition will make the sum moveable , though it continue secured by the infeftment ; as also , sumes ab initio heritable , may be secured by an accessory moveable security , without altering their nature ; as for instance , if one take a gift of escheat for securing himself in heritable sums ; this does not alter the nature of the former heritable right . though a sum be heritable , yet if the creditor to whom it is due require his money , either by a charge or requisition it becomes moveable , for the law concludes in that case , that the creditor designs rather to have his money , than lying in the debitors hands upon the former security ; and if it were lying in money beside him it would be moveable : and a requisition to one of the cautioners will make it moveable , as to the principal and all the other cautioners ; but a charge on a band wherein executors are secluded , will not make the sum moveable , for the design of the creditor is presumed to continue in favours of the heir , till the sum be payed , or the band innovated ; but it has been otherways decided of late ; and for the same reason a requisition used by a wife , who has a heritable sum , that falls not under the ius mariti , will not make it moveable , since it is presumed she designed only to get payment , but not to give it to her husband . but if the creditor who required his money take annualrent after that requisition , it is presum'd that he again altered his inclination and resolved to have it heritable , & to continue due by vertue of the first security though a band be heritable , as bearing annualrent , yet before the terme of payment it is moveable , as to all persons . from all which it is clear , that some sums are moveable as to the executor , but not as to the fisk or relict , and some may be moveable , as to the debitor and his executors , and yet may be heritable as to the creditor and those representing him , as for instance , an obligation , to imploy a sum due by a moveable band , upon land or annualrent for the heirs of a marriage , that sum as to the creditor would be heretable , yet quo ad the debitor it would remain moveable . title iii. of the constitution of heritable rights , by charters and seasins . having treated in the former chapter of the difference betwixt heritable and moveable rights , it is now fit to begin with heritable rights as the more noble . our heritable rights are regulate by the feudal law , by which feudum , which we call a few was defined to be a free and gratuitous right to lands made to one for service to be performed by him : he who grants this few , is in our law called the superiour , and he to whom it was granted is called the vassal ; the superiours right to the fie is called dominum directum , and the vassals right is called dominum utile , and if that vassal dispone the land to be holden of himself , then that other person who receives that few , is called the sub-vassal ; whereas the vassal who granted the few becomes the immediate superiour to this sub-vassal , and the vassals superiour , becomes the sub-vassals mediate superior , and is so called because there is another superiour interjected betwixt him and the sub-vassal . the superiour dispons ordinarly this few to be holden of him by a charter and seas●n : the charter is in effect the disposition of the few made by the superiour to the vassal , and when it is first granted , it is called an original charter or right , and when it is renewed it is called a right be progress , and proceeds either upon resignation when the lands are resigned in the superiours hands for new infeftment , either in favours of the vassal himself , or of some third partie , or by confirmation , when the superiours confirms the right formerly granted , and if it is to be holden from the disponer of the superiour that is called a me , and is a publict right , and is still drawn back to the date of the right confirmed ; but if the confirmation be onely of rights to be holden of the vassal , it is called , de me , and is a base right , the effect of this charter being to secure against forfaulture or recognition of the superiour , all which are voluntar rights ; but if they be granted in obedience to a charge upon apprising or adjudication , they are necessar . if the charter contains a clause de novo damus , then it has the effect of an original right , and secures against all casualities due to the superiour ; in which the first thing expressed is for what cause it was granted , and if it was granted for love and favour , our law calls that a lucrative cause , or for a price , and good deeds , this we call an onerous cause . the second thing considerable in a charter , is the dispositive clause , which contains the lands that are disponed ; and regulariter with us , the charter will give right to no lands , but what are contained in this clause , though they be enumerated in other places of the charter . the third clause is that wherein is exprest the way how the lands are to be holden of the superiour , and this is called the tenendas , from the first word of the clause . the fourth clause , is that which expresses what the vassal is to pay to the superiour , and this duty is called the reddendo , because the clause whereby it is payable begins , reddendo inde annuatim . the fifth clause , is the clause of warrandice , which is either personal , or real , personal warrandice is when the author or disponer is bound personally , and is either simple warrandice , which is only from subsequent and future deeds of the granter ; and this warrandice is implyed in pure donationes ; or secundo , warrandice from fact and deed , which is , that the granter hath not done , or shall not doe any deed prejudicial to the right warranded . or tertio , warrandicè is absolute , and that is , to warrand against all mortals : and in absolute warrandice , this is a rule that an adaequate onerouse cause presums still absolute warrandice ; but absolute warrandice in assignations imports only that the debt is truly due , and not that the debitor is solvent . all rights granted by the king are presumed to be donations , and import no warrandice . real warrandice , is when infeftment of one tenement is given in security of one another . the effect of warrandice is , that if the thing warranded be taken away , there is competent to the partie , to whom the warrandice is granted , an action of eviction , for relief . because tradition is requisite to the compleating of all rights ; therefore the charter contains a command by the superiour to his bailly ; to give actual state and seasin , to the vassal , or to his atturney by tradition of earth and stone , and this is called the precept of seasin , and upon it the vassal , or some other person having a procuratory from him , gets from the bailly earth and stone delivered , in presence of a notar and two witnesses , which notar writes out an instrument upon all this , which instrument is called the seasin . and if the superiour gives seasin himself , it is called a seasin , ( propriis manibus ; ) so that a formal seasin is the instrument of a notar , bearing the delivery of earth and stone , or some other symbols by the superiour , or his bailie to the vassal , or his atturney , the tenor whereof is known and fixt , and now by a late statute the witnesses must subscrive the instrument * ; and thus the vassal stands infest in the land by charter and seasin . this seasin being but the assertion of the notar , proves not ▪ except the warrand of it , that is to say , the precept or disposition whereon it proceeded be produced ; but a seasin given by a husband to his wife , or by a superiour to his vassal , propriis manibus , ( that is to say , by the granters own hands without a precept ) is sufficient , when the competition is with the granters own heirs ; or with no more solenin rights , and is not exorbitant : and after fourty years , there is no necessity to produce either precept of seasin , or procuratorie of resignation by a special statute * . this seasin must be registrated within . dayes , either in the general register at edinburgh or in the particular registers of the shire ; stewartry or regality where the land lyes , els the right will not be valid , against a singular successor ; that is to say , if any other person buy the land , he will not be obliged to take notice of that seasin ; but the right will still be good against the granter and his heirs . if lands lye discontigue , every tenement must have a special seasin ; except they be unite in one tenement ; and then one seasin serves for all ; if there be a special place exprest , where seasin should be taken ; but if there be no place exprest ; then a seasin upon any part will be sufficient , for the while , contiguous tenements , ( these being naturally unite ; ) but will not be sufficient for lands , lying discontigue ; and one seasin will serve for all tenements , of one kind ; but where they are of several kinds ; as lands , milnes , &c. they will require several seasins ; the symbols of possession being different ; for lands pass by the tradition of earth and stone , and milnes by the clap and happour . sometimes lands are erected into a barronie , ( the nature of which is explained before ▪ tit. inferiour iudges , ) and whensoever this is granted , union is imployed as the lesser degree . erection in a barrony can only be by the king , and is not ▪ communicable by any subaltern rights , albeit the whole barrony be disponed ; tho the union may be thereby communicate . this union can only be granted by the king , which he may grant either originally , or by confirmation ; and being so granted it may be transmitted by the receiver to a sub-vassal ; but if a part of the lands united be disponed , the whole union is not dissolved , but the part disponed onely ; and this union , and all other priviledges , and provisions , can onely be granted in the charter ; but not in the seasin . tit. iv. of the several kinds of holding . the first division of feus from the several kinds of holding , is that some lands , hold ward , some feu , some blench , and some burgage . for understanding ward-holdings , it is fit to know , that at first , all feus were rights granted by the longo-bards , and the other northern nations , ( when they conquest italy ) to their own souldiers for service to be done in the warrs ; and therefore ward-holding which is the properest holding , is called servitium militare , and all lands are therefore presumed to hold ward ▪ except another holding be exprest ; and servitium debitum & consuetum , is interpret to be ward-holding . the advantages arising to the superiour , by the speciality of this holding , are that the superiour has thereby the full meals , and duties of the ward-lands , during the years that his male-vassal is minor * ; for the feu being given originally to the vassal , for military service , it returns to the superiour , during minority ; because the law presumes , that the minor is not able to serve his superiour in the warrs , but in female-vassals , this casualitie lasts only till . years compleat ; because , they may then marry husbands , who may be able to serve the superiour , and this properly is called the casuality of ward ; for marriage , is due in other holdings , as shall be cleared in the next title . feu holdings , is that whereby the vassal is obliged to pay to the superiour a sum of money yearly , in name of feu-dutie nomine feudi firmae . this holding has some resemblance to the ( emphyteosis ) in the roman law ; but is not the same with it ; for emphyteosis was a perpetual location , containing a pension , as the hyre which was granted , for improving and cultivating barren ground ; but our feu-holding , comes from the feudal law , ( whereof there was no vestige in the civil law , ) and passes by infeftment to heirs . blench-holding , is that whereby the vassal is to pay an elusory duty , meerly for acknowledgement , as a penny , or a pair of gloves , nomine albae firmae , and ordinarly it bears , si petatur tantum . these blench duties are not due , whether they be of a yearly growth , or not ; except they be required yearly by the superiour * , as for instance , if the blench dutie be yearly attendance at such a place ▪ or a rose yearly , the superiour can seek nothing for his blench dutie , except he required the same within the year . burgage-holding , is that duty which burghs royal are obliged to pay the king , by their charters , erecting them in a burgh royal , and in this the burgh is the vassal , and not the particular burgesses , and the bailiffs of the burgh are the kings bailiffs ; nor can seasin in burgage lands , be given by any other than the bailly , and town clerk ‡ , if the town have any and they must be registrated in the town clerks books * . before the reformation there was another kind of holding in scotland , which was of mortified lands , granted to the church , and the only reddendo , was prayers , and supplications , in behalf of the mortifiers . title v. of the casualities , due to the superiour . the feu being thus stated by the superiour , in the person of his vassal , it will be fit in the next place , to consider , what right the superior retains , and what right the vassal acquires by this constitution of the fie . the superiour retains still dominium directum in the feu , and the vassal has only dominum utile ; and therefore the superiour is still infeft aswell as the vassal ; but the king needs not be infeft ; for he is infeft jure coronae , that is to say , his being king , is equivalent to an infeftment . the superiour has different advantages , and rights , according to the different maner of holdings , and there are some rights and casualities common to all holdings . ward-holdings , gives the superiour a right , to the meals , and duties of his vassal lands , during all the years that his vassal is minor ; and this is properly called the casualitie of ward ; but the superiour , or his donatar , are obliged to entertain the heir ; if he have no other feu , or blench , lands , and to uphold the house , parks , &c. in as good condition as they found them ; and must find caution for that effect * . if the vassal sells , or dispones the half of his ward-lands , to any except his appearand heir , who is alioque successionae , without the consent of his superiour , the whole ward-lands fall to the superiour , for ever ; and this we call * recognition , which is introduced to punish the ingratitude of the vassal , who should not have disponed the superiours lands , without his own consent ; and to shun this , the vassal in ward-lands gets the superiours confirmation , before he takes infeftment ; for if he takes infeftment before he be confirmed , the lands recognosce , as said is ; except the seasin be null in it self ; since the vassal showes sufficiently his ingratitude by the very taking of the infeftment : and though the vassal at first did not sell the half without the superiours consent ; yet , if he thereafter sells as much as will extend to more than the half of the feu , the first huyer will likewise loose his right , if it was not confirmed before he took infeftment . not onely a confirmation , or novodamus , ( if it express recognition ) but the superiours accepting service , or pursuing for the casualities , are a passing from the recognition ; because , they infer the superiours acknowledgement of the vassals right . recognition takes place in taxt-ward , as well as simpleward , but in no other manner of holding ; except the same be expresly provided in the vassals charter , for ward-holding , is presumed to be the only proper feudal right . if the vassal denyeth the superiour , he losses his feu , and this is called , disclamation * ; but any probable ground of ignorance will take off this forfeiture . if the vassal who holds ward-lands dyes , having an heir unmarried , whether minor , or major , the superiour gets the value of his tocher ; though he offer him not a woman to be his wife ; but if the superiour offer him his equal , for a wise , and he refuses to accept , ( tho he never marry any other person ; ) the superiour gets the double of his tocher , and one of these casualities is called the single avail of the marriage , and the other , the double avail of the marriage ; but the modification of this is referred to the lords of session , who consider still what was the vassals free rent , all debts deduced , and the ordinarie modification is about two years rent , of the vassals free estate ; even though the heir was an heretrix , and though there were moe heirs portioners , there will only one avail be due for them all . though this casualitie of marriage ; be still due in all ward-holdings ; yet they may be due by express paction in other holdings , and there are many in scotland , who hold their lands feu , cum maritagio ; and in both cases , the marriage is debitum fundi . though as to the casuality of ward , every superiour has right to the ward lands holding of himself where the vassal holds ward-lands , of moe superiours ; yet the casualitie of marriage falls only to the eldest superiour ; because there cannot be more tochers than one ; and he is the eldest superiour from whom the vassal had the first feu ; but the king is still presumed to be the eldest superiour ; because , all feus originally flowed from him . it is thought that the reason why this casualitie is due , was , because it was not just , that the vassal should bring in a stranger to be mistress of the feu , without the superiours consent ; for els he might choice a wife out of a family that were an enemy to the superiour ; but i rather think , that both ward , and marriage , proceeded from an express paction , betwixt king malcome kenmore and his subjects , when he first feued out the whole lands of scotland , amongst them ; as is to be seen in the first of his statutes * . the special dutie arising to the superiour in a feu holding , is , that the superiour gets a yearly feu dutie payed to him , and if no part of this feu duty be payed for two years , even though the whole was offered ; or though the vassal was minor , then the vassal looses his feu , ob non solutum canonem ; for the feu duty , is called canon ; and if this provision be exprest in his charter , he will not be allowed to purge this irritancy , by offering the bygones at the barr ; but though this provision be not exprest in the charter , yet the feu will be annulled for not payment of the feu-dutie , by an express act of parliament * ; but the vassal in that case will be allowed to purge at the bar , and the reason of this difference is ; because the express paction is thought a stronger tye than the meer statute . a clause irritant in our law , signifies any provision , which makes a penalty to be incurred , and the obligation to be null for the future ; as here , where the superiour gives out his feu upon express condition , that if the feu-dutie be not payed , the feu shall be null , and reduceable , and a clause resolutive , is a provision , whereby the contract to which it is assixt , is for not performance , declared to have been null from the beginning . the casualities that are due , by all manner of holdings , and which arise from the very nature of the feu , without any express paction , are none-entry , relief , and liferent escheate . none-entry , is a casuality whereby the superiour has right to the meals and duties of the lands , when there is not a vassal actually entered to him , and the reason why this is due to him , is , because , he having given out his feu to his vassal or service , when there is no actual vassal entered , the law allowes him to have recourse to his own feu , that he may therewith provide himself with a vassal , who may serve him ; but though the full rents of the lands be due to the superiour , from the very time that he cites his vassal , to hear , and see , it found and declared , that the land is in none-entrie ; yet before that citation , the superiour gets onely the retoured duties ; and the reason of the difference is ; because after citation , there is a greater contempt than before , and so is to be more severely punished . for understanding which retour dutie , it is fit to know , that there was of old , a general valuation of all the lands of scotland , but thereafter ▪ there was a new valuation , the first whereof is called the old , and the second , the new extent , and both are called the retour duty , because they are exprest in the retour , ( or return ) that is made to the chancellary , when an heir is served ; but both are very far below the value , to which lands are now improved , though in our law , the new extent be constructed to be the value . but in an infeftment of annualrent , the whole annualrent is due , as well before declarator , as after ; because the annualrent is the retoure dutie , it being retoured , valere seipsum ; and that is called an infeftment of annualrent , when the vassal is not infeft in particular lands ; but is infeft in an yearly annuity of money , to be payed out of the lands , as for instance , if a man should be infeft in the sum of five hundred merks yearly , to be payable out of any particular lands , being worth . merks yearly , how soon the vassal who had right to the . merks dyed , the superiour would have right to the whole merks yearly , until the heir of the vassal be entered . vide infra tit. servituds , § annualrents . there is no nonentry due in burgage lands ; because the burgh it self is vassal , and never dyes , and so therefore , neither does the burgh nor any private burgess pay nonentrie , the duty payable by a burgh , being onely by watching and warding . when the vassal enters , he pays an acknowledgment to the superiour , which is called , relief , because it s payed for reliving his land out of the superiors hands . it is debitum fundi , and affects not only the ground really , but the vassal personally , who takes out the precept for infefting himself ; though he never takes infeftment thereupon . the value of this casuality varies , according to the nature of the holding , for in blench and feu holdings , it is only the double of the feu or blench duties ; but in ward-holdings , it is the full duty of the land ; if the superiour be in possession , the time of the vassals entrie ; but if the superiour was not in possession ; though the vassall was minor , or if the vassall be major , before his predecessor dye , then the superiour gets only the retour dutie ; and it is so far from being presumed to be remmitted by the superiours entering his vassal ; that it is still exacted ; though it be gifted with the other casualities . for understanding life-rent escheates , it is fit to know ; that when any man does not pay a debt , or perform a deed conform to his obligation , his obligation is registrated ; if it carry a consent to the registration in the body of it ; or if it do not , there must be a sentence recovered , and upon that registrated writ , or decreet , ( for a registrated writ is a decreet in the construction of law ) there will be letters of horning raised , and the partie will be charged , and if he pay not within the dayes allowed by the charge , he will be denounced rebel , and put to the horn , and from the very day of the denounciation , all his moveables falls to the king by a casualitie , which is called , single escheate ; but now single escheates fall likewise to lords of regalities , if the persons denounced live within a regality , because the king has gifted all single escheates when he erected those regalities . if the vassal continue year and day rebel , without relaxing himself , ( which relaxation is expede by letters under the kings signet , expresly ordaining him to be relaxed from the rebellion ; ) then he is esteemed as civilly dead ; and consequently not being able to serve the superiour , the law gives the superiour the meals and duties of his feu , during all the dayes of the vassals life ; and this casuality is called liferent escheat ; so that every superiour aswell as the king , has right to the meals , and duties of the lands holden of himself * if his vassal was once infeft ; and even though he was not infeft ; if he was appearand heir , and might have been infeft ; for his lying out should not prejudge his superiour ; but if a man have right by disposition , whereupon no infeftment followed , the king only will have right to his life-rent escheate , as he has for the same reason to the manses and gleebs of ministers , when they are rebells ; since they are not infeft in these ; but all heritable and life-rent rights , requiring no infeftment of their own nature , such as a terce , and liferent-tacks fall not to the king , and the life-rent tacks fall to the master of the ground , and the life-rent by terce pertains to the superiour during the life-renters lifetime * . this life-rent escheate comprehends only rights , to which the vassal himself had right for his lifetime ; for else it will fall under single escheate ; ( single escheates comprehending every thing that is not a life-rent escheate ; ) and therefore , if the superiour having right to the vassals liferent escheate , become rebel himself , the vassals liferent escheate will fall under the superiours single escheate , for the superiour had not right to those meals and duties during all the dayes of his own lifetime ; and so it could not fall under his liferent , and the like , does for the same reason hold in all such as have assignations to liferents , or to liferent escheats , or to tacks for any definit number of years , few or many . the superiour has also right to the sub-vassals liferent escheate , which falls after the vassals denounciation , for by the denounciation of the immediate vassal , the superiour comes in his place ; and so has right to the sub-vassals liferent . the liferent escheate falls by the rebellion , that is to say , by the denounciation ; and the year and day , is given only to the rebell to relax himself , so that if he relax not within that time , his liferent will fall from the denounciation . in competition betwixt the superiour of the rebell , and the rebells creditors , these rules are observed in our decisions . primo , no legal diligence , nor voluntar right for payment of any debt contracted , after rebellion , will prejudge the superiour ; for else after a vassal were at the horn , he might fraudulently contract debt to prejudge the superiour . secundo , if the debt was prior to the denounciation , no voluntar infeftment will prejudge the superiour ; except the rebel was obliged prior to the rebellion , to grant that infeftment , and that the infeftment it self was expede within year and day of the denounciation . tertio , though legal diligence be more favourable then voluntar rights ; because there is less collusion , yet no legal dilligence will be preferred to the superiour ; except it was led for a debt prior to the denounciation , and was compleated by infeftment , or charge , within year and day , thereof ; albeit the said legal diligence was deduced after the denounciation . though this be the course in competitions , quo ad liferent escheates ; yet actual payment made , or diligences done to , or by creditors for payment of debts , prior to the rebellion , or the commission of crimes , will be preferred , to the donator ; if these rights or diligences be compleated before declarator , which we owe rather to the benignity of our kings , than to the nature of these rights , since there is jus questitum fisco , by the denounciation . liferent escheates is proper to all kinds of holding ; except burgage , and mortification ; for the vassal being a societie or incorporation dyes not , and so can have no liferent escheate ; and albeit the administrators were denounced for debts due by the incorporation ; yet that is still presumed to be their negligence , which ought not to prejudge the societie : for compleating this casualitie a general declarator must be raised at the superiour or donators instance , to hear and see it found and declared , that the vassal was orderly denounced rebel , and has continued at the horn year and day . and in a competition betwixt donators , the last gift if first declared , will be preferred . if the gift be taken to the behoove of the rebell , it is null , and is presumed to be to his behoove , if he or his family be suffered to stay in possession . the last priviledge of the superiour is , that he may force his vassal to exhite his evidents , to the end he may know what is the nature of the holding , and in what he is lyable to his superiour , which proceeds ordinarly by an action of improbation . title vi. of the right which the vassal acquires by getting the feu . the vassal by getting the feu settled in his person , by charter and seasin , as said is , has right to all houses , castles , towers , ( but not fortalices ; ) woods , and other things that are above ground of the lands expresly disponed ; and to coals , lime-stone , and other things within ground , and to whatever has been possessed , as part and pertinent of the land past memorie of man : but there are some things which passe not under the general dispositive words , and require a special disposition , which belong to the king , in an eminent way , and are called therefore regalia , and are not presumed to have been disponed by his majestie , or any other superiour ; except they were specially mentioned , such as are all iurisdictions , forrests , salmond-fishings , treasures hid within the ground , and gold , silver , and fine-lead ; for other mines , such as iron , copper , &c. belong to the vassal . if lands be erected in a barrony by the king , then though the lands lye discontiguously , one seasin will serve for them all , because , barrony implyes an union . this erecting them in a barrony , will likewise carry a right to iurisdictions , and courts , fortalices , forrests , hunting of deer , and ports , with their small customes , granted by the king , for upholding these ports , milnes , salmond-fishings , &c. because ; barronia est nomen universitatis , and possession of any part of a barrony is repute possession of the whole ; but mynes of gold , and silver , * treasures , and goods confiscate , are not carried with the barrony . the heritor has also power to set tacks , remove , and in-put tennents , as a consequence of his property . a tack is a location , or contract , whereby the use of any thing is set to the tacksman , for a certain hyre , and in our law it requires necessarly , that the terms of the entry , and the ish , must be exprest , that is to say , when it should begine and end , and it must bear a particular dutie , else it is null ; and if it be a valid tack , that is to say , if write be adhibit , ( verbal tacks being onely valid for one year ) to the thing set , the contracters names , tack-duty , ish , and entry , clearly therein exprest , and cloathed with possession , it will defend the poor tacksman , against any buyer * ; and even against the king and his donators , when they succeed by forfeiture , which was introduced in favours of poor tennents , for encouraging them to improve the land ; but it will not defend against a superiour of ward lands , for the ward , &c. though by act of parliament , the superiour be obliged , to continue them in their possession till the next term of whitsonday * . albeit tacks have not all the solemnities foresaid ; yet they are valid against the granter and his heirs . tennents cannot assign their tacks ; except they be liferent tacks ; or that the tack bear a power to assign ; but they may be comprysed , or adjudged ; and if the master suffer the tacksman to continue after the tack is expyred , he will be obliged to pay no more than he payed formerly during the tack ; and this is called in our law , the benefite of a tacite relocation , that is to say , both the setter and the tacks-man , are presumed to design to continue the tack upon the former terms , till the tennent be warned . if the tack be granted to sub-tennents ; then the tacks-man may set a sub-tack , which will be as valid as the principal tack , if cled with possession . rentals are also a kind of tacks ; but more favourable and easie ; because the rentaller and his predecessors have been ancient possessors , and kindly tennents , and he payes a grassume , or acknowledgement at his entrie , and yet they last no longer than for a year ; if there be no time exprest ; and if they be granted to a man and his heirs , they last only to the first heir ; for else they behoved for ever to belong to the heirs ; and so would want an ish ; but no tack is accounted a rental ; except it be in write , and the write bear the same . rentals cannot be assigned , except that power be granted in the rental ; and if the rentaler assign , he looses his rental ; though a tacksman forfeits not his right , by assigning it , the assignation being only null . when the years of the tack expyre ; or though there be no tack ; yet the master cannot summarly remove his tennent , or possessor except from liferented lands , and houses , or towers , and fortalices , and vitious possessors whom he can remove by a summonds on six days ; but in all other cases he must warn him , dayes , before the term of whitsonday ; tho the term at which he were to remove , by paction , were martinmass , or candlemass ; which warning must be executed , that is to say , intimated personally to the tennent , and upon the ground of the lands ; and at the parish kirk , immediately after sermon , and if he then refuses , he must be persued to remove upon six dayes , and after this citation , the master will get against him violent profits ; that is to say , the double of the avail of the tenement within burgh , and the highest advantages that the heritor could have got , if the tennent possessed lands , in the countrey ; nor will the tennent be allowed to defend against this removing ; till he find caution to pay the violent profits * . the master has likewise a tacit hypotheque in the fruits of the ground , which he sets to his tennent , in so far as concerns a years dutie , that is to say , they are impignorat by the law , for that years dutie , and he will be preferred either to a creditor , who has done diligence , or to a stranger who has bought them ; though in a publick mercat : and a lands-lord within burgh , has a tacit hypotheque in all the goods brought in to his house , by his tennent , which he may retain , a● , and while he be payed of his years rent . title vii . of transmission of rights , by confirmation , and of the difference betwixt base , and publick infeftments . the fie being thus established in the vassals person , the same may be transmitted , either to universal , or singular successors , the first is properly called succession , which shall be handled in the third-book . transmission of rights , to singular successors , is voluntar by disposition , and assignation , or necessar by apprysing , and adjudication , and consiscation , when they are forefaulted for crimes , &c. if the vassal sells the land , the superiour is not obliged to receive the sub-vassal except he pleases , though the charter bear , to him and his assignies ; and if he receive him , there is in law , a years rent due to the superiour , as an acknowledgement for changing his vassal . lands are disponed , either to be holden of the disponers superiour , and that is called a publick infeftment ; because , it is presumed it will be publickly known , being holden of the superiour ; and it is likewise called an infeftment , a me ; because , the disponer gives it to be holden a me , de superiore meo , and this infeftment is null untill it be confirmed * by the superiour , which is done by a charter of confirmation , wherein the superiour narrates the vassals charter , and subjoyns thereto his own confirmation or ratification of it , and the last right being first confirmed is still preferred . sometimes also the vassal dispones lands to be holden of himself , and this is called , a base infeftment , and has been allowed by our law , contrare to the principles of the feudal law , in favours of creditors , who getting right for payment of their debts , were unwilling to be at the expences to get a confirmation from the superiour , and this is called , an infeftment , de me ; because , the disponer gives them tenendas de me , & successoribus meis . these base infeftments being cloathed with possession , are as perfite , and valid , as a publick infeftment ; for possession , is to an infeftment to be holden of the disponer , the same thing that confirmation is to an infeftment to be holden of the superiour ; and therefore , as in a competition betwixt two infeftments of the same land , to be holden of the superiour , the first confirmation would be preferred , it being a general rule in law , that amongst rights of equal perfection , prior in tempore est potior in jure ; so if a base infeftment be cloathed with possession before the publick infeftment be confirmed , the base infeftment will be preferred ; though it was granted after the publick infeftment . for the better understanding of the nature of base infeftments , it is fit to know , that possession is in law natural , or civil , that is natural possession , by which a man is naturally , and corporally in possession , as by labouring of the ground ; but because sometimes men could not attain to the natural possession , for cloathing their right , therefore the law was forced to allow another possession by the mind , as that was by the body , and this is called , civil possession ; because it is allowed , and introduced by the civil law , of which there are many kinds in scotland ; as , primo , the obtaining decreets for meals and duties , and even citation upon an heritable right . secundo , payment of annualrent , by the debitor to the creditor who has infeftment of annual-rent . tertio , if a man be infeft in lands , and for warrandice of these lands be infeft in other lands , possession of the principal lands , is reputed in the construction of law , possession of the warrandice lands . quarto , if a woman be infeft by her husband in a life-rent , the husbands possession is accounted the wifes possession . quinto , if a man dispone lands , reserving his own liferent , the liferenters possession is accounted the fiars possession ; and a base infeftment is said to be cloathed with possession ; if he who is infeft hath attained either to natural or civil possession ; for the law cannot punish a man for not apprehending possession , who could not apprehend it ; and for the same reason , if the time of entrie was not come , he who is infeft by a base infeftment , will be preferred in that case , as if he were in possession ; and the reason of all this is , because our law considering , that base infeftments were clandestinely made , betwixt confident , and conjunct persons , to the ruine of lawful creditors , who could not know the same ; there being then no register of seasins ; it therefore declared all base infeftments to be simulat , which were not cloathed with possession ; and therefore before the terme , at which he who got the base infeftment could enter to the possession , there could be no simulation , nor fraude , in no partie ; and in this the law considers much the interest of lawful creditors , by sustaining that kind of possession in their favours , which would not be sustained in favours of near relations ; or where there is no onerous cause ; and thus a base infeftment given be the father , to his own son , will not be cloathed with possession , by the reservation of the fathers liferent , though the reservation of the fathers liferent would cloath a base infeftment granted by him to a lawful creditor ; and the husbands possession is accounted the wifes possession , in so farr as concerns her principal ioynture ; but not in so far as concerns her additional ioynture , in a competition betwixt her and her husbands lawful creditors . sometimes likewise , for the more security a base infeftment , which is given to be holden of the disponer , will be confirmed by the superiour ; but that confirmation does not make it a publick infeftment ; for no infeftment can be called a publick infeftment ; but that which is to be holden of the superiour ; but the use of that confirmation is , that after the superiour has confirmed voluntarly the sub-vassals right , he thereby acknowledges his right ; and consequently , can seek no casuality , which aryses upon want of the superiours consent , such as forfeiture , or recognition ; but because the disponer is still vassal , therefore his superiour will still have right to the rents of the lands , by his life-rent escheate , and to wards , and none-entries by his death ; but if the superiour enter the sub-vassal onely upon a charge , ( this being no voluntar act of his , ) that does not cut him off from those casualities . sometimes likewise , the seller resigns the lands in favours of the superiour , if the lands be sold to the superiour himself , which is called resignatio ad remanentiam ; because the lands are resigned to remain with the superiour , and in that case , the property is said to be consolidate with the superiority , that is to say , the superiour returns to have all the right both of property , and superiority ; nor needs he be infeft of new ; because , as we formerly observed the superiour stands still infeft aswell as the vassal ; but the instrument of resignation must be registrated in this case , as seasins are in other cases , to put men in mala side to buy * the other resignation , is called resignatio in favorem , which is when the seller having sold his feu to a third party , resigns the feu in the superiours hands , for new infeftment to be given by the superiour to that third partie . the warrand of both these resignations is a procuratorie granted by the seller , to a blank person , ( and this warrand is ordinarly inserted in the disposition ) impowering him to resign the feu in the superiours hands ; and this is called a procuratory of resignation ; and the symbols of the resignation are , that it is to be made by staff and baston ; and accordingly , the procurator compears before the superiour , and upon his knee , holding a staff or pen at the one end , which the superiour or any having power from him , holds by the other , he there resigns the feu , either ad remanentiam , or in favorem , as said is ; whereupon an instrument is taken by the person in whose favours the resignation is made , which is called the instrument of resignation ; and thereafter the person in whose favours the resignation is made , ( if he be not the superiour ) is infeft , and his seasin must be registrated within . dayes , as said is . the resignation does not perfectly denude the seller , untill infeftment be taken upon it ; and therefore the first infeftment , upon a second resignation will be preferred to him , who has but the second infeftment upon the first resignation ; but yet the lands will be in non-entrie in the superiours hand , after the resignation is made , untill the person in whose favours it was made be infeft , for otherwayes the superiour would want a vassal , since he could not call him vassal who did resign his to be vassal ; and he had accepted of a resignation from him ; nor is the person in whose favours the resignation is made his vassal ; since he is not yet infeft ; but yet the buyer has a personal action , against the superiour , to force him to denude himself in his favours ; since he has accepted the resignation ; and he will likewise have an action of damnage and interest against the superiour ; if he accept a second resignation , whereby a prior infeftment may be taken to his prejudice , and the superiour gets all his casualities , as ward , marriage , liferent escheat , &c. not by him in whose favours resignation is made ; but by him who resigns , since he remains still vassal till the other be infeft quoad the superiors casualities . title viii . of redeemable rights . another considerable division of heritable rights with us , is that some are redeemable , and some irredeemable . redeemable rights , are these which return to the disponer , upon payment of the sum , for which these rights are granted ; and are so called ; because they may be redeemed by the disponer ; and they are either wadsets , infeftments of annualrents , or infeftments for relief . a wadset , is a right whereby lands are impignorated or pledged for security of a special sum , which passes by infeftment , ( like other real rights ) in the terms of alienation or disposition ; and the disponer does secure himself by getting a reversion from the buyer , wherein he grants and declares the lands redeemable from him , upon payment of the sum then delivered , and of the annualrent thereof , which is pactum de retrovendendo ; and expresses the place and time when it is to be delivered , and in whose hands it is to be consigned ; in case the receiver of the wadset , ( who is called the wadsetter ) refuse to accept his money . these reversions , being against the nature of property , and depending upon the meer agreement of parties , are to be most strictly observed ; and are strictissimi juris ; so that they are not extended to heirs or assigneys ; except they be exprest , and must be fulfilled in the very terms ; and it is not enough that they be fulfilled in equipollent terms : but after an order of redemption is used ; that is , after the granter of the wadset has duely premonished the wadsetter , and consigned the sums due by the wadsetter , it may be assigned ; and though the reversion bears that premonition be made at the parish church , it will be sustained if it be made personally to the wadsetter , for that is a surer certioration . reversions , albeit of their own nature they are personall binding , onely the granter and his heirs , yet they are real rights by our statutes , and affect singular * successours . they and all bands to make reversions , or ●ikes to reversions , must be registrated within . dayes in the same register with seasins ; for else a singular successour is not obliged to regard them * ; so that if any buy the land irredeemably , and compleat his right , he will be preferred ; but they are still valid against the disponer without registration . when the granter of the wadset , is to use an order of redemption , he must premonish the wadsetter to compear , ( and take instruments thereupon , called , an instrument of premonition ) to receive payment of the sumes due to him ; and at the time and place appointed by the reversion , offer being made of the money ; if the wadsetter refuses voluntarly to renounce , and to accept his money , it is consigned in the hands of the person designed in the reversion , or if no person be designed , it may be consigned in any responsal mans hand ; but there must be a paper taken under the consignatars hand , acknowledging that it was consigned in his hand ; for though an instrument under a notars hand , proves that all this order of redemption was used ; yet it will not prove the receipt of a sum against the consignatar . if the wadsetter receive his money , and renounce voluntarly , this is called , a voluntar redemption ; but , because though renounciations be sufficient to extinguish , they are not sufficient to transmit a right ; therefore , if the wadset was given to be holden of the disponer , the wadsetter must resign ad remantiam , in the disponers hands as his superiour ; and thereafter the disponer needs not to be infeft of new ; as no superiour needs ; but if the wadset be given to be holden of the superiour ; then the disponer uses to take a letter of regress , whereby the superiour obliges him to receive him back to be his vassal , when he shall redeem his own lands ; for otherwayes after the wadsetter is seased , the superiour is not obliged to receive him back . if the wadsetter refuses to renounce after the order is used , the lords will force him to renounce , and declare the lands redeemed , by a process , called a declarator of redemption ; after which decreet is obtained , the lands are redeemed , and belong to the redeemer ; and the wadsetter will upon a simple charge of horning force the consignatar to deliver him up the money . the user of the order of redemption , may pass from it at any time before declarator ; and therefore the sumes for which the wadset was granted , are still heritable before declarator ; but after that they are moveable , and fall to executors ; except the declarator be obtained after the wadsetters death , in which case they remain heritable ; and though the wadsetter require his money , he may pass from his requisition , either directly by a clear declaration that he passes from it , or indirectly by intrometting with the duties of the wadset lands , or by taking annual-rent for termes subsequent to the requisition . wadsets are either proper , or improper . proper wadsets , are these , wherein the wadsetter takes his hazard of the rents of the land for the satisfaction of his annualrent ; and payes himself all publick burdens . improper wadsets , are these , wherein the granter of the wadset payes the publick burdens , and the receiver is at no hazard , but has his annualrent secure . and if a wadset be taken , so , that the wadsetter is to have more than his annual-rent ; and yet the granter is to pay the publick burdens , this is accounted usury by our law ; the punishment whereof is confiscation of moveables loosing of the principal sum and anulling the usury , contract , or paction * ; and by a late statute , if the debitor offers security for the money , and craves possession , the wadsetter must either quit his possession , or restrict himself to his annualrent * . and if a man impignorat his lands , or bands , with expresse condition , that if the money be not payed at a precise day , they shall not be thereafter redeemable : the law reprobates this unjust advantage , called , pactum legis commissoriae in pignoribus ; and will allow the money to be offered at the barr ; or they will allow a short time before extracting of the decreet for payment of it . taking of annualrent having been discharged by the cannon law , men did buy annualrents out of other mens lands , which was the origin of our present infeftments of annualrent , and continues still frequent ; by which if men resolve not to rest on the personal security of the borrower , they take him also obliged to infeft them in a yearly annualrent , payable out of his lands correspondent to the sum lent ; but if they exceed the ordinarly annualrent allowed by law , it will infer usury ; and so they have a double security , one personal against the borrower for payment , and another real against the ground , it being debitum fundi ; for which they may poynd any part of the ground ; as also they have good action against the intrometters with the duties of the lands , out of which there annualrents are payable ; though they cannot poynd or exact from the tennents any more then they owe to their master * . these annualrents require a special seasin , like wadsets , and other real rights ; the symbols whereof , if the annualrent be payable in money , is a penney of money ; but if it be payable in victual , it is a parcel of victual . this is singular in infeftment of annualrent , that apprysing , thereupon will be preferred to all prior apprysing , quoad the bygones , of the annualrent , if the infeftment of annualrent was prior to those apprysings to which the apprysing will be drawn back , and preferred to any interveening right , which priviledge is continued in the late act of parliament , concerning debitor and creditor * . these infeftments of annualrent , being properly granted for security of sums are extinguished not only by resignations , but by renounciations ; and even by intromission with as much as might pay the principal sum , which intromission is probable by witness , whether the rent be victual or money , and therefore singular successors buying infeftments of annualrent , are not secure by any register but must rest on the warrandice of the seller , infeftments of relief , are these , which are granted by a debitor to his creditor , for security of sums owing to him , upon which the creditor cannot enter to possession , till he be distressed , and when the sum is payed , the right becomes absolutely null , as being but a temporarie right , and so the debitor who granted the right , needs not be of new infeft , but his former right revives . title ix . of servitudes . the nature and constitution of propertie , and real rights , being explained in the foregoing titles . we shall now treat briefly of servitudes ; which are burdens , affecting property and rights . servitudes are either real , personal , or mixt. personal servitude , is in desuetude amongst christians ; and therefore is not proper to be considered here . real servitude is whereby one mans property , or ground is affected with some burden , for the use and behoove of another man ; which are devided in rural servitudes , and citie servitudes . rural servitudes , are iter , which is , a power of going through our neighbours land ; actus , which is a power of driving carts , or waines ; via , being the priviledge of having high wayes in our neighbours ground ; and aquae-ductus , which is a power and priviledge to draw water alongst their ground for watering of our own . thus via , includes iter , and actus , as the lesser servitudes ; so he that has a via , has also power to drive carts and waines , and to walk himself through the ground burdened with the servitude . the city servitudes , called , servitutes urb●nae , are chiefly five . the first , is oneris ferendi , which is a priviledge , whereby one who has a house in the city , can force the proprietar who has a house below his , to bear the burden of his house ; and he may force the owner of the servient tenement to repair it , and make it fit for supporting the dominant tenement , contrare to the common nature of servitudes . secundo , tigni immittendi , which is the priviledge of forceing our neighbour to receive into his house the jests of ours . tertio , stillicidii , vel fluminis , which , is whereby our neighbor is obliged to receive the drops which falls from our house , under which , is likewise comprehended the priviledge of carrying away our water by sinks and channels . quarto , non officiendi luminibus , whereby he can do nothing that can prejudge our lights , or prospect . quinto , altius non tollendi , whereby our neighbour cannot raise his house higher , to prejudge the lights of the dominant tenement . by our law , servitudes may be constitute by write , without any seasin ; because they are incorporeal rights ; but though a servitude meerly established by write , be sufficient against the granter ; yet they are not valid against singular successors ; except that right be cloathed with possession , which compleats the servitude and makes it a real right ; and they may be likewise established by prescription without any write , from him who has the servient tenement ; though he who is to acquire the servitude by prescription , must have some right in his person , either of a special concession , or else must prescrive it , as part and pertinent of his land . the ordinary servitudes superadded by us , to these of the civil law , are the servitudes of casting fail and divot , common pasturage , and multures . common pasturage , is a right of pasturing the goods and cattel of the dominant tenement , upon the ground of the servient , which is constituted frequently by a charter , containing the clause of common pasturage ; and sometimes by a personal obligement , cloathed with possession ; but albeit it be indefinite , yet it can reach no further than to the proportion of goods of the dominant tenement , which they keep and fodder in winter ; which is done by sowming and rowming , that is to say , the determining the proportion of goods belonging to each dominant tenement , according to the several rowms and rent thereof . common pasturage in our law , does ordinarly comprehend all the lesser servitudes ; such as the casting of faill and divots , presumptively onely ; for the one may be possest without the other ; nor will common pasturage inferr a servitude of casting of fail and divots if he who possessed the common pasturage was interrupted as to the casting of fail and divot . mills , are inter regalia , and require therefore a special seasin ; the symbols whereof are clap and happer ; but if the mill be in a barrony transit cum universitate . mills , are ordinarly dispond with multers and sequels ; the multurs are a quantitie of corn , payable to the heritor of the mill for grinding . the knaveship , lok , and bannock , are a small quantitie payable to the servants for their paines . these quantities , that are payed by those that are thirled , are called , insucken multurs , and those quantities , that are payed by such as come voluntarly , are called outsucken multurs . thirlages , are constitute by write , or by prescription . the wayes of constituting thirlage by write , are these ; first , when a master thirles his own tennents , to his own mill ; in which case ordinarly he deminishes the rent of his land , in contemplation of what they are to pay to the mill , for grinding their corns , which he does by an act of his own court. secundo , when an heritor sells his lands , to be holden of himself , and thirles his vassal to his mill ; in which case he sells so much the cheaper , and so the multures are just . tertio , when the heritor of a mill , dispons his mill , with the multure of his own lands ; in which case the multures are also just ; because he gets so much the more for his mill ; and so this servitude is not so odious as it is believed to be . quarto , if a man dispones the mill of a barrony , cum multuris , or cum astrictis multuris ; in either of these cases , he thereby astricts his whole barrony ; though not formerly astricted ; but if he dispone the mill of the barrony , cum multuris solitis & consuetis ; he i● thereby understood to hav● thirled onely what was formerl● thirled . if the thirlage bears omnigrana crescentia , all the corn growing upon the land wil● be thirled , with deduction onely of seed , and horse corn , and th● ferme ; except it be carryed to another mill , for it is presumed ferms must be sold. quinto , when invecta & illata are thirled , all corns which thole fire and water withi● the astriction , must pay multur● though they come not to th● mill ; but being made in malt are thereafter carryed abroa● out of the thirle . the way of constituting thirlage by prescription , is immemoral , or . years possession , by vertue of some title ; such as a decreet , though in absence ; and even when the master is not called ; and any act of a barron court , though made onely by a bailie , without a special warrand from the heritor ; and though the coming to a mill , past all memorie , does not astrict the comers for the future ; it being a general rule in all servitudes , that , ea quae sunt merae facultatis non prescribuntur ; yet in mills of the kings property , immemorial possession , constitutes a thirlage ; and if men likewise pay dry multures , that is to say , such a quantity , whether they come to grind or not , for . years ; they will be thereby astricted ; for it is not presumable they would have payed dry multure , for so long a time except they had been thirled . if the quantity to be payed , be not determined in write , it is regulated by the use of payment for . years . those who are thirled , are also obliged to maintain the mill in its dammes , water-gangs , and to bring home its mill-stones . if such as are thirled , bring not their corns , they are persued by an action called , abstracted multures . there are two rules to be observed in all servitudes . primo , res sua nemina servit , no man can have a servitude on what is his own ; and therefore if the land on which we have a servitude become ours , the servitude is extinguished . secundo , when we have a servitude on any other land , this servitude affects every foot of that land , unaquaeque gleba servit ; but this is to be taken civiliter , & non judaice ; so that it must be reasonably used ; and thus , if we fen out some acres , with priviledge to the feuer to cast faill and divot upon our moor , for maintaining his houses ; though in strict law , every part of the moor is affected with the servitude ; yet the lords will allow any man to tile and sow his own moor , leaving such a proportion , as may maintain these houses . mixt servitudes are partly real , and partly personal ; and by the civil law are divided in usu fruct , use , and habitation . usus-fructus is called liferent in our law ; which is a right to use and dispose upon any thing during life , the substance thereof being preserved . use and habitation were restricted to the naked use of the liferenter ; whereby his power of disposing and making profit of the thing liferented was restrained ; and are not in use with us . liferents are either constitute by paction ; or by law ; liferents by paction , are either by reservation ; as when a fiar denuds himself of the fie in favours of another , reserving his own liferent ; or by a new constitution ; as when the fiar dispons his lands to another , during all the dayes of his life ; the first needs no infeftment ; but the second does ; else it is not valid against singular successors ; but the liferenter being infeft , transmits his right to any by assignation without infeftment ; for being a servitude and personal right , it neither needs , nor can admit of a subaltern infeftment . a liferenter also by reservation , may enter the heirs of vassals ( though he cannot receive singular successors ) if he was himself infeft ; but another liferenter cannot ; and even a liferenter by reservation cannot enter those vassals , if he was not once infeft ; because he cannot transmit a right which he has not . when moe persons are joyntly infeft , they are called conjunct fiars ; but though a wife be a conjunct fiar ; yet her fie lasts but during her life ; and during her life , she may enter vassals , and has right also to all the casualities , as other fiars . liferents by law , are the terce , and the courtisie . the terce is a liferent of the third of all the tenements , wherein the husband dyed infeft , provided be law to a wife , who is not excluded by express paction ; or is not provided to as much as will be eqvivalent to the terce * ; which terce is constituted by an inquest , who upon a brief out the cbancellary , directed to the sberriff , or other judge ordinary , doe serve her to a terce ; upon which service , the judge to whom the brief was directed without retouring it , divids the land betwixt the heir ; and relict , and expresses the marches in an instrument , and this is called to kenne her to her terce ; the marches being kenned by the instrument ; and though the service gives her right to the meals and duties ; yet she cannot remove tennents , till she be kenned , as said is , the kenning being equivalent here to the seasin in lifrents . this brive contains two points ; first , that the bearer , was lawful wife , to the defunct and secundo ; that he dyed infeft in such tenements , but if the relict was holden and reput lawful wife , in her husbands life ; no exception in the contrary will stop the service † . there is no terce in burgage lands , feu duties , or other casualities , nor in reversions , tacks , nor patronages . the courtisie , is a liferent , granted by law , to him who married an heritrix , of all her heritage , and of that only ; it needs neither seasin , nor other solemnity to its constitution ; but is ipso jure , continued to him ; if there were children procreated of the marriage , who were heard to cry ; though the marriage disolve within year and day . all these liferenters are obliged to find caution to preserve the thing liferented , and to leave it in as good condition as they found it , which is called cautio usu-fructuaria ; and they are also bound to aliment the appearand heir if he have not aliundi , to aliement himself * . if liferenters survive martinmess ; or if they die upon martinmess day , in the afternoon ; their executors will have right to the whole years rent , whether it be land rent , or the rent of a mill ; albeit the conventional termes were after martinmess ; but if liferenters labour the lands themselves , their executors will have right to the whole rent thereof , albeit they die before martinmess . title x. of teynds . teynds * , being a burden affecting lands , fall in to be considered in this place . teynds are designed to be that special and liquid proportion , or quota of our goods , and rents lawfully acquired that is due to god , for maintaining his service . it seems our law has followed the opinion of those divines , who think , that some proportion of our goods is due by divine right ; for we say , that teynds are the spirituality of the churches revenue ; but that the proportion is not iuris divini ; for we alter the proportion by special laws and customs ; though for distinctions sake we call this proportion the tenth . by the canon law , they are divided into personal teynds , which arise out of the personal gaine and profites , that a man has by his trade ; predial teynds which aryse from the natural product of the land that men possess . and mixt teynds which arise from the profites , that men by their personal industrie make out of their lands . they are likewise divided into parsonage teynds , which are due to the parson ; and viccarage teynds , which are due to the viccars ; and regularly all teynds are due to the incumbent , who serves the cure ; so that if the incumbent be a parson , he has a right to the parsonage teynds ; and if he be a viccar , he has right to the viccarage teynds . the teynds of corn , are called parsonage teynds , or decimae garbales ; and the fifth boll of the free rent is still teynd with us ; and all land must pay teynd ; except they be such as have been feued out of old by church men , before the lateran council , by which they were prohibited to alienat the teynds , and who had right both to stock and teynd ; and where the teynds were never known to have been separated from the stock . some monks likewise got particular exemptions from paying teynds , for these lands which they themselves did bring in , and cultivate ; and with us the priviledges granted to temple lands , which belonged of old to the knights of st. iohn , a religious order ; and to the monks of the cisterian order , are continued to those who have right to their lands , with that exemption : manses , and gleibs , are likewise free from payment of teynds . viccarage teynds , are called the small teynds with us ; because they are payable out of inconsiderable things , such as lambs , wool , cheese , eggs , &c. and they are said to be local ; because they are payed according to the custome of the place ; so that in the same parishes , some heritors , will be lyable for viccarage teynds of different kinds ; for though no man can prescrive a liberty from payment of parsonage ●eynds , since the lateran council ; yet , as . years possession is a sufficient right to a minister , for viccarage teynds ; and as it does determine the quota , as well as the species of viccarage teynds ; so by . years freedom , the heritour is secure in all time coming , from payment of viccarage teynds . when popery was supprest , all the lands belonging to monks , and others , were annexed to the crown , in anno * but the teynds belonging to them were not annexed ; these being acknowledged by our law , to be the patrimony of the church ; and they are therefore called , the spirituality of the benefices . the monastries of old , having gotten several parish churches mortified to them ; whereby they had right to their parsonages teynds ; such as got those monastries disponed to them , erected in their favours , became thereby to have right to other mens teynds ; and great emulation as well as prejudice arising from mens not having right to lead their own teynds . king charles the first , did therefore prevaile with all the the saids titulars of erection , to submit what should be payed them , as the price of the saids teynds ; and his majestie did determine , that the rate of all teynds , should be the fifth part of the constant rent ; where the stock and teynd were accustomed to be set joyntly ; but the fourth part onely where the teynds were usually set separate from the stock ; a fifth part being deduced by the king in that case ; because ordinarly church-men used to draw too great a proportion ; and this deduction is therefore called the kings ease ; as also , that the saids teynds being valued , should be bought at nine years purchase * . for effectuating this determination , the parliament . appointed some of their own number , to value the saids teynds , and after a process for valuation is raised , before these commissioners , in which the titular his tacksman , and the minister ; are to be cited , the heritor in the mean time gets the leading of his own teynds . the probation is ofttimes allowed to both parties in this court ; and where one party is preferred , it is called ; the prerogative of probation ; and is much contended for ; and is thus regulated , viz. either the teynds are drawn ipsa corpora , by the titular , or tacksman ; and then they have the sole probation allowed them , to prove what the teynds were worth . ( they proving that they led seven years of . before ; ) or else they have rental bolls payed them ; & eo casu , they have the sole probation likewayes , they proving . years possession of uplifting rental bolls , condescending upon quantitie and qualitie ; or tertio , the heritors have tacks of their own teynds , for payment of silver dutie ; and then there is joynt prabation allowed both to heritor , and titular . ecclesiastick persons , such as bishops , parsons , &c. submitted only what they were not in possession of ; and therefore , there can be no valuation led of any teynds , parsonage , or viccarage which they were actually in possession of ; but by a letter from his majestie thereafter in anno ; it is declared , that ; if there teynds be set to tacksman , they may be valued during the tack ; whereas the teynds they were in possession of cannot ; though teynds holden of collegiat kirks may be valued ; and so may be bought and sold. the burrows are onely decerned to sell the superplus , of the teynds they had right to , over and above what was due for the intertainment of their ministers , colledges , schools , and hospitals . after the teynds are valued , and the titular decerned to sell ; or if the titular be willing to sell without a decreet ; the heritor is infeft ; and seased by the titular , who in the disposition , or charter reserves to himself relief of the kings annuitie , and of all imposition ▪ laid or to be laid upon teynds ; and warrands only from his own , and his predecessors facts and deeds ; and on the other hand the heritor who has got a decreet of valuation and not of vendition ; is obliged to infeft the titular ; for securitie of the valued bolls . by the foresaid decreet arbitral , the several parish kirks were to be provided ; and therefore the titular might allocat any one heritors teynds , for provision of the minister ; and so he was excluded from the priviledge of buying , whereas , it had been much better , that the stipend had been proportionably laid upon all the heritors . teynds are not debita fundi ; and so singular successors are not lyable in them ; but yet the minister has so far a taci● hypothique , that he may exact his modified stipend from any of the heritors ; as far as hi● teynds will extend , reserving relief to that distressed heritor ▪ and if the heritor sell his crop , the merchant , who buyes the same will be lyable ; but tennents will not be lyable , if they pay a joynt dutie payable to thei● master for stock and teynd . when the tack of teynd ▪ expire ; the titular needs no● use a warning against the tacks-man as in lands ; but he raise● and executes an inhibition against the tacksman , whic● interrupts tacit relocation , fo● that and all the subseque●● years , after which the introme●●tors , are lyable to a spuilie . the parliament . did after the said submissions and decreet arbitral , grant to his majestie an annuitie out of all teynds ; except those payed to bishops , and other pious uses ; viz. ●en shilling out of every boll of teynd-wheat ; out of the boll of the best teynd-bear , eight shilling ; out of oats , peas , and rye , six shilling , where the boll of these grains did yield a boll of meal ; and where the rent consists of money , six merks out of every hundered ; and this annuity is debitum fundi ; but not being annext to the crown , it may be , and is ordinarly bought by the heritors , from his majesties theasurer , or others having right from the king. title xi . of inhibitions . property , and real rights , with the burdens affecting the same , being explained : it is fit now to treate of legal diligences , by which these rights may be ●victed , or the free use and disposal thereof restrained ; which diligences are chiefly three , inhibition , comprysing , and adjudication . inhibition , is a personal prohition , by letters under the signet , discharging the partie inhibit to sell , dilapidate , or put away any of his lands , in prejudice of the debt due to the raiser of the inhibition ; the ground and warrand thereof is an obligation , or bond for doing and performing any thing ; or a depending process ; and if these inhibitions be not raised upon legal and relevant grounds , they may be reduced . inhibitions reach onely heritage , but not moveables ▪ though the stile thereof runes equally against both ; but moveable bands may be reduced , in so far as they may be the foundation of real diligences to affect heritage ; and they extend only to posterior voluntary rights granted after inhibition ; but not to apprysings , or adjudications , though led posterior to the inhibition , if the ground thereof was anterior ; neither do they extend to posterior dispositions , and infeftments depending upon prior obligements ; either general or particular , for granting of these rights ; nor to renounciations of temporary rights ; albeit posterior to the inhibition , these being necessar upon payment . but by a late act of sederunt * , if the creditor intimat by way of instrument , to the person having the right of reversion , that the wadsetter , or annualrenter , stands inhibit at his instance ; and does produce in presence of the parties , and notar , the inhibition duly registrated ; the lords will not sustaine renounciations , o● grants of redemption ; although upon true payment ; unless there be a declarator of redemption obtained , to which the inhibiter must be cited . the way of executing inhibitions is , that the same must be by a messenger against the person inhibit , personally , or at his dwelling place , and at the mer●at cross of the head burgh of the shire , stwartry , or regalitys where the person inhibit dwells * , and after crying of three several oyeses , and publick reading of the letters , the whole leiges are discharged to purchase any lands or heritages , from the person inhibit ; and the messenger leaves or assixes a coppy of the letters at the mercat cross ; all which most be written in a paper , and subscrived by the messenger and by two witnesses * ; which write , is called the execution of inhibition ; and there ▪ after the letters and executions thereof must be registrated within dayes , after the execution thereof ; either in the general register at edinburgh , or in the particular register of the iurisdiction , where the person inhibit dwells ; or the major part of the lands lye * ; and if any of these acts be omitted the inhibition is null , these being de solenitatibus instrumenti . title xii . of comprisings and adjudications . the fie being thus settled in the vassal it may be either taken from him , and evicted for his debt , or his crimes ; the first , is , by apprysing , and adjudication , and the last , by confiscation and forefaulture . apprising proceeds by letters charging the debitor to compear before a messenger , ( who is by the letters made iudge ; and sherriff in that part in place of the sherriff of the shire , whose office properly it is * ) and to hear the lands specified in the letters , apprised by an inquest of . sworn men , and declared to belong to the creditor for payment of his debt ; but because our law thought it not just that a mans land should be taken from him whilst his moveables could pay his debt ; therefore , in the first place , the messenger who executes the letters must declare , that he searched for moveables ; and because he could not find as many as would pay the debt ; therefore he denounced the lands to be apprised on the ground of the lands , and at the mercat cross of the shire , stewar●ry , or regality where the lands lye , and left coppies both on the ground , and at the cross. at the day appointed by the letters , the messenger who is made sherriff in that part , fences a court , and the debitor being called , his lands is offered to him for the money ; and if the money be not ready : the inquest finds that the debiors lands should belong to the creditor for his payment , and this is called a decreet of comprising ; and the most part of the inquest affixes their seals thereto ; upon which the compryser gets a charter past in exchequer , and is infeft by precepts out of the chancellary ; if the lands hold of the king ; and though of old , land apprysed , was proportioned to the money ; yet thereafter whatever land was ●ought to be apprysed was accordingly apprysed ; though farr exceeding the sum in value , because seven years was given ( which was thereafter prorogate to ten * ) for redeeming the land by payment of the true sum , and this is called a legal reversion ; because the law gives it to the debitor ; and if it be not redeemed within that time , the land belongs to himself for ever ; but that legal runs not against minors ; because they want iudgement to know their hazard ; so that they may redeem at any time before they be . years compleat ; but if the comprysing expyre during their minority ; the compryser will thereafter have right to the whole mails and duties , albeit exceeding his annualrent ; but that part of the act is altered by a posterior statute , and the appryser is restricted to his annualrent during the minority of the debitor * . if a minor succeed to a minor , whose lands are apprysed , he has right to redeem , as if the comprysing had been led against himself ; but if a major succeed to a minor , after the legall is expired , he hath onely year and day to redeem ; and if the seven years be unexpired in the minors time , the major may redeem within these years that are not run : and if the rent of the lands be not correspondent to the annualrent of the money ; whoever has right to the reversion , whether major or minor , must satisfie the whole sums and annualrents resting before he can * redeem ; but the compriser during the legal is restricted to the annualrent of the sums due to him ; and the superplus of his intromission will be imputed in payment of his principal sum ; and if he be payed by intromission , within the legal of his whole principal sum , bygone annualrents , and expenses , with the composition payed to the superior , the comprising expires , ipso facto * . though the supiriour be not regularly obliged to receive a singular successour ; yet least by collusion betwixt the debitor and his superiour , the true creditor should be unpayed ; therefore by a special act of parliament , the superiour is forced to receive a compryser upon payment of a full years duty of the land * , and he gets no more from all ; though many comprisers charge him to receive them ; but if the superiour pleases he may retain the land to himself , he paying the debt . the first comprising , without seasin , carryes right to all tacks , reversions , and other rights , which require no infeftment ; and all posterior comprisings need not seasin ; because they carry onely the right of reversion ; but yet ordinarly second apprisers do infeft themselves , because the first may be null , or become payed ; or the first compriser may lye out from seeking meals and duties ; or the second compriser would remove tennents , which none can pursue without being infeft , but the superiour comprising needs no infeftment . after denounciation of the lands to be apprised , the debitor can do no voluntar deed by disponing , or resigning ; ( because else he might frustrate the diligence ) except he was before denounciation specially obligedto dispone or resigne . in a competition amongst apprisers , the first infeftment , or charge against the superiour is alwayes preferred ; and if the first compriser did diligence to be infeft , but was stopt by collusion , as if the superiour to gratifie the second compriser , should unjustly suspend the first ; albeit the second appriser be first infeft , yet the first appriser having done diligence by charging , the superiour will be preferred to the second appriser first infeft . the compriser during the years of the legal is not obliged to enter to the possession , but if he once enter he must be comptable for the meals and duties though he leave off to possess ; but if the meanest part of the sum be unpayed after the expyring of the legal , the whole land comprised belongs to the compriser without consideration of what he has intrometted with ; to prevent which the debitor , or a second , or any posteriour compriser , who has comprised the right of reversion , does before the legal expire , require the compriser to compear at any day , or place , to receive his money , in so far as he is not payed by his intromission ; and having consigned the same accordingly at that day , he raises an action of compt and reckoning before the lords of session ; and if it be found that he is payed by intromission , and the money consigned ▪ the lords decern the comprising to be payed , and extinct ; nor needs the debitor get new seasin ; for the former right revives ; since the fie was still in his person , upon condition , that he would pay the sum within the legal . in this compt and reckoning , the compryser will get allowance of the sherriff fie ; which is the twenty penny of the sum that was comprysed for , and of the entrie payable to the superiour , though the appryser truely payed neither ; but he will not get payment of a chamberlane fie for taking up the rent ; except he really payed it . all apprisings led since the first of ianuary , . within year and day of the first effectual comprising by infeftment , or charge against the superiour , come in pari pasu , as if they were all contained in one apprising . but the posterior apprisings within year and day ; must pay their proportion of the expenses of the infeftment , and composition given to the superiour by the first appriser ; because appearand heirs did frequently acquire rights to expired apprisings against their predecessours , by which they bruicked their ●state , without paying his debt , to the ruine of lawful creditors ; therefore , our law did very justly ordain , all such apprisings to be redeemed for the sums truely payed out by the appearand heir ; which proceeds , albeit the appearand heir acquire these rights in his predecessours lifetime . but if the expired apprising was acquired gratis , by the appearand heir , the same is onely redeemable by the creditors , for the sums contained in the apprising * . because the parliament thought it exhorbitant to take the greatest estates for the smalest sums , and to make a messenger iudge in affairs of so great importance . therefore in anno . this way of comprising was altered , and in place thereof the creditor now gets land adjudged to him by the lords of the session , proportionally to th● sum● due to him for obtaining in●eftment , with a fifth part more ; because the creditor is obliged to take land for his money ; which adjudication coming in place of comprisings is perfected by charter and seasin , as comprisings ; and the superiour is obliged to receive the adjudger * ; but it is redeemable onely within five years by majors . if the debitor compear not to concur for compleating the adjudgers right , by giving him a progress , & transumpts of the evidents , and ratifying the decreet of adjudication ; then the whole lands may be adjudged , as they were formerly apprised ; it being unreasonable ●o s●rce a man to take proportional land for his money , and yet to be unsecured even for that proportion ; and they are redeemable within ten years ; ( these adjudi●ations being now come in the place of apprisings ) , and have the same priviledges and restrictions which comprisings had by the act of parliament , made concerning debitor and creditor , in * anno . but if the creditor attain possession upon his comprising , or adjudication ; he can use no further execution against the debitor , except the lands be evicted . there are other two kinds of adjudications , allowed by our law ; the first is , when the appearand heir of the debitor is charged to enter heir ; and renounces to be heir ; the creditor having obtained a decreet , cognitionis causa , fo● constituting the debt , wherein the appearand heir is onely pursued for formality ; but the decreet can have no effect personally against him ; the hereditas j●cens will be adjudged to the creditor , for payment of the debt due by the defunct ; which if it be liquid , and instantly instructed ; the pursuer in the same process protesting for adjudication , the same will be allowed to him , summarly without necessity of any other decreet , cognitionis causa . these adjudications are redeemable within seven years , at the instance of con-creditors , one after another , who have likewise obtained decreets of adjudication ; and a minor renouncing to be heir , may be reponed , and allowed to redeem upon payment * . and if the superiour be charged to infeft the adjudger , he will get a years rent for composition , as in comprising * . adjudications , carry right to all which would have fallen to the heir ; as all heritable rights , and the whole bygone rents and duties , since the defuncts death may be adjudged ; because these belonged to the heir . there is another kind of adjudication competent by our law ; that is for performing any obligement which consists in facto , and relates to particular dispositions ; or obligements to infeft and after diligence used by decreet , and registrated horning against the disponer , and his heir , for making the same effectual : the lords will adjudge the lands disponed to the pursuer as a remedium extraordinarum there being no other remedy competent . this adjudication extends no farther than to the thing disponed ; and hath no reversion ; nor does it require charges to enter heir , or renounciation ; but the authours right must be instructed . confiscation will be handled in the title of cryms , and criminal processes . the institutions of the laws of scotland . part third . title i. of obligations , and contracts in general . having thus cleared real rights ; we will now proceed to treate of obligations , and personal rights . an obligation , is de●ined to be that legal ●ye ; whereby we are bound to pay , or perform any thing . the chief division of obligations by the civil law , and ours , is , that some are natural ; because they arise from the principles of right reason , or laws of nature . some civil , because they arise from positive laws , or municipal customs . another considerable division of obligations is , that some arise from contracts ; some from deeds , resembling contracts ; some from malefices , and some from deeds which resemble male●ices , ex contractu , aut quasi contractu ; ex male●icio , aut quasi male●icio ; for we become equally tyed and obliged to men ; either by contracting expresly with them ; or by doing some deed which induces an obligation without an expresse paction ; or by committing malefices against them . a * contract is an agreement entered into by several persons , inducing an obligation by its own nature ; * and the obligations arysing from contracts , are divided and distinguished , according as they are perfected , either by the sole consent of the contracters ; or by the intervention or tradition of things ; or lastly , by word or write ; hence is that remarkable division of contracts in the civil law , qui re , verbis , literis , aut concensu perficiuntur . the contracts which depend upon things , are these which arise either from borrowing ; ( which comprehends indebite solutum , ) or from loan ; or from depositation ; or from impignoration ; and are called mutuum commodatum , depositum & pignus . * borrowing , or mutuum , is that contract , whereby a man getting any thing from another , is obliged to restore him not the same thing that was borrowed , but the equivalent ; or as much of the same quality in measure , number , or weight ; as when one borrowes a thousand pounds , the receiver obliges himself to restore not the same ; but another thousand pounds ; and therefore the propertie of the thing borrowed , being transferred from the giver to the receiver ; the receiver runs the hazard of all the losse that the thing borrowed can sustain , after it is delivered : this contract is most strictly interpreted , so that nothing is understood but what is clearly exprest . * loan , or commodatum , is that contract whereby a man gets the loan of any p●rticular thing gratis , for some special use , and obliges him to restore the same thing in specie ; and not the equivalent ; as when a man gets the loan of a horse , or coach ; and because in this case , the propertie remains with the lender , therefore if the thing lent be lost , or perish by chance , the losse redounds to the lender ; for the thing is still his ; but if the thing be lent meerly for the advantage of the borrower , he is lyable to do most exact diligence ; and therefore , if the thing perish , or sustain any prejudice for want of exact diligence the borrower must make up the same ; but if the thing was lent for both the borrower and the lenders advantage , then from the same principal of natural equity , the borrower is only obliged to do such diligence , and to be so carefull of the thing borrowed as he would have been of his own . in this contract , the receiver is obliged to restore the same species in as good condition as he got it ; and the lender is obliged to pay the receiver any considerable expense , that he necessarly bestowed upon the thing borrowed , the law not allowing inconsiderable expenses ; because , the borrower has the use of the thing , which should compense these . precarium , is , when any thing is lent to be called back at the lenders pleasures , wherein it differs from commodatum ; which imports alwayes a determinate time for making use of the thing lent depositation , is that contract which is entered into by one mans delivering any thing , into the custodie of another to ●e k●pt gratis for his use ; and therefore , because in this contract , the propertie remains with him , who did depositate the thing , if it be lost , it is lost to him ; and since depositations are made for the behoove of him who does depositate ; therefore , the depositar ( for so we call him , in whose hand the thing is depositated ) is only lyable if the thing depositate , was lost by the depositars dole , or gross fault ; nam d●●ositarius tantum prest●t dolum , & latam ●ulpam ; yet inns-keepers , s●ablers , and masters of ships , are lyable to most exact diligence , in preserving the goods of travellers and passengers , which they bring into their houses , and ships , and to repair and make up all the loss they may sustain , while they are in the inns , or ships , whether the prejudice come by the servants , or mariners , or by strangers , which special kind of depositation , is introduced by equity , contrare to the common rules of depositation , and which we have immediately from the civil law , and edictum praetoris , intituled , na●tae caupones stabularii , &c. as in this contract , the depositar is lyable to restore the same thing that is depositate , and not the equivalent ; so the depositor is obliged to pay the depositar what he bestowed upon it , whilst it did lye beside him , for generally a gratuitous office , ought to prejudge no man. but he cannot crave compensation upon any debt due to him by the despositar , which is singular in this contract . pledge , is the contract , whereby one man gives to another any thing , for the receivers security for what he owes him , to be redelivered upon payment ; and therefore , because the thing it self in specie , is to be redelivered ; if it perish during the impignoration , by the gross fault or fraud of him who receives the pledge , it perishes to the impignorator ; and because impignorations are made for the advantage both of the giver and receiver , ( the one being concerned to get money , or some such thing upon the pledge , and the other to get a pledge for security of his money ; ) therefore he who receives the pledge , is lyable to do such diligence for preserving thereof as prudent men use to do in their own affairs ; but he is not lyable for culpa levissima ; the contract being for the behoove of both parties ; and he will have repetition from him ; for what he profitably bestowed upon it during the impignoration . sometimes what is impignorated is not delivered , and then the pledge is called an hypotheque , and the law sometimes makes such ●acit hypotheques without express paction , as where it makes the ●orn growing upon land , or the goods brought in to the house , that was set in tack , to be lyable to the heritor for payment of his rent . if one man payes to another more than is due to him ; or what is not due at all , the law allowes to him repetition of what was unjustly payed ; and this is called ( condictio indebiti ; ) because by paying to you , i oblige you really and in effect , to repay what shall be found not to be due ; or to have been payed more than was really due ; but since this obligation arises from the payers ignorance , therefore if he knew that what he payed was not due , he will not get repetition ; but what he payed will be lookt upon , as a donation , but it must be ignorantia facti , for ignorantia juris availeth no man ; and since this repayment is only allowed by the principles of natural equity ; therefore if what was payed was due in equity , though it was not due by positive law , the payer will not get repetition . title ii. of obligations by write , or word . some obligations , require write , to make them binding ; whereas others require write only by way of probation , that is to say , cannot be proven without write , though they be valid , and binding without it . all obligations for transmitting the reall right of lands , do so far require write of their own nature ; that though the bargan be solemnly and clearly ended , by verbal transaction ; yet there is still place to resile , or locus penetentiae , till the write be signed . though verbal promises do● by our law , bind the promiser ; yet because the position and import of words may be easily mistaken by the hearers ; therefore verbal obligations or promises can only be proven by oath of partie , and not by witnesses , though the sum be never so smal . because , mens subscriptions may be easily counterfitted ; therefore by an express statute with us , no obligation though in write for more than lib. is valid ; except it be signed in presence of two subscriving witnesses , if the partie can write ; or by two notars , and four witnesses ; if the partie cannot write * ; except the write be holograph ; and that the writter and witnesses be specially designed * ; and though the subscriving by two initial letters be sustained , where it is proved that the subscriver was in use so to subscrive ; yet the granters mark is not sufficient , except the verity of the affixing that mark be referred to the granters oath . such is the favour of commerce , and such expedition it requires , that upon its account , bills of exchange are sustained ; though they be not signed before witnesses ; and delivery of goods , upon bargans are sustained to be prov'd by witnesses ; though there be no write ; and such is the favour of contracts of marriage ; especially where they are become nottour by the subsequent marriage , that they are sustained though there be no witnesses . by our law , an obligation in write is not binding ; except it either be delivered , or dispense with the not delivery ; by a special clause therein ; nam traditione transferuntur rerum dominia ; but tradition is not requisite in mutual contracts ; and if the write be in his hand , in whose favours it is made , it is presumed to have been delivered ; and cannot be taken from him upon the pretence of not delivery ; except it be referred to his oath that it was never a delivered evident by the granter . title iii of obligations , and contracts arising from consent , and accessory obligations . though all contracts require the consent of the contracters ; yet there are four , viz. emption , location , society , and mandat ; which are said in a more special way to arise from consent ; because these contracts are perfected by meer consent of parties , without any further solemnity , or tradition ; and thus how soon two parties agree , concerning the price of any thing that is to be sold , that contract is by meer consent so far perfected , that he hath the seller precisly obliged to deliver the thing bought and perfect the sale ; albeit the dominium or property be not transferred , but remains with the seller untill delivery ; and if the thing bought perish without the sellers fault , even before delivery , the losse is the buyers , in respect of the personal obligement upon the seller , to deliver it , and the buyers right is established even before tradition ; and though earnest , or arles be given as a symbole or mark of agreement ; yet the consent without the earnest or arles ( as we call it ) compleats the bargan ; and if the earnest be in current money , it is to be imputed as a part of the price . in this contract of emption and vendition , their must be a price , consisting in numerate , and down told money ; for if one thing be given for another the law calls that contract , permutation , or excambion , and not emption , and vendition ; and this price must be certain and definite ; but if the price be referred to another , the bargan will subsist ; except that third partie , to whom it was referred , either will not , or cannot determine the price . location and conduction , is a contract , whereby a hyre is given , for the use and profite of any thing , or for the work of persons ; it differeth from emption and vendition , chiefly in this , that the designe of that contract is , to transferr the property ; but in location the property remains with the setter . this contract , being entred into by the mutual consent , and for the advantage of both parties ; the conductor is only lyable , to use and adhibite a moderate diligence , for preserving the thing set ; that is such diligence as prudent men , adhibite in their own affairs ; so that if the same perish without his gross and supine negligence ; or fraud , he is not lyable to make it up to the locator . location or setting of lands for a certain hyre , ( called the tack-dutie , ) is frequent in scotland ; and it is to be observed that if the ground yield no increase , but is absolutely barren , without the fault of the conductor ; the hyre will not be due , since that was given for the profite and use of the ground ; but if there be not an absolute sterility ; and that the land yield some profite , though never so little ; the hyre will be due , if the profite but exceed the expence of the labouring . from this contract there arise two actions , the one whereby the conductor is obliged to pay the hyre agreed unto ; and to restore the thing set after the end of the location , in as good condition as he got it . the other is an action whereby the locator is bound to refound to the conductor , the necessary expenses imployed upon the thing hyred , during the location . vide supra , part . title . society , is a contract , whereby several persons obliege themselves to communicate losse and gain arising from the things common in the society . all the partners in the society , do by the nature of this contract share equally ; except it be otherwise provided ; and if either the share of the gaine or losse be expressed , the one regulates still the other ; but because some mens pains are of as great value , as other mens money , therefore it is lawful and consistent with the nature of society to contract so , as that one may have the half of the gain , and no losse ; but the contract would be null , if it were provided , that one should have all the gain and no losse , for there could be no compensation , though the other were never so skilful . by this contract , all the partners are obliged to advance for the affairs of the society , according to the shares they have in it . the society is extinguished , and the persons who entered therein loosed therefrom by the death of any of the partners ; or by their becoming insolvent ; except it be otherwayes provided ; for this is a personal contract , wherein men respect the humour and industrie of one another ; and so this contract is disolved , by the simple renounciation of any of th● partners ; so that every one has a negative vote , and if the society be entered into , with this condition , that it should not be dissolved at the option of any of the partners ; the law did reprobate such pactions ; and from the same principle likewise it is , that partners in a society , are not lyable for further diligence , then they used to adhibite in their own affairs ; for having voluntarly choosed one another for partners ; it is presumed they are satisfied with one anothers diligence , the contract being entered into for the behoove and profite of all the partners . * mandate , is that contract whereby one employes another to do , or manage any business ▪ gratuitously ; for if he who is employed get a reward , it is not properly a mandate , but locatio operarum , or a seeing of the person so employed ; but yet if the receiver of the mandate has been at any expense upon the account of the mandate , the employer must pay it . he who receives the mandate is obliged to execute the same , according to the rules prescrived by the employer , and not to exceed the bounds of his mandate ; and therefore if titius imployed seius , to buy him , such a particular piece of land for lib. titius is obliged to ratifie his bargan ; though he buy it for lib. because ten comprehends nine ; but if he pay lib. for it ; he is not obliged to ratifie the bargan ; because he exceeds the bounds of his commission . mandates , expire either by the revocation of the employer , if the thing or business in which he was employed be intire ; or by the death either of the person employed , or of the employer , or by the renounciation of the person employed ; but in all those ●ases ; if the thing undertaken be not intire ; the person employed may and must proceed to execute the mandate , ●otwithstanding of the revocation , death , or renounciation . mandatars are lyable for exact diligence , & culpa levissima ; because albeit the mandate be only gratia mandantis , yet the very nature of it implies diligence . mandates , are either express arising , from express consent ; or tacit , which are inferred by signs and ta●iturnity ; as for instance , if a person present suffers another to act in his affairs ; he is understood to give him thereby a tacit mandate . secundo , mandates are either general for managing all affairs ; or special , for doing some particular business , conform to the precise tenor of the commission ; & albeit general mandates contain a most ample power of administration ; yet they are not extended to committing of crimes : or , secundo , to donations ; albeit where there is any probable cause , gratifications may be allowed ; which will be regulate secundum arbitrium boni viri ; this being contractus bonae fidei , which implyes exuberant trust . tertio , no general mandate will imply a power to alienate immoveables ; or to submit or transact any litigious business . quarto , if in the general mandate some speciall cases are exprest , it will not be extended to cases of greater importance , than those exprest . the great favour of commerce , has introduced another kind of tacit mandate ; by which exercitors of ships , and prepositors are obliged by the contracts of the masters of the ships , and of the institors , in relation to the ships and voyage ; or to the particular negotiation wherein they are intrusted . exercitor , is he to whom the profit of a ship doth belong ; whether he be the owner , or hath onely freighted the ship : the master is the person intrusted with the charge of the ship , who has power to oblige the exercitor , by contracting for the reparation , and out●igging of the ship ; and in matters relating to the voyage . institors , are intrusted with particular negotiations at land , such as keeping of shops , &c. and they oblige their prepositors , in relation to the affair wherein they are intrusted , as exercitors are in maritim affairs . neither the masters of ships , nor institors , need show their commission , but their being in the office is sufficient to oblige the exercitors , and constituents . and if there be many exercitors the masters contract obliges them all in solidum ; albeit what was borrowed be not employed for the use of the ship ; only it must be known to the lender , that the ship stood in need of such reparations ; and the facts of the institors , will oblige their constituents of whatsoever sex or age they be ; and even though they be pupils , minors , or wives , who cannot validly oblige themselves ; for they have themselves to blame who intrusted such persons . as all those obligations and contracts arise from express consent , so others arise from tacit consent ; such as homologation ; as for instance , though a man be not obliged by a bond granted in minority ; yet if he pay a part of it , or annualrent for it , after he is major ; the obligation is thereby homologated or own'd , and becomes valid ; not from the time of the homologation , but from the date of the write ; and therefore it is fit that such as design not to own , null , or invalid deeds , should abstain from doing any thing , that may inferr an approbation of them ; but because homologa●●on , is actus animi , therefore it should not be proven by witnesses . because all obligations , cannot be bound up under general and regular names of contracts ; therefore the law allows some obligations , to pass under the name of quasi contractus ; because they have the resemblance , and are of the nature of contracts ; and these are negotiorum gestio , whereby if any person manage your business advantagiously for you ; you are lyable to him for his expense ; though you gave him no mandate ; least such as are absent should be prejudged by the negligence of their friends ; as the manager is lyable to refound to the person whose affairs he managed , any prejudice done to him since , else any man might be invited officiously , to middle in another mans affairs to his disadvantage , but this is to be understood , si in utiliter gesserit ; otherewise if he acted profitably ; albeit the event do not succeed , he will get his expenses . the other quasi contractus , are tutorie , communion of goods , entering to be heir , the obligation of repayment that arises upon payment of what is not due ; for if one be tutor to you , he enters in a kind of contract with you , whereby he is bound to administrate your affairs , and you are bound to pay him his expense ; but of all these i have treated elsewhere in their proper places , as i shall do of malesices , and and what resembles them , when i come to treat of crims ; of which these may be properly said to be branches . having thus treated of principal obligations ; the only accessory obligation that i need mention is cautionary ; whereby one man becomes surtie for another ; either to pay a sum , or perform a deed ; betwixt which two , there is this difference , that these that are cautioners for a sum , if they be bound conjunctually and severally , with the principal debitor ; may be pursued without pursuing the principal : & quoad the creditor they are principals ; but these who are cautioners for performing of deeds ; as cautioners for executors , and for curators , or factors , or for messengers , cannot be prusued till the principal be discussed , for they being only obliged , that their principals shall compt , or be honest ; therefore they cannot be lyable untill the principals first be cited to compt in the one case ; or to answer for their delinquencies in the other ; and they are onely lyable to make up what is wanting from their principals after they are discust . because cautioners for sums are lyable as principals ; therefore their obligation may subsist ; though the obligation of the principal partie be found null , or reduced by any priviledge given to the principal by law ; as if a man become caution for a minor ; or for a woman who is married , nam sibi imputet , who became a cautioner for such ; but if the obligation was absolutely null in it self ; as if the principal did not sign , then this obligation because it is but accessory , retains so much of its own nature as to free the cautioner . cautioners , are to get relief from their principals , not onely of the principal sums , and annualrents ; but of all dammage , and interest ; and whether the same be provided by the bond or not ; and where there are many co-cautioners ; they are lyable in solidum , quoad the creditor ; but if any of them pay the whole sum to the creditor ; though he get assignation from him to the whole ; yet he must onely seek his relief from the other cautioners , with deduction of his own part ; which proceeds ; albeit there be no clause of mutual relief in the bond ; and they must communicate to their co-cautioners , what ease they get by way of transaction from the creditor ; but if they get the said ease by a meer ratification , as by donation , &c. then they are not bound to communicate what ease they get ; for a creditor may justly gratifie one of his cautioners as his friend , or relation , without being obliged to gratifie the rest . to make obligations effectual , it is necessar that the subject matter thereof be such as will admit of an obligation ; for , no man c●● oblige himself , to do what is either impossible , unlawful , or dishonest ; nor to transmit the property of things sacred ; ( these not being in comercio , ) and albeit when the performance of obligations becomes imprestable , the party is lyable for the value , as dammage and interest ; yet in these the value is not due , nor will he be lyable in a penalty , in case of not performance . but yet a man may oblige himself , to do something not in his own power , as to cause another dispone lands ; and if he fail , he will be lyable pro damno & inter esse ; or for the penalty . amongst obligations , donation is also reckoned , which is an obligation proceeding from a lucrative cause or title ; for he who voluntarly , and gratuitously promises to give any thing , is thereby obliged to deliver the same ; and this voluntar giving , is called , a donation , which is in law defined to be a meer liberality proceeding from no previous eompulsion . it may be perfected either by write , or without it ; but if without write , it must be proven by oath . donations , are either simple , remuneratory , or mortis causae , that is to say , donations made in contemplation of death . a remuneratory donation , called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is when a man bestowes any thing not gratuitously , but to requite and repay some good deed done , or to be done to him ; and so is not purely a donation . a donation in contemplation of death , is , when the giver designs rather the person to whom he gifts to have what is gifted , than any other ; but wishes himself to have it , rather than him to whom he gifts it : and therefore , though pure donations are not revocable , yet a donatio mortio causa is ; being of the nature of a legacy ; and no donation is presumed to be donatio mortis causa , except it appear to be so , either expresly , or by strong presumptions , that the thing gifted , was onely gifted in contemplation of death . gifts , being a meer liberality , are not presumed ; and therefore by our law , debitor non praesumitur donare quam diu est debitor : but this being onely a praesumptio iuris , may be taken off by stronger arguments , justly inferring , that donation rather than payment was designed . title iv. of the dissolution , or extinction of obligations . having cleared how obligations are constitute ; it remains now to consider how they are taken off , and extinguished ; which is either by a contrary consent , or by implement and satisfaction . since consent is necessary to the constitution of obligations , so a contrary eonsent , whether by a discharge , or pactum de non petendo ; does dissolve and extinguish obligations ; nam nihil est tam naturale , quam eo genere quidque dissolvere quo colligatum est ; and therefore , if the obligation be constitute by write , it requireth write to the dissolution thereof , which is called a discharge ; and discharges require the same solemnities that obligations do ; but yet , if the obligation was satisfied , via facti , as by intromission with rents of lands , &c. it is probable by witnesses , as all facts are . discharges , are either general of all that parties can ask , or claim ; or particular , of one particular thing or subject : and in general discharges , if any particular thing be expresly discharged therein , the general clause will be extended to particulars of no greater importance , than what is expresly discharged . discharges do ordinarly bear a clause , discharging all preceedings till their date ; and albeit they do not , yet three consecutive discharges , do presume , that all bygones are satisfied , if they be immediately subsequent to one another , and granted by parties , having power to discharge as discharges by heritors , or chamberlains , to their tenants ; and therefore discharges of . subsequent years granted by merchants , who bought the ferm of these years , will not inferr the presumption ; but it will be inferred by discharges for a part of the three years granted by the father , and the rest by his eldest son , as heir ; the discharges being in write , containing a discharge of the whole years rent ; so that partial receipts , albeit they extend to more than the years rent , will not presume , that all preceedings are payed ; neither one discharge for three subsequent terms , or years , the presumption being inferred from renewing of the discharges each year , without reservation . obligations , are extinguished , and dissolved by payment , which is , the performing of the obligation in the precise terms thereof , and is so favourable , that if it be made bona fide , it dissolveth the obligation ; albeit he to whom it was made , had no right ; so payment made to a procurator after the procuratorie was revocked without the payers knowledge , will be sustained ; and payment made to ministers serving the cure , though they have no title to the benefice , will liberat the payers . obligations are likewise fulfilled by acceptilations , which is an imaginary satisfaction , as if it were truely performed , and has the effects and all the priviledges of payment . secundo , by compensation , whereby if the creditor of a liquid sum , become debitor to his debitor , in another liquid sum , the two obligations extinguish each other ipso jure ; and is equivalent to payment in all cases , but if the sums be not liquid , or if a species or body be craved to compense a liquid sum it will not be allowed . tertio , obligations are taken away by innovation , which is , the changing one obligation for another , and if the person of the debitor be changed , it is called delegation . innovation is never presumed except it be expresly mentioned , or that the obligation bears expresly to be in satisfaction of the former . quarto , obligations are extinguished by confusion ; that is to say , when the debt and credit meet in the same person ; as when the debitor succeeds to the creditor , or the creditor to the debitor ; or a stranger to both ; and the reason of the extinction in these cases , is , because the same person cannot be both debitor and creditor . title v. of assignations . all rights , whether heritable or moveable , are transmissiable by assignation ; but if a seasin once be taken , the right is not transmissable by an assignation , but by a disposition ; except liferents , which are transmissable by assignation even after seasin ; because they can admit of no subaltern infef●ments . he who grants the assignations is called the cedent , and he who receives it , is called the assignay . assignation to a right is compleated by intimation ; and therefore in competition betwixt diverse assignays , the first intimation is alwayes preferred ; this intimation is made by a procurator , who takes instruments in the hands of a notar , that such an assignation was intimat , ( so that one man cannot be both notar and procurator ; ) and if after this the debitor pay the cedent , he must repay it to the assignay ; because the cedent was denuded by the assignation ; and for the same reason , the cedents oath will not prove against the assignay if the assignation be for an onerous cause . but if the assignation be gratuitous ; or for the cedents behoof ; or if the matter be litigious , and after a depending process ; in any of these cases the cedents oath , will prove against the assignay . a pursute or charge of horning upon the action assigned , has likewayes the force and effect of an intimation ; but an inhibition against the cedent upon the assignation , will not supply intimation . the debitors private knowledge of the assignation , is not equivalent to an intimation ; but his paying a part of the sum ? or annualrent for it , is equivalent to an intimation ; and much more the writting a letter promissing to pay ; since that is in effect a renewing the obligation . bills of exchange , and orders by merchants to pay , need not be intimated ; because in commerce we are governed by the law of nations ; nor need assignations to reversions be intimated ; because the registration is a publication of them , nor legal● & judicial assignations , such as apprisings , adjudications , and marriage ; and that because they are past , and expede publictly . a blank band is equivalent to an assignation ; and so must be intimated ; and in competition with other rights , it is only preferred according to the date of its intimation , that the receivers name was filled up in it . it is a general principle in our law , that in the competition of moe creditors , the first compleat diligence is still preferred ; and therefore , an assignation is preferred to an arrestment , if it be intimate before the arrestment ; but if the imtimation and arrestment be in one day , they come in pari passu ; except the arrester be in mora , and do no diligence upon his arrestment . title v. of arrestments and poyndings . the ordinary diligences , in our law , affecting moveable rights , are arrestment , which answers to inhibition in heritage , and poynding which answers to comprising in heritage . arrestment is the cammand of a iudge , discharging any person in whose hands the debitors moveables are to , pay or deliver up the same , till the creditor who has procured the arrestment to be laid on , he satisfied . arrestments may be laid on , by any iudge in whose territories the goods are ; or by the lords of the session wherever they lye , and that by special letters of arrestment ; or by a warrand exprest in the ordinarie letters of horning : these letters are execute by a messenger , and if after it is laid on the partie in whose hands it is made , pay ; he may be forced to pay the same over again , or may be pursued criminally for breaking arrestment , the punishment being consiscation of moveables and their persons to be in the kings will * . arrestment can only affect moveable sums , and the ground thereof must be for payment of moveable debts , or sums due on heritable security , if no infeftment has followed * , and it reaches only to the sums already due , or for which the year or term is current . how soon on action is raised against a person , his goods may thereupon be arrested ; and this is called an arrestment upon a dependence ; but this arrestment may be loosed by letters for loosing of arrestment , which passes upon a common bill , and a band of cautionry is given to the clerk of the bills * , wherein the granter of the band obliges himself to pay the sum , if the arrestment be found lawful , and the sums or goods decerned , to belong to the arrester ; but arrestments upon a decreet or ( which is equivalent ) on a registrat band , cannot be loosed at all ; except the decreet be turned unto a libel , that is to say , the lords do only sustain the decreet as a libell or summonds against the defender , or that the arrestment was laid on after the decreet was suspended ; for in either of theses cases arrestments may be loosed even upon decreets . arrestment being but a personal prohibition against the defender to pay , it lasts no longer than the lifetime of him in whose hands the arrestment is made ; except it be renewed against his successors ; but it dyes not with him in whose favours it was raised , nor with him for whose debt it was laid on ; and if the debt be not liquid , the debitors representative must be called to the liquidation . in the competition amongst moe arresters , preference is granted according to the priority even of hou●s ; and the first arrestment is not preferred if the posteriour arrester get the first decreet , to make the arrested goods forthcoming ; for arrestment ; being only an inchoat diligence , it is compleated by the sentence to make forth-coming ; and yet if the arrester did exact dligence to obtain a decreet ; his raising the first pursute , will prefer him . he also who arrests on a decreet , will be preferred to him who arrests on a dependence ; and he who arrests after the term of payment will be preferred to him who arrests before the term . the kings pensions and gratuities aliments cannot be arrested ; because they are given for a particular and favourable use ; and not applicable to the arrester . poynding may be likewise used against moveables , by vertue of letters of horning against the debitors ; containing poinding or any other inferiour iudge , his decreet or precept * which is done by a messenger after the dayes of the charge are expired * , the form thereof is ; the messenger after poynding the goods , apprises them upon the ground where he apprehends them ; and offers them to the debitor , for the sum for which they were apprised , and if he compear not , he carries them to the mercat cross of the head burgh of the shire , or other iurisdiction where they are poinded , and there he apprises them , and delivers them to the party , who is called the poynder : but if any compear , and offer to make faith that the goods belong to them , and not to the debitor ; then the messenger must deliver them to that party , else he is lyable in a spulzie . poynding , is a judicial sentence , and the messenger is iudge constitute by the letters ; the messenger writes likewise an execution of poynding and that execution is better believed than any who offers to prove the contrare ; for that execution is onely quarrelable by improbation . arrestment , being but an inchoat diligence , discharging the partie in whose hand the arrestment is made , to pay , the right to the goods arrested , remain still in the debitor , and may be poynded for his debt ; for poynding is a compleat diligence ▪ giving an absolute right to the goods poynded . labouring oxen , or other plough goods cannot be poynded in time of labouring ( least labouring should be otherwayes discouraged ; ) except there be no other moveables upon the ground to be poinded * . title vi. of prescriptions prescription being a way of evacuating and annulling both heritable , and moveable rights comes in here , after both these are explained . prescription is defined , an acquisition of propertie by the poss●ssors continuing his possession for such time as the law determines ; which was introduced not onely for punishing the negligence of the 〈◊〉 , who owned not his right for so many years ; but likewayes , for securing possessors , and such as derived right from them ; and least by a constant uncertainty , the possessors being unsecure , might neglect the improvement of what they possessed . heritable rights , ( under which i comprehend wadsets , heritable offices , servitudes , patronages , &c. ) and all actions depending upon them , or relating to them , prescrive with us in . years ; if the possessor being a singular successor , have a chartor , disposition , or precept , and seasin in his person ; or being an heir , have a constant tract of seasins , continuing and standing together , for the space of . years , flowing upon retoures , or precepts of clare constat ; for , the law did not trust a seasin alone , it being onely the assertion of a notar. but reversions which are in the body of the poss●ssors right ; or reversions duely registrated , prescrive not . all personal rights , and actions relating to them , prescrive likewayes in . years ; if a document be not taken upon that right , that is to say , if nothing be done , whereby the true proprietor declares his intention to follow and own his right * . in both these prescriptions , the extraordinary length of time , supplies the want of bona fides in the possessor ; but , no length of time can make the possessor prescrive things sacred , religious , or publick ; nor yet things stol●e , or robbed , ob vitium reale , which affects such things . actions of spulzie , and ej●cti on , prescrive in three years , after committing thereof ; as to the specialities of these actions , viz. the violent profits , and oath in litem ; but minors have three years after their majority * . as do also actions for servants fies , house meals , and marchant compts ; except they can be proven after these three years , by the debitors oath * : and removings , if action be not intended within three years after the warning * . if assysers err in serving a man wrongously heir to his predecessor , the retour may be quarrelled within years ; but the assysers themselves can only be pursued for error , within three years * , but the right of blood it self never prescrives ; and therefore a man may be served h●ir to his father or grand-father , after a years , being debarred by no time ; nam jura sanguinis nullo jure ●ivili adimi possunt . if a person who is forefaulted possessed lands years before the forefaultur , without interruption , the king is obliged to show no right , in the person of him who was forefaulted to the lands , or others that he possessed ; because it s presumed that the person forefaulted would abstract the writs , which quinquenrial possession is to be tryed by an inquest of the shire , where the land lyes * . arrestments on decreets and depending actions prescrive within five years after sentence . meals and duties due by tennents prescrive , if not persued within five years , after the tennents removing ; ministers stipends , and multurs pres●rive so that they cannot be pursued after five years , except they be proven by the debitors oath . holograph bands ; and subscriptions in compt books , prescrive in twenty years ; except they be proven by the debitors oath . and lastly , all bargans probable by witnesses , all actions on warnings , spulzies , ejections , arrestments , ministers stipends , &c. prescrive within ten years ; unless wakned every five years ; but this alters not any shorter prescriptions of these actions * . all these prescriptions run de momento in momentum ; so that the prescription runs till the last moment of the time allowed ; but they run only from the time wherein the debt could have been pursued , since till then the proprietar could not be called negligent , which negligence is the foundation of prescriptions ; and therefore prescription runs not against a band from the date of a band ; but only from the term of paymennt ; and prescription of an action of warrandice , runs only from the eviction * ; because no man is lyable in warrandice , till the lands be evicted ; and from the same principle it is , that contra valentem agere non currit , prescriptio ; and that prescription runs not against minors , in whom negligence is not punishable , since it proceeds from no design ; but from the unripness of their age. vassals cannot prescrive against their superiours ; because the vassals right acknowledges the superiours ; nor can laicks prescrive a right to ●●ynds being incapable of such rights after the lateran council ; but though the right it self prescrives , in neither of these cases , yet the bygons due by vertue of these rights before fourty years , may prescrive . prescription runs against the kirk , and mortifications ; but on the other hand , because church men are negligent , and rights may be lost in the change of intrants ; therefore , . years possession , is sufficient to maintain a church man in possession ; which is called , decennalis & ●riennalis possessio ; and is a presumptive title , and sufficient till a better be showen , by which it may be excluded ; for praesumptio caedit veritati . prescriptions run likewayes against the king ; except as to his majesties annext propertie ; or to his unannext propertie whereof the ferms , duties or feu ferms , have been compted for in exchequer , since august . years . any deed , whereby the true proprietar owns his right , during the course of the prescription , is called interruption ; and prescription is interrupted in our law , either by a process , or a charge raised within the years of the prescription ; though the citation was only on the first summonds ; and though the summonds was past from , pro loco & tempore ; but interruption by citation , is not sufficient unless it be made by messengers personaly or at the parties dwelling house , and that it be renewed every seven years * ; and that the execution be signed by the messenger and witnesses * . interruptions made against the principal party , interrupt as to caution●rs ; and interruption as to a part interrupts the prescription of the whole ; so that if a man arrest the meals and duties of any part of a barrony , he interrupts prescription , as to the whole barrony . title vii . of succession in heritable rights . having formerly shewed how rights whether heritable , or moveable , real , or personal , are constitute , and how they are transmitted to singular successours : it remains now to consider how these rights are transmitted by succession , beginning first with succession in heritage . an heir , is he that succeeds universally to all that belonged to the defunct ; and is therefore in the construction of law , one and the same person with the defunct . though the executor , be in effect the heir in moveable rights ; yet we call those only properly heirs , who succeed in heritage ; and with us there are several kinds of heirs distinguished by their several denominations . the first , and chief kind of heirs , are the heirs of lyne , who are so called , because they succeed lineally , according to the right of blood ; and they succeed thus , first , descendants , according to the proximity of their degree , in which the eldest son is preferred to all his brothers , and all the brothers to the sisters ; and if there be onely sisters , they succeed all equally . the next degree , is grand children , and their great grand children , &c. who succeed all in the same way . if there be no descendants , then collaterals succeed , in which , the first degree is brothers , and sisters german , for the whole blood excludes the half blood ; and brothers the sisters ; and brothers by the fathers side exclude brothers by the mothers side ; there being no succession with us by the mothers side . failing descendants , and brothers and sisters , the succession ascends ; and all the ascendants succeed upward , according to their degrees of proximity , as the descendants did downward ; and thus the father succeeds to his own son ; and failing him , the grand father , great-grand father , &c. and failing of ascendants in the right ●ine , the collateral ascendants succeed in the same way , and thus the fathers brother ; or if there be no brothers , the fathers sister secludes the grand fathers brothers , or sisters , &c. it is to be observed that in heritage , there is a right of representation , whereby the descendants exclude still the collaterals ; though nearer by many degrees to the stock , or comunis stipes ; and thus the great grand-child of the eldest son secludes the second brother ; because , he comes in place of , and so represents the elder brother , his great grand-father . the heir of line , has right to the heirship moveables , and excludes all other heirs therein ; heirship moveables are the best of each kind of moveables , which is given to the heir ; because he is excluded from all other moveables ; if there be pairs , or dozens , he gets the best pair or dozen ; but in others he gets onely one single thing ; none have right to heirship moveables , but the heirs of prelates , under which are comprehended all benefice● persons , the heirs of barrons , under which are comprehended all who are infeft in lands or annual rents , though not erected in a barrny ; and the heirs of burg●sses , by which are meaned , actual trading , but not honorarie burgesses . if the defunct had any lands , or heritable rights , to which he could not succeed as heir of line , then he who succeeds in these , is called , the heir of conquest ; and the rule is , that heritage descends and conquest ascends ; so that if the midle of three brothers dyes , his immediate elder brother would be his heir of conquest ; and if a son of a second marriage dyes , leaving three brothers of a former marriage , the youngest would succeed in his conquest lands ; and this i conceive was introduced , for enriching the elder brothers , whom our law still favours ; whereas heritage must descend according to the law of nature . these heirs of conquest , have right to all lands , annualrents , heritable bands , and others ; whereupon infeftment did or might follow , but they have no right to tacks , pensions , moveable heir-ship ; and all other rights , having tractum futuri temporis , and requiring no infeftment , and so not competent to executors ; all which belong to the heir of line . the heir male , is the nearest male who can succeed ; and all heirs of line , are also called general heirs ; because they succeed by a general service and represent the defunct universally . the heir of tailzie is he to whom an estate is tailzed , so called , because the legal succession is cut off in his favours from the french word , tailer , to cut , and the matter of tailzies may be summond up in these few conclusions . primo , in tailzies , the person first named , needs not be served heir ; as for instance , if i take my land to my self , which failing to seius ; seius needs not be served ; because there is no cognition requisite to clear that he is to succeed ; but if i take may lands to my self , and my heirs ; or to me , and the heirs of such a marriage ; which failing to caius ; then either caius in the one case ; or the heirs of such a marriage in the other , must be served ; because , it is requisite to inquire , whether there were heirs , or who is heir of that marriage ? secundo , in all tailzies , he on whom the last termination falls is fiar ; as for instance , if i take my lands to seius , and failing him to caius , and his heirs ; caius is fiar , and seius is onely liferenter . tertio , though the last termination fall on the wifes heirs , the husband remains fiar ; because of the prerogative of the sex ; as for instance , if i take my land to my self , and my wife , which failing to her heirs , my heirs would be preferred ; except the estate belonged to my wife as fiar ; for then her heirs would be preferred . quarto , though in conjunct-fie rights , if i take my lands to my self , and my wife in conjunct-fie , which failing to our heirs , my heirs would be preferred , as to heritable rights ; but in substitutions to moveables , the right would divide betwixt her heirs and mine . quinto , the heir of tailzie , has but a hope of succession , and so the fiar may dispone ; nor can the substitutes , or remoter members of the tailzie , hinder him by action , inhibition , or otherwayes ; except there be a clause irritant , and resolutive , declaring , that if the first member dispone , his disposition shall be null ; in which case , though generally the remoter member must be served heir , to the immediate prior who was infeft ; yet in that case , the remoter member may be served heir to the first disponer . sexto , if one oblige himself to make such a man his heir of tailzie , that obligation tyes him onely once to tailzie his estate ; but not that he shall not break that tailzie ; except the obligation be for an equivalent onerous cause : or if a person oblige himself to do nothing contrare to his tailzie , he cannot thereafter make any voluntar gratuitous right to the prejudice of that tailzie ; but yet the lands tailzied may be comprised , or adjudged for sums truely due , and not dolose contracted , to disappoint the tailzie . heirs of provision , are these who succeed by vertue of a particular provision in the infeftment ; such as are heirs of a second marriage , and as to these heirs of marriages , we may observe two things ; first , that if a father by his contract of marriage , be obliged to employ a sum to himself , and wife in conjunct-●ie ; and the heirs of the marriage , he cannot in prejudice thereof do any fraudulent gratuitous deed ; tho he may provide a ioynter for a second wife ; or provisions for his children of a second marriage . secundo , though a father may assign or dispone sums to children , when extant , whereby they will be preferred to posterior creditors becoming fiars by the said rights ; yet if the father dispone to children to be procreat , this will be considered only as a destination and so will not hinder the father to make posterior rights ; or even posterior creditors to affect by diligen●es what is so disponed . tertio , process will be sustained at the instance even of the appearand heir of the marriage , against the father , to fulfill the special obligations therein , or to purge any deeds already done by him in prejudice thereof . albeit , where heirs are not designed in any right , the heirs of line , exclude all other heirs ; yet if a man take lands to himself , and his heirs male tailzie , or provision ; and thereafter acquire reversions , or tacks of the same lands to himself and his heirs ; these rights will accress to that special heir , to whom the land was provided ; for it is not presumable , that a man would give the lands to one , and the rights of them to another heir . when women succeed , all these of one degree succeed equally , and because the estate is divided amongst them , they are called heirs portioners ; the eldest not secluding the rest , and having no advantage over him ; but where the rights are indivisible , such as titles , iurisdictions , superiorities , and all the casualities of these superiorities : such as ward ▪ marriage , nonentrie , feu duties , &c. these fall to the eldest heir female , without division ; together with the principle messuage , it being a tower , or fortalice ; for other houses are divided equally . all these heirs are lyable in solidum , if they once enter heir ; except heirs portioners , who are onely lyable pro rata , and heirs substitute in a sum , who are onely lyable to creditors , in the value of the sum , to which they are substitute ; but they have in scotland a priviledge which they call , the benefit of discussion , whereby the heirs of line must be first pursued , to fulfill the defuncts de●ds , or pay his debts ; and next to these the heir of conquest , the heirs male , the heir of tailzie , and heirs of provision ; but for fulfilling a deed relating to particular lands , the heir who succeeds in these particular lands , must be first pursued , without discussing ; and that which is meant by discussing , is that the creditor must proceed by horning , caption and apprising , against the heir , who is to be discussed ; before he can reach the other heirs . an heir is said with us , to be heir active , who is served heir , and may pursue , whereas he whom the law makes lyable to be heir , is said to be heir passive ; as when the appearand heir is infeft upon a precept of clare constat by the superiour , or otherwise medles with his fathers estate . when the predecessor dyes , he who should be heir , ( and therefore is called , appearand heir , ) has year and day allowed him to deliberate whether he will be heir , which is called , annus deliberandi * ; and which is indulged by the law ; because if a man enter once heir , he is lyable to all the debts though far exceeding the estate ; and within that year , he cannot be pursued , nor obliged to enter ; but after the year is expyred , the creditor may charge him to enter heir , and if he resolve not to enter , he must renounce any right he has by a writ under his hand . this year is compted from the defuncts death ; except in a posthum child , who has a year allowed him , after his birth , and not only during this year ; but after it expires , the appearand heir without instructing any title , may pursue for exhibition of all rights made to his predecessors ; and of all rights made by his predecssors , to any in his own family ; but not to sirangers ; to the end he may deliberate , whither he will enter heir ; and the liferenter is bound to aliment the appearand heir , not being able to entertain himself , though he renounce . vid. supra part . title . § liferents . if the appearand heir resolves to enter heir to his predecessor , he must raise briefs from the chancellarie ; which brief is a command from the king. to the iudge ordinary , where the lands ly , to cause cite sworn men , to try whether the raiser of the brief be nearest heir ; and this is executed or proclaimed at the mercat cross where the lands lye ; and if at the day appointed , these . sworn men find him to be the next person who should succeed , they serve him heir by a paper which is called a service , and which being returned be them to the chancellarie ; there is a write given to the heir , whereby he is declared heir ; and which is called , the retour , because it is their answer , and return to the chancellarie of the points contained in the brief ; and thereafter , the person who is served heir is infeft by a precepts out of the chancellarie ; and if the service was to any particular lands , it is called a special service ; but if there was no land designed , it is only called , a general service ; and this general service is sufficient to establish a right to heritable bands , dispositions , reversions , iurisdictions , and all other rights , whereupon the defunct was not infeft , nor needed to be infeft ; and a special service includes a general service but not e contra . the general brief hath only two points or heads , viz. if the defunct dyed at the kings peace ; and if the raiser of the brief be the next heir ; but the special brief , has seven , viz. when the defunct dyed . secundo , if he dyed last vest , and seased , at the kings peace . tertio , that the raiser is next heir . quaerto , of whom the lands are holden in capite . quinto , by what manner of holding . sexto , what is their old and new extent . septimo , whether the raiser be of lawful age ; and in whose hands the lands are at present . sometimes likewise , the vassal without serving himself heir , gets a precept of seasin from the superiour ; wherein , because the superiour declares , that it is known to him , that such a man is heir to his father ; it is therefore called , a precept of clare constat ; which therefore makes the obtainer lyable passive , to all his predecessors debts ; but gives him only active right , to the particular lands contained in the precept ; nor will it give him a right even as to these lands , except against those who derive right from the superiour who gave it . bailiffs also of burghs royal , do infeft their burgesses as heirs in burgage lands , giving them seasin : as heirs , by delivering them for a symbole , the hesp and staple of the doors ; and the seasin in that case , is in place of a service ; as to these lands ; but is not in other cases a sufficient active title . the heir who is retoured , holds either his lands of the king , and then he gets precepts out of the chancellary , to the iudge ordinary , to infeft him ; which if he refuse , the lords upon a supplication , will direct precepts to any other person , who is thereby made a sherriff in that part ; but if the lands hold of another superiour , then either that superiour is himself entered or not ; if he be entered , he will be charged by four consequutive precepts , to enter the heir ; and if at last he disobey , his immediate superiour will be charged , and so till the heir arrive at the king who never refuses to enter any ; and if the superiour be not entered , he must be charged upon . days to enter , that being himself entered , he may enter his vassal ; and if he refuse , or delay he losses all the nonentries of his vassal ; but no other casualities ; because quoad these he was not culpable . though the person who should be heir , do not enter to his predecessors heritage ; yet he may be made lyable to his predecessors debt , by two passive titles , relating to heritable rights ; viz. gestionem pro haerede , and as successor titulo lucrativo post contractum debitum , and there is a third passive title relating to moveables , which is called ▪ vitious intromission . behaving as heir , or gestio pro haerede , is when the person , who might have been heir , immixes himself , and intromets with either the moveable heirship , or any heritable estate , belonging to the defunct ; in which case , he is lyable to the creditors , not only according to the value of what he intrometted with ; but as far , and in the same manner as if he had been entered heir ; and yet the lords will not fasten this passive title upon a man ; because of its extraordinary hazard ; where the intromission is very small ; or where he has a colourable title to which he might ascrive his intromission , as a factorie from the compryser ; or the donator to the escheat , or recognition ; gestio pro haerede , being magis animi quam facti ; which factories will defend ; though there was no declarator ; but if the appearand heir had no factorie ; it is not sufficient to alleadge the defunct dyed rebell , and so could have no heir ; except his escheate was declared before intenting the pursuers action ; nor will this passive title , nor vitious intromission be sustained ; except they be pursued in the intrometters own lifetime , they being kinds of delicts . but he will not be lyable , if the defuncts right was reduced , though after his intromission ; and since this passive title was introduced by the lords of session , in favours of the creditors , to deter appearand heirs from fraudulent intromission ; therefore an appearand heirs , paying his predecessors debt will not infer this passive title ▪ since that is for the advantage of creditors ; nor will the getting of money for ratifying a comprising that is expired , infer this passive title , since the creditors would have got no advantage by that right ; but if the appearand heir had consented before the comprising was expired , it would be a passive title ; because as heir , he might have redeemed the comprising . successor titulor lucrativo , is , where the appearand heir , to preclude the necessity of entring heir ; and so being lyable to the creditors , gets a disposition from him to whom he would have been heir , without any onerous cause ; the receiving whereof , though it be a small part of the estate , makes him lyable to the payment of all the creditors debt ; if the right made , as well as the infeftment , was posterior to the creditors lawfull debt . but if there be an onerous cause ; then either it is not near equivalent to the value of the lands disponed ; and in that case , it will not defend against this passive title ; or , if it be near to the value , it will defend against it , but not against restitution of that value . and since this passive title , overtakes such as might have been heirs ; therefore , a disposition granted to a grand child , will make him successor titulo lucrativo , though the father be alive ; since by the course of succession , he might in time have been heir , though he was not immediate heir ; but since this can onely reach appearand heirs ; therefore , a disposition made by one brother to another , though the maker had no children , will not make him successor titulo lucrativo , since the brother might have had heirs himself ; and so his brother was not his appearand heir . the passive title holds onely in heritage ; and therefore , the getting a right to moveable heirship , and tacks , will not infer the same . gestio pro haerede , and successor titulo lucrativo , being passive titles , whereby in odium of the irregularity of the intromission , they are made lyable as heirs ; therefore , these passive titles , can extend no further , than if they intromet with , or take a disposition to these things to which they might have succeeded ; and so not inferred against an heir of tailzie , intromitting with , or getting a deposition of what would have fallen to the heir of line ; nor can they be extended further , than if they had been served heirs ; and thus an heir portioner will be no further lyable in these , than pro rata , if she had entered ; for the coppie should go no further than the original . to conclude , the succession in heritage , it is ●it to know , that by an old statute * and our constant practique , a man cannot dispon his heritage upon death bed , in prejudice of his heirs ; ( that is to say , neither lands , nor heritable bands , nor any band , though moveable , in so far as his heritage may be thereupon apprised or adjudged ; ) so jealous was our law of the importunity of churchmen , and friends , and of the weakness of mankind , under such distempers ; and therefore , if a man has made any right in prejudice of his heir , after contracting sickness , though he was sound enough in his iudgement for the time , and continued sound , for a very long time ; yet this right will be reduced , as done in lecto , or upon death bed ; either at the instance of the appearand heirs , or at the instance of the apprearand heirs creditors ; and it is sufficient to prove sickness , though it be not proved mortal , and that he was sick , without proving that he dyed of that sickness , or was sick the very time of the disposition . if thereafter , the maker of such a right come to kirk or mercat unsupported , the law presumes that the maker was reconvalasced , but since the law has fixt upon kirk and mercat , as open places , where the disponer may be seen by all men , and by unsuspect witnesses ; equivalent acts , as going to make visits , though at a greater distance will not be sustained ; and so the deeds reconvalasce with him ; but though a man cannot grant a new right upon death-bed ; yet he may perfect an old right ; or do a deed to which he might have been otherwayes compelled ; as fo● payment of his debt , or may grant a rational ioynter to his wife ; though he cannot grant provisions to his children in that condition . title viii . of succession in moveables . the same rules are observed , in the succession of moveables , that were formerly specified in the succession of heritage ; except as to these particulars , viz. all of one degree succeed equally ; and so amongst brothers and sisters , the elder seclude not the younger ; nor males the females , as in heritage ; and in moveables , there is no right of representation as in heritage ; and therefore if there be a brother and two sisters alive ; and a third sisters children , the brothers and sisters , who are living will succeed equally , excluding the children of the sister who is dead . the executor , is also onely lyable , according to the value of the defuncts estate ; because , he gives up an inventary of his goods ; but an heir is lyable for all the defuncts debts . a testament , or latter will , does require to be in write , for nuncupative testaments , which were so called , in the civil law ; ( because , the defunct named his heirs without write ) are not allowed by our law , by which a testament must either be holograph , all written with the defuncts own hand ; or at least , subscrived by him before two witnesses , if he can write ; or if he cannot write , by a notar , or minister and two witnesses . no heritable right can be left in testaments , though the testator was in leidge poustie , and perfect health ; and though the testaments be made in other nations , where heritage may be disponed by testament ; vet it will not transmit a right to heritage lying in scotland ; and yet a testament made according to the solemnities of these nations , will be valid in scotland ; for though they may regulate us as to solemnities ; yet they cannot alter the nature , and so not the transmission of our rights . a legacy , is a donation left by the defunct in any write to be payed by his executor ; but if the legator die before the testator ; or before the condition is fulfilled , on which the legacy was left , then the legacy evanisheth ; and though neither other mens moveables , nor a mans own heritable rights , can be left in legacy ; yet such legacies are valid , if the testator knew that the sum left was heritable , or belonged to others ; and the executor in those cases must pay the value . a minor being above . years , may make a testament , without the consent of his curators ; but under . years he can make none . a wife may make a testament without the consent of her husband . and a person interdicted without the consent of the interdictors ; but idiots , nor furious persons ; can make none ; except in their lucid intervals ; nor bastards , except they be legittimated , or have children of their own . if a man be married , the wife has without paction , a share in his moveables , of which he cannot defraud her by his testament ; and this is called , jus relictae ; and if there be children , the law has provided a portion of the moveables , for them ; which is therefore called their legittim ; and of which their father cannot prejudge them by his testament ; but there is no legittim due by the mothers death ; nor have children who are foris famili●● ; that is to say , who are married , and have renounced their portion natural ; any legittim due to them . this legittim is also due only to the immediat children , but not to grand children . the remander of the defuncts moveables , beside what is due to the relict , and children , is called the deads part ; and upon that onely he can dispone . if a man have no wife , nor bairns , all is the deads part and may be disponed by him ; if there be either wife , or bairns , and not both ; then the defuncts testament receives a bipartite division ; but if there be both wife and bairns , then it receives a tri●artite division . by the civil law , a testament was null , if the heir was not named ; but with us a testament is valid , though the executor be not named , who is the heir in mobilibus , and is called executor ; because he executes and performs the defuncts will , and for executing thereof the law allows him the third of the deads part , if he be a stranger ; but if the nearest of kin confirm , he has right to the whole deads part ; except the whole be exhausted by legacies , and the superplus over what is left in legacy , and the third due to the executor for his office , belongs also to the children , and they may call the executor also to an account for it * ; but the heir has no share in the moveables ; except he collate , that is to say , ( be content that the rest of the children share equally with him , in all that he can succeed to as heir ; ) or in case there be but one child ; for then that child is both heir and executor without collation . an executor nominate , is he who is named by the defunct in his testament ; and is therefore likewise called an executor testamentar ; but if there be none named by the defunct , then the commissar will make an executor dative ; and ordinarly they prefer the nearest of kin ; but if the nearest of kin being charged , will not confirme , then they name their own procurator fiscal executor ; and if thereafter , the nearest of kin compear , they use to surrogat him , and this is called , an executor surrogat ; but no executor dative has a third of the defuncts third , as others have . a creditor may confirm himself executor creditor ; and so may pursue the defuncts debitors , and least that creditors should wrong one another by nimious diligence , our law has appointed , that all who shall confirm themselves executors creditors , or shal do diligence against executors , or intromitters * within . moneths one of another shall come in pari passie . executors creditors are onely obliged to confirm as much as may pay themselves ; and are for the same reason , only liable to do diligence for what they did confirm . because moveables may be easily concealed from creditors or dissipated , therefore the law appoints , that the executor shall upon oath give up inventar , and find caution to make these moveables forthcoming ; and then the commissar confirms him ; nor can he pursue , or dispone as executor , till he be confirmed : he is onely lyable for the defuncts debt , in as far as the goods confirmed will extend . executory being a meer office , it accresses to the survivers ; if there be moe executors , and in so far as the executors have not execute the testament in their own lifetime ; that is to say , have not obtained decreets for the goods belonging to the defunct ; there will be place for a new executor , for executing these ; and they are called , executors quoad non executa ; or if the executor ommit to give up any thing in the inventar ; or do not give up the saids moveables at the full rates ; there will be another executor dative made by the commissar , who is called , an executor dative ad ommissa , vel male appretiata . the executor onely has power of administration ; and the creditors and legators can onely pursue him ; except where there is a special legacy left of such a particular thing , or a sum owing to such a particular person ; for then the special legator has the dominium transmitted to him , and so he may himself pursue for his special legacy ; but the executor must be still called in the pursute , to the end it may be known , whether the debts exhaust the special legacies ; for , no legacy can be payed , till the debts be payed ; and therefore , if all the legacies cannot be payed , the legators suffers a proportional defalcation for payment thereof ; but if there be as much free goods , as will pay the special legacy , it will be preferred , without defalcation . an executor cannot dispone , till he obtain a sentence , but even the sentence states him not in the absolute right of the moveables ; otherwayes than that he may discharge and assign to the respective persons having interest ; for , if he were denounced rebel , the executory ▪ goods , even after sentence , would not fall under his escheate , nor would his executors , or his creditors have right thereto , in prejudice of the nearest of kin of the defunct , to whom he was executor . if there be moe executors , whom we call co-executors ; one cannot pursue without the rest , for all of them represent the defunct only as one person ; but if any of the rest will not concurr , they may be excluded from their office , by a process before the commissars ; nor can an executor for the same reason discharge a debt wholly , since the rest have an equal share in each debt : but if the other executors have got as much as their share will extend to , the discharge even from one of the executors will be sufficient ; nor are ( for the same reason ) co-executors lyable for the whole debt , and so cannot be singlely pursued , unless they have intromitted with as much ; as may pay the debt pursued for . an executor is lyable to do diligence for recovering the debts due to the defunct ; and the diligence required upon his part , is a sentence , and registrated horning against the defuncts debitors ; but if there be an universal , or special legatar , whereby an executor confirmed has no advantage ; then the executor is not lyable in diligence ; but only to assign the creditors that they themselves may pursue . the executor likewise cannot pay any debt without sentence , least otherwayes he might prefer one creditor to another ; but yet the executor may pay those debts , that are acknowledged in testament without process , providing the same be payed before the creditors intent a persute ; or these which we call priviledged debts ; because they are preferred to all others , viz. servants fies , medicaments on death-bed , house-meal , and funeral-expenses . after the executors have executed the whole testament , they may get a decreet of exoneration before the commissars , against the creditors , and all having interest ; wherein they may prove that all they got is exhausted by lawful sentences ; but it is not necessar to have such a decreet when they are pursued before the lords , for it is sufficient when they are pursued there to alledge , that they are exhausted by way of exception . if any person intromit with the defuncts moveables , without being confirmed , they are lyable to the defuncts whole debts ; whether they were related to himor no ; and though their intromission was very small ; and this was introduced to prevent the fraudulent , and clandestine abstracting of the defuncts moveables , without inventary in prejudice of creditors ; and therefore this passive title is only introduced , in favours of creditors ; but of none others , such as legatars bairns , &c. but if the intromitter confirme , before any action be intented , this purges the vitious intromission ; and the intromitter is only lyable for the value of the thing intromitted with ; or if there be an executor confirmed , no person can be pursued as vitious intromitter ; for the intromitter then is only lyable to the executor ; but the relict , or the defuncts children , confirming within year and day after the defuncts death , does thereby purge the vitiosity ; though they confirm not till after citation ; nor will necessar intromission infer vitiositie , and that is called , necessar intromission , when either the husband or the wife , continue their possession of one anothers goods , after one anothers decease , for preservation ; and that because there is no other person to look after them ; and this is for the advantage of the creditors ; since it hinders the goods from perishing . if there be moe vitious intromitters , they are each lyable in solidum , if they be pursued in several actions ; and pro virili , if they be pursued together , but none of them get relief , for wrong in our law has no warrant . the heir is obliged to relieve the executor , of all heritable debts ; and the executor is bound to relieve the heir , of all moveable debts , as far as the inventar will reach . title ix . of last heirs , and bastards . whilst there is any alive , who can prove even the remotest contingencie of blood to the defunct , they succeed to him ; but if there be none , the king succeeds as last heir ; for quod nullius est , est domini regis ; and so the king succeeds to the defunct , as last heir ; both in heritage and moveables ; and is preferred to all superiours , and others whatsoever ; for which end he makes a donatar , who must obtain a declarator before the lords of session , against all who are supposed to have any relation , whereupon a decreet being obtianed before the lords , declaring that the king has right as last heir , , the defunct having dyed , without any relation . this decreet is equivalent to a service ; but if lands be taken by a man to himself , and his heirs male simply ; the king will succeed as last heir ; if there be no heirs male ; though there be heirs female ; since the land was not provided to them ; and therefore men ordinarly in their tailzies adject the clause whilks failzing to their heirs whatsomeever . because the king succeeds here as heir ; therefore he is lyable to pay the defuncts debts ; but he is only lyable as farr as the estate will extend ; and therefore the creditors may adjudge the real estate , and serve themselves executors creditors in the moveables . a bastard by our law has neither heirs nor executors ; but yet he may dispone upon either his heritage or moveables inter vivos ; though he cannot make a testament ; except he be legittimated by a letter under the great seal , ( which extends not to heritage ) or have children surviving him ; for the bastards children will allwayes seclude the king. the king in the case of bastardy , makes a donatar , who pursues declarator ; and is lyable to the debt ; for in effect the king succeeds here , quasi ultimus haeres , and creditors use the same execution in this case , as in the other ; and in both ultimus haeres ; and bastardy , the relict has still her share of the moveables , as in other cases . children procreate betwixt persons divorced ; and these with whom they have committed adultery can not succeed to them * . the institutions of the laws of scotland . part fourth . title i. of actions . having finished these two first parts of the law , which treat of persons and rights ; we come now to treat of the third part , viz. actions , whereby these persons , pursue those rights . an action is defined to be a right of prosecuting in iudgement what is due to us ; and it suffers very many divisions ; the first whereof is , that some are real , and some personal ; a personal action , is , that whereby we only can pursue the person that is obliged to us ; as where i pursue a man for payment of a sum due by his bond. a real action is , that whereby a man pursues his right against all singular successors , as well as the person who was first obliged ; as for instance , if one have an infeftment of annualrent , he can not onely pursue the granter for payment of the money , by a personal action , but he can by a real action , called , an action for poinding of the ground , pursue all singular successors , and poind the tennents , and intromitters with the rent , for recovering of his annualrent out of the land , that stood affected with his infeftment of annualrent . actions are also divided i● ordinary actions , and actions rescissory ; for with us all actions , are called , ordinary actions ; except improbations , whereby we pursue papers to be declared false and forged ; or reductions , whereby we pu●sue rights to be declared null , and to be reduced . in improbations , there are two terms given to produce the write ; because the danger is great ; and if the writer and witnesses of , and in that write be alive , their testimonies are onely allowed as probation ; which is called , the direct manner of improbation ; but , if these be dead , the lords try the verity of the write by strong presumptions and conjectures ; which is called the indirect manner of im●robation : but because in re●uctions , the write called for , 〈◊〉 onely to be declared null , till 〈◊〉 be produced ; therefore , there ●s onely one terme granted for pro●ucing . no certification will be gran●●d against any writes , made ●y the pursuer and his predeces●●rs and authors ; except he be ●●rved heir to these predecessors , and produce a right made by these authors : but certification will ●e granted against any rights made to the defenders , or their predecessors , to whom they may succeed jure sangui●is , or to their authors , or any to whom these authors may succeed jure sanguinis ; if any person be called to represent these authors . the ordinary reductions are ex capite inhibitionis , whereb● we pursue rights to be declar●● null as granted after inhibition is raised by us ; or ex capite interdic●ionis if granted after interdictio● is raised by us ; or ex capite vis 〈◊〉 metus , if the rights were extort●● from us by force ; or ex capit● fraudis , if the rights were eli●● from us by circumvention , in bot● which last the pursuer mu● lybell the qualifications , or circumstances from which th● force or fraud are inferred or ex capite lecti , if the deed were done upon death-bed , i● prejudice of an appearand heir● or upon the act of parliament ▪ * , if the deeds were don● in prejudice of prior lawfull creditors , in favours of conjunct or confident person ; that is to say ▪ relations , or trusties , without an onerous cause , or to a creditor● , though for an onerous cause , in prejudice of another who had done prior diligenc● , that was habile to affect the subject disponed ; all whi●h , and many others of that nature are opposed to ordinary actions ; because , they are extraordinary remedies invented by law , for the preservation of mens rights , and are called extraordinary ; because they are never competent , till other ordinary remedies fail . actions of reprobatour , and errour are in effect reductions ; and must have the concourse of the kings advocate ; in the first whereof , a party against whom witnesses have deponed unjustly ; craves , the decreet pronounced upon these depositions to be reduced ; because the witnesses have deponed fasly , circa initialia testimoniorum ; and condescend in his reasons of reduction , up on the particulars wherei● they have deponed fasly ; and also concludes , that the testimonies should be reprobated . in the summonds of error ; the pursuer craves , that a service ( whereby the defender is served hei● to such a man ) ought to be reduced ; because the pursuer is a ne●rer relation to the defunct ▪ than the person wrongously served ; upon which he condescends ; and therefore concludes , that the service , and all following thereupon may be reduced ; and that it may be found , that the inquest who served him heir have erred ; and this is the only summonds that is drawn in l●tine with us . some actions , are called preparal●r● , or prejudiciall actions ; because , they must be discussed before other actions are competent ; as for instance , if i pursue for a sum , and the defender raises an improbation , alledging the write to be false ; the tryal of the falshood , must be first discussed ; and so is prejudicial to the action of payment . exhibitions conclude , either meerly to exhibit the write , or the thing called for ; and then it is only a preparatory action ; such as exhibitions ad deliberandum ; or else they conclude delivery ; and in all exhibitions , the ordinar terms lybelled , are that the defender had , has , or has fraudfully put away the papers or things craved to be exhibite ; and therefore , he is not obliged to exhibite , except he had them since the citation , or fraudfully put them away , to elude a future citation . some actions are called , actiones , bonae fidei ; in which equitie is followed , as actions upon mandates , depositations , emption , location , &c. in which the iudge considers what in equity is to be done by one party to another . and some actions are stricti juris ; in which the iudge is to follow the strict prescript of the contract upon which the action is raised , as in a declarator of redemption , wherein the pursuer craves , that it may be declared that he has lawfully redeemed the lands , that were wadseted ; in which case the judge must consider the very precise terms of the reversion , and that the lands were redeemed conform to these terms ; nor is equipollency relevant in these cases . some actions , are called rei persecutoriae , by which we pursue that quod patrimonio nostro abest ; which is commonly called , dammage and interest . some are called , penal actions ; because we pursue not only for repetition , and real dammage , but for extraordinarie dammages , and reparation by way of penalty ; such as are spulzies , actions for violen● profits , &c. some actions , are called arbitrary actions , wherein the iudge is tyed to no particular law ; but proceeds ex nobili officio , that is to say , according to what he sees just and fit ; as an action for proving of the tenor of an evident , wherein the complainer lybels , that he had such a paper , ( of which he must lybel the full tenor verbatim , ) and that he lost it by such an accident ; and therefore concludes ▪ that the tenor may be proven by witnesses , and adminicles in write , which he must libel ; for , no tenor can be proven , without some adminicles in write : and generally , there being many things , with which the law behooved to trust the discretion and honesty of the iudge , since all cases could not be comprehended under known laws ; it therefore invested the iudge with this eminent power , which is called , nobile officium , in opposition to that officium ordinarium , & mercenarium , wherein he is obliged to follow the will of the contracters precisely , & hoc officium mercenarium iudex nunquam impertit nisi rogatus . some actions , are called , declarators ; because the pursuer concludes in them , that some special thing should be declared in his favours ; and ordinarly , whereever the king , or any other superiour grants a gift , he to whom it is granted pursues a declarator , craving , it may be found and declared , that the casuality gifted to him , has faln in the superiours hands ; and that he has right thereto , by vertue of the gift : and thus declarators must be raised upon escheats , wards , marriages , nonentries , &c. onely there needs no declarator upon a gift of forefaulture ; and upon gifts of escheat , they raise actions , both of general and special declarator in one summonds . in the general , the pursuer concludes , that it should be found and declared , that the rebel was lawfully denounced to the horn ; and that thereby his escheat fell in the superiours hands : and in the special , he concludes , that the tennents of the rebels lands , whose escheat is faln , may pay him the meals and duties , by vertue of his gift , and decreet of general declarator . but though this last action be called , an action of special declarator ; it is in effect but an action of meals and duties : in other cases also , where any thing is craved to be found and declared , as a right arising upon a special matter of fact , for which no other action can be found , that has a special name : lawiers doe now cause raise actions of declarator ; or at least , cause adject conclusions of declarator to other actions , such as reductions , &c. and these are the same with the actions in factum , mentioned in the civil law. some actions are called civil , wherein men prosecute their civil rights ; and some criminal , wherein men prosecute crimes , ad vindictam publicam . for further clearing of actions , and how they ought to be lybelled ; i shall shortly explain the nature of a summonds ; and shall set done some of those actions which have special names and conclusions . the chief parts of a summonds , are the pursuers interest , that is to say , the right standing in his person , whereby he has good interest to pursue the action he has intented . secundo , that all the persons who should be called as defenders , be called in the summonds , and since it is a relevant exception against a summonds , that all persons having interest are not called ; therefore it follows clearly , that for the more securitie it is fit to call all persons , who may be concerned in the debate . tertio , the medium concludendi ; that is to say , the ground whereupon the persons called , are lyable to pay and perform what is craved . quarto , after all this is narrated , the king in the summonds , says , our will is , &c. that ye cite such and such persons , &c. which is called , the will of the summonds , and which will of the summonds does comprehend , a command to the messenger , to cite the defenders ; and expresses the number of dayes , upon which they are to be cited ; and the places to which they are to be cited ; and before whom they should compear : as also , the conclusion craved by the pursuer , each of which summonds , almost has it own special stile and terms ; and by act of parliament , writters are commanded not to alter the ancient stile * it is observable , that though the matter of fact be ordinarly narrated before the will of the summonds ; yet summonses of reduction , improbation , transferrance , spulzie , and declarators of nonentrie ; begin , at , our will is , &c. and then goes on to the interest of the pursuer , &c. in a summonds of transumpt , the pursuer ( who in the summonds is alwayes called the complainer ) lybells , that he has right to the lands whereof he craves the papers to be transumed ; and that therefore it is necessar to him to have doubles , and transumpts of the rights ; and this is the pursuers interest ; and that the defender has these rights , or is obliged to procure him transumpts ; and therefore concludes , that the defender should be obliged to exhibite , and produce them , to be judicially transumed ; and the authentick transumpts to be declared as sufficient for the security of the pursuer in the saids lands as the original writes themselves . in a summonds of multiple poinding , the complainer having narrated , that he is troubled by such and such persons , who do each of them pretend right to a sum , in which he is lyable ; he therefore concludes against all of them , to compear to hear and see the same tryed ; and the party who shall be found to have best right to be preferred ; and the other party to be discharged from troubling and molesting him in all time coming . in a summonds of transferrence , the complainer lybells that the defender is heir to his debitor : and concludes , that the debt should be transferred in him passive as heir ; and upon the other passive titles ; and therefore , that letters and executorials may be directed against him , in the same manner as they might have been directed , used , and executed against his predecessors , before his deceass . these transferrences are used when there is an decreet obtained , or bond registrated against the defunct in his life-time ; but if the bond was not registrated , then there is a summonds of registration raised in which the pursuer concludes , that the said bond should be insert and registrated in the books of council and session , to have the strength of a decreet ; and executorials to be direct thereupon in manner therein mentioned . in a summonds of prevento ; the complainer narrates , that he having raised letters of horning , the same were suspended upon must frivolous reasons , to a very long day ; and therefore concludes , that the defender should bring with him the said suspension , the blank day of blank , prevento termino : to hear and see , the same called , reasoned and discussed , with certification , that if he sail , the lords will cause call the suspension , upon a coppie , and admit protestation therein , and ordain the letters to be put to furder execution . if an advocation be raised to too long a day of compearance , there may be likewise a summonds of prevento raised thereof . in a summonds of contravention of laborrows ; the pursuer lybells , that a. b. became surty , and laborrows for c. d. that the complainers , wife , ba●rns , men , tennents , and servants , should be harmelesse , and skaithlesse in their bodies , and lands , &c. and then subsumes upon the prejudice done , notwithstanding of the said caution : and therefore concludes , that both the principal and cautioner , should be decerned to have contraveened the said act of caution , in manner foresaid ; and therethrow , that they conjunctly and severally have incurred the foresaid pain , the one half to the king , and his thesaurer , and the other half to the complainer , as party grieved . in a declarator of property , the complainer narrates his right to the lands , and how long and after what manner , he and his authors have been by themselves , their tennents , and others having right from them , in the peaceable possession of the saids lands ; untill of late that he is molested , and troubled by the defender ; and therefore concludes that it should be found and declared , that he has the sole , good , and undoubted right , and interest in and to the saids lands ; and that therefore the said defender , and his tennents , and servants and others , of their causing , and commanding , should be decerned , not to trouble , nor molest them for the future , in their peaceable possessioon , bruiking , and joysing thereof . if the complainer designs only to maintain his possession ; without bringing his propertie in contraversie he raises a summonds of molestation ; in which he only concludes , that they should desist , and cease from troubling and molesting him in the peaceable possession of his lands . in a summonds for poinding the ground , the pursuer narrates , that he stands infest , and seased in an annualrent of to be uplifted , out of the lands of and therefore concludes against the tennents of these lands ; and the heritor for his interest , to hear and see letters directed to messengers at armes , sherriff in that part , to fence , arrest , apprise , compel , poind , aud distrinzie the readiest goods and geer , that are presently upon the lands ; and yearly and termly in time coming , during the not redemption of the annualrent . in a summons of spulzie , the king commands messengers , &c. ( which is the stile of all summonses , which begin with , our will is , ) to summond , warne , and charge the defender , to compear and answer at the instance of the pursuer against whom the spulzie after specified was committed ; that is to say , the defenders for their wrongous , violent , and masterful coming by themselves ; and their servants , complices , and others in their name ; of their causing , sending , bounding out , command , reset , assistance , and ratiabition , to the lands of upon the day of and for their wrongous , violent , and masterful spoilziation of the goods ( to be condescended on ) and then concludes , that they should pay the prices extending to and the profits , that the complainer might have made of the said ▪ goods daily since the said spulzi●tion , extending to &c ▪ in a summons of wakning ▪ the complainer after narrating that he had raised such ● summonds , which he had suffered to lye over and sleep ▪ for a year ; ( for there need● no wakning if there was any iudicial act , or minute upon the summonds within th● year ) and therefore concludes against all the person● cited in the first summonds , to hear and see the foresai● action called , wakned , and begun , where it last left insisted into , and iustice administrate therein , till the final decision of the cause . a furthcoming is that action , wherein the arrester lybels , that he having raised ●etters of arrestment , he caused , messenger lawfully fence , and arrest all debts owing by ●he defender to the debitor , ●o remain under arrestment ; and to be made furthcoming to him ; and therefore concludes , ●hat the defender should be decerned to make furthcoming payment , and delivery to the said complainer , of the sum of adebted , restand , ow●nd be him to the said debi●or . if notwithstanding of the arrestment , the debitor pay his own creditor ; there is an summons for breaking of arrestment , wherein after the arrestment , and payment is narrated , the pursurer concludes , that the defender should be decerned to have broken the arrestment then standing ; an● not lawfully and duely loosed ; an● therefore to be punished in his person , and goods , conform to th● laws of the realm , in example ●● others . though the accumulati●● of several actions into one lybell was not allowed by the ci●●● law ; yet it is allowed by ours , in which we may no● only pursue several persons ▪ for several debts in one lybel● which we call by a general name , an actions against debitors but we may likewise accumulate several conclusions , agains● one and the same person though they be of different n●tures ; as reductions , improbations , and a declarator of propertie , and actions of general , and special declarator ; in all which it is a general rule , quot articul●● tot libelli . but when many actions are ●ompetent , for one and the same thing , as if a messenger be deforced , we may pursue ●he deforcer criminally ; ( which will infer confiscation of moveables , or civilly for payment of our debt ; and the pursuing of ●he one does not extinguish , or consume the other ; and either the criminal or civil action may be first pursued ; and ●n the concourse of all actions , ●f the actions which concurr ●ave different conclusions , as ●n the foresaid instance , where the criminal action of deforcement concludes confiscation , and the civil action only payment ; though the defender be assolzied in the criminal pro●●ss , yet he may be pursued civillie , and the deforcement referred to his oath . title ii. of probation . for understanding the matter of probation , it i● fit to know , that al● probation is either by write , by oath , or by witnesses . probation by write , has been formerly explained in the title concerning obligations by write . probation by oath , is when either the partie or judge ; referres any thing to the oath of the contrare partie ; but regularly , no mans right can be taken away by oath ; except he who has the right , referr the same to the adversaries oath ; but when there is a former probation already adduced , the iudge sometimes gives an oath of supplement , which is so called , because it is given to supplie the probation already ●ed . an oath of calumnie , is that whereby either the pursuer , or defender is obliged to swear that the pursute , defence , reply , &c. are not groundless , and unjust , and this may be craved by either party , at any time during the dependence ; and if it be refused , the pursuer will have no further action ; nor the defender will not be allowed to insist any furder in that defence , duply , &c. whereon his oath of calumny is craved . an oath in litem , is that which law allows the iudge to deferr to him who is injured ; for proving the quantities of the thing wherein he is injured ; v. g. if i pursue titius , for having brok up my trunk ; and i have proved that he did break it up : the iudge will refer to my oath , what i had in the trunk ; and this is allowed both in odium of him who commits the injurie ; and least the person unjustly injured should loss his right for want of probation . a qualified oath , is , that whereby he to whose oath any thing is referred , depones , not simply ; but circumstantially ; which we call to depone with a quality ; v. g. if i pursue titius for payment of . lib. which he promised to pay , who compears , and depones , that he did indeed promise ; but it is as true , that he allowed the pursuer to intromit with goods belonging to the deponent , equivalent to the sums due by the promise : with which accordingly he has intromitted : and those qualified oaths generally are admitted ; if the quality be intrinsick , that is to say , necessarly imployed in the nature of the thing ; as in the foresaid instance . but if the quality be extrinsick , it in effect resolves in a defence , and so must be proven otherwayes , than by the qualified oath ; as if a debt be referred to a parties oath , who depones , that he acknowledges the debt , but that it is payed ; this will not be admitted as a qualitie , but is in effect a defence which must be proven , otherwise than by his oath . probations by witnesses , having been allowed in all cases of old , untill the falseness of men forced our law-givers , to allow nothing above . lib. to be proven without write , or oath , and promises , to be only proven by oath ; this probation by witnesses is therefore called , probatio pro ut de jure ; and it is fit to know , that none within degrees defendant , that is to say , who are cousin germans , or of neare● relations , can be witnesses ; no● women , nor tennents , who have no tacks , nor persons declared infamous , nor domestick servants ▪ nor such as may gain , or loss by the cause ; nor such as have given partial counsel ; that is to say , advice to raise or carry on the pursute ; or such as have told what they will depone ; which we call prodere testimonium ; nor such as compear to depone without being cited ; whom the law calls , testes ultronios , and rejects them , because of their suspected forewardness ; all others except these may depone , and are called habile witnesses : and if habile witnesses refuse to come when they are cited , there will be first horning , and then caption directed against them ; which are called first and second diligences , but their escheates will not fall upon that horning . presumptions , are a kind of probation , and a presumption is defyned to be a strong ground or argument , whereby a iudge has reason to think , or be convinced , that such a thing is true ; and they are divided into presumptiones juris , which though they be strong , yet may be taken off by a contrary probation ; as if a man threaten to poyson another , if the person was thereafter poysoned , it is presumable that he was poysoned by the threatner ; and presumptiones juris & de jure ; ubi lex constituit super presumpto ; and thus the law presumes , that an ultronius witness , who offers him . self , is partial ; and therefore statutes upon that presumption , that he shall not be received ; and against these presumptions , no probation can be admitted . title iii. of sentences and their execution . after a decrect is extracted , the obtainer thereof raises letters of horning thereon ; whereby the party decerned is charged to pay or fulfill the will of the decreet ; under the pain of rebellion ; and this decreet can only be quarrelled by reduction , or suspension , in both which the reasons whereupon it is quarrelled are set down ; nor can a decreet of the lords , be taken away without reduction ; and if there has been a debate in the first instance , ( for so we call the action before the decreet ; as we call reduction and suspension the second instance ; ) then nothing that was competent to have been proponed before the decreet , will be admitted but will be repelled , as competent and omitted ; for else there should be no end of debate ; but yet if any thing have newly emerged ; or has newly come to the parties knowledge , these are and must be received , if he depone , that he knew not the same formerly . the ordinar effect of a suspension is to stop the execution of sentences for a time ; and it is a summons , wherein the party alledged injured by a decreet , does cite the partie who has obtained the decreet before the lords , ( for no inferiour court can suspend , ) to answer to the reasons offered by him , for suspending execution upon that decreet : which summons proceeds upon a bill , wherein the reasons are represented to the lords ; for though sometimes , the lords ordains the reasons to be debated upon the bill ; yet ordinarly they ordain letters of suspension to be raised : if the decreets be in foro , then the suspension must pass by the whole lords in time of session , and by three lords in time of vaccance ; but other decreets may be suspended by any one lord. there are other reasons allowed to be insisted on beside these in the bill , and these are called eiked reasons , and a man may suspend upon new reasons , as oft as he pleases for competent and omitted is not received against suspensions . if the suspension be called , discust , and the letters found orderly proceeded , that is ordained to be put to furder execution : then letters of caption may be raised ; whereby all the inferiour iudges and magistrates , are ordained to concurr with the messenger , in apprehending the rebel , and putting him in prison ; which if they refuse : or if the prisoner thereafter escape out of their prison , they are lyable to pay the debt ; by a subsidiarie action . decreets are executed likewise by poinding , and arrestment upon the warrand in the letters of horning , which are fully treated in their proper places , vide supra , tit. poinding , and arrestments . tit. . part . as to execution of immoveable goods , which is by comprising and adjudication , the same is formerly treated , part tit . . if the decreet be , to remove from lands , then the party decerned to remove , being denounced rebel , for not removing ; the sherriff , or iudge ordinar , is charged to eject , who comes to the land , and puts out the fire , or casts out some of the plenishing ; but if a man continue to possess in spight of all law , after he is legally ejected , the privy council will give letters of fire and sword , to the party injured ; commissionating the sherriff , and others whom he will name , to dispossess him by the sword , to raise fire , and use all other severities , for which the commission does indemnifie them . if such as have debatable rights , choose rather an amicable , than a iudicial decision ; they subscrive a submission to arbiters , and if they please , to an oversman , and another blank on the back of the submission ; wherein they may fill in their decreet arbitral : and though it be free to these arbiters to accept ; yet if they once accept , the lords will grant letters of horning to force them to decide . though these arbiters are not tyed to the strict solemnities of law , yet they must observe material iustice ; and therefore , they must advertise parties , that they may give in claimes ( for a claime to arbiters is in place of lybels to iudges ; ) and must allow terms to prove ; and though equity is to them a rule , as law is to other iudges ; yet if either party be enormly lesed , the lords will suspend and reduce their decreets . if the submission bear no special day , betwixt and which they are tyed to decide , they must decide within a year of the submission ; and if witnesses will not voluntarly appear before them , the lords will upon a bill , grant letters of horning to force them to appear . title iv. of crimes . crimes are either private , where the injury is committed against private persons ; or publick , where it is committed immediately against the common-wealth . private crimes , called also delicta , in the civil law , oblige the committers to repair the dammage , and interest of the private partie . crimes are in scotland either punished capitally , by death ; or pecunially , by a certain fine ; or arbitrarly at the discretion of the iudge . capitale crimes are treason , which is punished by forefaulture of life , lands , & goods . it is treason in any man , to plot , contrive , or intend death , or destruction to the kings majesty ; or to lay any restraint upon his royal person ; or to deprive , depose , or suspend him * , or to endeavour the alteration or diversion of the succession * ; to levy warr against the king , or any commissionated by him ; or to intyse others to invade him * , to make treaties , or leagues with forraign princes ; or amongst themselves without his consent * . to rise in fear of warr against the king ; to raise a frey in his hoast † , to assaile castles where he resides * ; to impugne the authority of the three estates ; to decline the kings authority ; not to come out to the kings hoast ; or to desert it * ; to maintain or reset treatours ‡ ; to conceale treason ; to countersite the kings coyne ; and to raise wilful fire * ; all which are species of high treason . we have a kind of treason in scotland , which we call statutory treason ; because it is meerly introduced by statute , and not by common law : viz. theft in landed men ‡ ; because of the danger of that kind of theft ; murder under trust * ; as if one man should kill another , when he invites him to his house ; or a tutor should kill his pupill ; which because of the easiness and attrociousness of the crime is made treason ; the fireing of coals heughs * , assassination * ; & the pursueing another for treason without being able to prove it ‡ . all iesuits , seminary priests , and traffecking papists * ; and all thieves , who take bonds from lealand honest men , for re-entering when they please : all who purchase benefices at rome ; are guilty of treason ‡ . no crime can be pursued against a man or his heirs , after his death ; except that treason which is committed against the kings person , or common-wealth . the other capital crimes are blasphemie , mans slaughter , or homicide ; for all homicide is capital with us : except it be casual * , or homicide in self defence . * theft is punishable by death ; but we call small theft pickery , and it is only punishable arbitrarly * . notour adulterey , that is to say , where there are children of the marriage : or where the adulterers converse openly at bed and board ; or being discharged by the church to converse , do continue to converse is punishable by * death ; but simple adultery is only punishable arbitrarly . incest * , buggery , duells † , the invading of any of his majesties officers , for doing his majesties service * ; forgery † , witchcraft , and the consulters of witches * , sorners ; that is to say , such as masterfully take meat and drink from the kings people without payment † : all wilfull hearers of mass * , and conceallers of the same ; mutilation † , which is the disabling of a member , ( though de praxi ; this be ordinarly punished with an arbitrary punishment : or the authours of infamous lybells , seditious speeches , tending to sedition ; the strickers of any iudge in judgement ; mixers of wine * , and committers of hame-sucken , by which we understand the assaulting or beating any man in his house . the crimes to be pecunially punished are the slayers of red-fish * ▪ killers of daes , deer , roes † ; destroyers of bee-hyves , fruit-trees , greenwood ; kindlers of mure-burn ; except in the moneth of march ; steeping of green-lint in runing waters . or loches ; such as are guiltie of abominable oaths ; and furnication . crimes to be arbitrarly punished at the discretion of the iudge , are negligence in the kings iudges and officers * , and such as unjustly murmure against them † ; breakers of the kings protection * : the bringing home of erroneous books † ; and the troublers of church-men ; crafts-men * who wrongously refuse to fulfil the work which they have taken in hand ; verbal injuries , and scandals , against private parties . it is fit to know , that no punishment left arbitrary by the law , to the discretion of the iudge , can be by him extended to death ; and that where-ever the law appoints death to be inflicted , the offenders moveables fall to the king ; though the law does not express the same ; and though the sentence express not the confiscation . there are other crimes , whereof the punishment is not reduceable to any of these kinds ; and thus perjury , and bigamie , ( which is a kind of perjury ; because , a man who marries two wives breaks his matrimonial oath , ) are punishable by confiscation * of all the offenders moveable goods , imprisonment , and infamy . deforcers of messengers , and breakers of arrestment , are punishable by confiscation of all their moveables † ; forestallers of mercats * , by buying things before they be pr●sented to the mercat ; or before the mercat be proclaimed , are punishable by imprisonment , and confiscation of what is bought . ocker , or usury * , which is the taking more than the annualrent allowed ; or the taking annualrent before the term of payment ; is punished by loss of the principal sum ; for the debitor is to be free from the obligation , and the write being reduced , the sum belongs to his maiestie . stellionat or the making of double rights ; is punished by infamy * ; and their persons are at the kings will. the keepers of victual to a dearth , are punishable as * ockerers ; and by the civil law , per leg : iul : de annona . bribing of iudges is punishable by infamy and deprivation ; plagium or the stealling of men , is a particular crime by the civil law ; but is a species of theft with us . and theft-boot which is the saving a thief by fyning with him , is punishable as theft * . baratrie , or the obtaining benefices from rome , is punishable by † banishment and infamy . ambitus , or the obtaining offices by unjust means , is not punishable under monarchie . the punishment of crimes is taken off , either by remissions , which must pass the great seal ; and must express the greatest crime † , for which the remission is granted : or by indemnities , which is a general remission granted by the king or parliament ; betwixt which two there is this difference , that the obtaining a remission does not free the obtainer , from * assything the party , that is to say , from repairing his losses ; since it s presumed the king does only discharge what belonged to him , which is , vindicta publica ; but not what is the interest of private parties , or vindicta privata ; but because all the people are represented in parliament : the king and parliament may by their indemnity ; discharge both the one and the other . he who founds on a remission , acknowledges the crime ; but he who founds on an indemnity does not . the king likewise restores men sometime against forefaultures ; which restitution is either by way of iustice , finding that the person was unjustly condemned ; and then the person condemned is restored to all that ever he had ; and he recovers not only his fame , but his estate ; though transmitted to third parties . † or secundo , the restitution is by way of grace and meer favour ; and then the partie condemned cannot recover , what was bestowed by the king upon third parties ; for the king cannot recall what was once legally and warrantably granted by him . finis . notes, typically marginal, from the original text notes for div a -e * k. j. par. . act ● * k. ja. . par. . act . k. jam. . par. act . ● . mary par. . act . k , ja. par. . act . * k. ja. . par act . * k. ja. par . . act . k. ja. . par. . act † k. ja. par . . act . * k. ch. . par. act. . par. . act . * k. c. par . . * k. c. ● par. . sess. , act . ‡ par . act . * k. j. . par . . act * k. c. par . . act . * k. j. . par. . act * k. c. ● par. . sess. . act . and ▪ par. . act . * act foresaid * king ch. . par. . ses. . act. . * k. ja. . par . . act k. ch. . par . . act . k. ch. par . . ses. . act . * k. j. . par. . act k. ja. . par. . act * k. ja. ● . par. . act. ● . * k. ja. . par . . act , , , , . * k. ja. . par. . act . * k. c. par. . sess. . act . * k. c. par . . act . * k. c. par . . act . * k. j. . par. . act * k. c. par. . sess. . act . * leg. mak. . act . quoniam attach . cap. † k. ja. . par. ● . act . * k. ja. . par. . act. . * quoniam attach , cap. . * k. c. par. . act . * k. ja. . par . . act , * k. ja. . par. . act * k. ja : . parl . ● . act . k. char . par . . sess : . act . sess . . act . * k : j : : par : : act . * k. j. . par . . act . * k. ja. . par . . act . * k. ja. . par . . act . * k. ja. . par. act ▪ * k. ja. . par. act . * act foresaid . * k. ja. . par. . act . * k. ja. par. act * k. ja. par. act . * king james par. . act . * king james par : : act * king charles : par . ● sess : : act . * king james par . act . * levit. chap. k. ja. , par. . act . * king charles . parl . . sess. act . † king james par . . act . k char par. . act . sess. . * k. c. par. . act . * reg. ma. lib. . cap. . leg. burg. cap. . * k. ja. . par. act * k. ja. par. . act . * q. m. par. . act . * k. c. par. . sess. ● . act . * k. c. par. . act . * statu● : a will : cap. . * k. j. . par. . cap. . * k. c. par. . act . * k. c. par. . act . * k. j. . par. . act . k. j. . par. . act . * q. ma par. . act . k. ja. . par : . act ● . * k. j. . par. . act . ‡ k. j. . par. . act . * k. c. par. . act. . * k. j. . par. . act . k. ja. . par. . act . * stat : rob. . cap. . * stat : rob. . cap. . reg : majest . lib. . cap. . par. . & . * leg. mal. cap. ▪ * k. j. . par. . act . * k. j. . par. . act . * k. j. . par. . act . * k. j. ● . par. . act . ‡ k. j. . par. . act * k. j. . par. . act . * q. ma par. . act . * k. j. . par. . act . * k. c. par. . sess. . act . * k. j. . par. . act ▪ . * k. j. . par. . act . * k. j. . par. . act . par. . act . * king char. . par . . act . * k. j. ▪ par. . act . * k. c. par. . act ▪ . * k. c. par. . act . † k. j. . par. . act . * k. j. par . . act . * tyths or tenths : * k. j. . par. . act . * k. c. par. . act . and . k. ch. ● par. . sess. . act . * act of sed. . feb ▪ . . * k. j. . par ▪ ● . act ▪ & . par . ● . act ● . * k. c. ▪ par. . act . * k. j. . par. . act ▪ ▪ * k. j. . par. . act . * k. c. . par. . sess. . act * k. c. par . . sess. . act . * k. j. . par. . act . * k. j. par . . act . * k. j. . par. . act . k. j. . par. . act . * k. c. par. . act . * act foresaid . * k. c. par. . sess. . act . * k. c. ● par. . sess. . act . * k. c. par. sess. . act . * k. c. par. sess. . act. . o●l●gat●on . * contracts . * contracts . * mutuum . * commodatum . precariu● . depositation . pledge . condictio indebiti . obligation by write . promises . * k. j. . par. . act * k. c. pa● . . act . bills of exchange . emo & vend . emption . * location . society * mándate . gen. & par. mand. exercitor . institor homologation . quasi contractus . negotiorum gestio . tutory . cautioners . relief of cau : donations . remuneratory donations . donations in contemplation of death . gifts . consent . discharge . dis charges general and particular . apocha trium annorum . payment . acceptilation compensation . innovation ▪ consusion . assignation . cedent & assig . intimation . blank band. of arrestments . and poyndings . * k. j. . par. . act . * k. c. par. . sess. . act . * k. j. . par. . act . * 〈…〉 par. act poinding : * k. j. . par. . act . k. ch. . par. . sess. . act . * k : c : par : : sess : : act ● : labour ing oxen * k. j. par . . act . pes●r . pres : of herit . rights . pres : of personal rights . * k. j. . par. . act . par. ● . act ●● : * k. j. . par. . act . * k. j. . par. . act . * k. j. . par. . act . assyers . * k. j. . par. . act . forfeiture : * k. j. . par. . act . * k. c. par. . sess. . act . * k. j. . par. . act . prescription interruption● * k. c. ▪ par. . sess. : act . * k : c : par : . act . heir : heir of line : grand children . collaterals . representation . heirs of line . heir of conquest . conquest . heirs male. heirs of provision . heirs portioners . discussion ▪ heir active . appearand heir . * annus delib . k. ●a . . par. ● . act. . posthum child . general brief . behaving as heir . succes . tit . lucr . rights on death-bed . * stat. will. reg. cap. . inventary testaments . legacy jus relicta . legittim . deads part executor . * k. j. . par. . act . colation . exec. nominate . execut. dative . executor creditor . * act of sed. . feb. . special legacy co-execut . diligence of exe : prvil . debts . decreet of exoneration . vitious intromission . relief , &c. ultimus ●aeres . bastardy . * k. j. ● par . ▪ act . actions real & personall actions improbation . reduction . terms of imp. direst manner of imp. indirect manner of imp. certif . in imp. * k. j. . par. . act . reprobatour . summonds ●● error act prejudicial . exhibitions . actiones bonae fidei . actiones stricti juris . rei persecutoriae penal . arbitrary . declarators . civil actions nature of a summonds . medium concludendi . will of the summonds . conclusion . * k. j. . par . . act. ▪ transsumpts . multiple poyndings . transferrence summonds of regi ▪ stration prevento . advoca ▪ tion . contra : of laborrows . declar : of property . summonds of mole ▪ station . poynding of the ground . spulzie wakning . furthcoming breach of arrestment . accumulation of actions concu●sus actionum . defor●ment . probation . by write . by oath . oath of calumnie . k : j : ● par : : act ● oa●h in litem . a qualified oath . presumption . suspension . caption subsid : action . ejectino . letters of fire and sword. decreets arbitral . crimes . delicta treason . * k. j. . par . . act . k. c. par . . sess. . act . * k. c. par . . act . * par. . act . * k. c. par . . ses . . act . † k. j. par . ● . act . . k. j. . par . . act . * k. j. . par. . act . & . * k. j. . par. . act . ‡ act par. . * k. j. . par. . act . stat : treason . ‡ k. j. . par. . act . * ibid. act . * k. j. . par. . ast . * k. c. par. . act . ‡ k. j. . par. . act . * k. j. . par. . act . ‡ k. j. . par. . act k. ja. , par. . act . * k. c. par. . sess. . act . * k. j. . par. . act and . * k. j : : par : : act . * q : m : par : : act : k : ja : : par : . act † k : j : : par : : act : * k : j : p : : act : † k : j : par : : act : * j : : p : : act : † q : m : act : par : : * k : j : : p : : act : † q : m : p : : act : † k : j : : par : : act : & : * k : j : : p : : act : † k : j : : p : : a : : * k. j. . par , . act . * * k. j. . par : : act : & act : par : : ●act : † k. j . par. . act . * k. j. . par. . act . † k. j. . par. . act . * k. j. . par. . act . † k. j. . par. . act . * k : j : : par : : act : k : ja : : par : : act : * q. ma par. . act . † k. j. . par. . act par. . act * ibib. act * k. j. : par. . act . par. . act par. . act * k. j. . par. . act . k : ja. . par. . act * k. j. . par. . act . k. ja. . par. . act . * k. j. . par . . act . † k. j. . par. . act . par. . act † k. j. par. . act . * k. j. . par. . act . k. ja. . par. . act . † k. j. . par. . act . a moral paradox maintaining, that it is much easier to be vertuous then vitious / by sir george mackeinzie. mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing m estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a moral paradox maintaining, that it is much easier to be vertuous then vitious / by sir george mackeinzie. mackenzie, george, sir, - . , p. printed for robert broun ..., edinburgh : . imperfect: p. at end lacking in filmed copy. reproduction of original in union theological seminary library, new york. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng virtue. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - emma (leeson) huber sampled and proofread - emma (leeson) huber text and markup reviewed and edited - pfs batch review (qc) and xml conversion a moral paradox : maintaining , that it is much easier to be vertuous then vitious . by sir george mackeinzie . jer . . . — they weary themselves to commit iniquity . edinburgh , printed for robert broun , and are to be sold at his shop , at the sign of the sun , on the north side of the street , a little above the cross , anno dom. . to sir robert murray , one of the honourable members of the royal society . sir , though i cannot but with much thankfulness resent your favours ( wherein ye did both prevent , and out-do my wishes ) yet it were a disparagement to them , that i should look upon my self as your debtor for them , seing ye bestowed them so freely , that they appeared gifts , not obligations . and so in this dedication , i design to pay , not them , but my respects . neither intend i by it , to recommend you to posterity , for in that i would disoblige fame , which hath resolved , by speaking truth of you , to repair and atton its former guilt , in having so oft ly'd of others . but , sir , i have chose you to be the patron of this book , because your practice is the strongest argument , whereby i can evince what is undertaken in it , which is to prove , that there is more ease in vertue then in vice. and seing to undertake the proof of this , were the next crime to the doubting of it : and since your worthiness , and my esteem of it , are much rais'd above the frail helps of complement , or a wearying dedication , let me assure you , and the world of both , by the innocent vanity i take in the title of your sincere friend , and humble servant , geo. mackenzie . it is easier to be vertuous then vitious . as these spyes deserved ill of the israelitish camp , who having inflamed their breasts with desires of conquering canaan , by presenting them of it's vines , whose each cluster was a vintage , and each grape a bottle ; did thereafter , by a cruel paricide , destroy these same inclinations which they had begot , by telling those their hopeful brethren , that the countrey was as unconquerable , as pleasant ; and that it's men were giants , as well as it's fruits . so by the same measures we have reason to fear , that these divines & moralists , are unhappy guides to us poor mortals , who after they have edged our inclinations for vertue , as the most satisfying of all objects , do thereafter assure us , that it is attended with as much difficulty , as it is furnisht with pleasure : and that like some coy lady , it possesses charms , not to satisfie , but to exact our longings . this infortunat error hath in all probability , sprung either from the vanity of these bastard philosophers , who having cheated the people into an esteem for themselves , as vertuous , resolved by a second artifice , to highten that esteem , by perswading these their admirers , that vertue was a work of as much difficulty , as it met with praise . or else from the zeal of some preachers , who , to make us antedate our repentance , resolved to perswade us , that faith and these other spiritual vertues , could not but be hardly attainable ( as certainly they are ) when moral vertue , which is a lower story of perfection , was of so difficult an ascent . or ( which is yet most probable ) our laziness , and vitious habits being called to an account for these misfortunes , which they occasion , have run themselves under the protection of this defence , that vertue is most difficult and uneasie , and is destitute of both pleasure and advantage : by which conceit , many are diswaded in this age , from undertaking a resolution of being vertuous , though otherwise they much honour it ; and wickedness is not only furnish'd by this , with an excuse to detain such as it hath already overtaken , but with charmes to intangle these who are yet stated in an indifferency for either . and though the heat of zeal in preachers , should not be too much disproved in this age , where in the coldnesse of their hearers charity , needs those warmer influences , and though they may be allow'd to bend our crooked humours to the contrary side of what they incline to , of design to bring them to a desired straightness . yet if we consider that infallible theology delivered by our saviour , we may find , that he invited his disciples , by assuring them , that his yoke was easie , and his burden very light , and by upbraiding them , for wearying themselves with their sins , and for troubling themselves about many things . and since the former artifice , hath either by being too familiarly preached , lost its operation , with such as love curiosity , or by being too severely prest , discouraged too much these who love too well their own flesh and blood , to welcome any doctrine that stands so opposite to it : i wish these same preachers would now endeavour to reclaim mankind , by assuring them , that vertue is much easier , and much more advantagious then vice. imitating in this their great master , who , after his disciples had wearied themselves with catching no fish all the night over , did , by perswading them to throw out their nets upon the other side of their boat , put them upon the way of catching more at one draught , then they had catcht in their former whole nights fishing . but leaving ( with much resignation ) my ghostly fathers to manage the course of our devotion , as their knowledge and piety shall judge most fit ; i shall endeavour to clear from reason and experience , that moral vertue is of lesse fatigue , and suits better with our natural inclinations , then vice , or passion doth . and although i fail in an undertaking which is too noble an enterprize , to receive its accomplishments from so weak a hand , yet if i shall excite others , out of pity to me , or glory because of the subject , to defend what i could not , or to love that vertue which i recommend , i shall rest satisfied with a return , which because it will be above my merit , i have already placed above my expectation ; and so i may meet with a foil , but cannot with a disappointment . all creaturs design ease , and for this , not only bruits do toil , but inanimat things likewise show ; for it so much of inclination , that they will destroy all intermediat objects , that hinders them from joyning to their center , to which they have no other tendency , but because there they find that ease , which is desired by their nature : and because all things find ease in it , therefore all things flee thither , as to the loveliest of all stations . and that happiness consists in ease , is clear from this , that either we want that we need as the accomplishment of our nature , and then nature most move towards the acquisition of what it wants ; or else we want nothing , and then nature will enjoy it self without any further motion , nam natura nihil agit frustra ; and it were most frustraneous for nature , to seek what it wants not : from which we may conclude , when we see any creature restlesse , and in motion , that certainly it either wants something to which it moves , or is opprest by a surcharge of somewhat , from which it flies . this hath made philososophers conclude , that all motion tends to some rest ; lawiers , that all debates respect some decision ; statesmen , that all war is made in order to peace ; physitians , that all fermentation and boiling of the blood or humours , betokens some dissatisfaction in the part affected ; ( and to show how much happinesse they place in ease , they term all sickness diseases ) which imports nothing more , then the absence of ease , that happiest of states , and root of all perfections ; and that divinity may sing a part in this requiem , scripture tells us , that god hallowed the seventh day , because upon it he rested from his creation , and that heaven is called an eternal sabbath , because there we shall find ease from all our labours , there god is said , when well pleas'd , to have savour'd a sweet savour of rest , and he recommends his own gospel as a burthen that is easie . that then wherewith i shall task my self in this discourse , shall be to prove , that vertue is more easie then vice. for clearing whereof , consider , that all men who design either honour , riches , or to live happily in the world , do either intend to be vertuous or at least pretend it ; these who resolve to destroy the liberties of the people , will stile themselves keepers of their liberties ; and such as laugh at all religion , will have themselves beleeved to be reformers ; and of these two , the pretenders have the difficultest part , for they must not only be at all that pains , which is requisit in being vertuous , but they must superadde to these , all the troubles that dissimulation requires , which certainly is a new and greater task then the other ; and not only so , but these most over act vertue , upon design to take off that jealousie , which because they are conscious to themselves to deserve , they therefore vex themselves to remove : moses the first , and amongst the best of the reformers , was the meikest man upon the face of the earth ; but iehu who was but a counterfit zelot , drove furiously , and called up the by-standers to see , what else he knew they had reason not to beleeve ; and the justest of all israels chair-men , took not so much pains to execut justice , as absolon , who is said to have staid as long in the gates of ierusalem , as the sun stay'd above them , informing himself of all persons and affairs , though with as little design to redresse their wrongs , as he shewd much inclination to know them ; and all this , that the people might be gained to be the instruments of his unnatural rebellion ; and such is the laboriousnesse of these seeming coppiers of vertue , that in our ordinar conversation , we are still jealous of such as are too studious to appear vertuous , though we have no other reason to doubt their sincerity , but what arrises from their too great pains , from which we may conclude , that these who intend to be vertuous , have a much easier task then these pretenders have , because they have not their own conscience , nor the jealousness of others to wrestle against ; and which is yet worse , these want that habit of vertue , which renders all the pains of such as are really vertuous easie to them , and what is more difficult , then for these to act against customs , which time renders a second nature ; and which , as shall be said hereafter , is so prevalent , as to facilitat to vertuous persons the hardest part of what vertue commands : besides this , these dissemblers have a difficult part to act , seing they act against their own inclinations , which is to offer violence to nature , and the working not only without the help of that strongest of all seconds , but the toiling against it , and all the assistance it can give : which how great a torment it proves , appears from this , that such as have as much generosity , as may intitle them to the name of man , will rather wearie out the rage of torture , then injure their own inclinations . i imagine that haman was much distrest , by being put to lead mordecai's horse in complyance with his masters commands ; and one who is obliged by that interest , which makes him dissemble to counterfit a kindness for one whom he hates , or emit an applause of what he undervalues , is certainly by that necessity more cruciat by a thousand stages , then such as intend upon a vertuous account to love the person , and really to praise that in him , which they are forc'd to commend ; which is so far from being a torment , when it is truly vertuous , that that real love makes him who has it , hungry of an occasion to shew it , and to pursue all means for hightning that applause , which torments the other consider what difficulty we find in going one way , whil'st we look another , and with what hazard of stumbling that attempt is attended , and ye will find both much difficulty and hazard to wait on dissimulation , wherein we are tyed to a double task , for we must do what we intend , because of our inclinations , and what we pretend , because of our professions ; and if we fail in either , which is more probable , then where simplicity only is profest , ( two tasks being difficulter then one , ) then the world laughs at us , for failing in what we propos'd : and we fret at our selves , for failing in what was privatly design'd ; and not only does dissimulation tye us to a double , but it obliges us to two contrary tasks , for we needed not dissemble , if what we intend , be not contrary to what we pretend ; and thus men in dissimulation do but ( like penelope , ) undoe in the night , what they were forc'd to do in the day time . dissimulation makes vice likewise the more difficult , in that dissemblers are never able to recover the losse they sustain by one escape , for if they be catcht in their dissimulation , or dogg'd out to be impostors ( which they cannot misse , but by a more watchful attendance , then any that vertue requires ) then they of all persons are most hated , not only by these whom they intended to cheat , but by all others , though inconcerned in the crime , and both the one and the other do yet hate it , as what striks at the root of all humane society : and for this cause , murther under trust , is accounted so impious and sacrilegious a breach of friendship , that lawiers have hightned its punishment , from that of ordinar murther , to that of treason ; and the grossest of politicians have confest this dissimulation to be so horrid a crime , that it was not to be committed for a lesse hire then that of a kingdom : whereas vertuous persons have their escapes , oftner pitied then punished , both because these escapes are imputed to no abiding habit , and because it is not to be feared that they will offend for the future , seing what they last failed in , was not the effect of any innate and permanent quality , but was a transient and designless frailty . dissimulation is from this likewise more painful then the vertue which it emulats , that the dissembler is oblidged not only so to dissemble , as that these whom he intends to cheat , may believe him serious ; but so likewise , as that others may understand that he is not serious : thus i have my self seen a gentleman , who dissembled a love and fondness for one whom he was oblidged to perswade that she was his mistriss , act so ccovertly that perfidious part , that his real mistriss , was really jealous that he dissembled with her , and not with the other : and to remove this , put the gallant to as much new pains as his former cheat had cost him . and i have heard of the like accidents , though in different actions ; as of a rebel , who counterfeited loyalty so , that his complices did really distrust his fixedness to these damn'd principles which he still retained . and in ordinary conversation ye will often find , that in dissembling with the one party , ye lose still the other ; and it is impossible to regain them who are so lost , but by a shamefull discovery of the former cheat : and after all that losse , this doubt is still left , how can i know but this man dissembles with me , who is so exquisite in that art , as even to have made me jealous , that his dissimulation was not counterfeit ? let us a little consider how few instruments vertue requires , and we will find it easie to be vertuous : it requires no arms , exchequer , guards , nor garrison ; it is all these to it self , in every sense wherein it needs them : whereas vice is a burden to its votaries , as well in the abundance of those attendants which it requires , as in the difficulty of those attainments which it proposes . and this is that happy topick , from which our wise saviour reproved martha , when he told her , that she wearied her self about many things , whereas there was one thing necessary . by which , seing he commended devotion , i may well press from it the excellency of moral vertue . the ambitious man is obliged to have his house planted with a wood of partizans , as well to secure that condition which so many envy and rival , as to magnifie himself by so unequall'd attendance . this desire to command , made hannibal force a passage through the rocky alps ; cesar to commit himself to the mercy of a stormy sea , and so many weary journeys . this obliged xerxes to entertain vast navies . and darius such armies , as reduced all mankind into one incorporation . and so much doth ambition tie its dependers , to depend upon such numbers , that though that armies of laquays which attend them , signifies no more then so many following ciphers ; yet the substracting of any one of these , doth by so much lessen the value of what they follow . doth not pride require flatterers ? and these flatterers salaries , and the provision of these salaries , much pains and anxietie ? doth it not require precedency , a suitable estate and applause ? and are not these inattainable , without more toil and fatigue , then any thing that vertue enjoynes ? covetousness requires assiduous drudgery , and mines as bottomless as the desires which craves them : it craves every thing which others have , and every thing which it self can imagine . luxury seeks only after what is unusual , and what is rare . it must in apicius , crave food from the indies , fetcht to rome , in heliogablus fishes when far from the sea , and more for one belly , then might enrich thousands of nobler creatures . lust requires plurality of women , abundance of strength , numbers of pimps , and much money . whereas vertue craves only what is fit , and perswades us to believe that only to be fit , which is absolutely necessary ▪ cato's table is compleatly furnished with one dish , and his body with one vesture . huic aepulae vicisse famem . and the philosopher going by well and rich furnish'd shops , could cry out with pleasure , oh! how many things are there , of which i stand not in need ? not only are these many instruments troublesome , because they are superfluous , but likewise , because by their number they add to these natural necessities , under which even vertuous men are weighted , as long as they are men . these who have so numerous families , cannot remove when their necessity calls them , but they must expect till their retinue be ready , and when these are prepared , it is no easie clogg to draw so many after them ; or when any misfortune overtakes any of these many , they must suffer in these , as oft as each of these suffers in themselves ; and their miseries are augmented by every new increment that is added to their fortunes . a great treasure is not only an incitement to make its master be assaulted , or betrayed , but is likewise uneasie to be transported : and cresus many baggs are overtaken , when moneyless solon escapes with safety . i shall then conclude , that vertue is easier then vice , because it requires fewer instruments . cause it cannot find them at home . covetousnesse must scorch in the indies its suiters ; it must freez them in nova zembla ; it terrifies them at sea , and shipwracks them upon the shore . whilst vertue recommends to us , to seek our happiness in no forraign pleasures : and diogenes finds without danger in his tubb , what these sailers pursue in their dangerous bottoms . but vice might plead it self less guilty , if its designs were only difficult , but difficulty is not all , for vice either requires what is impossible , or what by not being bounded , may very easily become so . covetousness makes nothing enough , and proposes not only what may satisfie , but what may be acquired . ambition likewise will have every man to be highest , which is impossible , because there cannot be many highests ; and the first attainer leaves nothing to his implacable rivals , but the impatience of being disappointed , which not only disquiets their present ease , but begets in them projects of attaquing him by whom they conceive themselves vanquisht . and these designs being formed , by persons whose judgements is much disordered by interest ( which like fir'd powder , flees out , not alwayes where it should , but where it may ) and against persons already secured , by power , fame , law , and other advantages , they ripen into no other issue , then a last ruine to these , who were so foolish , as not to satisfie their present humour with their present fortune . philosophers have divided all vices into these , which consist in excess , and these which imply a defect , the one shooting as far over the mark as the other comes short of it ; and if we compare vertue with either of these , we will find it more easie then either , for as to these which over-reach vertue , they must be as much more uneasie then it , as they exceed it ; for having all in them which that vertue possesses which they exceed , they must require either in acquisition or maintenance , all the pains that the exceeded vertue exacts . thus prodigality requires all the spending , and pains that liberality needs , and running equally with it all it's length ; it begins to require more pains and travel where it out-shoots the other , and thus prodigality bestowes not only enough as liberality does , but it lavishes out more then is fit , taking for the standard of it's bounty , all that it hath to bestow , and not either what it self can spare , or what it's object needs : jealousie pains it self more , then true love , with all those extravagancies , which are so unsufferable to the party loved , and so disquieting to the lover himself , that physitians have accounted this a disease , and the law hath made it a crime . as to these vices , which by being placed in defect , seem to require as much lesse trouble then the vice they fall short of , as the others require more , because of their excess ; yet so uneasie is vice , that even these though they exceed not vertue in their measures , do yet exceed it in their toil : for nature designs accomplishment in all it's productions , and therefore frets , and is disquieted at these immature effects ; and is as much more wounded by these , then by vertuous productions , as the grafts are by being spoiled of their greener fruits , or as a women is by her too early birth . we see a miser more cruciat by his scanting penuriousnesse , then a noble person by his generous liberality , for these are oblieged to keep themselves out of these occasions of spending ( a task great enough ▪ because all men endeavour , both out of envy , and out of humour and sport , to draw them unto these snares ) and when they are within their own circle , they are forced by that restlesse vice , to descend to thousand of tricks , which are as wearieing , as unhandsome . i have seen some so careful of their estates , that they brook'd better to have their names and souls burden'd then these , and to preserve which they were at more trouble then any can have the faith to beleeve , besides these who had the humour to do so : if to hold or draw with our full force be a trouble , both these are the posturs of covetousnesse , where-with it is kept upon constant guard , and in continual employment ; and if at any time they remit any thing of that anxiety , they repine at their own negligence , and imagine that they lost as much as they hoped once to have gain'd . fear is the defect of courage , but yet it is more uneasie then courage , and really this alone has more uneasienesse , then all the fraterny of vertues , for vertue is at worst bussied about , what is ; but fear bogls at what is not , equally with what is . vice likewise is therefore lesse easie then vertue , because it proposes only an aime , which is fixt and stable , whil'st vice and fancy leavs us to an indetermination , that is uneasie as well as dangerous , when it hath prest us , to make armies fall as sacrificed to the idol of our ambition , and for humouring of that passion , to bring cities as well as men level with the ground : then it will in the next thought perswade us , even to laugh at our ambition , and to exchange it for love to a mistriss or companionrie as it once serv'd the otherwise great alexander . as vertue makes good neighbours , so all the vertues are ●o far such amongst themselves , that not only they interfeer not with one another , but the exercise likewise of the one , facilitats the practice of the others ; thus whilst we practice temperance , we learn to be just , because temperance is the just measure of enjoying , and using all contingents ; and we learn by it to be patient , patience being a temperance in grief , sorrow or affliction : patience is likewise the exercise of fortitude , and fortitude is a just proportion of courage , and a temperat exercise of boldnesse . and this occasion'd the philosophers to terme this noble alliance , the golden chain of vertue , each being linkt with , and depending upon it's fellow . but if we turn the prospect , we will find that though dissention be a special vice so character'd , yet all vices , have somewhat of that ill natur'd humour in them ; and agree in nothing , besides that each of them disagree with each other , which makes the practice of them both tedious and disagreeable , for all of them consisting , the one in excess , the other in defect ; they cannot but disagree , excess and defect being in themselves most contrary : thus prodigality opposes avarice , cowardlieness courage , and fondnesse hatred ; and as vertuous persons have a kindness for one another , because the object of their love requires , as well as admitts rivals , so vice endeavouring to engrosse what it pursues , makes rivals altogether unsupportable . ambition pouses on each of it's dependers to be chiefe , and yet allows only one of these many to enjoy , what it makes all of them desire . thus avaric's task is to impropriat the possession of what was created , and is necessary to be distribute amongst many thousands : and envy will not only have its master to be full of applause , but will likewise starve the desires , and merits of others , judging that it self cannot be happy if others be . vice then must be less easie then vertue , because it hath moe enemies then vertue ; and because the vertues are more harmonious amongst themselves , then vices are . vices not only make enemies to themselves , but by a civil war ( as a just judgement upon them ) they destroy one another , providence intending thereby , to hinder the growth of what , though it prosper not well , yet is already too noxious to mankind ; and upon the same principle of kindness to what bears his image , god almighty , and his providence , do design the unsuccesfulness of vice , as being obstructive of his glory , as well as destructive to his creatures , being equally thereto engaged , by a love to his own honour and service , and by a hatred as well to these who commit vice , as to the vice which is committed . thus god confounded those tongues who had spoke so much blasphemy against him , whilst they were endeavouring to raise a tower as high as their sins . and when david intended to spill nabals blood , god is said to have stopt him from being an unjust executioner , whom he intended to make a most just judge . and since balaams asse opened its mouth to speak this truth , they must be more stupid then asses , who will not believe it . the law likewise by its punishments , contributes all its endeavours to crush vice , and to arrest its success , forbidding by its edicts , any person to assist it , and making not only assistance , but counsel ; not only counsel , but connivance ; not only connivance , but concealment of it , to be in most cases so criminal , that all the honours which vice promiseth , or the treasures it gives , cannot be able to redeem those who are found to have slighted this prohibition . must it not then be difficult to be vitious ? where assistants and counsellours are so over-aw'd , and the intenders so terrified , that few will ingage as instruments ? and these who do , are so disordered by fear , that vitious projecctors are as little to expect success , as vertuous persons are to wish it for them . and to evidence how much opposition the law intends for vice , it not only punishes vice with what it presently inflicts , but it presumes it still guilty for the future , semel malus , semper praesumitur malus ; and upon that prsumption many vitious persons have suffered for that whereof they were otherwayes innocent . though rebellion hath promising charms , to allure the idolaters of ambition and fame , yet the law doth so far stand against it , that few will concur with the contrivers , except such fools as have not the wit to promote it , or some desperat persons , with whom few will joyn , because they are known to be discontent , & though revenge relishes blood with a pleasing smack ; yet the severity of excellent laws cools much of that inhumane heat , and lessens the pleasure , by sharpening the punishment . vice then must be uneasie , seing the law opposes it , and renders its commission dangerous , as well as odious . men likewise joyn with god and the law in a confederacy against vice , and though they too oft approve it in the warmnesse and disorder of their passions ; yet in their professions and conventions they laugh at it , and inveigh against it ; and though the pressure of a present temptation , overcomes them so far as to commit what they dissallow , yet they do it but infrequently and with so many cheks from within , as that it's commission cannot be thought easie : consider , how amongst men , we hate even these vices in others , which we are guilty of our selves , and how we even hate these vices in others , by which we our selves reap no small advantage . alexander gloried to destroy that base person , who had murthered his greatest enemy darius ; and david is commended , for having caused kill him , who but said , that he had killed saul ; who will employ one who is perfidious ? and so uneasie is vice , that much pains and discourse will not perswade us to beleeve one who uses to lye , whil'st we will soon beleeve what is really a lye from one who uses not to abuse our trust ; few judges are so pointedly just , as not to think that they may favour a vertuous person ; good men do likewise reward such as own an interest so allowable , and wicked men own such as are vertuous out of design , thereby to expiat their former vice , and to perswade the world , that they are not really vitious , though they be esteemed so : so that seing reward as well as inclination , and just men as well as injust advance vertue , and oppose vice , vice cannot be but be more uneasie then vertue , which is all is to be proven . i am from reflecting upon the progress and growth of vice , convinc'd very much of it's uneasieness ; if we look upon rebellion , revenge or adulteries , we will find them hatcht in corners as remot from commerce as those vices are themselves from vertue , and as black as the guilt of their contrivers , and almost as terrifying as the worst of prisons are to such who are but in any measure vertuous ; none of the contrivers dares trust his colleague , and which is yet worse , none of them hath courage enough to reflect upon what he is to do ; he most be too ill to be successfull who is so desperatly wicked , as not to tremble at the wickednesse he projects , and these blushings which adorn the face , when they are the motions of modesty , become stains and blemishes , when they are sent there by fear , or a troubl'd conscience ; and it is very pretty to observe with how much art and pains , such as are guilty of vice , endeavour to shun all discourses , that can renew to them the least reflection upon their former failings , and how they most often times disobliege their own envy and malice , in not daring to vent or reproach others with that guilt , which might be easily retorted ; and thus vitious men have as many masters , as their vices have witnesses : and though they are bold enough to commit vice , yet they often times want the courage to own it ; and servants , if conscious to these crimes , become thereby necessar to their masters , nor do wicked and vitious persons fear only such as do , but ( which is more extensive ) such as may know their vices , and tremble at 't is memory , as if the sun or moon would divulge their secrets , and by accident they have oft confest crimes upon mistakes , and have made apologies for that whereof they were not accus'd , which hath made the confessors to be laught at for their error , as well as hated for their crimes . another argument to inforce that vertue is more easie then vice , is , that seing nature is the spring of all operations , certainly that must be most easie , which is most natural ; and when we would expresse any thing to be easie to a person or nation , we say , it is natural to them , and miracles are uneasie and difficult , because they run the counter-tract of nature , being either above , against or beside it's assistance : but so it is that vertue is a more natural operation then vice , both because it lesse infests nature then vice does , and because nature discovers more of a bent to act vertuously then vitiously , which are the only two senses in which any thing is said to be natural . that vertue of these two prejudges nature least , is clear from this , that sobriety cherisheth it , when it is run down by intemperance , murder kills it , gluttony choaks it , and jealousie keeps it not alive but to torment it ; and generally when ever nature is distrest , it flyes to vertue , either for protection , as to courage , justice and clemency , or for recovery , as to temperance , industry and chastity : few gray hairs owe their whitenesse , except to that innocence whose livery it is , rapine , oppression , and these other vices , hightening their insolence against man , to that point , that he must serve them in being his own burrior , to be commended for nothing else , save that they rid the world of such who came only to it , to deface that glorious fabrick , whereof the almighty resented so the pleasure of having created it , that he appointed a day of each seven to celebrat its festivals . are not some sins said to be sins against our own bodies ? not because all are not so in some measure , but because some are so in so eminent a measure , that the apostle , who knew much of all mens inclinations , thought that there being so much such , was enough to restrain such persons from committing them , as were yet so wicked , as not to obey a saviour who died for them . and why is it that laws are so severe against vice ? but because it destroys and corrupts the members of the common-wealth ? i have oft , notwithstanding of the precepts of stoicisme , which forbids me to be so effeminat , as to pity any thing , and notwithstanding of the principles of justice , which forbids me to pity persons who are flagitious , yet been driven to that excess of compassion for the state of vitious persons , that i have no more remembred even the wrongs that they have done me , to see the pox wear out a face which had been so oft fairded , and the gout felter feet , that as the psalmist says , were swift to do ill , are but too ordinary encounters to excite compassion : but to see the wheel fatned with the marrow of tortured miscreants , and the rack pull to pieces these receptacles of vice , are great instances how great an enemy vice is to nature ; under whose ill conduct , and for whose errors it suffers torments , which are much sooner felt then exprest . since then nature is so oppos'd by vice , it cannot be it self so unwise in the meanest of these many degrees which we ascribe to many creatures whom it makes wise , if it disposed not mankind to entertain an aversion for vice , which is so much its enemy . shall the sheep , the silliest of all animals , or the earth , the dullest of all the elements , flee from its oppressors ? and shall nature , which should be wiser then these , because it bestowes these inclinations upon them , which makes them pass for wise , be so imprudent , as not to mould men so , as to incline them to hate vice , which so much hurts it ? is there any vice committed , to which we may not find another impulsive cause then nature ? and are not most vices either committed by custome , by being mistaken for good , by interest , or inadvertence , as shall be shewed in the close of this discourse ? and seing nature designs to do nothing in vain , it is not imaginable that it should prompt us to vice , wherein nothing but vanity can be expected , or from which nothing else can be reapt . these who are so injurious to nature ( because it appears nature hath been less liberal to them , of understanding , then to others ) as to fasten this reproach upon it , of inclining men to vice , do contradict themselves , when they say that nature is satisfied with little , and desires nothing that is superfluous ; whereas all these vices which consist in excess , do stretch themselves to superfluity ; whilst upon the other side , these vices which consist in defect , are yet as unnatural , because in these the committers deny themselves what is necessary for them , and so are most unnatural : nature desiring to see every thing accomplish'd in its just proportions , and satisfied in its just desires . all vices have their own peculiar diseases , to which they inevitably lead ; envy brings men to a leanness , as if it were fed with its masters flesh , as well as with its enemies failings ; lust the pox and consumptions ; drunkenness catarhes and gouts , and rage , feavers and phrensies ; which is a demonstration of their uneasiness , and incommodiousness : and i might almost say , that those vices are like frogs , lice , and other despicable and terrible insects , generated and kneaded out of excrementious humors ; lust is occasioned by the superfluity and heat of the blood ; drunkenness by a dryness of the vessels ; and rage by the corruption and exuberancy of choler . consider how much the grimaces of anger disfigures the sweetest face , how much rage discomposes our discourse , and by these and its other postures , ye will find vice an enemy to nature : so that in all these , nature labours under some distemper , and is distrest in its operations , and acts them not out of choice , but as sick men rise to hunt for what their physitians deny them . and from all this it follows , that vice is neither natural in its productions , nor in its tendencies , not being designed by nature in the one , nor designing to preserve nature in the other . i confesse there is a rank of vertues , which are supernatural , such as faith , hope and repentance , but either there could be no contradistinction of these from such as i treat of , else these of which i hear speak , must be natural ; to deny our selves , if we will follow christ ; and that flesh and blood did not teach peter , to emit that noble confession of christs being the son of the eternal god , proves that some spiritual truths , are above the reach of reason , yet with relation to those other moral vertues , that same inspired volumne assures us , that the gentiles , who have no law , do by nature the things contained in the law , these not having the law , are a law unto themselves , which shew the work of the law written in their hearts , the conscience also bearing witnesse , and their thoughts in the mean time accusing , or else excusing one another ; and elsewhere the wicked are said to be without natural affection , are not all sins even in the dialect of philosophers and law-givers , as well as in the language of canaan termed unnatural ? what is paricide , ingratitude , oppression , lying &c. but the subversion of these lawes , whereof our own hearts are the tables ? doth not nature , by giving us tongues to express our thoughts , teach us , that to disguise our thoughts , or to contradict them , is to be unnatural : and seing the not acknowledgement of favours , obstructs the future relief of our necessities , it must be as unnatural to be ungrate , as it is natural to provide supplies for our craving wants . i will not fully exhaust the miseries that wait upon vice , by telling you , that no man who is really vitious , sinneth without reluctancy in the commission ; but i must likewise tell you , that though all the preceeding disadvantages were salv'd , yet the natural horrour which results from the commission of vice , is great enough to render it a miracle , that any man should be vitious , our conscience can condemn us without witnesses , though we bribe off all witnesses from without , or though by sophistry and art , we render their depositions insuccessful : and though remissions can secure us against all external punishments , yet the arm of that executioner cannot be stopt ; and if ye consider how men become thereby inconsolable , by the attendance of friends , and the advantage of all exterior pleasures , ye cannot but conclude that vice is to be pitied , as well as shun'd , and that this alone makes it more uneasie then vertue , whereby the greatest of misfortunes are sweetned , and outward torments , by having their prospect turned upon future praise and rewards , rendered pleasures to such as suffer them ; and are lookt upon as ornaments , by such as see them inflicted , and draw praises from succeeding ages . — hic murus ahaeneus esto . nil conscire sibi , nulla palesscere culpa . was the determination of a pagan , who could derive no happinesse from these divine promises upon which we are obliged to rely for rewards ; which though they be too great to be understood by the sons of men , yet are not so great , but that they may be expected by us , when we shall be adopted to be the sons of that god , whose power to bestow , can be equal'd by nothing , but by his desire to gratifie . after successe hath crown'd vitious designs , yet vice meets with this uneasinesse of remorse , wherein the souls of men are made to forget the pleasure of successe , and are punished for having been successful : and these will either not remember their successe , in which case they want all pleasure , or if they think upon them , that thought will lead them back to consider the guilt and basenesse to which they owe it , which will vex and fret them . vertue afflicts at most but the body , and in these pains , philosophie consols us , but vice afflicts our souls ; and the soul being more sensible then the body ( seing the body owes its sensiblenesse to it . ) certainly the torments of vice must be greatest , and this seems the reason why our saviour , in describing the torments of hell , placeth the worm which never dies , before the fire that never goeth out ; and that the rebukes of a natural conscience , are of all torments the most insupportable , appears from this , that albeit death be the most formidable of all torments ( men suffering tortures , physick , contumelies , poverty , and the sharpest of afflictions , to shun its encounter ) yet men in exchange of these , will not only welcome death , but will assume it to themselves , adding the guilt and infamy of self-murder , the confiscation of an estate , and the infamous want of burial , to the horrours of an ordinary death ; and al this to shift the present gnawings of a conscience . the horrours likewise of a guilty conscience doth in this appear most disquieting , that those who have their conscience so burden'd , do acknowledge , that after confession , they find themselves as much eased , as a sick stomack is relieved by vomiting up these humours , whose disquietnesse maks such as suffered them , rather sick persons , then patients : whereas what ever be the present troubles which ariseth from vertue , yet if they continue not , they are tolerable ; and if they continue , custome , and the assistance of philosophy will lessen their weight , and at best , the pain is to be but temporary , because the cause from which they descend is but momentany : if they be not sharp and violent , they are sufferable ; and if they be violent , they cannot last , or at least the patient cannot last long to endure them . whereas these reflections that disquiet us in vice , arising from the soul it self , cannot perish whilst that hath any being . and so the vitious soul must measure its grief by the length of eternity , though vice did let out its joys but by the length of a moment , and did not fill even the narrow dimensions of that moment , with sincere joy ; the knowledge that these were to be short lyv'd , and the fear of succeeding torment , possessing much of that little room . the first objection whose difficulty deserves an answer , is that vertue obliges us to oppose pleasurs , and to accustome our selves with such rigors , seriousnesse and patience , as cannot but render it's practice uneasie ; and if the readers own ingenuity supply not what may be rejoyn'd to this , it will require a discourse , that shall have no other design besides its satisfaction , and really to shew by what means every man may make himself easily happy , and how to soften the appearing rigours of philosophy , is a design which if i thought it not worthy of a sweeter pen , should be assisted by mine , and for which i have in my current experience gather'd together some loose reflections and observations , of whose cogency i have this assurance ; that they have often moderated the weildest of my own straying inclinations , and so might pretend to a more prevailing ascendent over such ▪ whose reason and temperament makes them much more reclaimable : but at present my answer is , that philosophy enjoyns not the crossing of our own inclinations , but in order to their accomplishment ; and it proposes pleasure as it's end , as well as vice , though for it's more fixt establishment , it sometimes commands what seems rude to such as are strangers to it's intentions in them . thus temperance resolvs to highten the pleasurs of enjoyment , by defending us against all the insults of excesse and oppressive loathing ; and when it lessens our pleasurs , it intends not to abridge them , but to make them fit and convenient for us , even as souldiers , who though they propose not wounds and starvings , yet if without these they cannot reach those lawrels , to which they climb , they will not so far disparage their own hopes , as to think they should fix them upon any thing whose acquist deserve not the suffering of these . physick cannot be called a cruel employment , because to preserve what is sound , it will cut off what is tainted ; and these vitious persons , whose laziness forms this doubt , do answer it when they endure the sicknesse of drunkennesse , the toiling of avarice , the attendance of rising vanity , and the watchings of anxiety ; and all this to satisfie inclinations , whose shortness allowes little pleasure , and whose prospect excluds all future hopes . such as disquiet themselves by anxiety ( which is a frequently repeated self murther ) are more tortour'd , then they could be by the want of what they pant after ; that long'd for possession of a neighbours estate , or of a publick employment , maks deeper impressions of grief by their absence , then their enjoyment can repair ; and a philosopher will sooner convince himself of their not being the necessar integrants of our happinesse , then the miser will by all his assiduousnesse gain them . there are but three instances of time , and in each of these , vitious persons are much troubled ; the prospect of usual insuccessefulness , difficulties or inconveniences do torment before the commission ; horrour , trembling and reluctancy do terrifie in the act , and conscience succeeds to these after commission , as the last , but not the least of these unruly torments . and as to the pleasurs of vice , it can have none in any of these parcels of time , beside the present , which present , is by many philosophers scarce allowed the name of time ; and is at best so swift , that it's pleasurs most be too transient to be possest . i confess that revenge is the most inticeing of all vices , and so much so , that a wicked italian said , that god almighty had reserv'd it to himself , because it was too noble and satisfying a prerogative to be bestowed upon mortals ; yet it discharges at once it's pleasure with it's fury , and like a bee languishes after it hath spent it's sting , and when it is once acted , which is oft in one moment , it ceaseth from that moment to be a pleasure and such as were tickled once with it , are afraid of it's remembrance , and think worse of it , then they did formerly of the affront , to expiat which , it was undertaken ; thirty pieces of silver might have had some letchery in them at iudas first touch , but they behooved to have a very unresembling effect , when he took no longer pleasure in them , then to have come the next week to offer them back : and because they were refused , to rid himself of his life and them together . the pains of vice may be conluded greater then these of vertue , from this , that vertuous persons are in their sufferings assisted by all the world , vitious persons doing so to expiat their own crimes , and vertuous persons doing the same , to reward the vertue they adore : and if these endeavours prove insuccessful , every man by bearing a share in their grief , do all they can to lessen it ; but vitious persons have their sufferings augmented by the disdain , and just opprobries thrown upon them by such as were witnesses to their vices ; and such as had any inclination for them , dare not appear to be their well-wishers , least they be repute complices of their crimes . i need not fear so much weaknesse in this my theam , as to bring up a thousand of these instances to its aid , that ly every where obvious to the least curious observation . what is more laborious then pride ? wherein by robbing from others what is due to them , the acquirers are still obliged to defend their new conquests with more vigilance , then vertue needs ? the proud man must be greater then all others , and so must toil more then they all , his task being greater then all theirs joyntly . and the jealous man must never be satisfied , till he know not only what is truth , but what he fears to be so , being most unhappy in this , that if he get assurance of what he suspects , then he is made really miserable ; or if he attain not to that assurance , he must still toil for it , and must make himself miserable by his pains , till he become really so , by being inform'd of what at one instant he wishes to be false , and endeavours to make true . revenge is most painful , both in perswading us that these are affronts , which of their own nature are no affronts , and then in bringing on us much more hazard then their satisfaction can repay : for one word spoke to us , which ( it may be ) the speaker intended as no injury , how many have by murdering the speaker , or some such rash attempt , deprived themselves of the priviledge of seeing their friends without horrour , or of coming abroad without imminent danger , skulking in dens like theeves , imprisoned for fear of prison , and dying daily to shun the death they fear . whereas socrates , by laughing at him who spat in his face , had then the pleasure to see himself at present satisfied , and did foresee the hopes of future praises . guiltinesse must search out corners , it must at all rates secure favorits , it must shun to meet with such as are conscious to its guilt , and when ever two men speak privatly in presence of such as are vitious , they perswade themselves that somewhat is there spoke to their disadvantage ; and like one who labours of a sore , they must still be carefull that their wound be not toucht . to conclude then this period , consider , that every thing that is uneasie must be unpleasant , and that vice is more uneasie then vertue , appears from the whole foregoing discourse . i hope the preceeding discourse hath cleared off all these doubts that can oppose this ( though new ) yet well founded truth , leaving only this objection here to be answered . if vice be lesse easie , and lesse natural then vertue ; why do the greater part of mankind range themselves to its side ? leaving vertue as few followers , as it professes to desire admirers ? in answer whereto , i confesse that this objection proves men to be mad , but not vice to be easie ; even as when we see men throw away their cloaths , run the fields over , and expose themselves to storms , leaving their convenient homes , and kind family : we conclude such as do so to be mad , but are not induced to believe that what they do is easie . and certainly vice is a madness , as may appear convincingly from this , that when we see others run to these excesses ( which we thought gallantry in our selves , when we were acting the like ) we ask them seriously , what , are ye mad ? and hazael , when the cruelty he was to ( and did ) commit , was foretold him by the prophet , did with admiration ask , what ? am i a dog , that i should do these things ! and the prodigal , when he freed himself from these vitious roavings , is said to have come to himself ; by which word madnesse is usually exprest : men are said to be mad , when they offer violence to their body ; and it is a more advanc'd degree of madnesse , to offer violence to our souls , which we then do ( besides the ruining of our bodies ) when we are vitious . and to such as prefer their bodies to their souls , i recommend the survey of such bodies , as have wasted themselves in stews and taverns , or have left limbs upon the field where they last quarrelled after cups , for vanity , or mistrisses . the second answer is , that men mistake ofttimes vice for vertue , and are inticed to it by an error in their judgements , rather then any depravedness in their affections . thus drunkenness recommends it self to us , under the notion of kindness ; and prodigality , under that of liberality : complacency likewise is the great pimp of much vitiousness to well disposed persons , and many are by it inticed to erre , to gratifie a mistake in their friendship , for they are perswaded that friendship and kindness are so innocent and sweet qualities , that it cannot command what is not as just as it self . custome also , as it is a second nature , so it is a step-mother to vertue , and whil'st we endeavour to shune the vice of being vain , and singular , we slip into these vices which are too familiar to be formidable , and which we would not have committed if the mode and fashion had not determin'd us thereto against our first and pure inclinations ; thus the germans beleeve drinking to be kindnesse , and the italian is by the custome of his countrey induc'd not to tremble at , but to love sodomie . we have interest likewise to blame , for much of that wickednesse , which we falsly charge upon nature : for this brib's us to oppose what naturally we would follow , but above all want of consideration , is the frequent occasion of many of these disorders , so that vertue is not postpon'd by choice , but by negligence ; neither would it be more difficult for us to be vertuous in many of our actions , then it would be for us to consider what we are about to do . and i may seal up this period with the blunt complaint made by a poor woman , who after her affection and interest had forced from her many passionat regrates against her sons debordings , concluded thus , alace ! my son will never recover , for he cannot think : therefore i must conclude , that seing it is easie to think , it must be likewise easie to be vertuous . it is indeed hard for one who is drunk to stand upright , or for one who hath his eyes cover'd with mire to see clearly ; and yet , standing upright , or seeing clearly , are not in themselves difficult tasks : just so vertue is easie in it self , though our pre-ingagement to the contrary habit , rather then to the vice it self , renders it's operations somewhat uneasie ; whereas , if we had once imbued our souls with a habit of vertue , it 's exercise would be far easier to us , then that of it 's contrary ; for it would be assisted by reason , nature , reward and applause , all which oppose the other . he who becomes temperate , finds his temperance much lesse troublesome , then the most habitual drunkard can his excess ; who can never render it so familiar , but that he will be constrain'd to make faces when he quaffs off a tedious health , and will at some times find either his quarrels , the betraying his friends secret , or his crudities to importune him . no lyar hath so much accustomed himself to that trade , but he will discover himself sometimes in his blushes , and will be oft distress'd , to shape out covers for his falseness ; whereas he who is free from the bondage of that habit , will alwayes find it so easie , that he will never hear a lie , without admiring with what confidence it could have been forg'd . whereas to know the easinesse of vertue , we need only this reflection , that every vitious person thinks it easie to conquer the vice he sees in another : he who whoors admires the uneasiness and unpleasantness of drinking ; and the drunkard laughs at the fruitless toil of ambition , which shews that vice is an easie conquest , seing the meanest persons can subdue it . though truth and newness do of all other motivs court us soonest to complacency , and that my present theme can without vanity pretend to both ; yet so studious am i of success , where i have a tenderness for the subject for which i contend , that for further conviction of it's enemies , i must recommend to them to go to the courts of monarchs , and there learn the uneasiness and unpleasantness of vice , from it's splitting those in oppositions and factions , which affoord the reasonable on-lookers as disagreeable a prospect , as that of a ship-wrackt vessel . and when faction has once dismembred a society , is it not strange to see what pains and anxiety must be shewed by both opposites , to discover and ruine each others projects ? other men toil only to make themselves happy , but those must labour likewise to keep their opposites from being so ; they must seek applause for themselves , and must stop it from their enemies ; they must shun all places where these are entertained , and all occasions which may bring them to meet though inclination or curiosity do extreamly bend them to go thither : they must oppose the friends of their enemies , though they be desirous and oblieg'd upon many other scores to do them good offices : they grow pale at their appearances , and are disordered at what praise is given those , though bestowed upon them for promoving that publick good wherein the contemners share for much of their own safety : and it is most ordinar to hear such factious zealots swear , that they would choise rather to be destroyed by a publick enemy , then preserv'd by a rival . from all which it is but too clear , that all vitious persons are slaves ; which as it is the uneasiest of states , so to shun a loss of liberty , most men refuse to be vertuous . if we go to physitians we will find their shambles hung round with the trophies of vice : for temperance , chastity or the other vertues send few thither , but wantonness repayes there it's one moments pleasure with a years cure , and makes them afraid to see that disfigured face , for whose representation they once doted upon their flattering mirrours . there lye such prisoners as the drunken gout hath fetter'd , and there lye louring such as gluttony hath opprest . let us go to prisons and scaffolds , and there we will see such furnisht out with the envoyes of injustice , malice , revenge and murders . let us go to divines , and they will tell us of the horrid exclamations of such , as have upon death-bed seen mustered before them , those sins , which how soon they had their vizards of sensuality and lust pulled off , did appear in figures monstruous enough to terrifie a soul which took leisure to consider them . juvenal hi sunt qui trepidant , & ad omnia fulgura pallent . and though the consciences of souldiers have oft-times their ears so deafned with warlike sounds or welcome applauses , that they cannot hear ; and their eyes so cover'd with their enemies gore , that they cannot see these terrifying shapes of inward revenge : yet , if we believe lucan , neither could the wrongs done to caesar so far legimate his fury , nor the present joy or future danger so far divert him from reflecting upon his by-past actions : nor could the want of christianity ( which enlivens extreamly these terrors beyond the creed of a roman , who believ'd , that gallantry was devotion ) so far favour his cruelty , but that he and his soldiers were the night of pharsalia's battle thus disturb'd ; lucan , book . but furious dreams disturb their restless rest ; pharsalia's fight remains in every brest ; their horrid guilt still wakes : the battel stands in all their thoughts ; they brandish empty hands , without their swords : you would have thought the field had groan'd , and that the guilty earth did yield exhaled spirits , that in the air did move , and stygian fears possest the night above . a sad revenge on them their conquest takes , their sleeps present the furies hissing snakes , and brands ; their country-mens sad ghosts appear : to each the image of his proper fear ▪ one sees an old mans visage , one a young , anothers t●rtur'd all the evening long . with his slain brothers spirit ; their fathers sight daunts some : but caesar's soul all ghosts affright . but that i may rest your thoughts from the noise and horrour of these objects , let me lead them into a philosophers cell or house ( for vertue is not like vice , confin'd to places ) and there ye will see measurs taken by no lesse noble or lesse erring pattern , then nature . his furniture is not the off-spring of the last fashion , and so he must not be at the toil , to keep spies for informing him , when the succeeding mode must cause these be pull'd down , and needs not be troubled , to fill the room yearly of that contemn'd stuffe he but lately admir'd . he is not troubl'd that anothers candlesticks are of a later mould , nor vext , that he cannot muster so many cabinets or knacks as he does . he spends no such idle time as is requisite for making great entertainments , wherein nature is opprest to please fancy , and must be by the next days physick tortur'd to cure its errors : his soul lodges cleanly , neither clouded with the vapours , nor cloy'd with the crudities of his table ; he applyes every thing to it's natural use , and so uses meat and drink not to expresse kindnesse ( friendship doing that office much better ) but to refresh , and not to occasion his weaknesse . his dreams are neither disturb'd by the horrid representation of his last days crims , nor by the too deep impressions of the next days designs , but is calm as the breast it refreshes , and pleasant as the rest it brings ; his eyes suffer no such eclipse in these , as the eyes of vitious men do , when they are darkened with drunkennesse or excessive sorrow , for all his darknesses succeed as seasonably to his recreations , as the day is followed in by the night in his cloaths , he uses not such as requires two or three hours to their laborious dressing ▪ or which over-awe the wearer so , that he must shun to go abroad to all places , or at all occasions , least he offend their lustre ; but he provides himself with such as are most easie for use , and fears not to stain these , if he keep his soul unspotted : he considers his body and organs , as the casement and servants of that reasonable soul he so much loves ; and therefore he eases them , not upon design to please them , but to refresh them , that the soul may be thereby better serv'd ; and if at any time , he deny these their satisfaction , he designs not thereby to tortoure them , for gratitude obliges him to repay better their services ( and a man should not be cruel even to his beast ) but he does so , lest they exceed these measours , whose extent vertue knowes better to mark out then they ; or else he finds that during the time he ministers to these appetites , he may be more advantagiously employ'd , in enjoying the pure and spiritual pleasurs of philosophy . but leaving this utter court , let us step into a philosophers breast ( a region as serene as the heaven whence it came ) and there view , how sweet vertue inspires gentle thoughts , whose storms raise not wrinckles like billowes in our face , and blow not away our disobliged friends . here no mutinous passion rebells with successe , and these petty insurrections of flesh and blood , serve only to magnifie the strength of reason in their defeat . here , all his desires are so satisfied with vertue as their reward , that they need , nor do not run abroad , begging pleasurs from every unkown object : and therefore it is that not placing his happinesse upon what is subject to the empire of fate , capricious fortune cannot make him miserable , for it can resume nothing ▪ but what it hath given , and therefore , seing it hath not bestowed vertue and tranquillity , it cannot call it away ; and whilst that remains all other losses are inconsiderable , and as no man is griev'd to see what is not his own destroy'd , so the vertuous philosopher , having alwayes considered , what is without him as belonging to fortune , and not to him , he sees those burnt or robb'd with a dis-interested indifference : and when all others are allarum'd with the fears of ensuing wars and invasions , he stands as fixt ( though not as hard ) as a rock , and suffers all the foaming waves of fate and malice to spend their spit and froth at his feet : vertue and the remembrance of what he hath done , and the hopes that he will still act vertuously , are all his treasures , and these are not capable of being pillag'd ; these are his inseparable companions , and therefore he can never want a divertising conversation : and seing he is a citizen of the world , all places are his country , and he is alwayes at home , and so can never be banished ; and seing he can still exercise his reason equally in all places , he is never ( like vitious persons ) vext that he must stay in one place , and cannot reach another ; like a sick man , whose disease makes him alwayes tumble through all the corners of his bed . he is never surprized , because he forecasts alwayes the worst ; and as this armes him against discontents , so if a milder event disappoint his apprehensions , this heightens his pleasure . he lives without all design , except that one of obeying his reason ; and therefore it is that he can never be miserable , seing such are only so , who are cross'd in their designs ; and thence it is , that when he hears that his actions displease the world , he is not troubled , seing he design'd not to please them and if he see others carry wealthy pretences to which he had a title , he is little troubled , seing he design'd not to be rich . the frowns or favours of c●andees alter him not , seing he neither fears the one , nor expects promotion from the other . he desires little , and so is easily happy , seing these are without contraversie happy who enjoy all they desire ; and that man puts himself in great debt , who widens his expectations by his desires : thus , he who designes to buy a neighbouring field , must straiten himself to lay up what will reach it's price , as much as if he were debtor in the like sum ; and desire leaves still an emptiness which must be filled . he finds not his breast invaded ( like such as are vitious ) by contrary passions , envy sometimes perswading , that others are more deserving , and vanity assuring that none deserves so much . his passions do not interesse him with extream concern in any thing ; and seing he loves nothing too well , he grieves at the loss of nothing too much ; joy and grief being like the contrary motions of a swing , or pendula , which must move as far ( exactly ) to the one side , as it run formerly to the other . he looks upon all mankind as sprung from one common stock with himself , and therefore is as glad to hear of other mens happiness , as others are to hear of their kindred and relations promotion . if he be advanced to be a states-man , whilst he continues so , he designes more to discharge well his present trust , then to court a higher , which double task burdens such as are vitious ; and having no private design , if the publick which he serves find out one fitter for the employment , he is well satisfied , for his design of serving the publick is thereby more promoved . and if he be preferr'd to be a judge , he looks only to the law as his square , and is not distracted betwixt the desires to be just , to please his friends , to gratifie his dependers , and to advance his private gain . the philosopher is not rais'd by his greatness above , nor deprest by his misfortunes below his natural level : for , when he is in his grandure , he considers that men come to him but as they go to fountains , not to admire it's streams ( though clear as crystal ) but to fill their own pitchers ; and therefore , he is neither at much pains to preserve that state , nor to highten mens esteem of it ; but considers his own power as he does a river , whose streams are always passing , and are then only pleasant when they glide calmly within their banks . injuries do not reach him , for his vertue places him upon a hight above their shot , and what calumnies or offences are intended for him , do but like the vapo●rs and fogs , that rise from the earth , not reach the heaven ; but fall back in storms and thunder upon the place , from which they were sent : injuries may strick his buckler , but cannot wound himself , who is sensible of no wounds , but of those his vices gives him : and if a tyrant kill his body , he knows his immaterial soul cannot be stabb'd , but is sure it will flee as high as the sphears ( nothing but that clog of earth hindring it to move upward to that it's centre ) and that from thence , he will great pompey ( in lucan ) smile down when he shall see with illuminat eyes his own trunck to be so inconsiderable a peece of neglected earth . and to conclude , the philosopher does in all his actions go the straightest way , which is because of that the shortest , and therefore the easiest . when i have constellat all these touring elogies , which gratitude heaps upon it's benifactors , which foolish youths throw away upon their mistresses , and which flatterers buzze into the deprav'd ears of their patrons , when i have impoverisht invention and empty'd eloquence of their most floury ornaments . when i shall have decocted the pains of a whole writing age , into one panegirick , to bestow a complement upon vertue , for the ease it gives us , and the sweets of it's tranquillity ; i shall have spent my time better , then in serving the most wealthy or recreating vice ; and yet i shall obliege vertue by it lesse , then by acting the least part of what is reasonable , or gaining the soonest reclaimable of such as are vitious . and therefore i shall leave off to write , that i may begin to act vetuously ; though one of my employment may find a defence for writing moral philosophy , in the examples of cicero , du vair that famous french president , the lord verulam , and thousands of others . i have ( to deal ingenuously ) writ these two essayes , to serve my country , rather then my fame or humour , and if they prove successful , heaven has nothing below it self , wherewith it can more bless my wishes : but if these succeed not , i know nothing else wherewith i would flatter my hopes ; and so whatever be the event of this undertaking , ( as my resolutions stand now form'd ) adieu for ever to writing . finis . notes, typically marginal, from the original text notes for div a -e numb . ease commended . vitious persons most dissemble vertue , which is difficulter then to be vertuous . vertue requires fewer instruments then vice vice in defect and in excesse are equally uneasie . vices oppose one another , whereas each vertue assists its fellow . the practice of one vertue facilitats other vertues providence resists vice the law makes vice uneasie . men are in interest oblig'd to oppose vice and so it is uneasie vice mak● us fear all men . it is more natural to be vertuous then vitious each vice brings a special disease . rom. . . rom. . . the horrour of conscience makes vice uneasie . vertue si more pleasant then vice. why most men are vitious . kings . luke these proves the uneasiness also of private quarrels and ill humors , the character of a philosopher and his ease . a defence of the antiquity of the royal line of scotland with a true account when the scots were govern'd by kings in the isle of britain / by sir george mackenzie ... mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a defence of the antiquity of the royal line of scotland with a true account when the scots were govern'd by kings in the isle of britain / by sir george mackenzie ... mackenzie, george, sir, - . [ ], , [ ], , [ ] p. printed by ri. chiswell ..., london : . reproduction of original in union theological seminary library, new york. in reply to bishop stillingfleet's origines britannicae. advertisement: p. 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tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng stillingfleet, edward, - . -- origines britannicæ. scotland -- history -- to . scotland -- kings and rulers. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - olivia bottum sampled and proofread - olivia bottum text and markup reviewed and edited - pfs batch review (qc) and xml conversion a defence of the antiquity of the royal line of scotland . with a true account when the scots were govern'd by kings in the isle of britain . by sir george mackenzie his majesty's advocate in scotland . london , printed for ri. chiswell , at the rose and crown in st. paul's church-yard . . to the king . sir , divine providence having suffered these kingdoms to destroy one another for many ages , in divided monarchies ; reserv'd their happy union for the merciful royal family , of which your majesty is now the head : and mingl'd lawfully in their veins , all those many and different bloods-royal , which pretended to any soveraignty in these your dominions : designing thereby at once to reward the vertue of your majesty's predecessors , and to endear that union to us , in preventing future debates . in king iames , your royal grand-father , these nations got a monarch , who was acknowledg'd to be the solomon of his age : who excell'd all his contemporary princes in * king-craft ; all his ministers in prudence ; and all his doctors in learning . none of his subjects understood the law better , or observ'd it more : and who knew as well all that was done at council-tables abroad , as they who sat at them . to him succeeded your majesty's royal father , whose life was the best law a king could make : who knew no use of power , save to do good by it : who was less careful of his own blood , than of that of his subjects : and i may justly say , that heaven only was govern'd by a better king. after we had shown our selves unworthy of such monarchs , the divine goodness , to try us once more , gave us your gracious brother , whose clemency ( after so many and so great injuries ) was as great a miracle as his restoration : who knew every thing save to be severe ; and could bear every thing , save to see his people in trouble : who after the abuse of his goodness , had made his enemies so insolent , that his servants concluded all was lost ; did , by his extraordinary parts , with a gentle easiness , peculiar to himself , dissipate those execrable combinations , to our great satisfaction and amazement . but , sir , the conscience of his enemies , will far exceed in his praises , the eloquence of his servants ; and so my trembling hand leaves this melancholy subject . his throne is now fill'd with your sacred majesty , whose abilities your royal brother esteemed so much , that he shar'd with you the exercise of the government , before his death gave you the possession of the crown . in you , sir , your people have a general to their armies , an admiral to their fleet , a treasurer to their mony : whose courage can lead them as far as theirs can follow ; and raise the glory of these kingdoms as high as they can wish : so that if they be not happy , they will have this addition to their misfortunes , that the world will see , that they themselves are only to be blam'd for it . our country , sir , does not boast of a rich soil , or a hot sun : but it may , that it has given these happy islands those gracious and glorious kings . in return whereof , we might have expected kinder rewards , than that any of their natives should debate its antiquity , and the veracity of those histories wherein the great actions of your royal predecessors were recorded . and since the honour of the ancient and royal race of our soveraigns is the chief thing wherein we glory ; it is hard to deny us a favour , so just on our part , and so easy on theirs . however , sir , since i presume , that those of your other subjects , who controvert this , do so , rather from want of information , than from unkindness ; i , who am resolv'd to make the defence of your meanest priviledges my greatest honour , have thought it incumbent to me , as your advocate , to undertake the defence of that antiquity , which makes your majesty the most ancient monarch upon earth . which argument , i hope , i have manag'd with that candour , which becomes an honest man , and that zeal which is the duty of , sir , your majesty's most dutiful , loyal , and obedient subject and servant , geo. mackenzie . a letter to the earl of perth , lord high chancellor of scotland , upon his having sent to the author the bishop of st. asaph's book . with some reflections upon the design of that book . my lord , i have read the book you sent me , with that delight i did of old a play ; which one may think it resembles more , than our histories do a romance : for what is truly related , is so disguised and transposed , as may best suit with the author's design ; and with a rhetorick so polite and comical , that if the reasons do not convince , yet the humour and stile may charm , and please , even some of those against whom it is design'd . this made me unwilling at first to undertake to answer a book , which i suppose might have more admirers than proselytes : but finding , upon a second perusal , that the author had not fully examined the grounds upon which our historians proceeded , or had suffered himself to be byass'd by zeal for his order , or partiality to his country ; and that this whole kingdom take it as an injury done , not only to the antiquity of the royal family , but to this our nation in general ; i was at last prevailed with to enter the lists , with a kind design , by a sober and candid information , rather to convince and satisfy the author , and those he may have misled , than to acquire the vain glory of such a victory , especially over one who bears the character of a bishop , for which i have so great a veneration : altho , for the reasons following , i cannot but dislike his unnecessary undertaking , and unseasonable and partial management of a national debate , which * we are prohibited to enter upon under pain of a sedition . . i am sorry , that while these kingdoms are unhappily divided , not in nations , but opinions ; the old animosities amongst scots , english , and irish , being forgot and buried , and the modern differences between the episcopal and fanatick , and cavalier and republican , or , as some term it , whig and tory , are so violent and turbulent ; the author should have diverted our just and dutiful zeal , by imploying it in defence of an important right of state , unkindly , as well as unnecessarily invaded : so as the other , of near concern to the church , may in some measure come to be neglected . . the pretext for writing this book , wherein the antiquity of our kings and nation is so much disparag'd , being , that the presbyterians , and particularly blondel , urg'd from our historians , that we had a church for some years without bishops : it seem'd neither just nor fit , that any episcopal author should have magnify'd so highly the meanest argument that ever was us'd by a presbyterian ; as for it , to cut off kings ( all preceding coranus , who began his reign anno ) and to expose on a pillory as forgers , our many and grave historians . and that it is a weak argument , appears from this , that i have met with very few laicks in all our country , who had heard of it ; nor with one , even of these few , who had valu'd it : and so this author may be said , rather to have suggested a new argument , than to have answered an old one : for they urge now nothing to us , save places of scripture ; resolving to have their presbytery , iuris divini : knowing that nothing less can secure them , in opposing the laws of the kingdom . and what can the presbyterians think of their other arguments , which they value much . since this , which they valu'd so little , is thought of such force , by a learned bishop , as to deserve a whole book , the cutting off of kings , and the offending a nation of friends . it is also very remarkable , that the learn'd doctor hammond , a great champion of episcopacy , owns the antiquity of our nation ; and answers fully that argument , without overturning the truth of our history , or wronging the antiquity of our royal-line : whereas baxter the presbyterian urges this citation , and yet agrees with this author in opposing the antiquity of our history ; approving what is said by cambden and vsher ; and in a letter to the duke of lauderdale asserting the lateness of our settlement here . which shews , that there is no necessity lying upon such as own episcopacy , to wrong the antiquity of our kings and nation . but how the necessity of a private corner of a remote country in ecclesiâ constituendâ , could wrong the general practice of the church ; is as little to be understood , as it is undenyable , that many thousands in iapan , and china , were converted by presbyters , before bishops were sent thither . and since it cannot be deny'd , but that those who ordain'd our presbyters were bishops ; it necessarily follows , that episcopacy was settl'd in the christian church before we had presbyters or culdees : or else , if these who ordain'd our presbyters were not bishops , the practice of that church , whereby our presbyters were ordain'd , should have been impugn'd , and not the authority of our histories , and the antiquity of our royal-line overturn'd . and though this reverend and learn'd author could prove , that we were not setled here , before the year , yet that could not answer the argument : for the culdees might have been settled before that time in this country , where we now live , though amongst the picts ; for it cannot be deny'd but the picts were setled in this country before that time . and when our historians say that the abbots of icolm-kill had jurisdiction over all the bishops of the province ; that is to be understood , as beda observes , more inusitato ; and my lord st. asaph himself well remarks these words , and gives a full and clear vindication of the passages of beda in the , and following pages ; and might have rested therein , and needed not to have been driven to seek a new answer in overturning the antiquity of our nation . many examples can be given of jurisdiction of presbyters , and even of deacons over bishops in the canon law and history . so that this instance from our historians makes nothing against episcopacy . and latter historians meeting with these ambiguous words in our annals , de signatus , electus , ordinatus , were by a mistake induc'd to appropriate these words to the formal ceremony of ordination and imposition of hands . and i find , by the bishop's concession , * that the abbess hilda did elect and send forth such of her monks , as she thought fit to be ordain'd : which is all that our guldees , and ancient monks did . thus a king may be said to make one a bishop , or a mother to have made one of her sons a church-man ; which answer , the learned nicol , a zealous friend to episcopacy , thought sufficient to elide blondel's arguments from our historians , without denying the antiquity of our nation , or troubling himself with our * culdees . and if beda had heard that the presbyters did ordain bishops , he had remark'd it as a most unusal thing , having marked that the abbots had jurisdiction over bishops , they being but presbyters ; such an ordination being much more extraordinary , than such a jurisdiction . and might not my lord st. asaph as well have inveigh'd against gildas and the british historians , because he says * that church-men were ordain'd by the consent of the bishops and the rest of the presbyters , from which presbyterians , and particularly the same , blondel † infers a parity betwixt bishops and presbyters . and from which it appears , that dangerous consequences should not be drawn from the dubious and heedless expressions of old authors , living in rude times and places : and from all which we might have been secure , that my lord st. asaph would have concur'd with the wise answer , which spotswood , arch-bishop of st. andrews ( with whom the learn'd hammond agrees ) gave to that silly argument , without affronting him as a betrayer of the episcopal cause ; and caressing our fanaticks by that unwarrantable and dangerous assertion ; that in consequence thereof they might reasonably conclude , that when they covenanted against episcopacy , they had only us'd their own right ; and thrown out that , which was a confess'd innovation ; in order to the restoring of that , which was their primitive government . for it does not follow , that because our church in its infancy and necessity was without bishops for some years ; that therefore it was reasonable for subjects , to enter into a solemn league and covenant , without , and against the consent of their monarch ; and to extirpate episcopacy settled then by law , and by an old prescription of years at least . . precedency being one of the jewels of the crown and one of the chief glories of princes ; and all who treat on that subject confessing , that the king of great-britain , as king of scotland , is the most ancient monarch in europe , the line of other kingdoms having been often interrupted , whereas ours never was ; it seems a great injury to our kings , to have their line shortened , so as thereby to postpone them , to many others ; and if this author's arguments prove any thing , they must prove that our kings cannot instruct their antiquity , till malcolm the d's time : and so our kings will be amongst the last of all crowned-heads . nor is it one of the least arguments , which prevail with us , to hazard all for our royal-line , that we have been so long subjects to it , and happy under it : and therefore whoever shortens it , lessens ( though without design ) the influence of our kings , and endangers the succession . and since * luddus owns , that he durst not deny the british descent from brutus , lest he might thereby wrong the majesty of the english nation ; i admire , that any of the subjects of great britain did not think it a degree of lese-majesty , to injure and shorten the royal-line of their kings . . if this injury had been done to kings , or to a nation , when they were enemies to episcopacy , as the obligation was , so the fault had been less . but to inveigh against our royal-line , after king iames had made the settlement of episcopacy his business ; king charles had died for it ; and our late soveraign of glorious memory , had been more disquieted by the schismatical opposition made to it , than by all his other concerns , seems very unkind . and tho this learned and worthy author , upon design to make us sit down quietly under these injuries , seems to gratifie us , by the complement , that we , since the writing of our histories , needed not such helps , as old and fabulous romances : telling us , that we have excell'd most other nations , in arts , and arms ; and especially in the purity of religion , abating only the blemish , which we have contracted by too easie a belief of these fictions , which he designs to refute . yet , since no peer in england , though a subject , would have allow'd this author to tell him , that albeit , he be now a brave and generous person ; his predecessors were lately pilfering barbarous robbers and vagabonds , and the history of his family a fabulous romance . how should he have imagin'd , that our kings and nation ( how gentle soever ) would have thought , that the justice done them in this age ( and for which we thank the bishop of st. asaph ) should have compens'd the injuries done to their predecessors ? but it is probable , that my lord st. asaph has not , on the one hand , known the grounds which we here urge for our antiquity , and that our nice jealousie for our honour , on the other hand , magnifies too much to us such injuries , of which we are naturally very sensible : and therefore , i hope , by his lordship's aquiescence , the result of the debate will be , that he will see that our royal-line and nation are more ancient than he imagined them to have been : and that we will remain convinc'd , that his book was not dictated by malice , and national humour . my design is not to convince my readers , that i am learn'd , but that my cause is just : and therefore i use no more citations , even from the books i know , than may prove or illustrate my positions . and , not being the first aggressor , i expect the favour which is due to self-defence : for of all things , i hate unnecessary debates ; and i admire st. pâul , for saying , * and they neither found me in the temple disputing with any man. debates generally starve charity , feed self-love , and incline even very good men to more partiality , than i hope can be charg'd in this debate , upon your lordship's most faithful and humble servant , geo. mackenzie . king charles the st his speech to the scottish parliament at edinburgh , aug. . . i cannot doubt of such real testimonies of your affections , for the maintenance of that royal power which i enjoy , after descents , and which you profess to maintain , and to which your national oath doth oblige your , &c. a defence of the antiquity of the royal-line of scotland , with a true account , when the scots were govern'd by kings in the isle of britain . in answer to the bishop of st. asaph . all the historians of scotland unanimously agreeing , that the royal-line of the kings of scotland did begin in king fergus the first : and that the scots now inhabiting it , were settled here , under one soveraign , about years before christ. and their histories being receiv'd with great applause for many hundreds of years , by historians , antiquaries , and criticks of other nations , who had any occasion to take notice of our affairs ; luddus affecting singularity , did , anno , controvert both these points : for which , he having been refuted with just severity by buchannan ; the bishop of st. asaph , upon pretext of answering a very silly an inconsequential argument against episcopacy , has undertaken the defence of luddus his kinsman , contending , that the scots did not settle in britain till the year of our lord , and that they had no king , who govern'd in this island till that time . albeit there be other unwarrantable assertions and positions in that book , yet being unwilling to enter upon any argument , which may , by the remotest consequence , be urg'd against that episcopacy , which i so much reverence ; i , as his majesties advocate , design only to prove , that in both these points the bishop has ( though i hope without design ) injur'd our kings and nation . for proving whereof , the first thing i shall clear , shall be , that history requires , nor admits no mathematieal , nor legal proof , but is satisfied with such moral certainty , as is infer'd from probable tradition , old manuscripts , credible historians , the testimony of foreign authors , and probable reasons . secondly ; that our histories being already acquiesced in , and received by the generality of mankind , and especially by criticks , antiquaries , and historians , the best iudges in such cases , need no confirmation , nor further proof . thirdly ; that albeit we are not obliged to prove , or confirm our history , yet we are able to do it by all the former grounds , which is all that needs be done for the credit of any history . fourthly ; i shall answer the arguments brought by the bishop against our histories . and i must intreat my readers to lay all these together , and not to judg by parcels , which is not to be done , especially in cases of this nature . for clearing the first of these points , it is fit to consider , that right reason requires only in all cases , such proofs , as the nature of the subject can allow : and therefore , though mathematicians rest only upon infallible demonstrations ; and the law requires strict and solemn proofs ; yet the law it self remits its ordinary exactness , to comply with the necessity of human affairs , allowing domestick witnesses , where others cannot be had , and strong presumptive grounds as equal to witnesses , where the subject matter can admit of no other proofs : morality convinces by probable reasons , and history allows moral certainty for a sufficient probation in matters of fact , because the matters treated of in it , can generally admit no exacter proofs : which proposition as to history , will very easily appear , if we consider , that even the historians of this present age , cannot themselves see every thing they relate ; nor can all be prov'd by the testimony of witnesses . reason likewise has oblig'd men to presume , that a nation ought as much to be believ'd in these cases , as two witnesses are in any single one : for even in the case of witnesses , our belief is founded upon the presumption , that they will not lie , and damn themselves ; and that both the one , and the other , do at last resolve in presumptive and probable grounds : so that men satisfie themselves in most things , with the general belief and tradition of those among whom they live , founded upon probable reasons . manuscripts also written by others , infer no mathematical nor legal certainty : for the author of the manuscript might have been mistaken , or byass'd ; and at best , one witness proves not . nor are strangers oblig'd to believe the exactest history of those who write in favour of the antiquity of their own nation , upon any other account , than because history is satisfy'd with probable grounds . domestick testimonies infer only a probable belief ; and tho an oath were interpos'd , that could creat no more than a moral certainty . as the former proposition is founded upon just reason , so all historians have been believ'd , and the histories of all nations have been receiv'd upon probable grounds and warrants , though they were not written by those who saw and heard what they wrote . amongst many instances of which , i shall only name that of the romans , written by * livius ; in which common-wealth , he tells us that the use of letters was not then ordinary , and that the best records were the faithful remembrance of things past ; and if some few memorials were left by the priests in succeeding ages , they perish'd at the burning of the town . and no history was collected till the year , after the building of rome , fabius pictor , their first historian , writing in that year , as † vossius informs us . the iewish history also had no historical warrant for the first years , but tradition , and after that time , their transactions were mention'd in very few foreign histories : and the annals of their own priests were thought good historical foundations , in the opinion of * iosephus , even for the sacred history . i need not mention the histories of the greeks , who could have no records for many hundreds of years before they wrote ; and much less those of the french , and spaniards , whose histories might much more justly be questioned upon the grounds that ours are . the surest foundation then of all histories , is the common belief and consent of the natives : for strangers cannot know but from them , and this consent and belief may be founded upon credible tradition , manuscripts , domestick witnesses , but especially when these are fortify'd by the concurring testimonies of foreign authors , probable reasons , and the acquiescence of mankind . and tho less accepted for fortifying an ancient , than modern history , and that even a part of these would be sufficient to confirm a modern one ; yet i hope to make them all concur for supporting ours , tho very ancient . it would appear then by this , that as the bishop of st. asaph has undertaken to defame our history without any necessity , so he does it without any shadow of reason : and we will at least have the satisfaction to see our histories subsist as long as any histories can do . i conceive also , that in reason , historians already receiv'd in the world with applause , need not show their warrants whereupon they proceed ; no more than a man that is in possession needs prove or confirm his right , except the same be prov'd to be false , or a clearer , or stronger right be produced by him who challenges the former . nor are men curious to preserve old manuscripts and records , after they have form'd their histories by them : for else no historian could ever be secure , if the not being able to show their warrants , after many ages , might discredit their history . and i desire to know , where are these few historians , whom herodotus , livius , and others do cite in their histories ? or , these whom iosephus did cite to confirm that of the jews , when it was challeng'd by appion the grammarian , upon the same grounds that ours is now quarrell'd by the bishop of st. asaph ? and albeit the authority of a single historian , might be suspected after his history is written , and that then his warrants might be call'd for ; especially if other manuscripts could be found , written in the time controverted , by which that history might be contradicted : or if the history controverted did report things inconsistent with the whole tract of other historians , or the principles of common sense and reason , as ieffrey of monmouth , and some british historians do , in the opinion of the bishop of st. asaph , and their own best critiques . yet , this cannot at all be extended to our case , who have many histories written by men of great reputation , all agreeing very well with one another , and relating things probable in themselves , and very agreeable to foreign histories , and which they declare , they did draw from warrants cited by them , and which have for many years , been read with great pleasure , and cited with great honour by critiques , antiquaries , and historians , and contradicted by the authority of no positive history or manuscript , written by any in the ages controverted , asserting , that the scotish nation now inhabiting this isle , did first plant themselves here , about such a year of god , under such a king , or adducing some such solid ground against us ; all that is objected against our positive and applauded histories , being the vain scruples of an obscure author , luddus , who being confuted by buchannan , made no more noise in the world , till * cambden rais'd some conjectures with submission to us , after which learned † bishop vsher ( picqu'd by dempster's severity , to his uncle stanihurst ) gathered together , an undigested , and formless lump of all writers , good and bad , from which , he says , that discretion being us'd , a history might be form'd . and from these , the bishop of st. asaph , impatient of buchannan's severity to luddus , under the pretext of respect to episcopacy , has drawn a new model , without bringing new materials , putting that confus'd rabble in rank and file , with some pleasant reflections . i might then forbear to trouble my self any further , than in answering those few , and ill-founded objections , muster'd up by the bishop against us , which being remov'd , leave our history in its former lustre and splendor . but for serving my king and country , and satisfying my reader more entirely , i am resolv'd to clear , that our historians have proceeded upon sufficient warrants , according to the former uncontrovertible propositions , which i at first laid down in relation to history in general . and this i will endeavour to do , . by shewing that our tradition is very well founded . . by shewing , that we had ancient annals , and that our historians were men of great reputation , and that they founded their histories on those ancient annals . . that the best historians among the britains , do concur to assert our antiquity ; and that such as oppose it , are men of so little authority , as that their testimony should not be put in the ballance with those who stand for us . . that our histories are confirm'd by the authority of ancient foreign authors . . that our histories have been believ'd and applauded by the best of late historians , critiques , and antiquaries , the best judges in such cases . . that the antiquity of our history is founded upon solid reason , and great probability as well as upon the testimony of authors , both within and without the isle : which is all that can be done , or is requisite for asserting and proving the truth of any history . for clearing whereof i must inform my reader , that whilst this isle was pagan , it had for its priests , the druids , who taught them sciences , and letters , and who were so famous , that * caesar tells us , that the gauls deriv'd their first learning from them . and all histories acknowledg , that these us'd to transmit the histories of their own times in verses , which were taught by them to their scholars : and it is probable , that some of these druids having been converted from the pagan religion , whereof they were the priests , became our first monks ; being thereto much inclin'd by the severity of their former discipline : as the therapeutae did for the same reason become the first anchorits in egypt ; and so it was easie for them to inform the monasteries of what they knew so well . and this hint is confirm'd by a very clear passage in leslies preface to his history , who being a bishop himself , should be believ'd by another of the same character in a probable matter of fact. nor can there be a clearer confirmation of our having had the druids amongst us , than that in several places of the irish version of the new testament , the wise men , or priests , are translated druids : and so , where the english translation saith , that the wise men from the east came to worship our saviour : our irish translation has the druids , &c. our predecessors also being descended from the spanish gallicks , or galicians , as is acknowledg'd by historians ; and they having had the use of letters , and of grammar , long before this time , as * strabo confesses , it cannot be imagined , but that we as a colony of them , would have likewise a part of their art and learning . our predecessors also had their sanachies and bards ; the first whereof were the historians , and the latter the poets of their traditions , as luddus himself acknowledges , and by either of these means , the memory of our kings and their actions , might have been preserv'd until the th century ; at which time we got monasteries ; in which ( as i shall hereafter prove ) were written and preserv'd the annals of our nation . and since nothing but great improbabilities , and fundamental inconsistencies , should be allow'd to refute a history already receiv'd . i shall offer these considerations for clearing , that this way of preserving the memory of our kings , is as probable a mean as any can be in history . . it is probable that our nation , as all the rest of mankind , who are warlike , and in constant action , would be desirous to preserve the memory of those actions , for which they had hazarded their lives , and by which they design'd to preserve that fame , which they preferr'd to life it self : and that the kings likewise , whose authority and right was much reverenc'd for its antiquity , would be as careful to preserve those marks of their ancient dominion . . we do not in this serious debate , pretend to such ancient originations , and descents , as might through vanity tempt men to lie , as those do , who endeavour to derive themselves from the trojans . all that we pretend to in this debate , being only , that we are a colony , who probably came first from greece to spain , but settled certainly in ireland for some time : and that we came from them , after the time , in which cambden , and vsher acknowledge that the nation of the scots ( whose name we only now bear ) were long settled there . would not our accusers have us trust the british antiquities for years ? and the irish for a longer time than our own , without any written history , or manuscript now extant before gilda's time ? and tho lycurgus would not suffer his laws to be written , yet they were preserv'd in the memories of men , for more than years , as plutarch observes ; and we and other nations have preserv'd some laws for much longer time , without the help of writing . and the only points here controverted , being the first settlement of our nation , and that we continue subjects to the same race of kings ; these are matters so remarkable , that most nations know when such changes happened to one another . as for instance , tho there were no history yet extant , we should easily have known that the saxons , danes , and normans conquer'd the britons , and alter'd the race of their kings . that ireland had many little monarchs , till they were swallow'd up by henry the d of england . and that edward bruce , brother to our glorious king robert the first , was chosen king of ireland , with universal consent there , and might have continued in that government , if from too great a love to fame , and to gain a victory without his brother , he had not lost it , and himself . and though all these controverted points , fell out in a time after the use of letters was known to most nations , and particularly to the druids and romans , the one whereof were our priests , and the other our neighbours very long , yet there remains not the least vestige of a doubt , that our scepter was ever sway'd by any other race . . though we had wanted the use of letters , as most probably we did not ; yet the tradition controverted , is at most of about years . for , after that time , it shall be proved , that we had records and annals : and the things said of our kings , during that time , are so few , and so remarkable , that men might have taught the same to their children in a weeks time : and men lived so long at that time , that ten or twelve men might have transmitted the tradition to one another . as also , since private families do preserve to this day their tradition for as long time as this ; it was much more easy for a nation , and their kings , to preserve theirs . nor can i tell why my lord st. asaph , in his preface , can controvert our tradition , though we could not produce writers who lived in those times , wherein these actions are said to be done : since * he thinks it reasonable to judge that there was the same government here in britain , though for want of ancient writings , there could be produced no plain instances of it . and if this be allowed to episcopacy in these times , why should he not have allow'd the same favour to his monarch's predecessors , in the same and more ancient ages . . it was much easier for us to preserve our traditions , than for the english , we being all descended from the same race , and being still the same people , living under the uninterrupted succession of the same royal-line ; whereas they were oblig'd to suppress the traditions and memorials of the people whom they had conquer'd . . as no man is presum'd to lie , or cheat , without some great temptation ; so the most glorious things that are said of us , are true beyond debate . as our having defended the ground in which we setled , against all opposition to this very day : our having put the first stop to the roman greatness ; our having beat the far more numerous britans , though defended by strong walls , and stronger romans : all which cannot be deny'd to have been done by us , and are equally noble , whether we were setled here or not , when we did them . after those controverted times , it cannot be deny'd , that we carried our conquests further into britain than formerly : that we fought long with success against the saxons and picts , and did at last extirpate the latter : and when we were alone , we continued , and extended our former conquests against the danes and normans ; which proves also , that in the wars which we had against the romans in conjunction with the picts , the victories we then got , are chiefly to be ascrib'd to us . and to crown all , we have generously contributed all that was in our power , to support that ancient and royal family ( so unparallell'd for its antiquity ) by which we were animated , and instructed to do all those great actions , till they are now become the monarchs of the whole isle ; having by a happier way extinguished those wars and animosities , and may he be unhappy who revives them . for clearing how this tradition might have been , and was preserv'd ; our history tells us of a probable way among many others , which was , that at the coronation of our kings , one appeared and recited his whole genealogy . i shall trouble my reader only with a proof of this custom , which is such as confirms also the genealogy of king alexander the d , in the year , prior to fordon's time , or to the view of any such debate , and is related by fordon and major in the life of that king ; and being so memorable a fact , and so near fordon's own time , his relation cannot but be credited . his words are , that the king being plac'd in the marble-chair , the crown upon his head , and the scepter in his hand , and the nobility being set below him , a venerable old high-landed gentleman stept out , and bowing the knee , express'd himself to the king in the high-land language thus ; god bless you king alexander , son of alexander , son of william , &c. and so carried up the genealogy to fergus the first : which custom was most solemnly us'd at the coronation of king charles the martyr , at which time their pictures were expos'd , and noblest actions recited . as also the reciting of their genealogy was usual at the burial of ours kings , a written proof of which tradition , is to be seen in a manuscript of baldredus abbas rynalis ; ( for that which is the abbacy of melros , was so called before king david's time , who designs them so in the foundations of the lands of melros , which he gives to them ) and is related verbatim by fordon , consisting of eighteen chapters , mentioning the memorable actions of king david , upon whom the lamentation is made , who died ; and running up the genealogy of the said st. david to fergus the first , dedicated to henry prince of england , grand nephew to st. david , who came to the crown of england , anno , under the name of henry the second : in both which at least fordon is to be believ'd , having sufficient vouchers . this also being ordinary in our high-land families to this very day , not only at burials , but baptisms and marriages : and in which families , men continue still to be design'd from their fathers , grandfathers , and very many generations upwards ; as is a sufficient historical proof of tradition , tho we had no other warrant for those few ages . before i come to clear that we had manuscripts and records , it is fit to consider that is very probable , that as the history of most nations was preserv'd by their priests and church-men : so ours would be very ready to oblige the kings , under whom , and the people among whom they liv'd , by writing their annals . and therefore we may reasonably conclude , that since we were very early christians , we had therefore ancient histories written by our church-men , besides those which we may pretend to have been transmitted to them by the druids . and the bishop himself acknowledges that the monastery of hy , call'd by us icolm-kill , ( that is hy , the cell of columba ) was founded about the year ; and it is undeniable , that of our old kings were buried , and our records were kept there since its foundation , until the reign of malcolm canmore : and it is also certain , that our annals were written in our monasteries , such as scoon , pasley , pluscardin , and lindesfern * govern'd by three scotish-bishops , aidan , finan , and colman ; and abercorn , mention'd by † beda ; and melross , the chronicle whereof begins where beda ends , as their history now printed shews : though certainly that english manuscript is very unfaithful , for most of the things relating to our nation are omitted , as particularly about the beginning , in the year . our manuscript observes ( which the english has not ) that alpin king of the scots died , to whom succeeded his son kenneth , who beat the picts , and was declared first king of all scotland , to the water of tine ; and after it expresses in his epitaph , primus in albania fertur regnasse kenedhus filius alpini , praelia multa gerens . and it observes that he was called the first king of albany , not because he was the first who made the scotish laws , but because he was the first king of all scotland . and each of our monasteries had two books , the one call'd their register , or chartulary , containing the records relating to their private securities ; and another call'd their black-book , containing an account of the memorable things which occur'd in every year . and as it is strongly presumable , that our historians would have compil'd our histories from those : so this being a matter of fact , is probable by witnesses : and i thus prove it in such a way and manner as is sufficient to maintain any history . verimundns a spaniard , arch-deacon of st. andrews , in anno , ( as is remarked by * chambers of ormond ) declares in the epistle to his book of the historians of scotland , dedicated to king malcolm , call'd can-more ; that , albeit there are many things in the said histories , which may seem to the readers to be a little difficult to be believed , because they are not totally confirmed by foreign historians : yet after have they heard how the scots were setled in the north part of the isle of albion , separated by the sea from the firm land , and so seldom troubled by strangers , to whom they give no occasions to write their actions ; and also that they have not been less happy in having almost always among them the druids , religious people , and diligent chroniclers , before the reception of the christian faith , and continually since monks , faithful historians in the isles of man , and icomkill ; where they kept securely their monuments and antiquities , without giving a sight , or copy of them to strangers ; they will cease to wonder . this chambers was a learned man , and a lord of session , who wrote anno , and in his * preface , says , that he had those principal authors , verimund a spaniard , turgot bishop of st. andrews , john swenton , john campbel , and bishop elphinstoun , &c. and many great histories of the abbacies of scoon , called the black-book , and of other like chronicles of abbacies , as that of inch-colm , and icolmkill , the most part whereof he took pains to consider as much as was possible for him . he * cites verimund for an account of the scots and picts , and after he also † cites him for the miracle of st. andrews in hungus's time ; and he * gives an account of the tenor of the league betwixt charles the great , and achaius , and asserts that the same was extracted out of the registers and books he mention'd , and particularly , out of the second book of verimund . sir richard baker cites this verimund , among the authors out of whom he compiled his history ; and with him he cites ioannes campbellus , who ( he says ) wrote the history of the scots from the origine of the nation till the year , in which he liv'd : and also turgot , who ( he says ) wrote our annals from the beginning till the year , in which he liv'd , ( and him likewise hollinshed cites ) ; as also aluredus rivallensis , who wrote the history of king david , and died anno ; and bartholomeus anglicus , who wrote a chronicle of the scots , and liv'd in the year . two of which three last , we have reason to think were scots-men , and have been called english-men , only because they liv'd in the counties which now belong to england , but then certainly belong'd to us ; and if they be englishmen , they are yet the more credible witnesses for us . and as the worthy baker says , he compil'd his history out of these books , which he neither would nor could have said , if he had not seen them : so it is very probable that he did see them ; our records and manuscripts having been industriously carry'd to england by edward the first , as shall be hereafter observ'd : nor can it be answer'd , that he cited them at second-hand from boeth , or buchannan , for else he had cited the other authors whom they cite , such as richardus de sancto victore , fordon , major , &c. all this doth evidently demonstrate that we had such historians as verimund , and the others above-cited , who asserted before fordon what he has related : so that it was most unwarrantable to say , that these things were dream'd by fordon and boethius , but that verimund was seen and consider'd by others , and cited in a particular part of his book , which could not be copied from boethius , because he doth not cite verimund for all those transactions ; and upon this * balaeus , a learn'd english-man , hath rested . and † holinshed says , that verimund wrote a book , de regibus scotorum . nor can it be deny'd that gesner in verbo verimund , and other famous strangers , cite him as one who has written our history ab exordio scoticae gentis , usque ad malcolmi tempora . and it is incredible to think so good and grave a man as boetius could have been so impudent to assert in * his dedication to king iames the th , that these books were sent to him by the earl of argile , and his brother the thesaurer from icolmkill , and that , he had follow'd them in writing his history : especially since he is by erasmus that great critick , admir'd as a most learned man , they having studied together at paris , where he remembers that he was in great esteem . and in a letter concerning him , anno , inserted in the life of erasmuus , he remarks , that boethius was a person who could not lie . how can it then be imagined , that he would have adventur'd to have printed a whole romance , and have told his king and the world , that he had the manuscripts by him ? nor is this asserted only by boethius , and our own historians , but by paulus iovius , a very famous foreign historian , who in his description of scotland , says , * that in iona ( which we call icolmkill ) are kept the ancient annals and manuscripts in hidden presses of the church , and large parchments asigned by the king 's own hands , and seal'd either with seals of gold , or wax . by which also it appears how nice we have been in securing the faith of our history , the seals of our kings being put to what was written by our devout church-men . and whereas the bishop of st. asaph , to lessen the credit of boethius * , relates , that bishop gavin dowglas advised polidor virgil not to follow his history . polidor virgil himself is appeal'd to , where there is no mention of boethius at all , nor could it be ; for polidor regrates that gavin dowglas died anno , whereas boethius was not publish'd till , and † boethius himself informs us , that the records from which he form'd his history , were sent him from icolmkill anno , and no sooner ; neither did he see those warrants from which he wrote his history , till that year . and it appears by that passage , that gavin dowglas believ'd our account , and produc'd a manuscript for it , which i now cite , and use as an accessory argument , and prove it by the bishop of st. asaph , and polidor : and whereas the bishop of st. asaph pretends that the relation given by gavin dowglas agreed with nennius , but contradicted boethius ; the contrary is probable by polidor's own relation of what gavin dowglas writ to him , which agrees with boethius in every thing relating to our antiquity . the bishop of st. asaph is also most unjust to boethius , in alledging that vossius considers him as a fabulous author : for vossius commends him from what erasmus and buchannan say of him , and in the end taxes him only a little for having believ'd too many miracles , a fault incident to most popish writers in those times , but to none more than to the bishop's own obscure authors , for which , among many other testimonies , i refer my reader to them who writ the preface to the histories of matthew of westminster , and to the life of king alfred , and walsingham's history . it can also be proved by many famous gentlemen , that the black book of scoon , containing our histories from the beginning , was among president spotwood's books , and was given by lewis cant to major general lambert , and by him to collonel fairfax ; which book king charles the first had ransom'd from rome by a considerable sum of money . and it is certain that spotswood had it , and the black book of pasley , signed by the hands of three abbots , when he compil'd his history : which book of pasley , together with the famous book of pluscardin , buchannan says he had , and frequently cites : and that there were such books is known to the whole nation . and i my self have seen in the learned sir robert sibbald's library ( to whom this nation owes very much ) a very old abridgment of the book of pasley ( which book bp vsher himself also cites ) agreeing in every thing with our histories , and which was extracted per venerabilem virum ioannem gibson canonicum glasguensem , & rectorem de renfrew , anno . and two other old manuscripts , the one called , excerpta de chronicis scotiae , & scoti-chronico , which comes to the reign of king iames the d . and belong'd to doctor arbuthnot physician to king iames the th ; and this proves that there were chronica different from fordon's . and the other , extracta de registro prioratus sancti-andreae , giving the irish names of our kings . as also i have seen a manuscript written by a brother of the minores observants of iedburgh , in anno , containing an abridgment of our history , and whereof doctor sibbald has another copy . and there is another old manuscript written by ventonius yet extant , which buchannan also cites , and follows . since the writing of these sheets , i have seen a very old manuscript brought from icolmkill , written by carbre lifachair , who liv'd six centuries before st. patrick , and so about our saviours time ; wherein is given a full account of the irish kings : by which i conclude , that since the irish had manuscripts then , certainly we must also be allowed to have had them , having greater occasion of learning sciences , and writing histories ; because of our commerce with the romans , and polite britans . in this book also there are many additions by the druids of those times : from which i likewise may confirm that the priests in our old monasteries learn'd our ancient history from the druids who preceded them . i have seen also an old genealogy of the kings of the albanian scots , agreeing with that mentioned in our history at the coronation of king alexander the d , and which has still been preserv'd as sacred there . i have also seen another old manuscript , wherein the dalreudini albanach are considered as setled here six generations before eric , whom vsher calls the father of our kings . i find also in it , that angus tuerteampher reign'd in ireland five generations before our fergus the first ; and that in his time the irish and albanians divided , and separated from one another . which agrees with our histories , which say , that the scots were in this country long before king fergus and his race setled here . and these our irish manuscripts agree in every thing with the above-cited history of corbre ' , and are in effect additions to his book by our old sanachies . having thus cleared , that there were sufficient warrants upon which our authors might have founded their histories ; i shall in the next place say something of our historians , and make appear that they deserv'd the credit and applause they met with , and that they founded their history on those good warrants , from which verimund , boetius , and chambers are formerly prov'd to have drawn theirs , viz. our ancient annals and registers . fordon was no monk , as the * bishop is pleas'd to call him , and we had no such monastery as fordon : but he was venerabilis vir dominus iohannes fordon presbyter , and is called a monk by the bishop ( who studies still his own conveniency ) to make the world believe he was inclin'd to lie , as the monks are said to have been in that age ; and to shew him interested for the independency of monks and culdees from bishops . this author began at least to write before the year ; for , in his book he speaks of that as a present year . this book was so esteem'd , that there were copies of it in most of our monasteries , and one of them we have in very old , but in fair characters , continued by arelat ; another continued by a reverend man , walter bowmaker , abbot of icolmkill , and found in the custody of one , who had preserv'd several of the manuscripts of that monastery : and both these continuations have drawn out our histories to the reign of king iames the d . and it is not to be imagin'd that the monasteries would have esteem'd it so much ; or that the abbot of that monastery , where our chief annals were kept , would have continued it , if they and he had not known it to agree with their annals . and fordon cites frequently through his book chronica , & alia chronica , and beda , and follows him exactly : he cites also adamnanus , who liv'd before the year ; and turgot archbishop of st. andrews , who lived anno , and alvared , ( who dedicated his book to king malcom the d , about the year . ) he cites also other foreign authors , such as sigisbert , and isidor , and so has done all that the bishop requires , and all that the best historians can do : neither does he follow ieffrey , but contradicts him , even in the instance of bassianus , as shall be cleared to conviction , in answering the bishop's objections . he has in him also baldredus or ethelredus , and the process before the pope , containing the copies of the authentick letters , objections , apologies , and answers made and sign'd by edward . and his parliament , and the scotish nobility , produc'd before the pope , about the year , whereof the copies are not only extant from fordon , but the bishop also insinuates that the originals themselves are extant in england , and certainly they were at rome . and fordon cites many other considerable old records : he writes in a good stile , and with good judgment : and the reason why this work was not printed , was not because it deserv'd not the press , but because boethius , buchannan , and lesly having printed their histories in their own time , and there being no printing in his , it was thought we had histories enow ; which also occasion'd the perishing of many of our excellent manuscripts . but why should the bishop object to us fordon his not being printed , since he cites against us manuscripts never cited by any , and which have been left unprinted in a country where every thing is printed : and i dare say , after exact perusal of the bishops book , and of the authors cited by him , that fordon is preferable to all those old legends , and most of those authors which he cites against us , venerable beda only excepted , who is still on our side . ioannes major was rector of the famous divinity-school of paris , and was a man of such reputation in that university , as that he is yet remembred with esteem , and a man of too innocent a life , to have written a romance for a history ; and he likewise relates to beda , and our annals . of iohn major a full account and elogium is given by the learn'd launoy academiae parisionsis illustrata , tom. . pag. , . & sequent . one of the most accurate writers in this age * says , that the talent of writing history hath not been found on this side of the alps in any , save in buchannan , who hath written the history of scotland , better than livius did that of rome . the bishop of condom also , and the famous rapin , in their exact essays concerning history , have preferr'd none to him , save mariana the jesuit , whom all men know to be far inferior ; but they prefer mariana , because buchannan was a protestant . ioseph scaliger says of buchannan and us , imperii fuerat romani scotia limes , romani eloquii , scotia finis erit . and * mr. dryden also my friend , whom i esteem a great critick , as well as poet , prefers buchannan to all the historians that ever wrote in britain . and tho i approve as little of buchannan's politicks as the bishop of st. asaph doth , yet i will not be so unjust to him as he is , * in saying , that buchannan in the life of fergus the first , refers to our old annals , but he cites them not ; for there is no such thing in the life of that king : and he was not so much a favourer of monarchy , to have allow'd it the advantage of so singular an antiquity , if he had not found the same due to it , from our manuscripts and records , beyond all contradiction . bishop lesly , and arch-bishop spotswood are men who have written our history with great judgment and truth , and it cannot be imagin'd that they who were indeed banish'd for loyalty , and suffer'd the loss of all for their perswasion , would have asserted a whole bundle of lies , or a continued romance , as the author calls our history , especially since they had both seen luddus , and knew that their history would be enquired into . and * lesly has the confidence to tell in his preface to the nobility , that his history had been drawn with all the exactness that the truth of history requires from the ancient records of the kingdom , and the monasteries , and he was then at rome , whither they were carried . it is also very pleasant to hear the bishop of st. asaph inveigh against dempster the jesuit , one of our antiquaries , whose book certainly he had never seen , else he would never have call'd him a jesuit as he * does . for the very title of his book bears that he was baro de muiresk , and a lawyer , and he was indeed professor honorarius of the civil law at bolognia in italy , and died married , as the history of his life , writ by peteraces , bears : and we may know by the elogies of the greatest wits in italy , how much they esteem'd him for his extraordinary learning , and parts . i may add to these , david camerarius de fortitudine , &c. scotorum , besides richardus de sancto victore , and cornelius hibernicus , both which wrote our ancient histories , the last of them liv'd in the year . and they are both follow'd by boethius , and cited by vossius , baleus , sixtus senensis , and others ; and also adamnanus that wrote st. columba's life . from all which it appears , that our historians have been men of great credit and esteem , and have founded their history upon more authentick documents , than almost any other historians in the world , viz. the records of many monasteries in the time when monasteries were very devout , and upon the universal tradition of the times , both ancient and modern ; and that before there was any competition or controversie concerning our antiquity ; and that what they have said , has been universally believ'd by all the learned world. to which i shall add that our clerk of registers , skeen , the great antiquary , had added from those ancient records a chronology of our kings , and which he has inserted amongst our acts of parliament . is not then the bishop of st. asaph much to blame , when he would have all this pass for a romance , and all those authors to be reputed only as one ? because , as he says , they followed one another from fordon , and he follow'd ieffrey ; neither of which is so . tho i confess the contrivance of this untruth was prety , but happily disappointed , by their asserting that they founded their histories upon the old records of our monasteries , and on turgot , verimund , and others ; all which they had seen , and who are elder than fordon . and it might be as well objected against witnesses , that they came in and depos'd one after another , giving for the reason of their knowledg , that they had seen what they depos'd . if all these manuscripts , which i have cited were extant , i doubt not but the author himself would acknowledg our histories to be instructed beyond debate ; and therefore if i can instruct them to have once been , they must be reputed as good as extant still . for both law , and common reason having consider'd that papers are very subject to be lost , and to perish ; have therefore allow'd , that if it can be prov'd , that there were such papers , and that they were lost by accident , that this probation shall supply the loss . and i desire to know if the warrants of dr. burnet's history of the reformation had been burnt , would not the bishop of st. asaph have been angry , if his testimony and dr. stillingfleet's had not been sufficient to prove the tenor of them ? and what have we for many authors , whom livy , iosephus , and herodot cite besides their own testimony ? and what probation did ever mankind see stronger , than that which we adduce in this case ? for first , that all our monasteries did write our annals , is beside common fame , and universal and late tradition , which passes over all our country , prov'd by the other authorities above cited : if then two ordinary witnesses be sufficient to prove a matter of fact , we must much more allow , that this matter may be prov'd by very many persons , considerable for their devotion and quality . . there are other manuscripts yet extant , some whereof i my self have seen , and have formerly nam'd , all agreeing with the tenour of our history , and long prior to luddus's starting of this debate , in anno . and so must prove sufficient to support our histories , and those witnesses ; especially seeing they have nothing in them contrary to reason , or other credible histories ; but on the contrary , are supported by both , and written by authors of great integrity and knowledg , and have been receiv'd with great applause in the world , and are also confirm'd by the english historians themselves . and therefore i must conclude with the learned vossius , * that albeit the old monuments of rome perisht , that therefore the faith of their history should not perish with them . lest it might be thought that we our selves caus'd to destroy those records we now cite , to prevent further inquiry , and to shew how much harder it is for us than other nations , to be call'd to such an account : i shall desire strangers to be inform'd as a casus omissionis , that our ancient records were destroyed in three remarkable occasions ; . when edward the first took away all our records that he could find , having , as all historians declare , resolv'd to abolish all memory of our nation : and of which we accus'd him before the pope , and he did not deny it . . when our monks flying to rome at the reformation , carry'd with them their records . . by cromwel , who carry'd our records into england , and many of which were lost at sea in their return . but if our historians are to be rejected , i hope it must be by the authority of far more , and far more credible authors , agreeable to a principle of dr. stillingfleet's , the patron of our bishop's book , who * says , certainly they who undertake to contradict that which is received by common consent , must bring stronger and clearer evidence , than that on which that consent is grounded , or else their exceptions ought to be rejected with the highest indignation . which principle , as it seems to be recommended by reason , so it is founded upon the express law of all nations ; by which it is acknowledg'd , that the testimonies of witnesses are not to be reprobated but by others in a double number , and who are of far greater authority . and from this principle it is , that if a jury of fifteen hath absolv'd a man unjustly , though that jury consisted of the meanest men of the nation , yet their verdict cannot be question'd for error , otherways than by twenty five , whereof most part must be persons of quality , who must proceed upon most infallible grounds and evidences . by this rule then , our historians cannot be redargu'd , otherways than by the testimonies of far more unsuspected historians , who agree in what they assert against us , and who are receiv'd with greater applause in the world than ours , and proceed upon far stronger evidences . let us then examine if these qualifications can be found in those historians , by whom the faith of ours is to be overturned . and first , as to the old british historians , it might be objected by us , that they are too much interested , both because the subject matter is an emulation for antiquity between the two nations , and because they were over-run by our country-men at that time to a degree to make them passionate enough for disabling a witness : and as it is very remarkable that florentius wigorniensis , malmesburiensis , huntingdonensis , and hoveden wrote about the reign of henry the second ; and tho. walsingham , and matthew of westminster , in the reigns of edward the third , and henry the sixth ; at all which times there were wars and animosities betwixt the nations . so if any man will read the sad lamentations that are in gilda's , and the rage with which he cries out against us , no man can allow him to be an unsuspected judg or witness in what concerns our honour . polidor virgil suspects , * that there are some things supposititious in the history of gildas ; and if any thing , certainly we may suspect most what is added concerning us ; since the design of detracting from our history , possest too much those who were masters of that manuscript , and printed the same . and yet gildas says very little that can be wrested against us in the points controverted ; being , as beda interprets him , clearly for us , as shall hereafter appear . . as our writers are not inferiour in number , so most of theirs deserve no credit , and they agree not so well against us in the points controverted , as our authors do in what they assert , viz. when we setled here , and who were our first kings : for * nennius britannus does positively say , that the scots came here in the time of brutus . matthew of westminster says , that we setled here the eleventh year after christ. and baker * acknowledgeth that severus built his wall against the scots and picts , without mentioning this to be the first incursion ; and this at least confutes the bishop of st. asaph , who asserts that we were not come to this isle even by way of incursion , till after the year . as they thus differ remarkably as to our origination , and most of them follow ieffreys ridiculous inventions , as our author himself acknowledges : so * holinshed , speaking of those ancient times , says , that scotland had in those days two kingdoms , the one whereof consisted of the picts , called pictland ; and the other of the irish race , call'd scotland : which i hope ( says he ) no wise man will readily deny . and caixton in his old chronicle of england , tells , that the king of the scots assisted cassibelan king of the britains against julius caesar : which shews that our antiquity was believed . and balaeus , a most famous english chronologist , says , that * the scots wrote , &c. ex incorrupta annalium fide. . that our settlement was so ancient , as not only to have been contemporary with their historians , but even to be higher than their chronology could reach to , appears from this , that gildas declares † he knew nothing of us , but what he was forc'd to borrow from beyond sea. * beda places us amongst the old inhabitants of this isle , without condescending upon the particular time , which he had given us , if he had known it himself , as he did in all other occasions . nennius their next author to beda owns , that the most skillful amongst the scots , affirm'd in his time , that we were descended from scota , as our authors now do . * and the eldest after him affirm , that we are descended from albanactus , second sond to brutus . and this is so far acknowledg'd by succeeding ages , that edward the first did upon that account claim the superiority to england over us , as younger brother to locrinus the eldest son of brutus . and we may see in hollinshed , * where he brings in many scotish kings doing homage to the kings of britain , long before this year , and in which several of their authors agree with him . and the bishop fore-seeing the unanswerable strength of this argument , acknowledges this superiority to be a most unjust pretension , as indeed it is ; especially seeing it is undeniable , that there was any such thing known in the world then , as that feudol homage which the english historians contend for ; there being no vestige thereof in any part of europe , till the year of god , and we having had no such kings as some of those whom they name in that ancient homage . but yet even all these forgeries prove clearly , that we were consider'd by those writers , as inhabitants here past all memory , and as ancient as themselves . * giraldus cambrensis also considers us as descended from gathelus and scota , which proves not only that this old tradition was believ'd , but that fordon was not the inventer of it . for girald liv'd about years before fordon . but how any historian in this also can controvert this antiquity after selden has asserted it , lib. . cap. . i understand not . there is likewise a very full and well written manuscript in the hands of the lord maitland , which makes us to come from spain , about the year of the world , and to have been first govern'd by captains , and thereafter govern'd by the kings mention'd in our history . . there are no positive authorities produc'd against us , condescending expresly when our royal line did begin , save three legendary stories written with design , in whom no protestant bishop can find any considerable passages worthy to be cited ; the easiest thing in them being , * that a child made a fire of ice ; † and that when st. columba was sick , his mare wept . the first is a nameless author of st. patrick's life , cited by * vsher , who affirms , that when neil neilialagh was king of ireland , and constantius was emperor , muredus king of ulster had six sons , who possest themselves of the northern parts of britain , and the nation sprung from them ( as giraldus repeating this passage , says ) was by a special name called scotland . and it may be , saith the bishop , reuda mention'd by beda , was one of these six sons . joceline , another author of st. patrick's life , * tells , that the twelve sons of the king of dalrieda in ireland , having despised their youngest brother fergus , he complain'd of them to st. patrick , and he prophesied to him , that from him should descend kings , who should reign in many foreign kingdoms ; and accordingly fergus became king of all dalrieda , and after his successors had for many generations reigned there , aidanus the son of gabranus conquer'd albania , now call'd scotland , and the other isles , in which his posterity by due succession reign to this day . but an elder author cited by cambden ( and whom * usher calls the writer of the tigernack annals ) brings the scotish kings from another origine , to which usher himself is inclin'd . fergus ( says that author ) the son of eric , was the first of the offspring of chonar , who obtain'd the kingdom of albania from brown-albain , to the irish sea and inchgall , whom he places anno , and from him the kings of fergus ' s race reign'd in brun-albain , or brun-heir to alphin the son of eochal , and with this ( as the bishop says ) the irish genealogies agree . and thus our approv'd history must be overturn'd by legends , and genealogies . upon which passages i beg leave to make these few reflections . first , that ( besides , that these authors liv'd not within years of the times of which they wrote ( which the bishop of st. asaph objects to ours ) they do also contradict not only our story , but the roman , who place us here much sooner ) . all these three authors contradict one another in the most remarkable part of our history , and in so late a matter of fact , as that of fergus the second , which shews them neither faithful nor learn'd chronologists . the first nameless author , writer of the life of s. patrick , makes our king to have been one of the sons of mured , whom vsher conjectures to have been reuther , and he must have liv'd in ; for constantius reign'd then , and mured's son liv'd in his reign . iocelin makes aidan to be the first , and to have sprung from fergus after many generations : and this agrees well with ours , but not with the other writers of st. patrick's life . for we place the beginning of aidan's reign in , and it could be no sooner , according to iocelin . the third is the author of the tigernack annals , or an ancienter writer cited by cambden , who places our first king in , and there he is call'd fergus ; and so they neither agree in the name of our first king , nor in the time of their entry to this kingdom . which dreaming glances have risen from an imperfect notion of our history , the first having borrowed his from beda , who brings us here sub duce reuda : the second has been invented to fulfil the prophecy of st. patrick , who promis'd the kingdom not to fergus himself , but to one of his succession , and therefore finding none of our kings nam'd in beda , save reuther and aidan ; he fixes on aidan as the latest . and the third of these , finding that fergus was uncontrovertedly the name of our first king , will rather contradict the rest , and go back from aidan to fergus . and thus they clensh here , making the the first fergus the second , as they do elsewhere , in making scotia to be ireland , or scotia major . . since the bishop's authors are so irreconcileable , what warrants can he or they have to contradict our positive history ? * and bishop vsher cites another author of st. patrick's life , meyerus , who tells us that after st. patrick ' s voyage about this isle , he turn'd his boat to an isle which bears to this day the name of st. patrick ; out of which isle i believe the accusers of our historians got their best intelligence . . that this reuda could not be one of mureda's six sons , is most clear , both because beda speaks of the scots coming to this isle , as very ancient , even in his time , which could not be if this had happen'd in anno ; for beda liv'd in anno , and how can it be imagin'd that beda could not have known the whole series of a royal descent that was so recent . nor do our historians , whose faith is not controverted , after fergus the second , mention any reuda after his reign : and so he behov'd to be an elder king , and consequently we had king 's before fergus the second , which the authors denies . nor could any of these sons of mured have been fergus the second , whom these late inventors call our first king ; for no author makes fergus the second to have reign'd within more than years after constantius . luddus and cambden assert us to have setl'd here , under fergus the second , in the reign of honorius , at which time fergus the second did reign . vsher relates only the three authorities of those ridiculous legends ; and the bishop of st. asaph fixes on the year , and so contradicts not only our historians , but * luddus and † cambden in making fergus the second near years later , than truly he was . as these few prime and late authors who controvert our antiquity , differ thus in the names of our first kings , and the time of their settlement in scotland ; so they differ in these following cardinal points of their new invented hypothesis . the bishop of * st. asaph thinks it necessary for maintaining that the scots setl'd not till the year , to assert that the picts fill'd all the northern parts of britain , and that those picts were a ruder sort of britains , divided in south and north picts ; in which he follows * cambden , yet with this difference , implying a contradiction , that cambden makes these deucaledones and vecturiones , to signify by a british derivation , picts , to the east and west : whereas the bishop of st. asaph , from a british derivation of the same words , calls them southern and northern picts . but cambden does acknowledge plainly that in this derivation , he differs from the venerable beda , whose authority he truly foretels will weigh down the reasons he brings for his conjecture . and as he , contrary to the universally receiv'd opinion , denies the picts to be schythians , tho they were really so , he makes the scots to be schythians , though really they were not so . * vsher not having considered all the scheme and consequences of this new hypothesis ( as the bishop of st. asaph has done with more cunning ) follows beda in bringing the picts from schythia , but he differs from beda in that he brings them hither after our saviour's birth , and produces such authors as he uses in our occasions , who assign three different periods of time for their settlement ; the last whereof , and to which he inclines , is said to be under the emperours gratian and valentinian ; and so makes the scots and picts to have come in together about the year , and yet he finds no inconveniency in bringing us to scotland under gathelus and scota , and in asserting that we setled first in galloway , whereas none of our historians do say that gathelus and scota came to scotland , and the bishop of st. asaph and cambden assert our descent from scota to be a fiction ; and the bishop of st. asaph * confesses us to have first fixt in argile . another material difference amongst them is , that the bishop of st. asaph † confines us and the picts , for years be-north grahams dike , call'd severus wall , beyond clyde and forth . whereas cambden ‖ asserts that edinburgh was the chief seat of the kings of the picts , and derives the names of louthian , edingburgh , and pictland , from pictish words . from all which it clearly appears , that no weight is to be laid on such irreconcileable authors ; and yet by these only , is the antiquity of of our kings and nation controverted . but to confirm fully our history from iulius caesar's time , and to shew that the british historians do not only contradict one another , but do contradict the two only ancient historians , who could understand any thing of our origine , as being the eldest and most deserving of all their own authors , viz. gildas and beda ; i do appeal to them . and i begin with beda , because he is most full , and interprets the other . the venerable beda , tho a saxon himself , and so an enemy to us , having written an exact chronology , according to the periods of time ; does in his first cap. de * priscis incolis , tell us , that god was praised in five languages in this isle , that of the english , britains , scots , picts , and latines : and then proceeds to tell , that the britains were the first possessors , and possest the south parts , after which came the picts to the northern parts , and the scots under reuda , thereafter made a third nation , in that part belonging to the picts , getting the western part of scotland , north from the picts , called dumbriton , or alcluith . and he inculcates their fixing here , by three several , but concuring expressions . . progressi ex hibernia , they left ireland . . sedes vindicarunt in britannia , they setled in britain . . in britannia britonibus & pict is gentem tertiam addiderunt , they added a third nation to the britains and picts . and that this was very ancient is clear ; for he fixes them in britain in that chapter wherein he treats de priscis incolis ; and having thus setled the scots and picts in his first chapter with the britains ; he proceeds in the second chapter to settle the fourth nation , viz. the latines or romans , beginning with these words , * but this britain was unknown , and not entred upon by the romans , till julius caesar ' s time . and having describ'd the wars betwixt these three nations and the roman emperours , in a due gradation , marking every period of time through the reign of their consecutive emperors ; and how at last the romans had abandon'd the island , and aetius the roman consul , had refus'd the petition of the miserable britains , so often defeated by the scots and picts : he in the cap. relates how the britains upon deep consultation , brought in the saxons , and from thence continues the saxon history . this being the tract of beda's history ; is there any place to doubt but that the scots were setled before the saxons ? for the wars betwixt the romans and scots are related exactly before any mention is made of the saxons ; and at last they are only brought in to assist the britains against the scots and picts , because the britains were deserted by the romans , and consequently the saxons having been brought in anno , it unanswerably follows , that the scots were setl'd here , and made a third nation , long before the , as the bishop of st. asaph alledges , at which time he makes us to have setl'd here very cunningly , but not sincerely , upon design to make us later than the english. as also it appears very clearly that the scots setl'd here even before iulius caesar's time , for after beda ( who proceeds exactly according to the periods of time ) had setl'd us in britain , he tells , * that this britain was unknown to the romans , and describ'd what these romans did in the isle , and how they fought with the picts and vs under their subsequent emperors , without ever speaking again of the entry of the scots , as having setl'd them in the first chapter , before caesar's time . nor is the time alter'd in any other period ; and he is so careful of the period of time , that he subjoyns to his work a chronological recapitulation , which is very exact . and he being a saxon , had certainly told ( as the bishop now does ) that the saxons were elder than we , if this had been true ; which is a demonstration according to the rules of chronology , against the bishop of st. asaph . it may be some may wonder why beda mentions not our coming under fergus the first ; and some may object , that in this we go higher than beda . to which it is answered , that our history confesses , that the scots came over from ireland at several times : once under fergus the first , but not being numerous enough , reutherus brought over another recruit , and thereafter fergus the second brought over others after his predecessor eugenius was expell'd by the romans and britains . and in so old antiquity , it 's much for beda , even to know the descent under reuda . and whereas the bishop quarrels beda , that he gives no authority for this : the reply is , that if it were requisite , then one author behov'd to give another , and he a third , & sic in infinitum . nor did ever any man before him require an authority in so ancient an author : and this answer is a full proof of the bishop's conviction , who being absolutely gravel'd here , he grows as angry at beda , as at our historians , and tells , disdainfully , that this might be true for ought beda knew , and adds , that the scots were indeed here in beda's time , and he speaks according to his own time , which were to make beda speak great non-sense . for beda speaks here of the preterit , and not the present time , viz. the first vastations spoke of by gildas , and we shall see that others , who lived in the time agree with him . the second citation i shall bring from beda , shall be from the th cap. l. . eccl. hist. where he says , that * severus built a wall to defend against the other unconquer'd nations , and in the cap. he tells that † britain was vex'd by the scots and picts , two over-sea , or transmarine nations ; and thereafter , as if he had been afraid that this word transmarine , might have been mistaken , he adds , ‖ that they were not call'd transmarine , because they liv'd , and were setled out of britain ; but because they were separated from that part of britain by the two seas , which did almost meet . and in this he agrees exactly with tacitus , who in the life of agricola , says , that there being a wall built betwixt these two seas , the roman enemies were closed up as in an isle . by this place of beda it is also very clear , that the scots were setled in britain whilst the romans fought against the picts and scots , and consequently before they were call'd by the picts to defend them against the saxons , as is alledged by the bishop . if the scots had not been living in this isle at that time , the explication of transmarine had been both ridiculous and untrue . and as it is not presumable that the venerable beda would have asserted this , if he had not certainly known it ; so it was very easy for him to know it , that being so publick a thing , which concern'd his own , as well as his neighbour nation . but if the scots had setled in anno , beda could not have call'd them * prisci incolae , and reckon'd them amongst the ancient inhabitants . for a man living in his time , might have told him , that his father saw the scots call'd over by the picts , and that they settled here in his time . beda being thus clear to a demonstration , as far as chronology and history can allow : i desire to know how what gildas says , can contradict our history , since he copies gildas , and liv'd within years of him ? and since both wrote the same actions in almost the same words ? or how can it be imagin'd , that if gildas had known our origin to be so late , he would not have told it to our disadvantage ? whereas on the contrary , he speaks of scots and picts as living in this isle , after the same manner as transmarine , in the same sense , in which beda interprets it ; which is , because they liv'd not without the isle , but on the other side of the wall , which made an isle . from which it follows necessarily that in gildas's time , the scots dwelt not without the isle of britain ; and gildas having been born in anno , as is said in the calculation prefix'd to that * edition , which himself relates , it is clear that he was born years before that year , in which the bishop of st. asaph pretends we first settled here ; and so certainly he could not but have taken notice of the settlement of a nation , in which he was so much concern'd . and albeit he says once , speaking of us , that hiberni revertuntur domum . yet that was spoke of us as settl'd here , and as being irish by extraction , as shall be hereafter clear'd . nor must our histories which are so positive and unanimous , be overturn'd by clenshes and equivocations , and remote weak consequences , without authors living at the time , and mentioning expressly so remarkable an accident . before i enter upon foreign citations without the isle , i must observe , that we having kept the romans ( the only writing nation that had any knowledg of these our isles ) from entering our kingdom ; they could not know our antiquities , as they did those of england or france , whom they had conquer'd . but our being engag'd in a constant war with them , is so universally related by all their historians ; that to deny our being a nation , and in britain , when they so frequently and unanimously writ of us , as gens , & gens etiam britannica , fighting here , cannot but seem railery to any serious man : and the being able to controvert it , is rather a mark of nimbleness of wit , than skill in antiquity . but however i shall produce some few foreign authors , whose testimonies seem to me unanswerable , being joyn'd with , and illustrated by what i formerly said from the venerable beda , and the historians within this isle . my first author is eumenius in his panegyrick to constantine in praise of his father constantius : who preferring the victory constantius had over the britains , to that which iulius caesar had over them ; says , * that the britains at the time caesar conquer'd them , were a rude nation , being only us'd to fight against the picts , and irish of the british country , enemies half naked , and so easily yeilded to the roman arms and ensigns . by which citation , we contend that it is prov'd , that in the time of iulius caesar , there was another nation beside the picts , who then inhabited britain , and were a colony of the irish ; and these must certainly have been the scots . for it cannot be pretended , that ever there was another colony of the irish in britain , besides us . and it is uncontroverted on all hands , that we are that colony of the irish , who only us'd to fight with the picts , against the britains , and therefore that answer made by the bishop , that this place relates only to the irish , and not to the scots , is of no moment . but he has another answer , which his lordship insists more upon ; and for clearing whereof , i must cite the latin ; ad hoc natio etiam tunc rudis , & soli britanni pictis modo , & hibernis assueta hostibus , adhuc seminudis , facile romanis armis signisque cesserunt . his answer is , that the words , soli britanni , are the nominative , and not the genitive , and his lordship confesses , * that if the words be in the genitive , they are clear of buchannan's side . and that they are of the genitive , all disinterested men , who understand the latin , will confess . and cambden himself , tho a learned schoolmaster , and in other citations about our antiquity , somewhat more humourous , than so worthy a man needed to be , trusts to no other answer , but that the panegyrist spoke here , according to the conception of the age wherein he liv'd . but , as any citation may be thus answered ; so if he had not spoken with relation to the time of iulius caesar , the comparison and complement had no great force . the learned vsher likewise objects not this to buchannan , which shews also his acquiescence . . if this , natio rudis , had been the same thing with soli britanni ; and if the sence must be , as his lordship says , a rude nation , the britains ; then not only it had been superfluous , but inconsistent with true sence . for how can the same thing be copulated with it-self ? and tho it may be said , natio rudis soli britanni , assueta hostibus ; yet certainly assueti had been more elegant for an orator , if soli britanni had been the nominative . and the great * ioseph scaliger , one of the best judges both for that kind of learning and disinteressedness , exclaims against luddus , for misconstructing so the words ; and therefore the bishop might have spared the saying , * that cambden ought to have given buchannan correction ; for the great ioseph scaliger , and buchannan , that incomparable humanist , are fitter to give , than receive correction from any in the isle , or age. i must also observe , that the bishop has pointed these words otherways than they are in the author : for in the author ( of paulus stephanus , and plantins editions , who were the most learned and exact of all printers ) there is no comma immediately after tthe words , soli britanni , and it is pointed as i have set it down here , and even * luddus is just here . but the bishop has very wittily added the comma after these words . now without the comma , it is clear , that the panegyrist meant pictis & hibernis soli britanni ; and if the panegyrist had design'd his words should have been construed , as the bishop has constru'd them ; so great an orator would certainly have said , soli britanni natio ad hoc etiam tunc rudis , &c. and in this case the words had been clear , and the ingenious bishop needed not , in translating them , to have been forc'd to use the word * nation twice , because the sense was hard and unnatural , according to his construction . and whereas the bishop pretends , * that the words construed according to buchannan , would not have run so strong in the comparison : for the strength of the comparison lies , saith he , in that julius caesar ' s victory was not so great , as that of constantius , because caesar overcame a nation , yet rude and unskilful of war , and only britains , a nation us'd to no other enemies but picts and irish : whereas constantius overcame carausius , who had got a roman legion on his side , &c. but by his lordship's favour , the comparison runs strong enough thus , according to buchannan's construction . caesar overcame the britains when they were yet a rude nation , us'd only to fight against the picts and irish who liv'd upon the land , or isle of britain : but constantius overcame them after they had been long train'd up in war. and certainly a nation is a far more formidable enemy after their being long train'd up in war , than when yet rude , and unexperienc'd ; tho they had had the accession of a roman legion ; which could signify nothing against a whole roman army . nor does it follow , that the words must be ill construed ; if so , the comparison would be stronger : for it is sufficient to sustain the construction , that in the comparison constantius was to be preferr'd in the way i have mention'd . . if there were any doubtfulness in these words , as there is none ; yet they ought to be interpreted so , as to consist with other authors and histories , and especially with beda : for in our sence , they confirm his chronological account , of our being in this isle before iulius caesar's time : and the bishop must still remember , that he cannot overturn our receiv'd histories , except he produce arguments which infallibly conclude against them : it being a rule in law , that , verba semper sunt interpretanda potius , ut scriptura , vel actus subsistat ; quam ut destruatur . this shews also that in constantius's time , which was about the year , the britains were assueti , us'd to fight with the scots and picts : and this use must imply a long time . and so it 's very probable , that we had frequent wars with the britains long before this time , and consequently the bishop errs , * asserting , we were not in britain even by way of incursion , till the year . if it be objected , that in the phrase soli britanni , britanni is a substantive ; britannici being still the adjective ; and therefore these words must be construed to be the nominative case , as the bp of st. asaph alledgeth . i prove the contrary by lucretius . nam quid britannum coelum differre putamus , &c. claudianus de quarto consulatu honorii terribilis mauro , debellatorque britanni littoris . a further confirmation of this arises from the same eumenius , in this same panegyrick ; where speaking of constantius's victory over this island , he saith , neque enim ille , tot tantisque rebus gestis , non dico caledonum aliorumque pictorum silvas & paludes , sed nec hiberniam proximam , nec thulen ultimam , nec ipsae si quae sunt , fortunatarum insulas , dignabitur acquirere . and tho vsher foreseeing the force of this argument , endeavours to elude it by contending , that by the caledonii , are here meant the picts , because the words aliorumque pictorum , had else been impertinent . yet to make the scots not to be caledonians in ancient authors , were too great a task even for vsher ; that being contrary to the universally receiv'd opinion of all the learned , * some of which i have cited in the margin : but for a further proof , i shall here cite a roman that liv'd very near eumenius's time , and who almost speaks in the same words with him , latinus pacatius drepanius , who in his panegyrick to theodosius the elder , who liv'd anno , complements him upon * having reduc'd the scots to their marishes , shewing that the sylvae , and paludes caledonum , were the scotorum sylvae : though strangers in those ancient times , could little distinguish picts from scots . and from which i further evince , that the scots before the year , dwelt in in scotland , as their own country ; else it had been impertinent and untrue to say , that the scots were reduced to their own marishes . having thus shown that the scots were caledonians : it clearly follows , that all the ancient authors who write of the caledonii , prove the antiquity of the scots ; and therefore valerius flaccus proves our antiquity , who writing to domitian , in praise of his father vespasian , who was known to have made war with us about the year after christ , says , — caledonius , postquam tua carbasa vexit . oceanus phrygios prius indignatus iulos . and * martial , who liv'd also in domitian's time , says , quinte caledonios , ovide visure britannos , et viridem tethyn oceanumque patrem . next to these i cite tacitus , who in the life of agricola , brings in that famous galgacus , who fought with the romans , near to the grampian hills . and that he was a scotish king , or leader , is confirm'd from * lipsius , who calls him galgacus scotus . this is also confirm'd by the exact and noble french manuscript foresaid ; which says , that dardan was chosen , because galdus was not of age : alluding to our old law , appointing that the immediate heir of the crown , being by his infancy unable to govern , the government should in that case be devolved upon the next , who was able to govern : which law was so ancient , that it is said to be enacted immediately upon the death of fergus the first . and by bergier , afterwards the king's advocate of france , who in his learn'd history of the high-ways of rome , * calls him prince of the caledonians , or the scots . and to what better judges can we appeal , in a matter concerning roman antiquities , and the sense of a roman author , than to those two , who are the most famous of all the roman antiquaries : the one having written a book concerning the roman greatness , * and the other concerning the magnificence of the romans in their high-ways . nor could he be an irish king ; for what had an irish king to do with an army in the midst of scotland , and against the romans , with whom no irish king ever fought . and that he was no britain , is clear from the speech he made to his souldiers , telling them that they had never been conquer'd , servitutis expertes , & nullae ultra terrae . nor can any thing agree better with our being still call'd one of the two unconquer'd nations , by gildas , beda , and others . this is yet further clear'd by another passage in this same life of agricola ; wherein * tacitus says , the third year of the war discovered new nations , which agricola conquer'd , even to the river tay. and after this he adds , agricola having beat galgacus near to the grampian hills , brought back the roman army to the borders of the horesti ; and having received hostages from them , he ordered the commander of the roman fleet to sail about the isle . from which i deduce , first , that galgacus was no britan : for tacitus says , that the third year opened new nations : whereas agricola knew the britans before ; and these must have been the scots and picts : for they could not be any other , being beyond the river tay. and galgacus could be no pictish king ; for we have a manuscript , bearing all the names of the pictish kings . . from this passage it is clear , that cambden does err grosly , in making the horesti to be a people in eskdale , which is a scotish country on the borders of england . for ( beside that all authors agree , that they are known to be the inhabitants of angus , and merns ) it is here demonstrated by tacitus , that after the romans past forth , they came to tay , ( which is known to be the marches or boundary of angus ) and from thence they marched to the grampian hills , where they fought with galgacus : and from which he return'd to the borders of the horesti , where finding the fleet in the frith of tay , where he had left it , he embarqu'd the hostages , and sent the fleet back to that part of britain whence they came . and how could all this be in eskdale ? that being very remote from the place of battel ; and eskdale an inland country , very remote from all sea. . tacitus writing of us , under the name of caledonians , mentions the marishes of those who fought , which were appropriated to us by eumenius and pacatius , as i formerly observ'd . by all which we may observe , how little english writers are to be credited , when they write upon design to lessen our country , or magnify their own . and all this is confirm'd by the learned * ferrarius a stranger . and to this i may add , that we have to this day , a barony , call'd galdgirth , or the girth of galdus ; and ten great stones in galloway , called king galdus's monument : marks of antiquity far preferable to any manuscript ; as the testimony or consent of a whole nation , is to that of one privat person . two of which arguments are us'd by chambers , in the life of galdus : and he had seen verimund , and our old manuscripts : and should he not then be our king galdus , who reigned at that time , and who ( as all our histories relate ) fought against the romans , in this place , which was within the scotish territories ? the third citation , shall be from seneca ; and is a clear testimony for us in the judgment of the great * scaliger . ille britannos ultra noti littora ponti , et caeruleos scoto-brigantes dare romuleis , colla catenis jussit , & ipsum nova romanae , iura securis tremere oceanum . * to which cambden answers , that for scoto-brigantes , we should read scuta-brigantes . but this is very ridiculous ; for we read , that the picts were call'd picti , for painting their bodies ; but never for painting their shields . i know likewise , that hadrianus iunius reads cute-brigantes ; but this would be ill verse : for the first syllable in cute , is by it's own nature , short ; but according to this reading it would be long . i might to this add that answer made by florus , the poet , to adrian in spartianus . ego nolo caesar esse , ambulare per britannos , scoticas pati pruinas . for why should we read , scythicas ? since adrian was never in scythia ; but did fight against the scots : and caus'd make the vallum adriani . . why should not rather scotia , than scythia be joyn'd to britannia ? as * vsher argues most justly upon the like occasion . . the pruinae scoticae were famous about that time : for claudian hath , * ille caledoniis posuit qui castra pruinis . and claudian does so expresly and so frequently speak of the scots as setled here , and describes them to be those people , who constantly fought against the romans , with the picts ; that the citing him against us , may convince the reader , that our adversaries are not serious . which will appear when i have cited and illustrated him . in his panegyrick , upon the third consulat . of honorius , he complements him upon the victory of his gandfather theodosius , who behov'd to come into britain long before the year , wherein theodosius his father was chosen emperour . facta tui numerabat avi , quem littus adusti horrescit lybii , ratibusque impervia thule . ille leves mauros , nec falso nomine pictos , edomuit , scotumque vago mucrone secutus . fregit hyperboreas remis audacibus undas . and in the fourth consulat of the same honorius . ille caledoniis posuit qui castra pruinis . — maduerunt saxone fuso orcades , incaluit pictorum sanguine thule . scotorū cumulos flevit glacialis ierne . and de bello getico , he speaks of the roman legion that return'd from fighting with the picts , and us ; ( of which * beda makes express mention . ) venit & extremis legio praetenta britannis , quae scoto dat fraena truci , ferroque notatas perlegit exanimes picto moriente figuras . that all this is applicable to us , is clear : because , . we had war with the romans , and the irish had not . and all these verses in claudian , are spoke to magnify the roman man conquest . . since we have prov'd , by other authors , that the scots were setled here , it is proper and suitable to common sense , to apply the same to us only , as being the only persons concern'd in those battels ; and to the isle , in which it is known that the same were fought . and these passages are attributed to us by selden , l. . c. . mar. claus. . have the irish made any mention of this war , in any of their histories ? and consequently , though scotia had been a common name to scotland and ireland in those days ; yet the circumstances of the action , related by the poet , determine which of the two is here meant . this is yet further clear from the panegyrick of sidonius appollinaris . — victricia caesar signa caledonios transvexit adusque britannos . fuderit & quamquam scotum , & cum saxone pictum . as to which , all that cambden ( much better acquainted with citing , than reasoning ) can answer ; is , . that the poet here wrote a complement according to the vulgar opinion of his own times , which cannot be true , ( as he says ) because the saxons were not then come to britain . but he should have considered , that , . if this was the opinion in sidonius's age , who liv'd anno , * as gesner affirms , which was very near to claudian's time , who liv'd in , as the bishop of * st. asaph calculates : we must conclude , that it is the rather to be believ'd , that then the scots liv'd here , for that is not inconsistent with history as the other is , and so should be believ'd , though the other be not . . there were saxons living then in zetland or orknes , tho they were not setled in britain ; as is clear by claudian himself , who says — maduerunt saxone fuso orcades . and whereas it is said , that — flevit glacialis ierne , does make the same applicable to ireland , since ierna is call'd ireland . to this it is answered , that , . it is clear , that there is a country in scotland , call'd ierna , near to which the romans had a noble camp , and whereof the vestiges are very remarkable to this day ; and in which , there are stones found with roman inscriptions , designing the stations of the legions . and certainly it is more proper to say , the loss was lamented in that country where the battel was fought , than in that kingdom where the romans never fought any . and why did the poet join ierna in the same lamentation with caledonia ? if he had not design'd by it , to express ierna , as a part of our scotland . and this is more proper , than to make the poet join part of one , to another different , and remote kingdom . as also starthern in scotland , is indeed a place , where the frost is strong , and continues long , as being very near the hills . but ireland was known to be , and is yet a country much freer from storms and ice ; and was believ'd by the ancients to be so , as is most clear by * beda . . though the poet had understood ireland , by ierne ; yet it does not follow , that because ireland lamented the loss of the scots who were kill'd here ; that therefore the scots that were kill'd , were not the scots that were planted in scotland : since certainly , ireland could not but have lamented even the death of scots , who were setled here ; as scotland , and as the scots here did lament very much the death of the scots who were kill'd in ireland in the late massacre . and as the bishop himself argues in the case of the panegyrick above-cited , i may far more justly argue here , that this sense agrees better with the poet 's noble flight , who makes the loss that the scots sustained to be so great , that it was lamented even in ireland . selden also , l. . c. . mar. claus. applys this to us , and not to the irish. and these verses in the same author , design'd likewise to the praise of the same theodosius , — pictos edomuit , scotumque vaga mucrone secutus , fregit hyperboreas remis audacibus andas . are only applicable to the scotish colony setled in ireland . for he magnifies theodosius , grand-father to honorius , for having pursued so far his victory , that he beat the northern seas with his bold oars . now , beside all the other arguments formerly us'd , can it be said , that theodosius's souldiers ever went to ireland ? that ireland lies north-west from clyde , or severus wall ? whereas it is certain they were in scotland ; and it is very probable that they would follow the scotish colony into the north-west isles , or over clyde , where it 's formerly prov'd the scotish plantation first setled . the third testimony , shall be that of * hegisippus , where he brings in ben-gorion disswading the iews to fight against the romans , the conquerors of all the earth , whom the unsearchable places of the ocean , and the furthest places of india , obey . what shall i say of the isles of britain , divided from the rest of the world by sea , and reduc'd by the romans to be a part of the world ; who makes scotland to tremble , which owes nothing to any part of the earth ? to which cambden answers , that this must be interpreted of ireland , because the words , quae terris nihil debet , must be interpreted , as if the scotia here spoke of , were joyn'd to no other place ; and that is only applicable to ireland , and not to scotland . but what a hard shift is he here driven to : for none can interpret , quae terris nihil debet , in that sense , there being nothing more different , than these two expressions , which is not joyn'd to the other parts of the earth , as cambden would interpet it ; and , which owes nothing to any part of the earth , as the author expresses it . there is nothing more ordinary , than for one who thinks he depends not upon another , to say , i owe you nothing . and certainly it agrees much more with the author's intention , to interpret these words so , scotland , which ow'd homage to no place , does tremble at the roman arms. . it cannot be said that ever the romans did attack ireland . and to clear this , beyond answer , in the same harangue , cited out of ben-gorion himself by vsher , * ben gorion says to the iews , that when the general of the nations only came , these nations resisted them ; but when the roman emperours themselves came , they submitted to them . and i desire to know , if ever ireland was invaded by the romans ? so that what is said in the harangue , is not applicable to the scotia hibernica , as they pretend ; but to that country wherein we now live . as also , by the same ben-gorion , it is clear , that nero being discourag'd upon the rebellion of the iews , and vespasian comming to him , comforted him , by remembering him that some of his captains had conquer'd all the western world , france , scotland , and the land of tubal . and whereas , vsher , to lessen this authority , is forc'd to alledge , that hegesippus's works were spurious . this contradicts * eusebius , who makes him to have liv'd , anno christi . and tho vsher contends , that both these authors must be late , because hegesippus , who only cites ben-gorion , names constantinople , which chang'd not the name of bizantium till about the beginning of the th century . yet the answer is easie , viz. that this being a translation from the greek , the translator has us'd the name that was best known in his own time. and the english , and other nations have acknowledg'd this to be the work of hegesippus , and translate it as such . vsher himself indeed is inclin'd to think , that this was the work of st. ambrose : but even that is sufficient for us , for not only is st. ambrose himself older than the year , and so proves that our country was before that time called scotland ; but st. ambrose relating this speech made in vespasian's time , must prove , that this country was call'd scotland in vespasian's time , who was elected emperour years after christ. * tertullian , who died in the year , and so must have written some time before that , and could not have written of us as christians , and a nation , if we had not been so , for a considerable time : for informations did spread slowly in that age , when there was so little commerce , and at so great a distance , this great doctor of the primitive church , writing against the jews , who he knew would examine the truth of the matter of fact alledg'd against them , says , * for the honour of the christian religion , which he was defending , that those inhabitants of britain , which could not be subdu'd by the romans , yet willingly yielded to the yoke of christ. from which it is urg'd , that in tertullian's time , there were nations in britain which had never submitted to the roman yoke , but yet submitted to the yoke of christ. but so it is that could not be meant of the britains , for all the world knows , and the bishop confesses , that long before that time , they had submitted to the romans . and therefore it is plain , that there were other nations in the isle ; and that could not be true , except the scots , as well as the picts , had been setled in the isle at that time. for a vagrant company of robbers , could not be call'd a nation , or esteem'd a church : and this author writes of british nations ; we must therefore have been a nation and church , as the rest were ; and therefore , since they were setled , so must we have been . nor can this be meant of the north and south picts , though it were prov'd , that the picts were distinguish'd into northern and southern . for these could no more be consider'd as different people , than the northern and southern english can now be said to be different nations . . that sense was not so much for the honour and extent of the christian religion : and the jews might have lookt upon tertullian as a jugler , for making one nation appear two . . our sense agrees better with beda , who asserts positively , that from reudas's time , the scots made a third nation in the isle of britain , with the britans and picts . . selden , l. . c. . confesses , that the scoti pictique , were the gentes non subjacentes romano imperio . * ammianus marcellinus , who wrote about the year , tells us , that the scots and picts harrased the country . but the bishop unjustly adds , that then they first harrassed it . but this cannot be , for ammianus speaks of their fear , as occasion'd by a tract of bygon defeats ; and this he elegantly expresses by the words , congerie praeteritarum cladium ; which shews , that these he speaks of in the , were not the first of many overthrows that the brittains had got from the scots and picts . and so our being here , must be much ancienter than the ; which agrees well with the word assueti in eumenius . and our having fix'd and known limits , demonstrates to all who understand the roman antiquities , that we were then a fix'd and setled nation , in the same island with the roman provinces of the britans ; the sea , or any part of it , being never signified by their word limes . * st. ierome , in his epistle to iovian , cites porphire , who liv'd in the third century , under dioclesian , and so above years before the . his words are , neither britain a province fertil of tyrants , and the scotish nation , and all the barbarous nations , dwelling around the ocean , knew moses , and the prophets . by the scotish nations * vsher understands not the scythians , but the scots , because they are in this place joyn'd to britain : but tho both he , and the bishop of st. asaph would apply this citation to ireland , yet this gloss is most absurd ; for by the former argument , the word scots should be apply'd to us , for we are join'd to britain ; but ireland is no more join'd to britain , than scythia . and the same ierome , in the next citation , calls the scots a nation of britain ; where he says , * that when he was young , he saw the scots , a nation of britain , feed upon mans flesh. from which it is clear , that the scots at that time dwelt in britain , which agrees very well with beda , who calls the scots the third britannick nation . † and selden calls the scots and picts , gentes britannicas , l. . c. . and this is further clear'd , by his asserting , that pelagius was of a scotish race , in the neighbour-head of britain ; which proves clearly , as the learn'd * baronius observes , that there were scots then in britain , who were christians , else how could they have been pelagians ? nor can this eating man's flesh , be thought any just reflection on the nation ; for certainly these had been some rogues , who had fled out of the nation , because they knew they would have been punish'd for this crime . nor can their eating man's flesh in france be charg'd on us , but on the french , where this is said to be so publickly done , that st. ierome could have seen it ; and there is no historian that ever charg'd this on our nation , nor any part of the isle , even in our most barbarous times . and if it had been any ways common , there would have been a law made against it . and boethius relates , that there was one mean man guilty of it , who was thereupon executed examplarly . and in what nation are there not some monsters ? another of the reverend * fathers of the primitive church , enumerating the nations , which were descended from iaphet , mentions the britons and scots , whose isle is britain . this shews , that there were scots living in britain in epiphanius's time , and so he proves not only our antiquity , by his own authority , but confirms and explains what was formerly urg'd from ierome , in whose time he liv'd , and to whom he wrote letters . * orosius , who in anno , says , that severus thought fit to secure that part of the isle which he had , by a wall , from the other unconquered nations . and that we , and the picts were these unconquered nations , appears from * beda , wherein he describes those very actions , in those very words . and all these authors agreeing with beda , and writing of the times wherein themselves liv'd , are sufficient testimonies , according to the bishop's own strictest rules . and they prove how unkind the bishop is in lessening beda's testimony , when it makes for us ; by saying , he spoke then according to the times wherein these actions happn'd : for we see , that they who wrote , and liv'd in the time of those actions , agree fully with him , as they speak clearly for us . having thus made plain the antiquity of our kings and nation from the historians both within and without the isle . i now proceed to clear these from the principles of sound reason : as to which , let us consider , that it being acknowledg'd by vsher , and the authors he cites , that ireland was peopl'd by the scots , before iulius caesar's time ; and by their own authors , whom that bishop cites , they are said to have been so anciently there , that we do not know how many ages they possess'd that isle before iulius caesar. and they being a very broody people , as all northen nations , and particularly they , and we are , could not but have multiply'd so exceedingly , as to need relief , and evacuation by colonies . and it can never be pretended , that the irish did settle any other colony save in britain : though it be undenyable , that all those northen nations were very desirous and concern'd to extend , by colonies , the empire of their whole nation , and thereby the possession and property of every particular man in it . nor do we ever read , that the irish had any wars with strangers , whereby they might have either wanted men to send into foreign colonies , or have been forc'd to keep them at home , for their own defence . whether then are our histories more probable , which make this colony to have come over before iulius caesar ? or the bishop of st. asaph's account , who makes us not to have settl'd here , till years after christ. and tho i esteem the irish , yet i must remark , that our humour differs so much from theirs , that it may from thence appear , that we stay'd not long amongst them , but that we came from thence very early . . by all the tract of the roman histories , as well as by beda's , gildas's and ours , it is clear , that the scots and picts fought joyntly against the romans in this country which we now possess : that the walls built by adrian , and severus , were built here , to defend them against them : that complaints were made to the romans by the britons of them , and that succours were crav'd against them : that the saxons were call'd in , to defend the britons , from the scotish and pictish incursions : that they were call'd jointly , unconquer'd nations . all which points prove , that they were equal in every thing ; and why not then in their being equally settl'd here ? and therefore , except it were clearly prov'd that the scots were not settl'd and fix'd here , as the picts were ; and that there were authors produc'd , who living in these times , declar'd , that in the year , the scots were first call'd to defend the picts , as the saxons are clearly prov'd to have been call'd in , against the scots , and picts , in the year , very near to the year ; which is said by the bishop to be our entry : it must be necessarily concluded , that the scots were here at the time , wherein all these things are told of them joyntly , with the picts . the third argument shall be , that it 's undeniable , that the scots and picts were such constant and formidable enemies , that the romans , and britans , who then possest the southern part of this isle , were forc'd to build two fences against them : the first betwixt tyne and solloway , which was call'd adrian's wall : and the second , by severus , who having enlarg'd the roman conquest , built a second , betwixt forth and clyde , and called it by his own name . how then can it be imagin'd , that the scots did not live on the other side of that wall ? for if they had liv'd in ireland , the wall had not been necessary , or useful , against them . this common sense would declare to a stranger , upon first reading the story ; and much more ought it to be believ'd , if we consider , that if the scots came from ireland , in corroughs , as the bishop of st. asaph alledges , from gildas ; then they might have landed upon the britons side of the wall ; nay , and which is more , they could not conveniently have landed on the other side , except they had gone too far about , and cross'd a very broad and dangerous sea. . tho people come once , or twice , from a foreign nation , by sea , to rob and pillage , yet it is against sense to think , that for many hundreds of years , the irish would have come over , to make war against such powerful enemies , and return once a year . and it appers clearly , that this was a constant war , from before iulius caesar's time , for above years : and in those ages , it is known , that there were not very convenient means fall'n upon , for transporting men , much lesse armies ; they having only corroughs , as the bishop of st. asaph himself acknowledges : and these are a miserable little kind of shapeless boats , made of leather , streatch upon timber , as we find them , and the irish sea , describ'd by * solinus , who liv'd near those times , and writes , that mare quod iuvernam & britanniam interfluit , undosum & inquietum toto in anno , nisi aestivis pauculis diebus , est navigabile : navigant autem viminiis alviis , quos circumdant ambitu tergorum bubulorum . and how these could transport an army every year to fight against such powerful enemies as the romans and britons ? and how they could carry back in them the great booty worthy to be fought for ? especially over such broken seas , that are yet terrible in the best season , to the best of our boats , and the stoutest of seamen , is left to be considered by men judicious , or disinterested in any measure : especially , seeing they behov'd to return in the winter-time , for it 's presum'd , they fought all summer ; and even then , they had not the chusing of their own fair weather , but had just reason to be afraid that they would be chas'd away , as robbers usually are ; and as the bishop of st. asaph asserts they often-times were . but as all this is absurd , and incredible , according to the bishop of st. asaph's hypothesis ; so it is most consistent with ours ; in which we assert , that the scots setled on the other side of clyde , from which they might come every year ; which agrees also well with beda's saying , that the scots setled ad partem septentrionalem sinus acluith , or dumbriton ; a narrow sea , and call'd one part of the mare scoticum by the english authors , and particularly by * holinshed , and † polidore , as by our ‖ major ; and was so design'd in the forms of holding circuits , as is clear by the chap. of the laws of king malcom . and by th . act p. . i. d . and since in the said laws of malcom . who reign'd anno . the frith of forth is call'd mare scotiae , the sea of scotland , and that is mention'd as a law in old observance ; it must be concluded , that this country where we live , was call'd scotland , long before the year , as bishop vsher asserts . for since tacitus and beda say , that we were inclos'd by that sea , and the wall , as in an isle ; it seems that this was call'd the sea of scotland then , it being our march at that time . nor are these friths improperly call'd seas , being miles broad in some places . and this also agrees with our being transmarini , or on the other side of the sea , ( which are the words us'd in the said statute ) but not out of the isle ; and it is strange , that the visigoths should have setled in france and spain ; the ostrogoths in italy , shortly after they had made their inroads ; and yet we should have return'd yearly for above years , notwithstanding of the former difficulty . ly , the scots coming over to this isle , could not but know , that the southern parts of it were very rich , and the people there very cowardly , even to admiration ; as the bishop of st. asaph himself relates , from all their historians : and there was place enough for a colony of them in this isle , or else how could they have planted themselves after , when the picts became more numerous ; and both the scots and the picts had good reason to expect every year new additions of land : and it is probable , that our ancestors , being a colony of a more southern nation , strangers in ireland , and but lately setled there , left their confinement in the irish isle as soon as they could , to inlarge their victories and possessions in this larger one , which afforded greater glory . how then can it be imagin'd , that they would not have setled a colony here , which was far less dangerous , and more noble and advantageous , than to be constantly robbing for small booty , to the danger of their lives ? but that they fought for land , and not for booty , is very clear ; not only from the practice of others , but from sabellicus , * gliscere indies id malum augebatur duarum gentium audaciâ : apparebatque brevi totam insulam alienatam iri , nisi ejusmodi conatibus maturé iretur obviam . . how it is imaginable , that the picts ( finding themselves in so great danger from the romans and britons , the one very considerable for their valour , and the other for their great numbers ) would not have intreated the scots to stay constantly with them ? for tho they had been equal to their enemies , when the scots and they were together , yet they could not be but much more inferiour to them , when the scots left them once every year . . if the irish had constantly sent in auxiliaries to assist against the romans , it is not to be believ'd but the romans would have resentted this injury against the kingdom of ireland ; which they never did , except once , * when the irish gave the scots supplies , endeavouring to re-establish themselves after the expulsion of eugenius . and if this war had been carried on by the kingdom of ireland , and not by the scots in scotland ; we had certainly heard , that the kings of ireland had been mention'd , both in the roman , english , and our histories : for it is not to be imagin'd , that so long , and so great wars could have been carried on by the subjects , without the consent of the king and kingdom . . if they never had been call'd in by the picts , to stay as a colony , till the saxons had beat the britons , who had lately call'd them in to their assistance : how is it imaginable to think , that the picts would have call'd them in as auxiliaries at that time ? having so lately seen , how dangerous auxiliaries might prove , especially considering , that the scots had been us'd many hundred years to robbing , as the bishop of st. asaph would have us believe ; and that they were part of a numerous near nation , from whom they might expect suddenly great supply : or that they would have not only run this risque , but have divided with them their little country ; and yet not have employ'd their assistance for the ends for which they call'd them in . for the bishop * tells us , that the scots did nothing for years after they were call'd in . . it cannot be deny'd , but that about the year , * there was a league entred into betwixt charles the great , call'd charle-maigne king of france , and emperor of the west , and achaius king of scotland , call'd by all the french historians , the famous alliance . in which the king of scotland did send over men to the assistance of charles the great . and this is testified by * aeginardus who wrote the history of those times , and was secretary to charles the great ; and who is cited by vsher , at which time the king of scotland sent over very many famous learn'd men , who founded the incomparable university of paris . all which is clear by † favin , in his theatre of honour ; and ‖ paulus aemilius in that king's life . from which i raise two arguments ; . how can it be imagin'd , that if the scots had not setled in a colony till the , that their king could have been so famous , that in about years time , this small colony , which the bishop of st. asaph represents to have been but pilfering barbarous robbers , would have become so famous , that charles the great , then emperor of all the western world , would have entred into a league with them , especially since they had not for years after their settlement , done any memorable action , * as the bishop of st. asaph alledges ? . if our kings , and nation , had only then dalrieda , or the kingdom of argile , as the bishop contends , how could this prince of argile ( which is , after all improvement but an earldom ) have been worthy , not only of the alliance of the great emperor of the west , but to be able to send men , especially having such dangerous enemies at home , and being himself but a stranger , newly entred into a foreign island , and living in a small part of the isle , with the picts , the more powerful and ancient possessors . and that there were men sent by virtue of that league , is clear , not only from verimundus , out of whose d book chambers cites the whole league ; but by sansovin an italian , who writes the history of the douglassii , or scoti , whom he derives from william douglas , who was lieutenant at that time to prince william , brother to achaius . for which sansovin cites another , viz. vmberto locato , more ancient than himself . * and this is so far acknowledg'd by the french kings , that upon it we got very great privileges in france , and all the heraulds in europe acknowledg , that the double tressure , was the badg of that alliance . . how can it be conceiv'd , that the scots could in so short a time , after their settlement , have been able , without any help , to extirpate the picts , who must be presum'd to have been very strong , having been so long setled in this isle ; and having possest in effect all that we have now , benorth forth , except the shire of argyle , if we believe the bishop of st. asaph . our tradition is fortified , and the former authorities cited by us , are clear'd , from the receiv'd laws of our nation ; for first , all our histories bear , * that after king fergus ' s death , the nobility finding his son too young , and the wars in which they were engaged very dangerous ; they declared , that the vncle should govern . which custom continu'd , till it occasion'd many bloody civil wars betwixt the uncles and nephews : and therefore * was justly abrogated by a parliament holden by kenneth the third , which kenneth the third reign'd , anno . and it were very ridiculous to think , that since these matters of fact are true , viz. that there were bloody civil wars betwixt the uncles and the nephews ; and that all this hath been much debated in posterior parliaments , betwixt such as were for the crown , and such as were for popular elections ; without ever controverting the truth of the matter of fact ; and long before we could have any apprehension of such a debate as this , and so that all this was a meer fiction , calculated for maintaining an antiquity , which was never controverted . it can as little be deny'd , that there were laws relating to the merchetae mulierum ; since many of our old charters relate to them , and discharges of them are incorporated in our charters ; and which styles are a part of our old and traditional law : these merchetae mulierum were thereafter abrogated by king malcom canmor's laws , many hundred years before the starting of this debate : and that there were such laws , is also acknowledged , not only by baker , and others within the isle , but even by solinus and ierome , &c. * and that these laws were made by evenus the third , who liv'd twelve years before christ , is a part of the same tradition ; and so cannot but be believ'd , since laws are one of the probablest means imaginable , * for preserving tradition . by the laws likewise of malcom the d , who reign'd in the year . the frith of forth is call'd mare scotiae , or the sea of scotland ; which demonstrates , that before the year , our country was call'd scotia , or scotland : and confirms and clears all that is said out of beda ; and as this designation of the scotish sea is look'd upon there , as a thing very old and acknowledg'd ; so it is continu'd in our laws for many ages , as is evident by k. i. d , his laws above-cited . i had resolved not to mention the bishop's objections , against our early conversion : but i find it so clear , that we were converted to the christian faith before the year , that there results this concluding argument from it , to prove that we were setled before that time . for if we were a christian nation converted here , before that time ; it follows necessarily , that we were a nation setled here before that time : since a nation is said no where to be converted , but where it is setled , albeit some persons of that nation may be said to be converted abroad . and that this part of the isle which we now inhabit , and that people from which we are descended , were christians before that time ; seems to me very evident , from the former testimony of tertullian , who wrote in the end of the second century , to which i refer my reader : and tho tertullian liv'd a little before king donald , yet the answer is apparent , viz. that the nations were ordinarily converted before the kings or magistrates . and it 's indeed very probable that the christians who were persecuted in the southern nations , would flee from their persecutors , the roman emperours : and where could they seek refuge so reasonably , as in that country , and amongst that people which had never submitted to the roman empire ? and it being acknowledg'd by the learn'd vsher , and my lord st. asaph , that britain was converted in the first century ; it is very reasonable to think , that the christians , who had fled to this isle , from the persecution of the romans , would have very probably shelter'd themselves here , where the romans had no power : for though it be not prov'd , that the roman persecution reach'd to britain so early ; yet certainly they who fled so far from the persecution , would not think themselves very secure within the dominions of the persecutors , and would have secured themselves by a few more miles from so dreaded a danger . as also , it seems very improbable , that since the christian religion spread from ierusalem to britain in less than years , that it would have taken above years more , to reach so few miles , as are betwixt the british part of the isle , and scotland . it is also presumable that the druids having been so prepared to receive christianity , by their excellent principles of philosophy , and their severity of life formerly mentioned , which did not contradict , but illuminate the christian doctrine , they would have both been easie to be converted themselves , and ready to have converted their former disciples , and the people who admir'd them . i might here cite many authors ; but i fix upon * beda , who asserts positively , that palladius was sent in the th year of theodosius junior ; that is to say , in the ad scotos in christum credentes , by pope caelestine , as their first bishop : and that beda wrote of us , as the scots , is formerly prov'd ; and this mission of palladius falling in the tract and series of the actions ascrib'd by beda to us only , it is inconsistent with common reason , that the things before and after , and the things related in the very chapter , should be only applicable to us , and yet only this should not : albeit our own and foreign histories apply the same to us . as to foreign histories , i shall only cite baronius , who , because he made ecclesiastick history more his business than my lord st. asaph , and was more disinterested , is therefore more to be believ'd as to this point . this great antiquary * tells , that the scots who had first receiv'd the christian faith from pope victor , and their first bishop from pope caelestine , were become the chief of all christians , from being amongst the most barbarous of all nations , having formerly said , † that all consent that palladius was their first bishop ; and for which he cites prosper , as he does tertullian , ierome , sedulius , and others , for our being christians under pope victor , saying , that ‖ they are not to be refuted who assert our conversion under pope victor : but is most positive as to palladius . and whereas it is * pretended that prosper's words are not applicable to us , since he says , that palladius made the barbarous island christian ; and our scotland is not an island . to this it is answer'd , that our part of britain was by tacitus , and beda , said to be reduc'd into an island , by the roman wall from sea to sea : and * beda in other places of his history calls us therefore islanders . baronius also applies this to us , and so this gloss is to be preferr'd , to that unwarrantable gloss or reading cited by the bishop of st. asaph , from the copy of a manuscript of nenius , missus est palladius episcopus , primitus à caelestino ad scotos in christum convertendos : for that not only differs from beda , the far more learn'd , ancient , and credible author : but it is improbable to say , that a bishop was sent to those , which were to be converted , seeing conversion useth to be by presbyters , and missionars ; and when the church is gather'd , the bishop is sent : and this gloss contradicts not only common sense , but * ado viennen , and * marian , who both use beda's own words , ad scotos in christum credentes : and what is said of the conversion of the scots and picts by st. ninian , palladius , and columba , to make our conversion to be later than tertullian made it , viz. in the d century , must be interpreted of our fuller and sounder conversion from paganism , and pelagianism ; and of our being conform'd to the romish church , and rites , which the authors of those times considered as the only true conversion . but to make this our first conversion , were to contradict tertullian , ierome , the learn'd baronius , as well as all our histores . and the * magdeburgian centuriators do positively agree with baronius , and our history , in this our antiquity : and so having for us the greatest ecclesiastick antiquaries , both protestant and papist , we need not condescend upon particular authors : these being the standards of ecclesiastick history to the professors of both religions : and it is strange after all this , that a church-man should so positively contradict , what the antiquaries of both churches have so positively asserted ; tho if there had been any thing , wherein they could have contradicted one another , they would certainly have differ'd . that donald then was our first christian king , in anno , and palladius our first bishop , in anno , seems most fully prov'd : for these being matters of fact , may be prov'd by witnesses ; and who are better witnesses , than the many historians of the country where the things were transacted ; especially since these were matters of great importance , and notoriety ; which the monasteries , whose faith is followed by our historians , could not but know best of all others , and in which they durst not cheat or forge , because the annals of other churches would have contradicted them , whereas they are confirm'd by them ; and these things fell out , when we had the help of letters , and are agreeable to the sound reasons above-related : tho the conversion of a kingdom be a matter that could not be unknown , and no other king but donald was ever recorded to have been the first christian king here . that palladius was sent to the scots in britain , and not to the scots in ireland , appears further from these undeniable matters of fact ; viz. that pope caelestine did ordain , and send palladius , in anno : that the same pope caelestine sent st. patrick to ireland : that st. patrick's mission must have been before the th of april , is also clear , because prosper tells , that caelestine died that year . and the roman pontifical tells , it was on the th of april that year . from all which , the bishop did see that palladius's mission must have been to the scots in scotland ; else palladius had been first bishop of ireland , and st. patrick needed not have been sent into ireland , since palladius was sent there but the year before . to reconcile which real contradictions , the bp of st. asaph makes up a laborious hypothesis , and say's , that palladius was indeed in ireland , but finding he could not succeed , he was upon his return to rome , but died in , or near the bounds of the picts , the th of december , . so that st. patrick , who liv'd in britain , could not but have known his death , and had time enough to go to rome , and be ordain'd bishop for ireland , and go to that kingdom , and there finish their conversion , which palladius had only begun : and so st. patrick was call'd the first bishop . all this hypothesis is almost impossible , though good palladius had sooner , and deeplier despair'd , than a saint should have done , especially in the conversion of a whole nation : and though both had posted faster for a benefice , than holy-church-men did in those primitive times . yet all this is founded upon palladius's having died decemb. . . and the only proofs produc'd for this by my lord st. asaph , is baleus de . scrip . . near the end ; and yet in that same citation it is positively said , that palladius was sent to scotland , and the particular scotish king is nam'd ; and baleus adds , that palladius claruit anno virginei partus , ; he flourish'd in the year , and so he died not in the . and not content with this , baleus goes on , telling , that post multos pios tandem sudores & religiosa exercitia in fordono vico merniae foelicem hujus vitae sortius est exitum . which is in our scotland , and in the north part thereof , very far out of the road from ireland to rome ; and where we have st. padies church and fair ; and with us he is nam'd our first bishop to this day : but was never nam'd an irish bishop , until the bishop of st. asaph made him by a strange word first , in omination of success , as he says , tho not he , but st. patrick had this success . if then he died not so soon , and if the time of his death is not prov'd , why might he not have baptiz'd tarvanus ? and why should our boethius be hector'd for saying , that palladius baptiz'd tarvan ? yet i impute not this to my lord st. asaph's mistake or ignorance ; but it is an elaborate contrivance , to divert all the unanswerable authorities , proving that palladius was sent to us in scotland , in the year , and so before the year ; in which my lord st. asaph says we setled first in britain . i shall conclude this concerning palladius , with the suffrage of dr. hammond , a learn'd and episcopal english divine , * who in his vindication of the dissertations concerning episcopacy , reconciling the seeming differences between beda , who asserts , that palladius was sent to the scots believing in christ : and prosper , who speaking of the same mission , says , that palladius made also the barbarous island christian ; lays down these three conclusions ; . that christianity was planted in scotland , before caelestine's time , deriv'd to them most probably from their neighbour britons here , with whom they are known to have agreed in the keeping of easter , contrary to the custom of the roman church , as * beda says . . that this plantation was very imperfect , differing little from barbarism , and so reputed by prosper , till the coming of bishop palladius among them . . that even after that , they retain'd the use of easter , contrary to the roman custome , which still refers to some rude conversion of theirs before palladius ; and so it is evident , that in the learn'd doctor 's opinion , the scotland to which palladius was sent , was ours ; and that we were christians before his coming , tho rude and barbarous . the bishop of st. asaph having thus spirited from us , into ireland , palladius our first bishop , he proceeds to translate amphibalus our first churchman upon record , unto a shag-cloak ; designing likewise thereby to prove , that boethius our historian is not to be credited , because he follow'd their fabulous ieffrey : who finding that st. alban had , to save his pious guest , taken the holy man's habit , to the end he might be martyr'd for him ; and as beda expresses it , caracalla ejus indutus ; ieffrey concludes , as my lord st. asaph alledges , that the vestiment was amphibalus ; and ieffrey having made the cloak a man , boetius made him a bishop of the isle of man : and so this cloak was fitly ordain'd to be a proper bishop for the chapter of the culdees : but this is ludere in sacris , and to expose episcopacy it self upon the stage . in answer to which , i shall only offer these few thoughts , first , what interest had ieffrey ( who was a briton ) to oblige the scots , or the isle of man , in making so horrid a lye ? . it is against sense , to think that any man , much less a scholar , could have been so gross , as to take a shag cloak for a bishop . . if the shag cloak had been mistaken for the name of a man , he should have been call'd caracalla , and not amphibalus ; for the legend being written in latin , ieffrey had certainly chosen the word caracalla , because that was the latin word , and was the word used by beda , and because there was a roman emperor truly of that name , before beda and ieffrey's time. . beda relating to that passage , tells us , that in the dioclesian persecution , st. alban , aron , iulius , and many others suffer'd : and why might not amphibalus be one of these many that suffer'd ? and why ought boethius to have been tax'd , for mentioning amphibalus , since this was done long before him , by a multitude of english writers , cited by bishop vsher , who deriv'd his birth from greece , and describes the particular actions of his life , and his martyrdom ; with which also the modern english writers agree , as * baleus , holinshed , speed , all which english , and thousands of other testimonies do far weigh down bishop vsher's conjectures , that amphibalus was not a man , but a vestiment , from the silence of gildas , beda , the martyrologies and breviaries of salisbury , and ieffrey , who do not mention him : for gildas could not mention him , writing concerning the conquest , and destruction of britain ; beda tells the passage relative to st. alban ; and albeit he names him not in the dioclesian persecution , yet he tells , that many more suffer'd than the three he names . we have not seen the martyrologies , and breviaries , nor does it import whether they mention him or not ; and it is not so much to be wondered at , that some english writers do not mention him , as that he is mention'd by so many , seeing he was a greek , and a bishop in the remote isles of britain , and in all likelihood would have been buried under silence , had it not been for that passage with st. alban . my last argument for confirming our history , shall be , that the best critiques , historians , and antiquaries of other nations , who had occasion to mention our histories , and particularly the great baronius , scaliger , salmasius , lipsius , carolus sigonius , favinus , selden , and others of the first rank , ( too many to be nam'd ) have passionately defended our antiquity , and not only sustain'd , but prais'd our histories : and so the arguments and grounds whereupon i have proceeded , are already asserted by the best judges , and that too after luddus publish'd his objections against the same , and almost the very same objections which are now urg'd , and which are treated with great contempt by * scaliger . since then there is nothing now urg'd , that could have escaped the observation of these learn'd and curious authors , who could not but have discover'd , as soon as the bishop of st. asaph , that our historians did not mention any warrants which were written in the time , or did contradict the roman history or one another . i admire why now these our histories should be controverted . and tho something might be pretended , if my lord st. asaph did in this book , produce manuscripts unknown to those learn'd criticks ; yet could they have been so blind and ignorant ( especially in that subtile and laborious age , wherein all men were by a noble emulation contending , who should discover most ) as not to have seen defects ? which if they had been real , they had been obvious . it is also very remarkable , that since all nations are emulous of one another in matters of antiquity ; yet they , by yielding to ours , have thereby acknowledg'd , that ours was beyond all debate ; and to this day , none controvert it , ( notwithstanding of all the pains taken by luddus , cambden , and vsher ) further than to gratify their own country . and therefore , as cicero argues , that the romans were the bravest , because every nation commended them next to their own : i may contend , that we are the most ancient , because every nation confesses us to be next to themselves in antiquity . i shall cite , for confirming this , some few instances . saxo gram. swaningius , albertus krantzius , own our name and nation to have been before christ , though after the danes . mezeray shortly after pharamond : and my lord st. asaph himself , who brings us in but years after the english. since it is probable that the bishop of st. asaph and i will not agree well in the decision of this debate ; were it not just that we should both rest in the decision of learn'd strangers , who understood antiquities exactly , these being the subject matter of our controversy ? and where can we find more qualified judges than those great antiquaries whom i have named ? but yet to shew how much i trust to the strength of that truth which i assert , i dare appeal to selden , that english-man , who was so affectionate to his country , and that antiquary who understood best of all mankind the antiquities of his own nation , and even to him also in his mare clausum , written for the defence and glory of his country ; who , lib. . cap. . maris clausi , has these words , speaking of those famous lines in claudian , to the praise of stilicho , inde caledonio velata britannia monstro — totam cum scotus jernam movit & infesto spumavit remige tethys . as the palmes , and the river tagus were peculiar to spain , as the ears of corn and ivory to africa ; so he would have it understood , that the province of britain had the sea of the same name peculiar thereto . but yet it is to be conceiv'd , that the dominion of the romans was so limited in this sea , according to their possession of the shore , that they had little power in that part of the british sea , which bordered upon the shores of those british nations who were not under their obedience . this is to be taken chiefly of the irish sea , and the rest that lies north-west ; for when the roman empire began to decline , not only in ireland , but in the isle of man also , and the other isles of the western sea , and a great portion of the more northerly parts of britain was possess'd by the scots and picts , so that we have sufficient ground to conceive , that they also had an ancient dominion of their own in the neighbouring sea. from which passage i argue thus , . that selden consider'd the scots and picts , as nations not subject to the romans ; gentes iis ( viz. romanis ) minime subjacentes , no manner of way subject to the romans ; and looks on us as the most considerable of these two nations : for the words run , a scotis , tenebatur pictisque ; and very justly , for we were able to defend them while they were just to us , and to extirpate them when they became enemies . . this great antiquary asserts , that the scots and picts possest not only in stilicho's time , who was guardian to honorius , and so liv'd about anno , a great portion of the northern part of britain , as well as the isle of man , and the rest of the western isles ; and consequently if we possest them then , it cannot be said that we were only here by way of incursion , till the year ; or were confin'd to argile , till after the year , as my lord st. asaph contends . . that we were not only possest then , but that we had avitum dominium , ancient dominion , and had right prisco jure ; and nothing is so inconsistent with the being proprietors , as to be robbers , coming only by way of incursion ; and if we had the dominion of our seas , jure prisco , and per dominium avitum ; we were certainly ancient possessors before the year , and so must have been not only far older than the year , but even to have been prisci incolae , as beda ( l. . c. . ) says , before the romans entred this isle , and so before christ. selden also , in the transition from that d to the d chapter , tells , after that he had spoke of the scots dominion of their own sea , that he will treat of the succeeding ages , and so proceeds to the saxons , which demonstrates , that we were setled here before the saxons , though my lord st. asaph makes their settlement here more ancient than ours . and in this beda agrees with selden , but both contradict the bishop . and lastly , this passage clears , that the testimonies , not only of claudian concerning ierna , but even of tertullian , when speaking of the inhabitants of britain not conquer'd by the romans , and of ierom speaking of the britannick nations , are only applicable to us : and therefore i hope my lord st. asaph will not take it ill , if we , in a matter of antiquity , prefer an impartial antiquary , to an interested divine , as i would not be offended , if the bishop of st. asaph were preferr'd to me in a theological controversy . the first general objection against our histories , is , that they were not written by those who lived in the time , but more than years after the things happened , of which they wrote . and it were strange , that if gild●s , who liv'd years before the eldest of them , could find no sufficient instructions , save from foreigners , that our historians should have found sufficient warrants for a history after so long a time . to which my answer is , that our histories giving only an account of one nation , it was easier to find the true and sincere tradition as to us , than it was in other nations , where the conquerors were not concern'd to preserve the traditions and records : and though i have made it very probable , that this isle had the use of letters before , or at least soon after we settl'd in it , and so might have preserv'd the story . yet albeit our history were only founded on tradition , until about years after christ , before which the monastery of iona or icolm-kill was founded , that tradition might have been sufficiently preserv'd , for so few generations , by the means and methods that i have formerly condescended upon . nor can i see , how the origin of a nation could not have been preserv'd by those who were of it , or how , being established it could have vanished when people became more polite and curious . and after the year , i have prov'd , that our historians might have been , and were sufficiently warranted in what they have said , by old manuscripts , and records : nor is there any thing urg'd in this objection against us , but what might as unanswerably be urg'd against the greek and latin historians . a receiv'd history cannot be overturn'd , from what i have formerly represented , without arguments , which necessarily conclude that the history impugn'd must be false ; which cannot be alledg'd here , where the warrants of the history controverted , not only might have been , but probably were true ; and are so far from contradicting other histories , that they are confirm'd by them . i desire also to know , what old manuscripts and records luddus , the antiquary so far preferr'd to ours , had for proving , that much elder succession of history from brutus to his own time : and whereas st. asaph says , that buchannan should not have tax'd luddus for deriving the britons from brutus , since he own'd a succession of our kings from fergus , there being as few documents to support the one , as the other . to this my answer is , that there have been very solid grounds brought for sustaining the one , which cannot be alledg'd for the other : and ours are adminiculated by the roman history , whereas theirs is inconsistent with it : for it is palpably inconsistent with the roman history , to say , that brutus was the son of ascanius whom he kill'd , for which being banish'd from italy , he came over to britain : and that britain was govern'd by consuls : which should rather be laugh'd at , than confuted . the bishop is most unjust to us , in asserting , that we have no author of our own before fordon ; and that no author mentions our antiquity , but such as have follow'd fordon , who wrote about years ago . for fordon cites his vouchers , many of which are extant , and those who are lost , are prov'd to have been extant . within the isle we could have no authors till there were writers , and gildas and beda , the eldest in the isle , prove our antiquity . without the isle none could know us , being so remote , but either by the wars they had with us , or the christianity that was common to them and us . as to our wars , all the roman authors above-related speak of us ; orosius about the year . claudian . ammianus before the year . beda and eumenius speak of us , as before iulius caesar , as hath been prov'd . all which we have collaterally supported , by a gradation of ecclesiastick historians abroad , and all our own historians at home . beda brings us to reutherus , who was the th king from fergus the first : and he living within years of fergus , this short step may be trusted to tradition , though we had wanted the help of the druids , and phaenician letters : for a father might have inform'd his son of so near a time ; nor was this worthy of a fiction . and i may modestly say of the foregoing citations from forraign authors , that if they be not strong enough to overturn the bishop's hypothesis , yet they are at least as strong as those produc'd by iosephus in defence of the jewish history ; and yet all the learn'd world has acquiesc'd in them . nor is there any thing to be concluded from the silence of adamnanus , and marianus , the eldest of our historians : though , as the bishop alleadges , they had certainly mention'd our antiquitiy , if they had known it . for adamnanus wrote no history save of columba ; and marianus going to germany , when he was very young , could know little of us , and mentions only the three kings of scotland , in whose time he liv'd : and so if this argument prov'd any thing , it would prove too much . for certainly we had kings before those three , whom he mentions ; and these negative arguments are of no moment in matters of history , and are justly reprobated by the learned scaliger , in his notes on eusebius , and by * vossius . the second objection is , that our historians contradict one another concerning the origin of the picts ; which ought to lessen their credit . but to this it is answered , that our historians were not concern'd to consider the origin of the picts as they were to consider their own . and this objection subsumes not what is true in matter of fact. for our historians generally agree in the origin of the picts , whom all of them make to be scythians : and though fordon relates three different accounts of them , yet he does not settle upon any thing that is different from our other historians * as is fully to be seen . the third objection is , that our historians are contradicted by our own antecessors ; for our historians assert that king donald the first was our first christian king ; whereas in our apology against edward the first of england , about the year , we assert the tradition of a wonderful victory obtain'd by our king hungus , against the saxons , by the relicts of st. andrew the apostle , by virtue whereof the scots first receiv'd the faith of christ. to which it is shortly answer'd , that every contradiction does not overturn the truth of a whole history ; otherwise we need not be troubled to give any other answer to the bishop's own book : nor is this pretended to be a contradiction amongst our historians , for they all agree , that king donald was our first christian king ; but in that apology , which is alledg'd to contradict our histories , our predecessors design'd , as most pleaders do ( and this eloquent author does in his book ) to gain their point at any rate . for understanding whereof , it is fit to know , that king edward the first , having upon the competition betwixt bruce and baliol , interpos'd with design to make himself lord paramount of scotland ; he caus'd his parliament write to the pope , to whom afterwards he wrote himself ; in which letter of his , it is pretended , that we were vassals to england , as descended from albanactus the second son to brutus . . because several of our kings had become vassals to his predecessors , in the times of the british , saxon , and norman kings . to which we answer in our apology , that without debating , whether the first inhabitants of the isle were descended from albanactus , or his albanians , it is asserted , that we came from spain by ireland , and conquer'd the first inhabitans ( for which we cite * beda ) and so , tho they had been vassals , we were free ; not being lyable to the conditions of the people we conquer'd ; and as such , fought constantly against the britons , who were forc'd to build severus's wall against us . and as to any homage made by our kings , it was either for the three northen countries of cumberland , westmoreland , and northumberland , confirm'd to us by the britons , to defend them against the saxons ; and thereafter again * confirm'd by both saxons and britons to assist them against the danes . or was extorted by force , from one or two young captive kings ; upon which heads the popes had declar'd us free : which bulls , edward himself had robb'd unjustly out of our treasure , with other records , which he could not deny : but to cajole the pope their judg , they insinuate , that though they were not tributaries to his holiness , as england was ; yet they ought to be protected by the pope , because they had been converted by st. andrew his predecessors brother-german : st. andrew having in hungus's reign obtain'd for them a victory over the saxons ; and so became subject , and subservient to the pope , in having converted the saxons by aidan , finan , and colman . from this matter of fact , i observe , . that we own'd the same origination there , that our historians do to this day : and so our ancestors differ'd not from our historians , much less are they irreconcilable , as st. asaph alleadges . . that the english acknowledg'd us to be as ancient as the britons , they and we being descended from two brothers . . that what we said of st. andrew , must needs be upon design , to have oblidg'd the pope , meaning certainly , either that we were then first effectually converted to the church of rome , from the oriental observations , in which we were very long very obstinate , and that rome consider'd that , as the true conversion ; or that after that time we first became subject , tho not feudatary to the pope , as these forecited words subjoyn'd do insinuate . but that our conversion from paganism , was more than years before the saxons , is positively asserted in that same apology . nor can this have another meaning , for it is undeniable , that we were christians long before the reign of hungus , who reign'd years after christ : and colman , &c. liv'd long before that king. nor was hungus our king , we being only auxiliaries to him then , as king of the picts : after which apology , king robert the st being crown'd , and having defeated king edward at banock-burn , where he gain'd a most signal victory over the english , they then being low , made application to the pope ; and he having discharg'd us , by a formal interdiction , to pursue the victory into england ; the nobility , to pacify that pope , and to remove the interdiction , at the desire of the king , wrote letter , wherein they own the antiquity of our nation , and religion , and royal-line , mentioning when we came from spain , as our historians do , with whom they agree exactly , vt ex antiquorum gestis , & libris , collegimus , says the letter : which being prior to fordon , proves that all this was not fordon's dream , and that our history is well founded on old records , prior to fordon . and lastly , it appears , that our kings were not vassals to england for their crown , but only for these provinces , as * my lord st. asaph confesses , and as i have prov'd in my treatise of precedency ; albeit our independency was as much controverted of old , as our antiquity is now : and i hope that the one will shortly appear as unjust a pretence , as the other is already confest to be . from this it appears , that there is rather a harmony than real contradiction here , and that any seeming contradiction is far less , than the real ones , betwixt beda , and the bishop of st. asaph , and the following contradictions , wherein he differs from himself . for clearing whereof , observe , that the bishop says * he questions not the truth of any thing that is said to have been within , nay within years ; but so it is , that this would bring us to be setled here , before the year after christ : for substract out of , ( which is the year in which the bishop prints his book ) his lordship can controvert nothing except what was done within years after christ : and yet he decryes our historians , for saying , that we were settl'd here before the year ; and denies our being christians for many years after the year ; and to improve this learn'd bishop's just concession , i must remark , that all our historians agree , that gregory the great king of scotland , who died anno , , added northumberland to the merse ; and having defeated the britons at lochmaben , he forc'd them to renew their ancient league , and to confirm to him the former right , his predecessors got from them to cumberland , and westmorland , for assisting them against the picts and saxons ; which shews also , what great things we could do , not only alone without , but even against the picts . all which being said by our historians , not only within the years , but the , are not controvertible by the bishop's concession : and therefore i understand not why he asserts * that we had nothing but the kingdom of argyle before the beating and extirpating of the picts , who gave us their possession beyond drumalbain . nor can i reconcile , how the bishop asserts all alongst , and particularly , * that the picts had nothing besouth grahams-dyke , or the frith of forth and clyde : and yet he confesses * that amongst the south-picts , there was a monastery of st. martin at whit-horn founded by st. ninian , in honour of that saint ; and whit-horn is in galloway , in the furthest south point of our scotland , near eighty miles besouth forth ; and himself also confesses * whit-horn to be in galloway . the fourth objection being , that our historians have followed ieffrey of monmoth , in many rediculous inventions , which were purely his own ; and particularly in the history of bassianus , who being emperour , is by him pretended to have been kill'd in britain , by fulgentius ; which , tho buchannan does not exactly follow , yet he still makes bassianus to have been a roman lieutenant , and to have been kill'd in britain ; whereas it appears not from any roman authors , that there was any roman lieutenant here . to this it is answered , that no man comparing our histories with ieffrey of monmouth , can think so : for we bring not our nation from brutus , as he does against common sense ; and tho ieffrey tells a story of bassianus the emperour being kill'd in britain , which contradicts the roman story ; yet fordon does expresly say * it was not that bassianus who was emperour , but a captain sent here : and so does not follow , but contradict ieffrey . and buchannan , to shew that he does not follow him ( and he understood too well the roman story to do so ) only relates that there was a bassianus kill'd , which no roman history contradicts ; and which is not to be presum'd buchannan would have made , since there is nothing in it for the advantage of his nation : and as it is probable , the emperour would not have suffer'd carausius to make such great preparations , without sending a considerable captain ; especially since eutropius tells , that after many wars attempted with carausius , he at last concluded to send a captain against him , without naming who that captain was . it were a hard thing therefore to conclude so great authors were forgers , because they condescend not upon an author for every indifferent circumstance ; and the * notitia imperii is so far from having taken notice of every lieutenant in a legion , that i can prove by many texts of the civil law , that even consuls themselves have been forgot , when they were only chosen to succeed to those , who died during their consulship . but the great objection used by the bishop , against our antiquity , lyes in the th § of the bishop's first chapter , wherein he asserts , that ireland was peopled by the scots , and was the only scotland before these times , viz. before the year : and in the th § , that there were no scots in britain before the said year . and in the th and th § ; that the scots , betwixt the and years , were indeed here , but not setled , and only by way of incursion . and in the th § , he asserts , that about the year they first setled here , and erected the kingdom of argile . and in the th and th § , he asserts , that after the year , we got the rest of the country , and then only it came to be called scotland . for clearing all these mistakes , without partiality or humour , i shall sum up my answers in these distinct propositions . first , it is undeniable in it self , and acknowledged by our adversaries , that the first special names , under which ireland was known , were ierna among the * greeks , and hibernia among the latins : both of which are , as i said , acknowledg'd by † bishop vsher himself . my second position is , that before the year , there is no foreign author produced by either nation , that mentions scotia , scoti , or scoticae gentes , except seneca , who mentions the scoto-brigantes : and florus the scoticae pruinae : and hegisippus , who mentions scotia : and porphyrie , who mentions scoticae gentes . and tho i have prov'd formerly all these authors and passages to be genuine , and applicable to us alone : yet , tho they were only spurious authors , or the conjectural readings of new criticks , as bishop * vsher ( whom my lord st. asaph follows ) alledges , † porphyrie only excepted , whose testimony is admitted by him to be in the third century . it clearly follows , that my lord st. asaph has , without sufficient warrant , asserted in the forementioned place , that ireland was called scotland before the year : he admitting no author for this , save porphyrie , whose book he acknowledges not to be extant , but to be only cited by ierom , who liv'd long after the year . . my chief design in this book , is not to debate the antiquity of the names of scotia , or scoti , but only when we first setled under kings in this isle . and consequently though arch-bishop vsher , and the bishop of st. asaph could prove , that the words scotia , and scoti , were not known the first years , except in porphyrie ; yet that cannot prove that we were not setled here before that time. for it is undeniable , that many nations have had peculiar names , before those names can be found in history , as scaliger very well proves : and they could not be known in histories , till other nations had commerce with them , and wrote of them , which was a thing very accidental . and foreigners do oft-times design nations by appellatives , which they themselves invent . and it is asserted by bp vsher , that the scots inhabited ireland long before the year , tho till then he cannot give an author for that word . and who can deny that the picts liv'd long here before eumenius , who first mention'd them , and liv'd long after porphyrie who mentions the scots ? and it is very observable that to this day , neither the irish nor we are call'd scots in the true irish language ; for they call their own country-men erenach , from the word ierna , or ibernia , and us albanach , from albion , and albania : which also clears , that we got that name long before iulius caesar's time ; since before that time , the word albian was run into desuetude , and was succeeded to by the more known name of britannia : and these originations are the more confirm'd , that to this day the same irish , and our highlanders , know no other names to the english , save sassanach , because of saxony from which they came ; as they call'd us albanach ( to distinguish us from themselves ) from the country to which we came . which may give us likewise a hint , how by names , without histories , most ancient monuments of antiquity may be preserv'd : and it is fully prov'd before that time , we were known in this country , under the name of * dalreudini , and † caledonii . . all those uncontroverted testimonies , that make first mention of the scots , and of scotland , are only applicable to us : such as claudian , pacatius , ammianus , &c. as has formerly been fully prov'd . and since hegesippus is the first author produc'd by the bp of st. asaph , who mentions scotia ; and that it has been formerly prov'd , that these passages relate to us , and not to ireland ; it follows clearly , that the name scotia was given to us , before it was given to ireland , or that the irish were call'd scoti : albeit it were admitted that the works ascribed to hegesippus , were really st. ambroses , who flourished before the year . and cambden acknowledges that the name of scotland came over with the scots to britain , cap. . hibernia . and therefore since i have prov'd , that the scots came over before iulius caesar's time ; it follows from cambden , that the name of scotland was ascribed to us before them . . tho it be true , and acknowledg'd on all hands , that ireland was inhabited by the nation of the scots , as is written by orosius in the year ; and that it be true that our colony came from ireland , as beda and our historians commonly assert , and that thence it may be said , that hibernia est proprie scotorum patria . it will not follow that either we , or the irish were called scots before that time ; or that because we have deriv'd our colony from the irish , that therefore we have deriv'd the name of scoti from them . but on the contrary , supposing with vsher , that the nomen scoticum had been first given in the third century , then the name behov'd to have been ours originally , who were more known and consider'd in the world than they , because of the honour we had in the roman wars ( whose authors do first mention scoti , and scotia ) and our early conversion to the christian faith : and by our frequent intercourse of colonies with the irish ( as about the time of fergus the second ) . it is probable we did communicate the name of scoti to these inhabitants in ireland , from whose ancestors we were descended , and among whom our colonies , that were returned , setled ; as at this day , the scots in the north of ireland do retain the name , and as we had the name of hibernia communicated to us from them ; which is abundantly clear'd from what is said out of eumenius and gildas . so that these names of hiberni and scoti have become common to both people ; but with this difference , that as the irish were originally called hiberni ; so our scots were originally scoti . for of all the passages produced by archbishop vsher , or bishop of st. asaph , to prove the irish to be called scoti , that of orosius is the first that is applicable to them : for those from claudian , ammianus , pacatius , and hegisippus do not at all agree with them ; nor yet that passage from prosper , as has been proved ; nor these from gildas : for tho he calls those people , who are said to return home , hiberni , or irish ; yet * he calls the same people who return'd home , scots , and not irish. and the actions to which these passages cited against us relate , are uncontrovertedly by beda , gildas , and all the roman authors , applicable to us , and not to the irish : being the three vastations made by the picts , and vs in the british territories . and marianus ( whom the bishop likewise cites against us ) * does expressly apply this to the scots ; for he uses the word scoti , in speaking of all the three vastations . and whereas gildas useth the word scoti , speaking of the first two vastations , and says , hiberni revertuntur domum , speaking of the last : marianus , repeating the same passage , says , scoti revertuntur domum . by which also i infer by a far better consequence , that the scots must be said to return to the place where they were formerly settled ; but so it is , that the place where the scots were formerly setled was the west of scotland , and therefore when they return'd home , they return'd not to ireland , as the bp of st. asaph alledges , but to our north-west country , as we contend : for the word in gildas , is à gircio , which signifies north-west ; and ireland lies south-west from grahams-dyke , near which these actions were done : but argile , and those isles which we possessed , lies indeed north-west from it . and if they had return'd to ireland , they had been trans-marine , as living in another isle , contrary to gildas's own express assertion , as it is interpreted by beda , cap. . lib. . . why should the picts and scots ( being spoke of as to their going home together , the one to the north , and the other to the west ) not be thought to have gone home to the same isle , since different isles are not mentioned ? and if i said , i were going to the west , that in common sense could only be understood , of the west of that kingdom or island where i then were ; and not of any other kingdom lying to the west thereof . and both the picts and scots being equally called trans-marine nations , if the scots went out of the isle , it must follow that the picts left it also , which never any was so ridiculous as to alledge . by all which it clearly follows , that the words scoti & hiberni were , before these times , promiscuously ascribed to us . and tho beda may speak of the scots coming from ireland , and setling a third colony in britain long before iulius caesar's time , yet that doth only prove the antiquity of the settlement of the people that are call'd scoti , but not the antiquity of their name , concerning which beda was not treating : for he rather seems to insinuate the contrary , when * he says , aquo ( viz. duce reuda ) usque hodie dalreudini vocantur . . the passages produced by the bp of st. asaph & vsher , for proving that ireland was called scotia , after the age that hegisippus or ambrose liv'd in , and within the years , are very few : and many of them from legendary writers . but i shall glance at the most material . the first is isidor hispalensis , who liv'd in the th century , and who says * scotia eadem & hibernia , proxima britanniae insula , spatio terrarum angustior , sed situ faecundior . the same words are used by orosius , whom he follows , except that orosius calls the inhabitans scoti , but does not call the country scotia , but hibernia : so that orosius having first call'd the inhabitants of ireland , scoti , in the year ; isidor by an ordinary derivation calls their country scotia , and is the first that arch-bishop vsher , or the bishop of saint asaph , does produce to prove hibernia to be call'd scotia ? and is in the year , and so is too late to prove their design , since it is clearly prov'd that our country was called scotia in st. ambrose's time , even by their own concession . and whereas the same isidor , speaking of ireland says , haec est proprie scotorum patria ; beside what has been formerly urged , it is observable that the word proprie does imply as if it might have been justly doubted , and that it was not true in all senses : especially since * beda uses the very same expression , after that he has fully cleared that we were settled here long before that time : and therefore it doth necessarly follow that these words are consistent with our being settled here ; and consequently that they must not be so interpreted , as to infer that ireland was the place where we then liv'd but only the place from which we came : and such as understand the civil law , ( the best standard of the latine language ) must acknowled , that there is , * patria originis , as well as incolatûs & domicilii : and it may be justly said of those of virgina and other english plantations , that , anglia est proprie illorum patria : and generally it is observable , that the authors relating both to us and them , do first call the people scoti , and then the country scotia : but still the more ancient authors call us scoti before them , and our country scotia before theirs . as to the citations out of adamnanus in vita columbae , and beda : it is certain that adamnanus is lately publish'd by an irish hand , as appears by the marginal notes , the publisher still adding hibernia in the magin , where scotia is in the text. but however it is certain that adamnanus was abbot of hy , which is ikolmkil among the scotish west islands : so that in dubio he is presum'd to be a scots-man , and not an irish ; and balaeus and others positively assert him to be a scots-man . nor is there any reason for their calling him an irish-man ; but because all authors who speak of him , call him scotus ; and to assert a man to be an irish-man , because he is called scots-man , is rather a bull than a reason . but because he is mention'd by beda , who liv'd shortly after him , and is an author of far greater authority . what i shall observe from beda , will serve to clear the citations out of both . and first , beda * relates , that ecgfrid king of northumberland , having sent an army into ireland under bertus , he wasted the country , and the innocent people . and the next year , having sent an army to waste the province of the picts , contrary to the advice of his friends , and of st. cuthbert , god suffered that army to be destroy'd , because the former year he had rejected their advice ; * that he should not invade scotland , which did not wrong him . and to clear that the scotia here express'd was not ireland , he adds , † the english and scots who abide in britain . this passage ( as well as the others which i have cited , and shall cite ) proves , . that scotland then was promiscuously express'd by the names of hibernia and scotia : for the same thing is said first to have been done in hibernia , and thereafter it is said to have been done in scotia : and this answers the objection , hiberni revertuntur domum ; and where could their home be but in ireland ? . it proves that this our country was call'd scotia in beda's time ; and so long before the year , which the bishop denies . nor can it be prov'd that the king of northumberland went to make war in ireland ; nor speaks beda of any war with ireland . the next passage from beda is , where he says , * that columbanus an abbot and presbyter , came in the year , from ireland to britain , to preach the word of god to the provinces of the north-picts : and converted them ; and got from them possession of the former island for founding a monastery , where he was buried . out of which monastery ( meaning hy ) many other monasteries were propagated in ireland and britain ; in all which the same island-monastery was the chief . and he takes notice , that the successors of this abbot differed in the observation of easter from the church of rome , till the year . and thereafter he says , that * aidan was sent from this island for instructing the province of the english. now he had said before , † aidan who was sent from the isle which is called hy , which is the chief of the scotish and pictish monasteries , and belongs to britain . and thereafter he * says , that colman seeing his doctrine slighted , and his adherents despised , returned to scotland . so that we see , that that which at the first is called * ireland ; afterward is called † the said island , and the monastery in it , the * island-monastery ; and thereafter it is † called the isle of hy ; and thereafter it is * called scotland . i shall cite a third passage from beda , where speaking of a great plague in britain , he adds , * this plague also wasted ireland with the same destruction ; at which time there were there many of the nobility and commons of england , who in the time of the bishops , finan and colman having left their own native island for the greater convenience , either of divine studies , or a more strict life , had retired thither . — all whom the scots kindly entertain'd , and furnished with all things necessary , and gave them freely meat , and books to read , and learning , and thereafter speaking of egbert , who was among them , he adds , † that he was a good example to his own nation , and to the nations of the picts and scots among whom he liv'd retiredly ; by which passages it is evident , that that which is here called ireland , is really our scotland ; first , because it is said , they came from england upon the occasion of finan and colman , who were our countrymen , and whose chief residence was the isle of hy , or icolm-kill , ( from which they came ) which did then , and does still belong to us only , and which the bishop of st. asaph also * confesses : and then because in their monastick life , it is said , they resided among the scots and picts , and † it is said before that the island where the monastery was , belonged to britain . but for further clearing the former citations , from beda i shall offer these following considerations . . that beda treats only the actions of these five nations that did inhabite britain : and if he do speak of france or ireland , it is but upon occasion of them ; as of the situation of ireland from whence the scots came , or of some monasteries depending upon icolm-kill , which perhaps were situated near us , in the north of ireland : and therefore unless all these passages were clearly applicable to ireland , they must be understood of scotland . . it being certain , that beda , in the beginning of his book , treats concerning the scots in britain , the roman wars with them , and palladius's being sent to them , it necessarily follows , that the rest of the book mentioning the scots , or that part of the isle possess'd by them , is to be understood of us , whether the country be called hibernia or scotia , or we hiberni or scoti : especially since beda mentions a king call'd aidan ; and * we had a king of that name in that time , which the irish cannot pretend . beda treats also concerning the abbots of hy , which is icolm-kill , as is clear by that passage , * where he says , columba , founder of the monastery in the isle of hy , venerable to the scots and picts , which by a compounded name from columba and cell is called icolm-kill . and that the monks sent from this monastery , or island , were the converters of the north-saxons , and the first bishops of lindasfern or holy-island ? predecessors of the bishop of durham . . he makes frequent mention of little islands , which never did belong to ireland , but to sotland , and are still called hebrides ; and so as the chief of these isles where the abbot resided the records were kept , and the kings were buried , might probably be called insula hiberniae , or hibernia , and that scotia might be the ordinary name to all that part of the isle of britain benorth the river of clyde : so that the going from hiberniâ , or scotiâ , in britanniam , is nothing but the going to the other side of clyde , * by which , and graham's-dyke , that part of the isle was distinguished from the rest , as if it had been a distinct island . . the great controversy at that time being about the keeping of easter , laurentius mellitus , and iustus , bishops , did write a letter to us of the following tenor. * laurentius mellitus , and justus , bishops , servants of all the servants of god , to our dearest brethren , the bishops and abbots through all scotland . whileas the apostolick sea , according to the custom it hath observ'd in the rest of the world , did send us to preach the gospel unto the heathens in these western parts ; and that it happened to us to come into this isle which is called britain ; we held in religious reverence both the scots and britons , believing that they did walk after the custom of the universal church . but after we had known the britons , we judg'd the scots to be the better minded : yet now we perceive by dagamus , the bishop who is come hither , and by columbanus the abbot in france , that the scots differ nothing in their observations from the britons ; for dagamus being here , refused not only to eat with us , but even to stay in the same inn or lodging . now that this is only applicable to us , and not to the scots in ireland , the subject doth prove , being exhortatory letters , to conform in the observation of easter , wherein the british scots , who follow'd columba , differ'd from the roman church . . the letter is written to the scots , and relates to other letters written to the britons in the same isle ; and who needed the same exhortation . and it is to be remembred , that vsher generally concludes , that where the scots and britons are mention'd in conjunction , by scots there , are to be understood the british scots . . * camerarius cites georgius newton , who about the year , being then arch-deacon of dumblain , did write the acts of that church ; and relates that he had seen the antographum of that letter among the records of that church ; and so it must necessarily have been written to the scots in britain , else it had not been in the custody of our church-men , and at dumblain . i could produce many other citations to prove scotland to have been call'd hibernia in those ages : but it is sufficient to add to these unanswerable proofs already produced , the authority of the roman martyrology ; wherein sanetus beanus is design'd episcopus aberdoniae in hibernia , at the of december . to which vardaeus an irish-man in vita rumoldi answers , that there might have been a place in ireland call'd aberdeen , because aber is an irish word , signifying a marish , and there is a town call'd doun in ireland , situated near a marish . a pretty witticism indeed ! especially as he proposes the objection , and answers the same , as you may see upon the margin . * but to take off all debate , beanus is nam'd in our chartularies , as well as histories , as the first bishop of aberdeen : and the mortifications granted to him by our king malcom d , in the year , of the lands of murthlack , cloveth , and dounmeth , are yet extant : and his tomb is yet to be seen in the cathedral of aberdeen , at the postern door of the church . to the former passages i must also add , that albeit our country was promiscuously call'd scotia , and hibernia , as has been prov'd , yet scotia , even in that time , was the more frequent name of our country : and which , to keep close to beda , appears ; for when he speaks of the isle hy , ( to which the former citations chiefly relate , and which was the place of our country , in which his history being ecclesiastick , is chiefly concern'd , as being then one of ( if not ) the most famous monastery in the western world ) he expresses it to be in scotia : as where he tells , that * ceollach , of the nation of the scots , leaving his bishoprick in england , returned to hy , where the scots had their chief monastery : and thereafter he tells , that † the same ceollach having left his ▪ bishoprick , return'd to scotland . and the same * beda , writing of adamnanus , calls him abbot and presbyter of the monks that are in the monastery of hy. and mentioning the same adamnanus , † he tells , that he returned to scotland , after his embassy in england . and how can it be denied that hy is in scotland ? since beda calls it scotland , and says , that it belong'd to britain : and is by all geographers nam'd one of our hebrides , and lies locally within our country ; and was one of the first places which we planted , and far remoter from ireland , than kintire and others of our islands ; and in which our kings were buried , and our records kept . to conclude this proposition , i shall add these reflections . . that it is not so easy for the bishop of st. asaph to explicate himself as to these passages concerning scotia and scoti , and to make them signifie ireland and irish , since the year , as before : for admitting that the terms were anciently applicable to ireland , and that the scots when mention'd here , were but by invasion from ireland ; yet it being acknowledg'd , that after the year we were settled here ; it follows , that when scotia and scoti are mention'd in relation to british affairs , and in conjuction with the inhabitans of britain , they must be understood of us , and our country . . beda mentioning our country to be call'd scotia , as well as hibernia , from columba's time to his own , it is not only an evidence , that it was so call'd in that time , but that the name had not been then first given , otherwise he could not have been ignorant of the change , nor would he have failed to remark it : so that we may reasonably conclude in his sense , the name of scotia is as ancient in britain , as the time he mentions the settlement , wars , and religion of the scots there . . it is evident , that the bp of st. asaph's * proposition is faulty , viz. that , when we settled here after the year , our kingdom was call'd argyle , or dalrieda : for if this had been true , this name being so recent , could not but have been noticed and used by gildas and beda , and yet it is never so much as once mention'd by either of them ; tho beda , upon the occasion of the monastery of hy , or icolm-kill , and of the bishops sent thence to england , doth frequently mention the names hibernia and scotia , and that st. asaph * doth not controvert , but that these bishops were sent from our isle of icolm-kill to england . . we may observe how warrantable * arch-bishop vsher's position ( repeated by the bishop of st. asaph ) is , that no author mentions our country by the name of scotia for the first years ; whereas most of all the former authors , both within and without the isle , prove scotia to have been the name of our country : and the whole tract of beda's history proves , that since the year , this country was generally so called : whereas neither gildas , nor beda , who lived near that time , and wrote whole books of us , do once call it dalrieda , or argyle : and consequently ( as i observ'd before ) the bishop of st. asaph's whole sect. . of the first chapter , wherein he asserts , that about the year , the scots erected the kingdom of argile , or dalrieda , is most unwarrantable ; for though beda calls us once dalreudini , yet this is spoken of us by him , in the time of our king reuda , and so near years before the after christ. and from this also arises a clear confutation of what the bishop of st. asaph asserts , that no author writing within the years , and naming scotia , means us ; which is so far from being so , that no author of credit ( isidore only excepted ) did then by scotia mean ireland . and the best authority that arch-bishop vsher gives us for dalrieda , is iocelin ; which my lord st. asaph hath improved by a new authority out of a manuscript of the lord burghlie's , where the author thinks that dalrieda , and the kingdom of argile , are the same . authors not to be once mentioned with those whom we cite . . the distinction of scotia major , and minor , is lately invented ; for either ireland was called scotia major before the year , or only since : if the first , then it necessarily implyeth , that at that time our country was also call'd scotia minor , there being no other place assignable . but this is contrary to arch-bishop vsher , and my lord st. asaph's position , who deny our country was called scotia at all for the first years . if it be asserted that this distinction was after the years , then there was little or no use for it : for * vsher tells us , that nubiensis geographus , about the year , describes ireland by the name of hibernia , and describes our country by the name of scotia : and so it seems at that time ireland had lost the name in our favour ; and it is not to be imagin'd that nubiensis remarked the first periods of the change of the name ; and geographers do describe countries by their ordinary names . nor does vsher * produce any other testimony , save a letter of dovenaldus oneil prince of vlster to pope iohn d , wherein there is this passage , * beside the kings of lesser scotland , who all came originally from our greater scotland . and a patent of sigismund the emperor , † to the convent of the scots and irish of greater scotland of a monastery in ratisbone . now vsher acknowledgeth the eldest of these two citations , were in the th or th century ; when i hope no body will assert , that ireland was called scotia major , or that ever the kings of england , who were lords of ireland , were ever called lords majoris scotiae ; and it is probable they would have very much affected that title ( if the country had had that name ) altho they could never make themselves masters scotiae minoris . but it is no wonder , that the irish should be glad to tell foreigners , that they were our chief , and so their country ought to be called scotia major ; notwithstanding that our nation was then become great and glorious : and that vsher can find no better authority for his distinction of scotia major and minor , than these borrowed and magnifying names , used long after he himself acknowledgeth that ireland had lost the name of scotia , and that we were only in possession of it . . the mistaking of the names of scotia and hibernia , and of that assertion , scotia eadem & hibernia , and applying these names still to ireland , and not to our country , hath been the ground whereupon we have been injured , as to the antiquity of our kings and country , saints and learned men , monasteries , and greatness abroad . for admitting it to be true , that we were not setled here till the year , yet we have been so happy , as to have such excellent men , and to have done so considerable actions , as have been sufficient to tempt our neighbours , and particularly the irish , to take great pains to have both pass for their own . in order to which the irish have lately invented the distinction of scotia major and minor , to the end , that when any considerable person is called a scots-man in history , they might claim him as descended from the greater scotland . but besides , that this distinction is too new to be extended to ancient writers , how can it be imagined that our country , only having passed under the name of scotland before the , and after the , as has been proved , ireland should have assumed the name of scotland in that interval ? is it not more reasonable to think that our country , which alone was design'd by that name , before the , and after , bore it likewise only , or at least chiefly , during that interval . but to assert that , during that space , another country had our old and present designation in a more peculiar manner than we ; and that in dubious cases it must be appropriated to them , is a piece of confidence which even eminent wit and learning cannot support . and yet we find , in malcom the second's time , ( as was formerly observ'd ) who began to reign in the year , that the frith of forth ( in his laws , in the book of regiam majestatem ) is call'd mare scotiae : and it is said there , that the same king did distribute , omnem terram scotiae hominibus suis : and it is not to be concluded , that this was the first time that our country was so call'd . and about that time ireland was expressed only by the name of hibernia ; for king henry the d of england , who began to reign in the year , is stiled lord of ireland . and to clear further that scotia about those times was the ordinary name for scotland , and hebernia for ireland , i shall only add some few passages out of marianus scotus , who was born in the year , and died in the year , * who sayes , that about the year , brianus , king of ireland , was killed ; and a little thereafter , † at the year . malcolm king of scotland died , and duncan the son of his daughter succeeded him . and after that he sayes , at the year , * duncan king of scotland , was killed , and the son of finlay succeeded in his kingdom , whom afterward † he calls * machetad king of scotland . all which passages agree exactly with our history , and the summary of our kings lives , as they are recorded in our acts of parliament , and prove that marianus treats of scotland , and ireland , as different kingdoms in his time. in the last place , i shall make some remarks upon the most palpable of these mistakes , and of the chief authors thereof : wherein i shall vindicate the right and dignity of our country , and assert these worthy persons controverted to be ours . i shall not insist much against stanihurst , he being solidly confuted by * camerarius , and with that severity by dempster , that his nephew bishop vsher ( as the duke of lauderdail remarked in some judicious reflections of his upon this occasion ) did highly resent it , and in this matter hath exceeded his usual temperament and moderation . and yet stanihurst never speaks injuriously of our nation ; for though he mistakes many things , and applys them to his own country ; yet it appears to be , rather of design to magnifie it , than injure ours : for he acknowledeth ingenuously , * that he doth not clearly see from what time the name of scotland commenced . and though thereafter he taxeth boethius upon the subject of gathelus and scota , and that he mixeth fables and vain glory with his history ; yet he neither disapproves of buchannan , nor follows he luddus , both of whom he cites , and who were immediatly before him ; his book being printed at antwerp , in the year . in his appendix also , commenting upon giraldus cambrensis ( a welsh-man , and scretary to king henry d of england , and flourished before the end of the th century ) he translates cambrensis , who describes ireland by the name of hibernia , and makes frequent mention of our country under the name of scotia ; as when he speaks of the extent of ireland , he says ( as stanihurst interprets it ) that * it is equal in largeness to wales and scotland . and elsewhere he says , that † scotland is called the north part of the isle of britain . and afterwards he tells the story of moreds six sons , and that from them the inhabitants of the north part of britain , * by a specifick word , were called the scotish nation . and stanihurst in his annotations on these two chapters contends , that before st. patrick's time our country was called scotia ; and brings for proofs st. ierome , who asserts that the scots were gens britannica ; but with great concern he vindicates us from the calumny of eating mens flesh : and for our antiquity he cites beda , who says , that sub duce rendâ we made a third nation in britain . so that we see that neither the welsh in giraldus's time , nor the irish in stanihurst's time , had the opinion of our late settlement , and that our country was not call'd scotia for years after christ ; which their successors luddus , cambden , vsher and st. asaph have had . and the irish in those days took a far better way for advancing their own interest in doing us justice ; since from all the considerable actions we did , there did arise a measure of that honour to them , from whose country we came as a colony : whereas since they were influenc'd by strangers , they have suffer'd themselves to be impos'd upon , so as to lessen our true merit , in appropriating immediatly to themselves those devout persons , who were really our country-men : not considering that the material unjustice was much greater than the imaginary honour : and this plagiarism and man-stealing became easie to them since our reformation from popery , because after that time we became too careless of those eminent persons both at home and abroad , who had liv'd in the roman communion , or before that time . but i will not insist on this , for i hope their native kindness will incline them to return to their first just methods . if i had leisure , i would make larger reflections , to prove how unconsequential arch bp vsher is , in making sedulus and marianus irish : since by all writers they are both call'd scots , and balaeus an englishman tells us , that † sedulius flourish'd under fergus d . and * marianus under macbeth , both our kings ; and baronius asserts also this positively . and sedulius having liv'd before st. patrick's time ( who was the first apostle of ireland ) and being disciple to hildebert an acknowledg'd scot , and who liv'd in the , must be prior to the irish christianity ; which giraldus and stanihurst acknowledge to have been first planted by st. patrick in the year . nor can * vsher in all his vast reading , find any christians in ireland betwixt the year , and , which was st. patrick's time , but kiaranus , ailbeus , declanus , ibarus : tho if sedulius had been an irish , he had been certainly mention'd and employ'd , before those obscure persons ; and certainly he would have employed himself before st. patrick's time in the conversion of his own native country , if he had been truly irish. and as to marianus scotus , it is a wonder how it can be controverted that he was a scots-man ; since our country was then called scotland by the bp of st. asaph's own confession ; and ireland was just then losing that name ; and marianus in his whole book distinguishes betwixt scoti and hiberni , and mentions the forementioned three kings of scotland about whose time he liv'd ; and also makes mention of one king of ireland about that time : as has been observed already ; and particularly , speaking of the conversions * by palladius and st. patrick , he expresly distinguishes betwixt scoti , and hibernenses . but passing these , i confess it is pretty ridiculous to see a whole book written by the above-mentioned vardaeus , and glossed by sirin , and published at louvain , to prove that rumoldus arch-bishop of mechlin was an irish-man : since the arms of scotland ( which are , or , a lion rampant gules , within a doubles tressure flowred and counterflowred with flower de lis of the same ) are plac'd upon every window of the catherdral church built by him , and are to this day a part of the arms of that archi-episcopal see , rumoldus himself being a younger brother of the royal-family of scotland : and in which witty book , the author , to confute this , * is forced to maintain that the scotish lion is born by several irish familes ; and the double tressure , tho anciently born by scotland , and which is blazon'd in that archi-episcopal coat of arms , might have been born by the irish , because that famous league betwixt the scots and charlemaigne , was made with the kings of ireland , and not with the kings of scotland ; and that our kings had never any leagues with the french , till the reign of charles th who was contemporary with our king iames st : whereas the whole french histories , as well as ours ; and all foreign historians , as well as either , the leagues yet extant ; the priviledges granted thereupon to us , recorded in the french registers , and ours ; many decisions in parliaments , and other courts ; and the universal consent of all the french who ever liv'd since that time , do in all humility seem to be sufficient warrants for laughing at this monstruous assertion ; as i do at him and others , who pretend that the scotish monasteries in germany , are irish : since they were founded in charle-maigne's time , by william brother to our king achaius , and others that went there with him ; and they are to this day govern'd by abbots and priors of our country : nor can it be understood , how the french and germans could mistake their own records and foundations for so many hundreds of years togeder , and by this i leave my reader to measure the other unjust pretensions of such authors . i hope it now at last appears , that i have detected those ingenious artifices , which this learn'd bishop was forc'd to use , to supply his want of solid and just grounds in this his undertaking . as , . that , to conciliate respect to this undertaking , as well as to excuse it , he pretends that it was necessary for the defence of episcopacy . . he makes a great muster of old authors in the beginning of his book , as if all these were men of great credit , and did concur with him to refute our history ; and adorns his margins with formidable numbers of citations . . knowing that it could be prov'd , both by british and foreign historians , that we were here very anciently , he confesses this ; but by a new and strange invention , he asserts that we were not here as settled inhabitants , but only by way of incursion . . he defers our setling here , till the year , and so longer than the first inventors of this new story did ; upon design to make our settlement here , later then that of the anglo-saxons , who settl'd here in anno . . he lessens the reputation of all our historians , and endeavours also to make them pass but for one ; as if the succeeding historian had seen no other warrants , but the preceeding histories . . he treats in ridicule ieffrey , and some other historians of his own country , whom he knew could not be sustain'd however ; and this he does upon design , to shew his impartiality , and that he spares not his own more than ours . . for the same reason he decrys the british descent from brutus : in which he loses nothing , because no sober man could have defended it ; and he denies the conversion of their own king lucius , to strike thereby with the greater authority at the antiquity of our royal-line and nation , treating king donald's conversion also as a fable : and thus according to our proverb , he is content to let a friend go with a foe . . he complements our nation in latter times , to excuse the injury he does our kings and antiquity . . he uses the foreign authors that should be urg'd for us , to prevent our using of them as proving arguments against him . . finding that ireland has been call'd scotia , he transplants our old saints thither , and applies to it , all that is said of our country : nor did ever any author improve better a pitiful clinch . . he concurs in another design like to this : for , because it could not be deny'd that fergus was our first king ; all the citations for proving this , are therefore apply'd to fergus the second , and not to fergus the first . lastly ; whereas cambden and arch-bishop vsher speak doubtingly of their own arguments ; the bishop of st. asaph fearing that his reader could not be convinc'd , of what himself was not , he therefore proposesall these arguments , with a confidence , which would seem to argue that full conviction in himself , which he wishes in others . if any person then would know how that scotland , which was but a small colony , grew up to a kingdom that deserv'd so well : my thoughts of this are , that , . the constant defence that we were oblig'd to make against the romans and britons at first , and english thereafter , nations wise , brave , and polish'd , living in the same isle with us , and the picts within us , did force us to think and fight ; and the observing the actions & conduct of such enemies could not leave the observers rude or ignorant : and it 's like that the glory of such noble adversaries , rais'd our wit and courage above the pitch of a northen and confin'd nation . . our country having had the happiness to stop the roman conquest , this gave strangers a value for us ; and therefore when any of the gallant britons scorn'd to submit to the slavery and drudgery of a conquest , they fled unto us from the romans , saxons , danes , and normans ; and being passionate lovers of liberty , they animated us by their assistance and example . this likewise brought in brave strangers amongst us , as all gallant spirits did lately run to holland in its first rise : and ( as our historians probably relate ) very many of those return'd with fergus the second from the wars in italy , whither that generous young prince went to assist alarick against the romans , in a just resentment of the injury done by them to his predecessors , and with whom he was present at the sacking of rome . . we have been very happy in so heroick and wife a race of kings , whose blood being refin'd by a long royal descent , hath been thereby purifiy'd from all meanness , and elevated to that love for glory , which is ordinary in those , who never knew what it was to obey . . our country having entered early into a remarkable league with france , in the reign of charle-maigne ; our country-men got excellent breeding , under so wise and valiant a prince ; and have ever since , by being constantly employed in the french , and other wars , attain'd to a degree of merit , beyond what was to be expected in this climate . . our country having neither bogs nor fogs , our ground being rocky and gravelly , and our air fann'd by winds ; this preserves us from the dulness and phlegm of the northern climats ; and the want of that superfluous plenty , and bewitching pleasure , which softned even hannibal when he came to capua , preserves us against the delicacy and effeminateness of southern nations . and whereas ( heroick virtue being still attended by envy ) some in railery pretend , that we were unconquer'd , because we deserv'd not the pains and trouble of a war. i need not seriously answer , what no historian can urge : for it is ridiculous to think , that the romans would not have rather conquer'd us , than built two strong and expensive walls against us , which bounded their fame , as well as their conquest . and england hath taken too much pains to gain us , either by conquest or alliance , to have undervalued us . and though when we were divided by the differences betwixt the bruce and barliol of old , and betwixt the royalists and covenanters of late ; the half of our country having only defended its liberties , whilst the other half joyn'd with its enemies ; we were rather betray'd than overcome : and yet we soon recovered our former liberty . albeit , to be overcome by england had been no great affront to us : england being a greater and richer nation than we are . and therefore i hope , all honest men will , with judicious samuel daniel in his history , at the year , confess , that it had been a pity , we had not had a better country , to be the theatre of so many worthy and heroick actions . having thus clear'd how our nation arriv'd at its present consistence , i am to finish this discourse , with a representation of the many rights which our kings have to the imperial throne of these kingdoms ; and to show how they succeed to all who ever pretended to monarchy in any of them . as to the british part of the isle , aurelius ambrosius was , by common consent , chosen sole prince of all the britons : and he had no other succession , save two daughters , anna married to the king of the picts , and ada married to the king of the scots . mordredus king of the picts , grand-child to the foresaid aurelius , finding himself debarr'd from the succession of the british crown , employ'd the scots , who fought for him against the britons . but the britons having called in the saxons , after a bloody battel , both parties were forced to withdraw ; and the king of the picts was induc'd to desist from his pretentions at that time . but thereafter hungus , king of the picts , and the direct heir of the same mordredus , and consequently of ambrosius king of the britons , gave his sister fergusiana to achaius king of the scots ; and in her right , alpin king of scotland succeeded both to the british and pictish crowns ; hungus having died without any children , kenneth the d , son to alpin , was forc'd to conquer the picts , who refus'd unjustly to receive him as their lawful king. our kings are likewise lineal heirs of the danish-race , who were kings of england for , or as others say , years ; they being the only lineal successors of canutus king of the danes in britain : for margaret , wife to king malcolm the d , was sister to edgar , which edgar was grand-child to st. edward , who was brother to hardiknut , son to canutus . after this the kingdom of england return'd to the old stock in king edward's time ; to whom succeeded edgar , whose sister the pious queen margaret married king malcolm the d of scotland , by whom he came to have right to the crown of england ; there being none extant of the old royal-saxon-line besides her self : and with her came very many of the nobility , who fled from william the conquerour , after he conquer'd england , and with whom king malcolm would not make peace , till such of them as resolved to return were restored to their estates . the next royal-race which flourished in england , was the norman : and to that race our kings succeeded thus . the line of william the conqueror was branch'd out in the houses of lancaster and york . to the house of lancaster , they succeed as heirs by the marriage betwixt ioan daughter to the duke of somerset , and undoubted successor of the family of lancaster . and to both lancaster and york they succeed , by being heirs to henry the th ; in whom these successions were again happily reconcil'd ; he having married elizabeth eldest daughter to edward the th , who had transferred the succession of the crown from the house of lancaster , to that of york , or at least had united the two in one . for clearing whereof , it is fit to know , that henry the th had only four children , arthur , henry , margaret , and mary . arthur , and henry dying without succession , the right of the crown was certainly devolv'd upon the children of margaret the daughter ; who did bear king iames the th , in a first marriage with king iames the th ; and margaret dowglas , by a second marriage with the earl of angus : which margaret being married to matthew earl of lenox , had two sons ; the eldest whereof was henry , who thereafter married queen mary daughter to king iames the th ; and begot upon her king iames the th : and thus king iames the th was upon all sides heir to william the conquerour , and to henry the th . the histories also of both nations confess , that our king is the undoubted successor of the blood-royal of wales : for walter stuart , from whom our kings are descended , was grand-child to the king of wales , by his daughter , * who married fleanchus son to † banqhuo : and henry the th ( to whom king iames the th was the true successor ) was also the righteous heir of cadwallader the last prince of wales . the histories both of scotland and ireland do acknowledg , that our kings are undoubtedly descended from the royal race of the kings of ireland ; and all the debate that can be , is only whether they be desended from king ferquhard , father to king fergus the first , or from eeric father to king fergus the second ; or from some other irish kings , as vsher pretends . from all which i may draw two conclusions ; first , that god has , from an extraordinary kindness to those kingdoms , lodged in the person of our present soveraign , king iames the th ( whom god almighty long preseve ) all those opposite , and different rights , by which our peace might have been formerly disturb'd . . that his majesty who now reigns , has deriv'd from his royal ancestors , a just and legal right by law , to all those crowns , without needing to found upon the right of conquest : so that the very endeavour , to exclude him from all those legal rights , by arbitrary insolence , under a mask of law , was the height of injustice , as well as imprudence . finis . books printed for , and sold by richard chiswell . folio . speed's maps and geography of great britain and ireland , and of foreign parts . dr. cave's lives of the primitive fathers , in vol. dr. cary's chronological account of ancient time. bp wilkins real character , or philosophical language . hooker's ecclesiastical polity . guillim's display of heraldry , with large additions . dr. burnet's history of the reformation of the church of england , in vol. — account of the confessions and prayers of the murderers of esquire thynn . burlace's history of the irish rebellion . herodoti historia , gr. lat. cum variis lect. the laws of this realm concerning jesuits , seminary priests , recusants , the oaths of supremacy and allegiance explained by divers judgments and resolutions of the iudges ; with other observations thereupon . by william cawley esq . sanford's genealogical hist. of the kings of england . modern reports of select cases , in the reign of king charles the d . sir tho. murray's collection of the laws of scotland . dr. towerson's explication on the creed , the commandments , and lord's prayer , in vol. the history of the island of ceylon in the east-indies : illustrated with copper figures ; and an exact map of the island . by capt. robert knox , a captive there near years . qvarto . dr . littleton's dictionary , latin and english. bp nicholson on the church-catechism . history of the late wars of new-england . atwell's faithful surveyer . mr. iohn cave's seven occasional sermons . dr. crawford's serious expostulation with the whigs in scotland . dr. parker's demonstration of the divine authothority of the law of nature , and the christian religion . mr. hook's new philosophical collections . bibliotheca norfolciana . octavo . bishop wilkin's natural religion . — his fifteen sermons . mr. tanner's primordia : or , the rise and growth of the first church of god described . lord hollis's vindication of the judicature of the house of peers , in the case of skinner . — jurisdiction of the house of peers in case of appeals . — jurisdiction of the house of peers in case of impositions . — letters about the bishops votes in capital cases . spaniards conspiracy against the state of venice . dr. sympson's chymical anatomy of the york-shire spaws : with a discourse of the original of hot springs and other fountains . dr. cave's primitive christianity , in three parts . ignatius fuller's sermons of peace and holiness . the trials of the regicides , in . certain genuine remains of the lord bacon , in arguments civil , moral , natural , &c. with a large account of all his works . by dr. tho. tennison . dr. puller of the moderation of the church of england . sir iohn mounson of supream power and common right . dr. henry bagshaw discourse on select texts . mr. seller's state of the church in the three first centuries . the country-mans physician . dr. burnet's account of the life and death of the earl of rochester . — vindication of the ordination of the church of england . — history of the rights of princes in the disposing of ecclesiastical benefices and church-lands . — relation of the present state of the difference between the french king and the court of rome ; to which is added , the pope's brief to the assembly of the clergy , and their protestation , published by dr. burnet . — abridgment of the history of the reformation . ogleby's aesops fables paraphrased in verse , and adorned with sculptures and annotations , in vol. dr. cumber's companion to the altar . galliard's two discourse of private settlement at home after travel , and of him who is in publick employments . markham's perfect horseman . dr. sherlock's practical discourse of religious assemblies . — defence of dr. stillingfleet's unreasonableness of separation . — a vindication of the defence of dr. stillingfleet , in answer to mr. baxter and mr. lob about catholick communion . the history of the house of estee , the family of the dutchess of york , now queen of england . sir rob. filmer's patriarcha , or natural power of kings . mr. iohn cave's gospel to the romans . lawrence's interest of ireland , in its trade and wealth , stated . dvodecimo . hodder's arthmetick . an apology for a treatise of humane reason . written by m. cliford esq . queen-like-closet , both parts . bishop wettenhalls method and order for private devotion . vicessimo qvarto . valentine's private devotions . crums of comfort . books lately printed for ri. chiswell . folio . dr . spencer de legibus hebraeorum ritualibus & earum rationibus . sir iames turner's pallas armata , or military essays of the ancient grecian , roman , and modern art of war. dr. iohn lightfoot's works in english , in vol. mr. selden's ianus anglorum englished , with notes : to which is added his epinomis , concerning the ancient government and laws of this kingdom , never before extant . also two other treatises written by the same author : one of the original of ecclesiastical jurisdictions of testaments ; the other of the disposition or administration of intestates goods ; now the first time published . qvarto . patris simonii disquisitiones criticae de variis per diversa loca & tempora bibliorum editionibus . accedunt castigat . opusc. is. vossii de sibyllinis oraculis . dr. falkner's two treatises of reproaching and censure : with his answer to serjeant's surefooting : also several occasional sermons . the case of lay-communion with the church of england considered . a discourse concerning the celebration of divine service in an unknown tongue . a discourse of the necessity of reformation , with respect to the errors and corruptions of the church of rome . octavo . dr . william cave's dissertation concerning the government of the ancient church by bishops , metropolitans and patriarchs . two letters betwixt mr. r. smith , and dr. hen. hammond , about christ's descent into hell. dean stratford's disswasive from revenge . the life of bishop bedel . dr. harris his rational discourse of remedies . sir george mackenzy's just right of monarchy . dr. hez . burton's first volume of discourses , of purity and charity ; of repentaace , and of seeking the kingdom of god. published by dean tillotson . — his second vol. of discourses upon divers other practical subjects . sir thomas more 's vtopia , newly made english. bishop iewel 's apology for the church of england ; with his life . by a person of quality . notes, typically marginal, from the original text notes for div a -e v. the last four pages of the book . * his own word . notes for div a -e * ja. . par. . c. . * pag. , . . * see his late book , entituled , les pretendus reformees convanious du schism , p. . , , . * pag. . † pag. , . * pag. . * acts . . notes for div a -e sect . . what proofs are necessary in history . * rarae per eadem tempora literae f●ere una custodia fidelis memoriae rerum g●starum : & quod etiamsi quae in commentariis pontificum , aliisque publicis privatisque erant monumentis , incensa urbe pleraque periere . liv. i●it . lib. . † vossius de hist. lat. lib. . cap. . & lib. . * lib. . against appion . * brittann . cap. scoti passim , but especially pag. . these are the points , i say , which i would wish the scotish men diligently to think upon ; but let them remember , that in the mean time , i have affirm'd nothing , but only given an inkling of certain things , which may seem in some sort material , whence if the original of the scots have received no light , let them seek it elsewhere ; and i have in vain searched , but with that circumspect care , that i hope i have not given the least offence to any whatsoever . † praefat. de primord . eccl. brit. in nostra autem ex omni scriptorum genere promiscue congesta farragine , siquis obscuriorum authorum citata mirabitur testimonia ; cogitare illum velim , aliud esse historiam scribere aliud materiam hinc inde conve●ere , unde delectu adhibito , &c. sect . . what proofs we can adduce for our history , and first of our tradition . * disciplina in britannia reperta , atque inde in galliam translata esse existimatur : caes. bell. gall. lib. . multa de ex eorum motu , de mundi ac terrarum magnitudine de rerum natura , de deorum immortalium vi & potestate disputant & juventute tradunt . ibid. cum in publicis rationibus & privivatis , graecis literis utantur . ibid. by publicae rationes , are probably meant their histories , at least it is most reasonable to think , that since they had the use of letters , they would have written histories , or some short memorials . * pag. . edit . casaubon . * pag. . sect . . proofs from manuscripts and records . * beda passim . † lib. . cap. . * pag. . * pag. . * pag. . † pag. . * pag. , & . * part post. † pag. , & pag. . * et lib. . * asservantur in arcanis templi armariis vetustissimorum annalium codices atque item latae membranae , ipsorum regum subscriptae manibus aureisque vel cereis sigillorum imaginibus obsignatae ; quibus antiquae leges edictaque & finium ac civitatum iura publica continentur . * pag. . pref. † lib. . * pag. . pref. * vicfort memoirs des ambassadeurs . * pref. new translat . of plutarch's lives . * pag. . pref. * ia quibus scribendis ne historia lex violaretur , illae quae prius scripta sunt , non solum exegimus ad veritatem annalium , qui in publico regni nostri archivo , aliisque antiquissimis codicibus quos majores nostri pasleti , sconae , ac in aliis monasteriis religiose servarunt , continebantur . lesl. paraen . ad nobil . populumque scot. pag. . * pag. . * de hist. lat. pag. . sect . . the other historians of this isle cited against us , examined . * orig. sac. p. . sect. . * pag. . * cap. . as cited by s. asaph , pag. . pref. * pag. . * pag. . * bal. pref. part post . † de excid . brit. * cap. . beda . * st. asaph , p. . * lib. . descript . britan. cap. . & . * girald . camb. distinct. . cap. . * vita st. pat. cap. . † vita columb . adamn . lib. . c. . * de eccl. brit. primord . p. . * cap. . * pag. . * de primord . pag. . * pag. . † cap. scoti . * cap. . * camb. cap. pict . * de primord . cap. . init . * cap. . † cap. . sect. , & . ‖ cap. pict . * quinque gentium linguis unam eandemque summoe veritatis , & verae sublimitatis scientiam scrutatur , confitetur anglorum , viz. britonum , scotorum , &c. bed. l. . cap. . eccl. hist. * verum eadem britannia romanis usque ad caium jul. caes. inaccessa atque in cognita fuit beda hist. eccles. l. . cap. . * verum eadem britannia romanis usque ad caium julius caes. inaccessa atque incognita fuit . beda eccles . hist. l. . cap. . * bed. lib. . cap. . eccl. hist. itaque severus magnam fossam firmissimumque vallum crebris in super turribus communitum a mari ad mare duxit . † bed. lib. . cap. . eccl. hist. denique subito duabus gentibus transmarinis vehementer saevis , scotorum a circio , pictorum ab aquilone multos stupet gemitque per annos . ‖ transmarinas autem diicimus ●as gentes , non quod exraa britanniam essent positae , sed quia a parte britonum erant remotae , duobus finibus marl interjacentibus , quorum unus ab orientali mari , alter ab occidentali , britanniae terras longe lateque irrumpit quamvis ad se invicem pertinere possunt . * cap. . * pag. . ●um . edit . heidelberg . sect . . proofs from foreign authors . eumenius . * pag. . * pag. . * in not . in lib. . tibull . * pag. . * pag. . * pag. . * pag. ibia . * sect. , . cap. . * guidus pancirollus coment . ad notitiam imperii occident . p. . where he cites for this dion . eusebius & spartianus , and says that caledonia apud eos nunc scotia dicitur dion . in vita severi imp. anno , berg●●r l. . c. . * pag. . edit . plantin . redactum ad paludes suas scotum . * lib. . epig. . * comment . ad vitam agricolae . * lib. . cap. . numb . . prince des caledoniens . ou escossois . * petruccio vbaldini , also in descritt . dela scotia , p. . & . asserts the scots to be caledonians . * tit. vit . agric . c. . tertius expeditionis annus novas gentes aperuit : vastatis usque ad tuam ( aestuarit nomen est ) nationibus agricola in fines horestorum exercitum deducit : ibi acceptis obsidibus praefecto classis 〈◊〉 britanniam praecepit , &c. * lex . geograph . verb. horresti . senec a. * scalig. ad lib. . tibul. ad . messal . and in his notes on eusebius ad annum mmlx , where there is a most learned and full proof of our antiquity , too long to be inserted here , and too learn'd to be answered by any adversary . * ovid. salmas● in solin . * cap. p. . de primord . * c. . p. . * bed. eccles. hist. l. . c. . * gesner in verb. sidonius . * pag. . * lib. . cap. . * lib. . cap. . hegesippus de excidio hierosol . . cap. . quid vobis cum victoribus universae terrae ? quibus secreta oceani , & extrema indiae parent . quid attexam britannias interfuso mari toto orbe divisas , & à romanis in orbem terrarum redactas . tremit hos scotia qua terris nihil debet . * p. , & . ad quos cum venisses dua exercitus romani , opposuerant se il●i , nec voluerunt ei subditi esse : cum autem reges romanorum venerunt , subegerunt eos ut servirent ipsis . * vid. cap. . l. . euseb. eccl. hist. * tertullian . * tertul. l. advers . iudeos , c. . et britannorum romanis in accessa loca , christo vero subdita : which baronius applys to us , tom. . p. . st. asaph . pres. pag. . * ammianus l. consulatu vero constantii decies terque juliani in britanniis cum scotorum pictorumque gentium ferarum excursu rupta quiete condicta loca limitibus vicina vastarentur , & implicaret formido provincias praeteritarum cladium congerie fessas . * lib. . ad jovian . * c. . p. . de primord . * quid loquar de caeteris nationibus , cum ipse adolescentulis in gallia , scotos gentem britannicam humanis vesci carnibus . vidi l. . ad jov. † pref. l. in iren. * tom. . p. . * epiphanius in auchorato . p. . ad par . britanni , scoti , quorum insula est britannia . * receptam partem insulae à caeteris indomitis gentibus vallo distinguendam putavit . * cap. , & . sect . . proofs from reason . * pag. . * pag. . desc . brit. † in initio . ‖ pag. . * aeneid . l. . c. . * buchan . p. . * pag. . * chambers particularly , p. , & ; also from p. to the end of the treatise . * scotorum quoque reges sic habuit ad suam voluntatem , per suam munificentiam inclinatos , ut eum nunquam aliter quam dominum pronunciarent : extant epistolae ab iis ad eum missae , quibus hujusmodi affectus eorum erga illum judicatur . aeginard . vita caroli magni ad annum . † lib. . pag. . aeginard . secretary to charle-maigne , maketh an enumeration of strange princes , who imbrac'd the amity of that puissant monarch . the emperors of constantinople , persia ; the kings of india and gallicia , with the kings of scotland . favin . l. . p. . the scots joyful of this alliance , as the most famous in christendom , delegated for their ambassours , william brother to their king achatus , assisted with the counsel of four persons , renown'd for learning , clemens , ioannes , rabanus , and alcuinus , with men of war sent to the succour of charle-maigne . the two worthy doctors who staid with charle-maign at paris and padua , were iohn sirnam'd scotus , a scottish-man , both by nation and sirname , and claudius clemens . ‖ paulus aemilius in vita caroli magni . caeterum ut paulatim extingueret saxonum nomen ; honores magistratusque gentibus aliegiuis & in primis scotis mandabat , quorum egregia fide virtuteque utebatur . * pag. , & . vid. sansovino delle origine delle case illustri d' italici . p. . edit . in . an. . * nella cr●nica di piacenza . * lesl. pag. , buchan . p. . * i●sl . p. . buchan . p. . * lib. . ad iovianum , who seems to point at this , when he says , that scoti nullas proprias habens uxoret . * solin . cap. . de britannia . * lib. . c. . * tom. . edit . col . p. , & . num . . qui igitur evangelium primo à victore pontifice maxim● accepere , & à celestino papa primum episcopum , à quo sunt omnes pe●itus redditi christiani , eate●us christi gratia pro●ecere , qui oli● gentilitio ritu viventes , ob feriaos mores , ut portentum ostentui erant humano generi praestantissi●i eveneri●t christiani , &c. † num. . ‖ quia victore romano pontifice , scotos evangelium accepisse , majorum traditione scripsere , haud sunt refellendi . * usher . p. ● de prim . * lib. . c. . ac tusculani , &c. l. . c. . eccl. * stat. . * pag. . * edit . basil. . d . cent. p. . * pag. . * lib. . * pag. , & . * pag. in euseb . sect . . answers to the bishop's objections . * de hist. la● . p. . * cap. , & . ● . * bed. ec. hist. lib. . cap. . * st. asaph , p. . * pag. . * pag. . * pag. . * cap. . paragraph , , and . * pag. . * pag. . * 〈…〉 bassianus caracalla , qui 〈◊〉 non pa●cis 〈◊〉 severo 〈…〉 l. . c. . * vid. instit. ad senatus . co● . trebell . * ptolom . geog. lib. . cap. . † p. , , and particularly . hanc insulam britannidem olim à julio caesare vocatam fabius ethelwardus haud recte retulit : non alio enim quam hiberniae nomine , à caesare , uti post eum à plinio , solino , & tacito illam invenimus . * p. , , , . † cap. . §. . * beda l. . c. . † tacit. in vita agricol . * pag. , . inter orthodoxogr . * pag. . edit . basu . * lib. . cap. . * lib. . cap. d● insulis . * cap. . lib. . * cujac . lib. . obs. . & ad legem . parag . gramatici ff . de excus . mum . * ecgfridus rex nordanhumbrorum misso in hiberniam cum exercitu duce berto , vastavit misere gentem innoxiam & anglorum genti semper amicissimam . bed. hist. eccl. lib. . cap. . * ne scotiam nihil se laedentem impugnaret . i id . † angli & scoti qui extant in britannia . ibid. * columbanus qui anno incarnationis . abbas & presbyter venit de hibernia in britanniam praedicaturus verbum dei provinciis septentrionalium pictorum . et gentem illam convertit , vnde & praefatam insulam ab eis in possessionem monasterii faciendi accepit ; ubi sepultus est . ex quo monasterio , & monasterio de daermach perplurima monasteria propagata sunt in hibernia & britannia , in quibus omnibus idem monasterium insulanum , principatum tenet . bed. lib. . cap. . * ab hac ergo insula , ad provinciam anglorum instituendam in christo , missus est aidanus . lib. . c. . † aidanus de insula quae vocatur hy destinatus , quae arcem tenet monasteriorum scotorum & pictorum , & ad jus britanniae pertinet . l. . c. . * colman videns spretam suam doctrinam , sectamque esse despectam ; scotiam regressus est . l. . c. . * cap. . † ibid. * ibid. † cap. . * cap. . * haec autem plaga hiberniam insulam , pariclade premebat : erant ibidem eodem tempore multi nobilium simul & mediocrium de gente anglorum , qui tempore finani & colmanni episcoporum , relictâ insulâ patriâ , vel divinae lectionis , vel continentioris vitae gratiâ , illò secesserunt . — quos omnes scoti libentissime suspicientes victum eis quotidianum sine praetio , libros quoque ad legendum , & magisterium gratuitum praebere c●rabant . l. . c. . † vnde & genti suae , & illis in quibus exulabat nationibus scororum sive pictorum exemplo fuit . ibid. * cap. . generally , and specially , p. . † lib. . cap. . & ad jus britanniae pertinet . * buch. p. . * columba fundator monasterii quod in hy ins●la , venerabile scotis & pictis , & composito nomine à cellà & columbâ collum-celli vocatur . lib. . c. . * bed. l. . c. . * dominis charissimis fratribus episcopis vel abbatibus per universam scotiam laurentius mellitus , & justus , episcopi servi servorum dei. dum nos sedes apostolica more suo , sicut in universo orbe terrarum , in his occiduis partibus ad predicandum gentibus paganis dirigeret , atque in hanc insulā , qua britannia nuncupatur , contigit introisse , antequam cognosceremus credentes , quod juxta morem universalis ecclesiae ingrederentur , in magna reverentia sanctitatis tam britones quam scotos venerati sumus . sed cognoscentes britones , scotos meliores putavimus . scotos vero per dagamum episcopum in hanc quam superius memoravimus insulam , & columbanum abbatum in galliis venientem , nihil discrepare à britonibus in eorum conversatione didicimus . nam dagamus episcopus ad nos veniens , non solum cibum nobiscum , sed nec in eodem hospitio quo vescebamur sumere voluit . bed. lib. . cap. . * in append. ad l. . p. . and it is observable that marianus , p. makes mention of other two letters , in the year . the one from honorius , and the other from pope iohn , upon the same head : both which marianus says , were sent to us , and not to the irish . * dices in martyrologio romano vulgari legi ad diem . decembris , aberdone in hibernia s. beani episcopi : abredonensis autem sedes episcopalis est in scotia britannica : ergo vel in hac est , vel hac aliquando fuit hibernia . pag. . ad nugatorium ergo sophisma distinguo minorem : abredonensis , locus dequo martyrologium agit , est in britannia , nego minorem : alius ejusdem nominis , transeat . vel absolute , nego consequentiam , ob fallaciam figurae dictionis ; ut h●nc , omnis canis est latrabilis ; sed sidus est canis ; ergo sidus est latrabile , &c. pag. . * ceollach de natione scotorum , qui non multo post episcopatu● relicto reversus est ad insulam hy , ubi plurimorum caput & arcem scoti habuere caenobiorum . bed. l. . c. . † ceollach qui relicto episcopatus officio vivens ad scotiam rediit . bed. l. . c. . * adamnanus presbyter & abbas monachiorum qui erant in insula hy. bed. l. . c. . † adamnanus reversus ad scotiam . bed. l. . c. . * cap. . §. ▪ * cap. . §. ▪ , , , . * pag. . * pag. . * pag. , & . * quod praeter reges minoris scotiae , qui omnes de nostra majore scotia originem sumpsero . † conventus scotorum & hibernorum de majore scotia monasterii ia ratisbona . * brianus rex hiberniae necatur . pag. . † moelcolium rex scotiae obiit , donchad filius filiae ejus sibi successit . pag. . * donchad rex scotiae occiditur & mefinlaech successit in regnum ejus . p. . † pag. . * mackbeth . * appen . ad l. . * lib. . p. . verum à quo primum initio scotiae nomen sit tractum , nondum plane perspectum video . * quantae circumscriptis wallia & scotia potior insula britannicae pars regibusque antiquis appropriata . pag. . † scotia quoque pars insulae britannic● dicitur aquilonaris . p. . * specificato vocabulo gens scotica appellatur . cap. . pag. . † pag. . cent. . * pag. . cent. . * pag. . * ad scotos in christum credentes ordinatus à papa caelestino palladius primus episcopus missus est . post ipsum sanctus patricius consecratus & ad archiepiscopum hibernensem mittitur , & totam insulam hiberniam convertit ad fidem . pag. . * artic. . & pag. . * lesl. in vita dav. . † baker , p. . edit . . the moral history of frugality vvith its opposite vices, covetousness, niggardliness, prodigality and luxury / written by the honourable sir george mackenzie ... mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing m estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the moral history of frugality vvith its opposite vices, covetousness, niggardliness, prodigality and luxury / written by the honourable sir george mackenzie ... mackenzie, george, sir, - . [ ], , [ ] p. printed for j. hindmarsh ..., london : . marginal notes. advertisement: p. 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ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng saving and investment. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - judith siefring sampled and proofread - judith siefring text and markup reviewed and edited - pfs batch review (qc) and xml conversion licensed , march . . rob. midgley . the moral history of frugality vvith its opposite vices , covetousness , niggardliness , prodigality , and luxury . written by the honourable sir george mackenzie , late lord advocate of scotland . london : printed for j. hindmarsh , at the golden ball over against the royal exchange in cornhill . . to the university of oxford . finding such various opinions concerning the first and fundamental rules of iustice , urged with great animosity , and that the laws of nations were alledged by all sides : i resolved , after having studied the roman laws and the municipal law of our own nation forty years , to spend some time in enquiring seriously into the laws of nations . for this end i retired into your famous university , whose library the learned and curious selden has inriched with books on these subjects , beyond what is to be found in any other in europe ; nor could it be thought that any thing could have been added to his excellent collection , if your extraordinary care , and this last age , had not furnished you with many books which either had escaped him , or he could not know : but after i had with all the diligence i could , instructed my self as far as i thought was possible , i clearly found that these debates were not so much occasioned by the laws of nations , as fed by luxury and avarice , which of late have given authority to that which some men think a more obliging law , called conveniency : and therefore i resolved to attack likewise this powerful enemy of law and iustice , and i now present my undertaking to you , not only because it was first formed within your university , but because i know that you of all men , with greatest reason , think your selves rather stewards than proprietors of benefits , being you reckon the wants of those who are in distress amongst your principal debts , and because that to supply these is the greatest convenience a self-doomed and illuminated christian ought to study : and after i had calculated what you have of late bestowed upon the exiled french. protestants , the fugitive irish , and the starving clergy of your own profession in scotland ; besides the particular briefs poured in daily upon you for alms to your own countrymen , whom accidents have ruined , i could not but admire how even frugality it self could have made you live with that neatness i observed among you . i am to lay up the other marks of esteem i have for your learning , and that floge which is due to your libraries , whereof each of your colleges has one , which might almost supply the want of a bodleian any where else , until i compleat , by the helps i found amongst you , the observations i am now writing upon the digests , and some illustrious questions which have in this last age employed and divided the best lawyers and statesmen in europe , but especially in britain . and who , residing among you , could see in your libraries the fame of learned men of all nations still so fresh , or could converse with many of your own now living , who have made profound learning even useful and witty , without being forced by a noble emulation to leave all other pleasures , that he might retire unto your libraries , or his own closet , there to purchase some share of that improvement which every private mans breast concurs with the world to esteem . i am your most obliged and humble servant , geo. mackenzie . the copy of a letter sent together with the dedication . mr. hindmarsh , i have sent you the dedication to the university of oxford , which the author of the history of moral frugality , now deceased , designed for that book : if there be any thing in it unworthy of that society , or the author , it must be imputed to the fatal distemper of body which he languished under , when he wrote it ; and though it falls far below what that university might have justly expected from him , and he was inclined to have said of them ; yet as it is i allow you to print it , because the world may thereby know the high and just esteem that sir george mackenzie retained , even to his dying day , of that famous society . london , may . . sir , your servant arch. cockburn . the moral history of frugality with its opposite vices , covetousness , niggardliness , prodigality , and luxury . discourse i. when i consider how many have had their affections warm'd by pious sermons , how many moral philosophers have convinc'd those who have read them , and yet how few have been reform'd by either ; i begin to think , that there must lie some strange hidden engine in the heart of man , which is able to pull back even thinking men from improving these impressions : and that which seems to be one of the chief occasions of this , is that men are become so poor , by the general avarice and luxury which now unreasonably tyrannize over the world , that they are tempted to be wicked to satisfie their imaginary fantastic necessities . thus we are uncharitable , because we want money for our imaginary wants : we are disloyal to get it by rebellion , for supplying these men betray their country , king , friends and masters to get employments whereon to live , and then betray their trust in these employments , that they may be able to live without them . and thus luxury and avarice offer not only the temptations , but furnish the excuses when they persuade us to yield to them , they tell us that charity must begin at home , that we must prefer our selves to our friends , and that necessity is exempted from law. and whilst preachers , philosophers and friends are arguing from the principles of religion , reason and honour , they by an influence as latent , but stronger than that of the stars , draw mens attention from considering the force of these arguments to consider what charms are in riches , and the ease which riches procure , and so men are not proselytes , because they are not hearers . therefore to secure us against this reigning distraction , and those temptations , let us embrace ancient frugality , under whose empire vice was of old curbed with great success , and which by freeing us from poverty , secures us against all the snares which it occasions . for if i can once bring my self to live on a little , and to enjoy that little with as great pleasure as others follow their recreations , why should i ruine my soul or mankind , that i may get what frugality will persuade me to be superfluous ? and if i once be convinced by this faithful counsellor , that a great estate is a great snare , i will not pay down for it my honour and quiet as a competent price . i heard a dutch ambassador tell king charles the second , that he had spent only a hundred gilders in meat and drink in holland , during a whole year after he had been ambassador in most courts , nor had he ever been in better health , or company . and when the king asked why he had done so unusual a thing ? he answered , to let his country-men see , that one needed not betray or injure their native country to get whereon to live ; which , as it was the design of this his conduct , is now the design of my book . this friendly , wise , and convenient vertue of frugality has two capital enemies , avarice , and luxury ; the one whereof surfeits it , and the other starves it . the one cheats us by representing a great estate as too little , and the other by representing a little estate as too great . but if these idols , avarice and luxury , were once thrown down in the high places , we should no more see church-men sacrificing to them their religion , judges the laws , statesmen their honour : and most men their quiet and tranquillity . and since interest has got such an ascendant over mankind , that it has brought law and vertue within its power , and under its dominion , nothing now seeming reasonable or legal , but what it recommends ; 't is fit by this method i now propose , to make it consistent with vertue ; and i hope so to manage my theme , as to render it subservient to that vertue with which it has seemed to be so long at variance . it may seem that some grains of avarice and luxury , are mixt oft-times by the great physician with vertue , as poison is with the best medicaments , to make them active and useful ; and as some pride heightens true courage , and some jealousie makes prudence more cautious , so without avarice merchants would not toil to bring us necessaries , nor souldiers desend even the justest quarrels , and a little luxury is now requisite to diffuse riches among the indigent : but when these vices exceed their allowance , and set up for themselves ; then is vertue obliged to curb them , who having been call'd in as auxiliaries , design to turn conquerors ; yet i cannot allow my self this way of thinking , for beside that it does too much honour to vice , we cannot justly say , that luxury and avarice are requisite to excite vertue ; for when they tend to what is good , they change their nature with their design . but to set this thought in its true light , we may say that frugality has all the activity by which avarice deceives us , and can give all the true pleasure and ease by which luxury recommends it self , and it is not to be less esteemed than prodigality , because it does not dazle us with a false ▪ magnificence , as that does , no more than true courage is to be less valued , than bragging , or eloquence than bombast floridness . to enable us to understand the better how much frugality is founded upon the principles of religion and reason , and how weak enemies avarice and luxury are upon due examination , it is fit to trace them from the very creation . and thus we will find that god almighty having created the world , to the end men might live , admiring his providence , and tasting his goodness : it was just that all whom he brought to it , should be supplied in it , and that men being to him as our families are to us , it was unjust for any of the family to hoard , or eat up the portion of many others ; and incredible , that he would suffer any of them to want . in order to the better maintaining this his great design , he did limit our natural necessities within very narrow bounds : we need little meat , few clothes , and he made all our generous inclinations point outwards towards the sharing with our neighbours , what should be convenient for them . liberality was given man , that he might supply the want of meat and drink in his neighbours ; courage , that he might thereby supply their want of power ; compassion , that he might in their miseries afford them consolation ; justice , that they-might defend one another against the oppression of those who desired too much , &c. his divine wisdom has for the same end imprinted an abhorrence upon our minds against avarice , niggardliness , prodigality , and luxury , as pirates , and the common enemies of this just and equal distribution , and has enamoured us of frugality , as its protector and bulwark . for this same end also god at first made all things common , and they continued so , till mankind multiplying upon the earth , it was fit that propriety should by a division be introduced , to the end the earth might be the better cultivated , and so made the more useful for many ; but lest the proprietor should think that by this division all others were to be excluded from any share in it , the same divine providence made him need the help of very many others , to the end they might be also provided for , and made him see , by the uncertainty of humane affairs , that this propriety was so ill secured , that it was necessary for him to accustom himself to live upon that little , to which he might probably be reduced ; and that it was fit to supply others , because he might need one day to be supplied by others ; and lest some should be unmindful of this uncertainty , he made glory and even prodigality and luxury useful to draw superfluous riches from those who would not other ways have parted with them , and he made it as a duty upon man to believe himself only a steward . to the end also that man might be the more sensible , that this equal distribution was his general design in all the creation , he let him see instances of it every where , and even in brutes , who are guided merely by instinct , and have not that luminous , and generous guide of right reason . the lion and vulture ; the most ravenous of all beasts , have no store-houses ; and tho the ants have , yet that proceeds from unability to travel in winter , and not from a desire to leave any remnant beyond the year . thus god has given to the beasts of the field , that moderation by instinct , which man , created to adore him , is to beg from him , in these words , give us this day our daily bread . so that frugality is the true mathematick of christian morality , and there can be nothing more against nature , than avarice and luxury . nothing can recommend this frugality more , than that in the commonwealth of the jews , of which god almighty was contriver and governor for many years , frugality seems to have been its chief basis , and to this end god multiplied them to a vast multitude , and pent them up in very narrow bounds ; they us'd no taylors , cooks , nor pastry-men . abraham , who had rather an army than family of servants , makes his wife bake bread for his guests , gen. . . each family furnished it self all sorts of tradesmen , and in place of lordships , each contain'd himself within his field , in which the judges , and even the first kings , laboured . gideon was threshing in his barn , when the angel call'd him to deliver the people , judg. . . when saul got the news of the invasion on jubes gilead , he ( tho a king ) was leading two oxen , sam. . . thus their servants did not encourage their laziness , but assist their industry . the simplicity of their diet appears from esau's being tempted with a dish of pottage , abraham's feasting the very angels , by bringing himself a kid from the flock , gen. . . at one time ; and a calf at another , with bread bak'd under the ashes . boaz treated his mistress ruth ( who was gleaning ) by allowing her to dip her bread with the servants in the vinegar ; and tho rebecca feasted isaac with well seasoned venison , yet that was only one dish , made for a prince , on a great design , and when his great age required somewhat to recover rather a lost appetite , than pamper a strong one . their chief pleasures were , that innocence , which grew from frugality , and that health which is the natural effect of a simple diet. their assiduity in labouring excluded house games , and well laboured fields allowed no hunting , hawking , or other field eexercises . we read of no feasts among them , save those that were rather rewards of their industry , than the contrivances of their luxury . such as those which they had at their reaping , vintage , &c. and the only feast we read of , made by david's children , even after he was exalted to be king , was at their sheep-shearing . nor did god , under the new testament , leave off his great design of instructing men to live soberly ; but on the contrary , luxury and avarice having grown up amongst the jews , as tares amongst the wheat , after the almighty himself had left off to cultivate them by his own immediate hand : he thought it again necessary to repress and root out these weeds , and to sow amongst them new and fresh seeds of sobriety and moderation . in order whereunto ▪ he sent his son to be born in the house of a frugal artisan , and to work with him at his trade until he thought fit himself to come abroad to work out the work of our salvation . that idleness might want a pattern in our great master he chose also for his disciples and courtiers men as poor as a trade could suffer them to be . he commanded them , and all others to pray only for their daily bread , excluding in the word daily , the covetous wishes of those , who lengthen their desires , beyond those plain necessities that are inconsistent with luxury , and so great a desire had he to secure man against these two great tyrants , that he not only by his example and doctrine discredits and forbids them , but he descends from being a legislator , to reason with mankind against them ; and he reasons upon no subject more frequently , nor strongly than against avaritious anxiety . if you be ( saith our saviour ) the children of god , will he not care for his own children ? since you who are wicked care for yours . god cloaths the lilies and flowers of the field , more glorious than solomon , tho they are to be cut down the next day , and feeds the fowls of the air , adding , are you not better than they ? he shews in the parable of the five loaves and two fishes , how easie it is for him to provide for his own family : his omnipotency being a sufficient granary for those that depend upon him . by teaching us that we are stewards , not proprietors . he shews how miserable those are that lay up their treasures where the moth can eat , or the thief break through , and steal ▪ and by that terrible sentence , o! thou fool , this night thy soul shall be taken from thee . he has left a dreadful impression of the uncertainty of those riches , which are too oft preferred to the heauen that is lost for them . stop here , o my soul , and read with astonishment , that dreadful sentence pronounced by the infallible judge , and join to it another , wherein these who preferred their riches to the distressed members of jesus christ , are condemned to torments which shall endure as long as they could have wished their riches to have done ; when i was hungry , you did not feed me , &c. the blessed apostles sufficiently illuminated by the divine power and goodness , for so great a work as the conversion of the world , continued to preach this excellent doctrine , calling avarice idolatry , and in that one word comprehending a greater satyr against it , than all that ever the philosophers taught , but very consequentially to the doctrine of their great master , who assured his disciples , that they could not both serve god and mammon . in them also we find that judicious lesson , to use the world as if we used it not , not foolishly throwing away riches as the philosophers did , lest they might be thereby tempted ; nor hoarding them up as misers do ; but suffering them to flow on gently , and in their natural course for the good of others , and keeping a loose hand on them , lest our hearts being too much united to them , should not be united by love to god almighty , who declares himself irreconcileable with mammon : and to make this great doctrine go the more easily down , and give it a more pleasant relish , they assure us , that the chief ornaments of reasonable creatures are mercifulness , patience , innocence , charity , and not large territories , swelling treasures , splendid titles , fine cloaths , nor those other gaudy trappings , which are no part of us , and consequently cannot be the standard by which we are to be measured . the world having been debauched by the roman luxury , as that was fed by their spoils , mankind was under nero , heliogabalus , and some other of the roman emperors , depraved beyond what we can believe . and even at that time , when all their philosophers could gain very few proselytes to vertue ; the apostles and their disciples were able to make many thousands to christianity , and to refine them to a degree of moderation , sobriety , and innocence , which these philosophers themselves admired far more than others did them ; and certainly those numerous and entire conversions were infallible proofs of the verity of that religion which they taught , and the primitive christians were as great miracles themselves as any that were wrought amongst them . if we propose then those admirable patterns to our selves , we shall find that most of the rich among them did work with their own hands , to avoid thereby that idleness which brings on luxury , curiosity , backbiting , and many other vices , which are inconsistent with the christian religion ; and all the poor were commanded to work , that they might thereby have to pay their debts , and do works of charity , they subdued their bodies by fasting , and their spirits by humility ; nor would they have been souldiers , but because the severity of military discipline among the romans at that time , did oblige them to the sobriety and activity which overcame avarice and luxury as well as their enemies ; they did seldom eat save once a day , but then never fed upon what luxury prepared , nor diverted themselves with what it invented ; they valued not health it self , but that they might serve god with it , nor riches , but because they might be useful to the poor . never any man wish'd more earnestly to be rich than i , to have liv'd in those glorious times , and to have seen those great triumphs over luxury and avarice . but we may correct the useless wish , by the just remedy of reading and meditating much upon what they have left , for our instruction in their excellent writings , and above all , by living as they did ; for without doubt , the most pleasant , and most comfortable prospect of vertue , would be to see it in our actions ; and the most joyful image of innocency , would be to see it graven upon our hearts . those commonwealths , or societies of men , which grew up from consent , and were not the product of popular faction , and fury , did found themselves upon sobriety , as their true basis ; that being the kindly nurse of equality , and nothing con tributing more to make the common treasure rich for the publick safety , than that private citizens should satisfie themselves with what was necessary . they justly concluded . that as the body natural must perish , if the blood does not circulate ; so also the riches of the commonwealth become useless , or rather corrupted , when they stagnate by being hoarded in the buried treasury of private men . they made also many laws against luxury , and the severity of their military discipline and censures exceeded yet those laws . cato was more celebrated for his frugal severity , than caesar or pompey for their conquests ; the roman poets and historians vie one with another in their expressions of esteem of him , and lucan gives this character both of frugality and him . — hi mores , haec duri immota catonis secta fuit , servare modum , finemque tenere , naturamque sequi , patrioeque impendere vitam nec sibi , sed toti genitum se credere mundo . huic epuloe vicisse famem , magnique penates summovisse hiemem tecto , pretiosaque vestis hirtam membra super romani more quiritis induxisse togam , venerisque huic maximus usus , progenies : urbi pater est , urbique maritus : iustitiae cultor , rigidi servator honesti : in commune bonus , nullosque catonis in actus subrepfit , partemque tusit sibi nata voluptas . which may has translated thus . these were his manners , this four cato's sect , to keep a mean , hold fast the end , and make nature his guide , die for his countreys sake , for all the world , not him , his life was lent , he thinks ; his feasts but hungers banishment ; his choicest buildings were but fence from cold : his best attire rough gowns , such as of old was roman wear ; and nothing but desire of progeny in him warm'd venus fire . father and husband both to rome was he , servant to iustice and strict honesty : for th' publick good ; in none of cato's acts creeps self-born pleasure , or her share exacts . but i read not of any laws made against avarice since the tenth law in the decalogue , of which the reason may seem to be , that the great irregularity of covetousness arises from the inordinate love to riches , which being a latent act of the mind , can be known to none save god , and therefore it can be punishable by no laws , but those which are made by him who is the searcher of hearts ; and the contempt which follows avarice , is in it self a sufficient temporal punishment . to understand the progress of frugality , and its opposite vices in the other unhallowed nations , we must recur to the more ancient histories of the world , where we 'll find that nature endeavoured to please those who were situated in desert countries , such as the scythians , with the thoughts of their being secure by their frugality against the invasions of those who were tempted to robberies by the expectation of spoil , and thus their ambassadors diverted alexander from the hopes of conquering them , telling him , that he could gain nothing but blows by invading them , who had no pleasure in any thing but in defending their native country , and whose courage had never been effeminated by luxury , nor stained by rapine . in other nations , where plenty was capable to corrupt , their lawgivers did most industriously turn all the edge of their laws against luxury , making frugality the fundamental law of their government ; as we see in lacedemon , which rome afterwards did imitate , and rome has in this of late been imitated by hloland . but i find this difference between the frugality of lacedemon , rome and holland , that the great design of lycurgus in lacedemon , was to wean his ambitious and factious country-men from too ardent a desire of coming into the government , that thereby they might enrich themselves ; and therefore he did allow no salary to statesmen save fame , and preferred none to be such , but they who shew'd a contempt of riches . the romans recommended frugality and the contempt of riches , because they found nothing was so necessary for a warlike nation , as the love of glory , and nothing was so great a rival , or rather an enemy to glory as avarice : they also consider'd justly , that frugality harden'd men into a temper of being souldiers . the hollanders practised at first frugality , rather through necessity than choice ; but finding thereafter that it was probable they might enlarge their territories by commerce , as the romans did by conquest , they recommended frugality as that which could best enlarge their trade ; and thus they by sailing their ships with fewer men , and feeding these men , and their manufacturers too , less sumptuously than other nations do , have been able to out-sell them ; their merchants and tradesmen likewise living less prodigally than other merchants , are able to lay out more of their stock in trade , and to sell at easier rates : nor do so many of them break as elsewhere , and the breaking of one merchant , who hath lived sumptuously , endangers twenty . by this frugality likewise they are able to contribute , and do contribute more freely to the paying of taxes , than any other nation ; for men part freely with that without which they may live . so that frugality is amongst them , not only a nurse to their trade , but a bulwark to their country : yet i cannot but blame them for making frugality , not only the chief of their vertues , but a sharer in their religion ; they having few merchants or tradesmen , who do not sell and work freely on the sunday , and one of them excus'd it to me , by telling that he was worse than an infidel who provides not for his family , and from this politick has arisen possibly that great faction in holland , who oppose the morality of the sabbath . as to the management of publick imployment , holland and venice have always thought it unjust to defraud those who are able to serve the publick , of necessary subsistence : for sometimes the abler states-men have not whereupon to live ; but on the other hand the greatest men among them , have very mean salaries , which are neither able to feed their luxury , nor raise their avarice . they laugh at monarchies , and say , they bestow so large salaries upon their ministers that they are generally diverted from the publick affairs , by following those pleasures , with which vast salaries do daily tempt them ; and thus they use the publick , as those coach-men do , who otherwise skilful enough , yet if they too much good liquor , they overturn their masters in the plainest ways . mahomet design'd to found a new empire as well as religion , and made his religion subservient to his empire , teaching his mussul-men or believers , that they should be sav'd accordingly as they shew'd zeal for enlarging his kingdom , and by an entire and blind obedience to the emperor's command , they might save their souls in sending their heads . in recompence of which severe obedience he allow'd them plurality of wives here , and promis'd them new scenes of carnal pleasures for ever hereafter ; so that he seem'd ( contrary to all other institutions ) to found his upon luxury ; but yet no society is oblig'd to study the contempt of riches so much as they : for to the end that their treasury might only be rich , mahomet oblig'd them to believe that all belong'd to the emperor , and that no private man had property , persuading them , that when the treasury was rich , all private men were secure ; and that by extending the limits of the empire , every man who was vigorous and active in the conquest , had the opportunity thereby of making himself great and rich . which hath made me very oft admire how humane nature could allow men to believe a point that was so stretch'd : but mahomet ow'd his success in this more to the brutality of his followers , than to the solidity of his own reason . and if we consider more narrowly his principles , we will find that he did not chiefly design to gratifie their luxury , but to teach what was useful to his own interest : for he allow'd them plurality of wives only to compensate , and make them insensible , by this impious liberty , of the great prejudice he had done them in robbing from them their liberty and property , but he discharg'd them the use of their delicious wines , because it might disable them at any time from going about their publick employments . it appears at first difficult to reconcile their being so avaritious with the want of property ; for reason teaches us to value little that of which we cannot be secure : but we must consider , that no vice looks further than the present time ; thus avarice is every where unsecure of its prey as well as among the turks ; and this instance of the turks is enough to prove , how far avarice makes us toil beyond what we ought to do , however it wants not its own colours there ; for it perswades them , that it 's good once to be in possession of riches , that none can take them away save the emperor , and that he can have no temptation to take them from any , save such as are factious , and traitors . to return to my former design , i continue to observe , that men having no defence against these vices , save the use of their reason , assoon as this reason was bribed by avarice , or made drunk by luxury , it ranged it self on the side of those vices , and then frail man was soon overcome by his own auxiliaries , which a more refined sort of men call'd the philosophers perceiving , they run to the assistance of reason , and they gain'd indeed many proselytes , though they could not gain intire countries . and after others had made a great progress in greece , pythagoras made one in italy , and his recommendation and esteem of frugality retains yet great vigour amongst the brachmans in india , as confucius's has done amongst the chinese for many ages ; and the same doctrine was transmitted by them to the druides , the joint priests and philosophers of our northern regions ; who made silence and frugality the nurses and supports of all virtue . lycurgus discharg'd the use of all gold and money , and made his iron coin so unpleasant and unportable , that ( as he thought ) no man would be covetous of it . he ordered all men to eat in common and publickly , that none might live more deliciously , than others . the roman sumptuary laws set limits to extravagancy , and their severe censors ' were esteem'd in their magistracy according as they punish'd the transgressors of these laws . some of the philosophers threw away their riches lest they should be tempted by them ; and others of them did in their cynick way not only bark against riches , but vainly glory in fordid and nasty poverty . by which laws and philosophy the less attentive part of mankind may think themselves better guarded against these vices , than by the precepts of either the old or new testament . but these lawgivers not knowing the heart of man so well as he who made it , fram'd laws that were inconsistent with true natural reason , or at least subdued nature only for a time , but could not reform it . they gained few proselytes but either by the novelty of their doctrine , or by a love to singularity , or from a hid design of making the people believe that if they were brought into the government , they would not rob and squeeze the riches of their subjects . the heroes who condemned avarice and laugh'd at luxury never failed of being universally admired ; and having their memories celebrated , ( the great and peculiar reward of vertue . ) we find that epaminondas the thebane , by being buried at the publick expence ( after he had been master of all the substance of the common-wealth , and not having wherewith to bury himself ) was more esteemed , than those who had all the riches in the city . nor does the roman history remember with so much applause the triumph of any of their generals , as it does the generosity of fabritius , who when he was tempted by pyrrhus king of epirus to betray his native country , overballanc'd that kings gold by his own more solid vertue . i shall not contend much for the sincerity of the heathen philosophers , but sure i am , that their professing enmity to riches and prodigality , does fully evince that the most ambitious mind can find nothing worthier of its imitation ; nor could nature teach the vulgar any thing that they could more easily believe than that he deserved most to be admired , who valued himself least upon his riches . we have many sects of those philosophers , who put virtue under the tuition of sobriety , such as the pythagoreans , stoicks , and even epicurus himself taught , that he who could live upon bread , and water , was equal to jupiter ; and he expressed so much joy in his sobriety , that it burst forth into raptures . they do all in their discourses against avarice and luxury overflow , as rivers do , when they are swell'd with too great abundance . and in those passions expressed themselves with a natural force and zeal , which was thought inimitable by hypocrisie . and their refusing the imployments and riches which they cried out against , was concluded to be a very probable argument of their sincerity . they admir'd the wise gallantry of one of the athenian philosophers , who when he was reproached as railing only at riches , because he could not command them ; left his philosophy for some time and turning merchant , enhansed the whole trade of the city : but then divided what he gained most generously betwixt the common-wealth and the poor , designing to gain nothing by his trade , but the belief that he was in earnest a philosopher . nor can i forget phocion's generous answer to the ambassadors of alexander , who having brought him a great sum of money , he ask'd , why alexander sent him that vast sum of money ? and when they had answered , that he had sent it to shew his esteem of his great vertue ; he replied , that he hoped alexander would suffer him to enjoy that vertue , for which he esteemed him , and which he had never gain'd by riches . and tho the philosophers were very excessive in their contempt of riches , and contradicted thereby nature , as well as the multitude ; ( which made them in the end as ridiculous , as the vices truly were which they contemned : ) yet certainly god did think fit to send these philosophers into the world a little before his son , to convince men , that the vices which he was to curb by his gospel , were abhorr'd by those whom they honoured with the names of wise men , and lovers of the truth . covetousness . discourse ii. when nature began first to yield to vice , and to be misled by blind appetites , it yielded to ambition in the angels , to vanity in eve , and to revenge in cain ; but it did cost vice many ages before it could prevail so far as to persuade men to toil and sweat beyond necessity , or to believe that to be necessary which was superfluous ; so far were these contrary to nature , nor had it ever been able to corrupt reasonable men without disguising its designs ; and therefore it first represented to them that men growing numerous and unjust , it was fit to divide that land which they inhabited , pretending that the earth which god had given them would be daily beautified by those to whom each portion should fall , and every man remaining content with his own share should want all pretext of oppressing his neighbour . this property became afterwards so charming , and men were so pleas'd with what they had , that by a fatal mistake they concluded the more they had , they would be the more pleased , and so that which was designed to bound our appetites , did enlarge them , thus avarice was the first of the two extremes which attacqued frugality , and as the number of men encreased upon the face of the earth , it encreased with them ; for its pretences grew thereby much stronger , because it was so much the abler to persuade men , that by how much the multitude of sharers grew , the shares must lessen by the same measure : and that they would not be able to supply their necessities without making laborious provisions for them . and when men grew very numerous , avarice thought it time to suggest to them , that if they multiplied by the proportions formerly observed ; the earth which was already scarce able to supply them would shortly become absolutely insufficient . tho avarice had thus got some footing in the world , yet because commerce was then only entertained by exchange , it could make no considerable progress till men for their own destruction had digged up gold and silver , those metals which have destroyed more than iron or steel , and then it getting something that was durable , and might be hoarded up , toil'd to excess ; but even that money it laid up being thereby barren was so much the less desireable , therefore it suggested to men the taking bonds and obligations with eating usury . and thus avarice grew up to its full perfection . avarice in the next place borrowed new forces from the experience of mankind ; for as time run on , 't was easie to observe that favour and security were to be bought by money ; and from this it suggested that it was inculpata tutela , and one of the wisest duties of self-defence to hoard up riches as the means whereby men could ransom themselves from all dangers . it borrowed also assistance from all the passions , and when it found any man too strong for it by his innate reason , it transformed it self into the likeness of his favourite inclinations , and did like the ivy with the oak creep up to a height to which it could not naturally have risen . and thus when it found a man incline to ambition , it endeavoured to perswade him , that without money all his generous thoughts would turn crimes , that it only could raise him soldiers , because men must venture their lives for that without which they cannot support them . that this would hire them new counsellours by making his interest theirs , and that the making of peace and war was more its prerogative , than of kings and princes , who though they vainly founded their power upon their right of blood and the justice of their laws , yet they owed it onely to their treasures ; nor had the faces of emperours so much influence any where as upon their coins . and thus avarice like the smoak which it truly resembles , raised it self amidst the touring flames of ambition . we see riches prove the most successful of all gallantries : for let whining lovers talk what they please of their chains , the strongest ones are made of gold , and jupiter himself could not otherways win danae , than by descending on her in a golden shower ; what can not be expected from the force of gold ? when it not only becomes the best of all the paints and beauty-patches that ladies can use , but is miraculously able in our matches to make the crooked streight , and the blind see . in vain is bloud pretended to , except this make it circulate ; and mens parts are lookt on as aiery notions when a competitor appears , who hath such solid advantages as lands and riches . i have with contempt and disdain consider'd the omnipotency of mammon , in commanding the most beautiful and haughty ladies to humble themselves to the sons of those who had got their estates by insamy , and had themselves souls that were unworthy of any other bodies , than those deformed ones , which every one abhor'd , but the bought bride , and her bribed relations . if any man design to pursue his revenge , money will furnish him a murtherer , or if he resolve to improve himself in arts and sciences , he must owe his education , travels , books , and instruments to his riches , and possibly he may buy a poem , play , or other book which may afterwards make the stock of his reputation . he who wants children must adopt riches in their place , and after he has comforted himself against the miseries of old age by being courted by all who either expect succession , or legacies , he at last thinks he can perpetuate more his name by leaving a great estate , than by leaving a son though recommended by the best parts and education , having observed in the long course of his life , that a great estate is more esteemed than generous qualities . i have known avarice insinuate it self with some , as 't were only a pleasant effect of the love of proportion and harmony ; and thus he who wants onely two or three hundred pounds of ten thousand a year , or he who has a whole barony , except some few acres belonging to a poor neighbour , can be as little at ease till he get these , as he whose fine lodging wants some rooms to compleat its symmetry : which false colour did tempt king achab to covet that vineyard which he got to the destruction of his queen and kingdom . it insinuates it self on gamesters as an innocent love of divertisement , and persuades them that their anger for losing proceeds not from an esteem of the money they have lost , but from the shame of being overcome . it persuades the lazy , that if they come once to an estate they need not be afraid of losing any thing by their slothfulness . and thus it promises to be a hedg to that soft and nice humour . it persuades those who are in debt , that any thing is lawful which may pay it : i was pleas'd once to hear a lady say , that she abhor'd privateering so much , as a kind of publick robbery , that she would no way suffer the money arising from the prizes , in which she had interest , to enter into her pack , that is to say , she would buy no land with it for her heir , but design'd with it only to clear her debts . a nice way indeed of reconciling covetousness with honour , law and conscience . yet i could not but regret to hear another lady whom i esteemed much more say , oh , that my debts were paid ; to the end i might have the great pleasure of doing works of charity : to which my answer was , madam , sell a little of the land you lately bought and pay those debts , and yet ye shall have remaining thrice as much land as ever you expected . avarice borrows sometimes a mask from a man's temperament , it persuades easily the melancholy , that he may starve , and that in laying up riches he only provides for nature ; without which he is as much a self-murderer as if he should cut his own throat ; nam qui alimenta negat , necat . and for the same reason we see the older men grow , they grow the more covetous , because the more melancholy ; for not being able to gain as they did when they were young , they think they should supply this by niggardliness and avarice , and resolve to gain esteem by it , since they can by no way else . upon which considerations the eloquent apostle , heb. . . designs avarice by these words , and the sin which doth so easily beset us ; for the greek words , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 may be better translated the well circumstantiated sin , or the sin which hath the fair pretences , and in this avarice is the most dangerous of all sins , that others occasion remorse by their heinousness , but avarice precludes it , for few or none are ever convinced that it is a sin , and so cannot repent for it . though these be the disguises under which it oft-times recommends it self to us , as the product of reason . yet it is too well known , that avarice is sometimes so absurd that it seems to have more of a disease than a vice in it , and to be rather a total want of reason than a corruption of it . but alas ! it is such a disease as comes not by fits , as other vices do ; for the drunkard may be quenched , and the leacher is soon drain'd , but the miser and covetous man is always tortured . and in this it differs from other diseases , that those who are sick of it , desire never to be cured , and therefore it resembles more a madness , which makes men admire and value themselves , even in that wherein all men else see they are distracted . for there are men truly mad , who talk reasonably enough on all subjects , save in that one , in which they are distempered , not unlike an excellent lute , having all its strings well tun'd , save one , but the least defect is sufficient to disconcert all the harmony . nor does bedlam it self lodge greater varieties of madmen , than avarice produces ; for some will be so mad as to starve themselves , and the very heir to whom they are to leave their plentiful estate . and some have past by their starving relations , to leave it to one who had no recommending qualities , save that he would succeed him in his humour , as well as his estate , and keep together the beloved treasure : and some who would not leave six pence to the poor , have left their whole estate to persons who have bribed them out of it , by inconsiderable presents ( for bribing is the only flattery that can prevail on the avaritious ) and though they would not give a shilling for an eloquent panegyrick , have yet left it all to such insipid flatterers , and have suffered their estates to be taken away by processes , or exposed to publick enemies , rather than secure them by a timely and prudent expence against either . i have also admired to find , that men who are sure of no property , as in turkey , and it may be nearer , should of all men be most avaritious , though it is probable that they toil for their tyrants , rather than heirs , and yet the counterfeit happiness of griping , is irresistible . so that avarice seems only to sport it self with its votaries , and to use them as the devil does witches . avarice having thus corrupted the reason of mankind , this corruption propagates it self by imitation and example ; for as avarice arises often from a distempered judgment , like to the hemlock springing out of mud ; so it is sometimes copied by imitation , as a picture is drawn by a face . and i must here observe , that parents have a most special obligation to be virtuous beyond others , for children whilst young , do easily like soft wax , receive impressions from their example , because of the respect they have to them , and their being constantly in their company . so that parents share in their childrens crimes without lessening the childrens guilt , by bearing this share . the being likewise meanly bred , does oft-times by a fixed habit draw over some mens inclinations to this byass , and though they rescue themselves from poverty , they are not able to recover from that vitious habit. there are likewise some countries , in which by general custom vice seems to be authorized , as drunkenness in germany , revenge and jealousie in italy : the industry of holland inclines men somewhat to avarice ; the pride of scotland to prodigality , and the plenty of england to luxury , in which cases reason is rather prevented than corrupted or persuaded . nor durst either prodigality or avarice undertake to corrupt nature , and reason so highly , if they had not the assistance of general example , to which men by a false modesty think they are in reason obliged to submit , and oft-times a general custom passes for nature , in such as understand not , or have no mind to understand the difference , and to examine wherein the copy differs from the original . i confess that rich and trading nations , such as england , may be allowed greater scope to sumptuousness , as men who have great revenues , without the least imputation of luxury , do live proportionably to what they possess , without being censured by any reasonable man for so doing . the church hath also concurred to its assistance , and avarice having gained even some churchmen , to be its chaplains ( who love ease , and concluding riches necessary for procuring it ) that they might more easily convey them into their own channel , have endeavoured to make riches as necessary for other mens salvation , as they thought they were for their own ease . and though we poor mortals think them only snares , yet they have of late become the best antidote against sin , and a man may as well by them purchase a place in heaven as in earth , and as easily free himself from purgatory as poverty ; or if any man designs to ruin the state by raising factions and rebellions , money alone can furnish him from the altar , with the best trumpeter of sedition . it is no wonder we laicks accuse church men of avarice , since they tax one another with this vice. those who separated from the church of rome , objected that avarice had kindled the fire of purgatory , invented masses to save men by money from its flames ; had wrought false miracles , &c. those who separated from the episcopal churches , pretended that bishops had arrogated that superiority , to make thereby great benefices necessary . those who subdivided from presbytery , cryed out against soul-selling stipends , and all those churches may probably conjecture that those dissenters cry down stipends , out of a design to excuse themselves from the payment of them . nor is covetousness able to debauch private church-men , and set particular sects at variance with one another ; but 't is subtle enough in some collective and reformed meetings of the clergy , to influence the decision of general cases of conscience , though ( i confess ) with a delicacy peculiar to it self : it will suggest that the clergy are to be rescued from contempt , and ought to have wherewith to maintain , not only themselves , but hospitality , and foundations of charity : from which humbler thoughts cardinal palavicino in his history of the council of trent , rises by an insolent flight to defend all the magnificence of the church of rome , under pretence that mankind is govern'd by sense , as well asby reason : and therefore they must see in the church and its ministers what may draw respect from the outward , as well as from the inward man. it passes for pure devotion in that church to hook into its patrimony all they can ( though by as palpably forg'd donations as constantines was ) and it would be judg'd sacriledg to quit what is once acquired . nor shall you find in all your travels any more covetous , and thereby greater oppressors , than some who having left the world to retire to religious houses , are made by them their procurators . but though these considerations may sufficiently justifie the liberal , but sutable provisions which have been bestowed on the church of england for promoting charity and learning , yet they can never with palivicino vindicate the excessive sums brought in by those indulgences to the treasures of the romish church which occasion'd the dreadful wars of germany ; and they extremely condemn those . impropriators who have made not only the preachers , but the gospel it self , contemptible by denying a competency to them who serve at the altar . at which inconsistency of designs , occasion'd by the natural force of covetousness ( which can be disguised but never mortified ) i have frequently been astonished . in secular meetings also , it can persuade not only the hearers , but the speakers themselves to go along with whatever it dictates : and it will insinuate it self at last so far , that a man will really believe himself publick-spirited , when at the bottom his chief inclinations arise from private interest , which we now by a kind and gentle word , call convenience , which is in effect a combination of luxury and avarice , each whereof finding themselves too weak a part to encounter the strength of reason , have most remarkably in this age join'd their forces together and assumed the insinuating common name of convenience . oh! happy orator ! teach me thy art of persuasion , and bestow thy bags upon those who delight to trudge under them ; but if i could persuade as thou canst , i would endeavour to rescue mankind from thy tyranny ; for if thou bewitching convenience be made the standard , farewel for ever to the glory of martyrdom , to the loyalty of subjects , to the dutifulness children , and to the ties of friendship . having thus seen avarice condemned by nature , by the great author of it , by all the great and wise societies of mankind , and by that same general agreement of men , which hath taught us that our souls are immortal . having seen the original and progress of frugality and avarice , and the several masks under which avarice has cheated us : it will be fit to proceed to consider the remedies and arguments whereby we may secure our selves against its influence . the true way to wean us from avarice , is first to find out , what does in our breast incline us to it . and if it be that we may be esteem'd , we shall easily find this but a cheat , because none but the avaritious themselves esteem other men for being rich ; and we may be as well in love with cheating , because those who value that craft and subtilty are pleased with such as are masters in it : but if we can once persuade our selves that riches are not to be admired , and are rather given to men for ease than for esteem , we shall be clearly convinced , that this is but a faint colour to excuse it : and when men in trade or imployments die very rich , the generality of mankind concludes that they have taken a latitude of gaining by any means , or are guilty of the folly of having defrauded themselves of necessaries , to lay up so much as might corrupt their heirs by luxury . it has been frequently observed , that the children of avaritious men , have proved more luxurious or prodigal , than others ; which proceeds either from their abhorring of avarice , because they found themselves , when they were young oppressed by it , or because finding their parents much reproached with it , they thought themselves obliged in honour to shun that vice which occasioned this reproach : or else having conceived an opinion when they were young , that their parents were very rich , as all avaritious men are thought to be , they concluded they might allow themselves to spend the more freely . but upon the whole matter , i must conclude that indian wise who laugh'd at the europeans who toil excessively to make their children excessively lazy . i doubt not but some men have been desirous to gain money by their imployment , because the want of practice is look'd upon as want of parts : but i have observed few who deserving to be esteem'd for parts , have missed it from the wiser sort , because they wanted practice : and those , and not the multitude , are the true judges . nor is that wit and learning which gains money the true measure of esteem ; being rather the mechanick part of true sense , given by nature to us for maintaining our bodies , than the sublime part bestowed by heaven for adorning our souls . we have few monuments at this day of the rich lawyers among the romans , that gained great estates , but we retain still great esteem for those who contemned them . and have we not seen some rich men among our selves , who having gained even to envy , died more neglected , and scorned , than they whom poverty had starved , and who now are remembred for nothing but as instances of folly and madness . that can never pass for wit , nor deserve esteem among reasonable men , which naturally tends so far to debase our reason : nor did the illustrious turene ( to instance likewise the brave ) want that esteem which the greatest misers in the world would have coveted , tho he never valued that money which they admire , having died without being master of fifty pound , though he could have been master of far more than those misers durst have wished . fame is the heritage of the virtuous , and esteem is a rent that all men must pay them . such as think that by riches they can secure themselves against danger , have certainly forgot how many avarice has made a prey ; nor did ever any ravenous creature choose to devour the lean. men look on the avaritious as pyrats , against whom interest arms all mankind , and tho drunkards love drunkards , yet the avaritious hate all who are so , as men do those rivals who are prefer'd by their mistress . money may indeed supply the want of innocence , when men are accused : but few tyrants , or robbers are content with a part when they may have the whole , and when darius offered to alexander , all on this side of euphrates , alexander laughed at it , and desired him to offer something to him which he could not take . tyrants also and states-men are invited to rob avaritious wretches , because they can commit this crime with the applause of the far greater part of mankind , who are glad to see those robbed , who robb'd them : or who at least hindred riches to circulate for the supply of the poor , and needy . but the knaves whom money defends are those only , whom the love of it has made knaves ; and it were better not to be tempted to the crimes that avarice occasions , than to be defended by the treasure which it lays up , since it may , and oft-times does fail to defend , and at best but secure some few against the many evils which it occasions . the best plea that avarice can make , is that it provides against those necessities which otherwise would make us miserable ; but the love of money deserves not the name of avarice , whilst it proceeds no farther . and it is then only to be abhorr'd ; when it cheats , and abuses us , by making us believe that our necessities are greater than they are . in which it treats us as fools , and makes us slaves : but it is indeed most ridiculous in this , that oft-times after it has persuaded men that a great estate is necessary , it does not allow them to make use of any suitable proportion of what they have gained ; and since nothing can be called necessary but what we need to use , all that is laid up cannot be said to be laid up for necessity . and so this argument may have some weight when it is prest by luxury ; but it is ridiculous when it is alledg'd by avarice . i have therefore oft-times admired , how a person that thought it luxury to spend two hundred pound , toil'd as a slave to get four hundred a year for his heir ; either he thought , an honest and virtuous man should not exceed two hundred pound in his expence , or not ; if he thought he should not , why did he bribe his heir to be luxurious by leaving him more ? if he thought his heir could not live upon so little , why should he who gain'd it , defraud himself of the true use ? i know some who preserve themselves against avarice , by arguing often with their own heart , that they have twice as much as they expected : and more than others who they think live very contentedly , and who did bound their designs in the beginning with moderate hopes , and refuse obstinately to enlarge , lest they should thus launch out into an ocean that has no shoar . to meditate much upon the folly of others who are remarkable for this vice will help somewhat to limit it . and to railly him who is ridiculous for it , may influence him and others to contemn it . i must here beg rich and avaritious mens leave , to laugh as much at their folly , as i could do at a shepherd who would weep , and grieve , because his master would give him no more beasts to herd : or at a steward , because his lord gave him no more servants to feed . nor can i think a man who having gain'd a great estate is afraid to live comfortably upon it , less ridiculous than i would do him , who having built a convenient , or it may be a stately house , should choose to walk in the rain or expose himself to storms , lest he should defile and prophane the floor of his almost idolized rooms . they who think that they are obliged to live as well as others of the same rank , do not consider that every man is only obliged to live according to his present estate . and therefore this necessity will also grow with our estates , and this temptation rather makes our necessities endless , than provides against them . and he who having a paternal estate of an hundred pound a year will not be satisfied to live according to it , will meet with the same difficulty , when he comes to an estate of ten thousand pound , and like the wounded deer , he flees not from the dart , but carries it along with him . we are but stewards , and the steward should not be angry that he has not more to manage ; but should be careful to bestow what he has , and if he do so , neither his master nor the world can blame him . the next cure against avarice , is , to consider what abominable and dreadful effects it produceth in the world , how like the evil spirit that possessed the poor wretch spoken of in the gospel , it draggs him up and down through deserts and mountains , throwing him sometimes into the fire , and sometimes into the water . no climate so hot , nor cold , no sea so boisterous , nor shoar so rocky , but the avaritious man must venture upon it . and after he has gained something at the price of so much toil and slavery , it barbarously starves , and tyrannously denies him the use of his own . as if god designed to punish those sinners so ; that he will let all the world see them want the use of that for which they have damn'd themselves . there can be nothing more inhumane than avarice , when it perswades men to enter into plots and factions , that they may augment their estates ; and yet will not allow them to bestow such a portion of these upon their design , as may secure themselves by making the villany successful : and we have seen of late men of vast fortunes , forfeit them , and their lives too , rather than contribute what was inconsiderable ; but absolutely necessary for the success of their enterprise . many also are perswaded , as it were , to bury themselves alive in mines , and coal-pits , or to sacrifice many of their years , by living in such places as scanderoon , exchanging life it self , which is most desirable , for money , that tyrannous idol . envy , that cruel torturer of the soul , deserves a place amongst the executioners which attend avarice . for most mens avarice proceeding from comparing themselves with others ; this must necessarily beget envy , and envy forces men to toil till they be as rich as those they envy . i confess that ambition raises also envy , but in the ambitious , it refines itself into a noble emulation , and forces those who are possest with it , to do what may exalt them to an equal height with others . and this requires liberality , clemency , &c. but the envy of the avaritious , depresses the spirit to that earth , with which he is , by a love to it , united ; and makes him starve the poor , bribe , cheat , and oppress ; that he may be as rich as those who occasioned this passion . the envy that arises from ambition , cannot always keep a man on the rack , for the occasion fails , tho the inclination remain : but in this also , avarice is the most disquieting of all vices , and passions , that every thing that it sees , or hears , both kindles and feeds its flame . in vain do we expect justice , if judges weigh money against arguments , or if witnesses value gain more than an oath . in vain do kings and common-wealths fortifie their towns , if avarice govern them . nothing is secret that can be bought , nor is religion it self secure at the altar , if its priests can be brib'd . such as would shun covetousness , should shun the aspiring to great dignities , which seem to make avarice rather a debt , than a vice ; and perswade men , that the robbing others to maintain their grandeur , is a duty , not a sin ; and that he who maintains not his honour , forfeits it . and thus men support avarice by pride , and vanish it with the deceiving lustre of generosity . it contributes not a little to our being avaritious , that when children we are bred to an esteem of money , before we can understand any thing . and therefore this impression lasts with them , even after their understanding is gone . for we see that men in bedlam , are always asking mony , and that when avaritious men are on their death-bed , past the sense of every thing else ; yet they still grasp at their mony , and bonds . parents should likewise carefully consider in breeding their children , what their genius or temper is . for there are some trades which encline more to one vice than another . as for instance , the being a lawyer is thought to incline them to avarice , because in that imployment men are always treating , and contending about riches ; and are oft-times by defending unjust acquisitions , tempted to think the guilt contracted by them very small . familiarity lessening always guilt on such occasions : and therefore if a man find his child inclined to love mony , he should breed him to no trade , that can enflame his desires ; and a lawyer engaged once in the employment , should , and i am sure some do , balance this inconveniency , by the high esteem they have for justice , whereby they can only secure fame , and property , the two most desirable of all things ; and the great experience they have above others of the uncertainty of riches , and estates , should convince them , most of all men , of the folly as well as guilt of this vice. soldiers are generally enclined to luxury , because they are not frequently in business relating to estates , and commerce . and in the interludes of their dangers , they are inclined to recreate themselves even to excess , to compensate the toil they have suffered , and the risques they have run . on the other hand , a child inclined to luxury should rather be bred a lawyer ; and though this be not the proper place of speaking against luxury , yet the contingency of the matter obliges me to say , that soldiers of all men should shun most luxury , for it softens too much , makes men too lazy , and succeeding dangers the more intolerable . the proper sanctuary against both these vices , should be the imployment of churchmen ; and we should fly for protection against these to the horns of the altar . yet as i have formerly observed , the world is much inclined to be jealous of their avarice , though they of all men should , and i hope do shun it most ; for he who preaches against avarice , and yet acts it , is no more a preacher , but a mountebank ; nor can his discourse convince , whose example disswades ; most men being more led by sense than by reason . by this vice also church-men fall under that contempt , which over-turns their church , and in consequence takes away their benefice . and this vice cannot but doubly augment their torments to all eternity . upon the whole matter then , men should consider most of all things the education of their children , as the only way to make them happy , which is all the avaritious designs . and this is not to be done by providing too much , but by making them to be content with every thing : one who is bred up in solid virtue , will not probably speak , or do what may forfeit his estate , as he will not endanger it , or his health by women , and drinking ; he will think the little , that is left him , enough , and his frugality will make it so , if it do not find it so . we need no eloquence , but solid reason , to charge the avaritious man with theft in stealing from the common wealth the true use of those riches which are necessary for the support of the common treasure , the necessities of the poor , and the encrease of commerce ; which made timandridas the lacedemonian chide his son , who valued himself for having spent nothing , as having thereby defrauded his country , his neighbours and the poor ; we may likewise charge him with murther ( as i formerly instanced , ) for he takes away the life of the poor , who refuses the means of supporting it , and men feel too much , not to find that avarice tempts its slaves to invade their neighours in time of war , killing all those who intercept their prey , and murthering in time of peace , by processes those from whom they can expect any estate ▪ i● makes men at last atheists , by persuading them that god is not able to supply their necessities , and they are really so , when they trust it , and not him . idolaters , they also are , because they worship riches as their only deity . to raise our thoughts higher than those moral arguments : we may easily discern how much stronger helps christianity affords us , than we can expect from the heathens or those thoughts which nature suggests , for we have immediate promises from an omnipotent god , that those who depend on him shall never want . and to assure them the more of his care , he calls the poor his children , his family ; and has wrought miracles to relieve their necessities , by which advantage no heathen philosopher could have secured men against the fear of want , which is a strong temptation to avarice . and against which the apostle very wisely guards us , heb. . . let your conversation be without govetousness , and be content with such things as you have ; for he hath said i will never leave thee , nor forsake thee . and because this immoderate care stretches itself to our posterity , that same god hath desired us to leave our fatherless children upon him , and declares himself the father of the fatherless , and husband of the widow . we may also see by christianity , the purity that is required in its believers , beyond what the most spiritual heathens could imagine . for they condemned only the outward effects of covetousness , when they prevail'd against a mans reason , and proceeded so far as to wrong the society in which he lived , or the neighbours whom he injur'd , by theft , robbery or oppression . but christianity designing to make the heart a temple for the holy ghost , and man an hsir of heaven , it did therefore command him to keep his heart pure from that concupiscence , and covetousness , which polluted , or disordered the inclination , without wronging any else , save the persons in whom these desires were raised . and thus he who desires to have a great estate without desiring any other mans , or who wishes that his neighbours lands or moveables were his , even for a price , is condemned by christianity , as guilty of covetousness , and concupiscence ; and as one who has not learned that noble lesson , to be content with his own condition whatever it be . an accomplishment which the great judge of all things requires in those whom he will own for his servants . and for our better understanding the heart of man , it will be fit to distinguish three degrees in this irregularity : the first is , that whereby the exterior and sensible object , entering in by the sense , unto the fancy , does so suddenly move the appetite , that the judgment has no leisure to perceive , much less to make reflections upon it . and there can be no irregularity in this degree , except we have fail'd , to accustom our judgment , and reason to be watchful , as it ought to be , over the very first motions of our appetite , and to observe continually as a good sentinel , what enters in by the ports of our external senses . the second degree is , when the object makes its impression upon the appetite , and raises commotions , whereby the judgment takes a wrong view of the object , though afterwards the judgment overcomes , yet this disorder deserves the name of a vicious , or irregular affection ; not unlike to that disorder a rider is put in , when his horse boggles at any sudden object , with which the beast is surprised , and which , though his rider overcome without difficulty , yet it shews that he has not sufficiently managed the horse he has taken in charge . the third is , when this commotion in the appetite lasts so ▪ long , and prevails so much , that it makes the judgment doubt which party it should take : and becomes like to a rider , who keeps his saddle , but with difficulty . in this degree , saint paul represents man's reason and his covetousness wrestling against one another . i confess , that aristotle acknowledges that there are some appetites in a man repugnant to reason , which indeed he blames . and that plato before him taught in his eloquent way , that the chariot of reason was drawn by two horses , whereof one was black , and resty , disobeying the reins of him who govern'd them . seneca also numbers those appetites which oppose our reason among the culpable passions , but none of them discovered the irregularity of the first two degrees , and the best of them saw only the irregularity of the third with so dim an eye , and through so thick clouds , that st. paul had reason to assert , that if the law ( meaning the moral law of god ) had not said , thou shalt not covet , man had not perceived the sin that lies in simple concupiscence . and whereas the heathens did only forbid these immoderate cares as inconvenient , our holy religion goes higher , not only in its purity , but in its penalty ; for all anxiety as to our selves , or covetousness , either relating to our selves , or neighbours are forbid upon pain of displeasing a kind father and an infinite god , and becomes uneasie by the cutting and severe reproach of a terrified conscience : whereas among most heathens the conscience did take no notice , nor thunder out its terrors upon such spiritual and inward delinquencies . parsimony and niggardliness . discourse iii. there is i confess a difference betwixt avarice , and excessive parsimony or niggardliness , that wrings from others what is theirs ; this only exceeds in sparing too much what is ones own ; the one rises purely from a fear of want , and therefore in the first ages of the world it was scarce known ; the other from a desire to heap up th● uselesly ; the one is a kind of self-defence , the other an invasion , and therefore the one is the worst , the other amongst the best of neighbours ; for as the miser checks us when we exceed in our expence , so he is most unwilling to wrong us , lest he thereby encourage others to wrong him . the niggard is , generally speaking , a better subject than the avaritious , for he is afraid to lose what he has , whereas the avaritious loving more what he wants , than what he has , hazards the present in expectation of a greater advantage . niggardliness oft-times grows up rather from education than any vitious inclination , and i have seen some become parsimonious by living near prodigals , having occasion daily to abhor their extravagancies , and to be terrified at the miseries to which they have seen them reduced by these extravagancies . men express their abhorrence of this vice in calling such as are mastered by it , misers ; as il they were the most miserable of all men : but yet they must have some pleasure in it , else they would not be so assiduous and diligent about it ; certainly they think to spare , is to gain ; and therefore they wonder why others who take such pains to gain , should laugh at them for taking pains to spare . nor do they see that they want any of these things , for providing of which others take pains to heap up money , or that they should toil to get mony to entertain others ; and upon these grounds it is that we find the parsimonious to be generally proud , thinking they shall never need to depend upon any . but yet parsimony is to be pitied since it exceeds , for it must proceed from a too high value of riches , and so argues a blindness in our reason . and it employs too much of that time which might be better bestowed , starving both charity and friendship , the greater duties , as well as comforts of our life : yet it may seem a more excusable vice than avarice , for avarice still promises to employ the mony that it tempts us anxiously to seek , in the service of charity and generosity ; but after we have got the mony , parsimony will not allow men to employ it , no not on their own necessities , though the niggard ( god knows ) is himself a great object of charity , which made horace account it a madness rather than a vice. parcus ob haeredis curam nimiumque severus assidet insano — the scripture assures us that riches take the wings of the morning and fly away . they do not wait till others come and take them from us , but they naturally tend to fly about , and therefore they run away with so much hast , as deserves to be called taking of wings , and they leave us so soon that this hast is called the wings of the morning , and when they have taken wings , i imagin i see them looking back with contempt , and laughing at those who thought to have secured them and kept them prisoners . let us then endeavour with the wise apostle to learn to be content in all conditions , expecting more permanent riches and treasures : imitated in this by horace , who reflecting on the instability of fortune , had the same thought from his fountain , as most of the heathens borrow from the scripture , fortuna saevo laet a negotio , & ludum insolentem ludere pertinax , transmutat incertos honores , nunc mihi , nunc alio benigna , laudo manentem : si celeres quatit pennas , resigno quae dedit ; & meâ virtute me involvo , probamque panperiem sine dote quaero . i must remark by the way the different genius of virgil and horace , which appears in this , as well as with relation to all morality . virgil loves virtue as a part of devotion , aude hospes contemnere opes , & te quoque dignum , finge deo. — horace loves it as conducing to his ease , as we see in this and many other passages in his satyrs condemns it easily . — juvenal in his , rails at it bitterly , and troubles himself almost as mueh in writing against it , as covetousness could have vexed him ; like seneca who grows angry in writing against anger . the scripture speaking against covetousness compares it to an evil eye , which makes the body dark . matth. . and horace tells us that an honest man , oculo irretorto spectat acervos . the scripture calls avarice idolatry . and the poets alluding to this , say : praese●temque semper possidet area deum . one of the chief pleasures and arts of moral philosophy lies in considering the various mixture of passions and vices with one another , as to which plutarch himself has not been special enough , contenting himself with observing who were covetous , who prodigal , &c. but to give some glances of this , upon which i will possibly bestow an essay apart . it is observable that many in the late civil wars who were known niggards , bestowed frankly their estates in the service of king charles i. many who would not bestow a hundred pound in the education of their heir , do bestow with delight many thousands in building the house they are to leave him ; and that beautiful young lady who allowed a favour to a rich old niggardly excise-man in france to get mony to preserve her fathers life , has left it dubious what name this transgression deserved . the different and contrary effects produced by the same vice or passion are proofs of this : as for instance , a meer niggaid starves his cause ; for he dares not bestow so much as one shilling upon hope it self , whereas if niggardliness be quickened by some degress of avarice , no man is a franker client than the niggard ; for he knows mony is a better fee , than the good dinner the luxurious thinks a sufficient reward . it is ordinarily observed that a niggards feast is the greatest , and the reason seems to be , that they design thereby to convince the world that their parsimony proceeds not from their over-valuing mony. but in my opinion they as painters not used to paint , mistake proportions more than others do , or it may be they seldom treat without design of gain , and so their entertainments are bribes and not feasts . luxury . discourse iv. one might reasonably have thought , that as the world grew older , luxury would have been more shunned . for the more men multiplyed , and the greater their dangers grew , they should have been the more easily induced to shun all expence , that they might the more successfully provide against those inconveniencies . but yet it proved otherwise , and luxury was the last of all vices that prevailed over mankind , for after riches had been hoarded up , they rotted as it were unto luxury , and after that tyranny and ambition had robbed many poor innocents , luxury more cruel than they , was made use of by providence , to revenge their quarrel : and so triumphed over the conquerors . thus when rome had by wit , and courage subdued the world , it was drowned in that inundation of riches , which these brought upon it . this vice has its own masks and disguises too , for it transforms itself into virtue , whilst like that it runs faster from avarice , and laughs more loudly at it than liberality it self does , and to that height that it seems to be angry at liberality , as being only a kind of niggardliness . it pretends to keep open table to those who starve , and to have an open purse always for men of merit . beauty and learning are its pensioners , and all manner of divertisements are still in is retinue . it obliges the peaceable to favour it , as an enemy to every thing that is uneasie ▪ and it ingages men of parts to speak for it , because whilst it lavishes the treasures others have hoarded up ; it feeds the hope , and expectations of such as were provided by nature of nothing , but a stock of wit. and there being seldom other marches betwixt liberality and prodigality , but such as are to be measured by exact reflections upon the estates of the spenders , it sometimes praises that as liberality , which ought to be condemned as luxury . and even where the transgression may be discerned , the bribed and interested multitude will not acknowledge , that liberality by exceeding its bounds has lost its name . some also from the same principle authorize this vice , by the pretext of law , crying out that every man should have liberty to dispose of his own , as he pleases , and by the good of commerce , saying with a serious face , that frugality would ruin all trade , and if no man spend beyond his measure , riches should not circulate ; nor should virtuous , laborious , or witty men find in this circulation , occasions to excite or reward their industry . and from this probably ; flows the law of englands not interdicting prodigals , denying him the administration of his own estate , as the laws of all other nations do . i know also some very devout men , who would persuade us , that it is not fit to decry luxury too much in this age , because it entertains , and feeds so many poor artisans , and others who would starve without its assistance , having no other trade , but the making perfumes , laces , embroideries , and such things which frugality contemns as baubles , or abhors as poisons . and though when charity had in the youth of christianity vigor enough to persuade men to entertain the poor as members of the same body with them : yet god seems now to permit luxury to throw away that mony amongst the poor , which charity cannot persuade them to give . others again recommend luxury as that which occasions the sharpning of wit , and the beautifying of the universe , for those who have wit , study painting , architecture , sculpture ; and by these the rich adorn the world , and make it a more glorious instance of his excellent skill , who first formed it , and bestowed those excellent talents on men for improving it . that same god also has made jewels , perfumes , and many other things which he must allow to be used by luxury , since frugality knows no use for them . but the great advocate for luxury , is self-love , that orator which never fails to persuade . and it suggests to us , that the greatest of our concerns should be for ourselves , and that a reasonable man should think all thrown away , which he spends not to please himself . and which he can no way do so well as by gratifying all his own appetites , and inclinations with the full enjoyment of all they can desire , the publick good , and charity being meer notions invented by philosophers and divines , to make us share with them that mony which when they have once got , they laugh at us for parting with . i confess , that all the arguments that plead for avarice seem to conclude at last in favour of luxury ; for to what purpose , should a man lay up mony , except he use it ? and nature would not allow one to toil much for it , if it were not , that he promised to himself to live one day softly , and pleasantly , on the fruits of these labours : and on the other hand , luxury never approves any argument or design that avarice can bring ; for it is so much taken up with the present pleasure of using what it has , that it will allow it self no time to foresee , or toil for what it may want . many who have been very prodigal , and luxurious , have afterwards turned very avaritious , whereas they never gained one proselyte from avarice . and i have known some who have spent a very prodigal and luxurious youth , throwing away the little they had , who so soon as they grew rich , became so fond of it , that they could not part with what was sufficient to supply their necessity . and when i asked them why they run from one extreme to another , in spight both of reason and custom : they answered , that what formerly they had was not worth their care , and therefore they spent it in hopes thereby to gain more . in which we may see a new and different view of the genius of avarice and luxury , and the motives whence they rise . as avarice differs from parsimony , so does prodigality from luxury , for prodigality is a profuse spending on others , but luxury upon ones self . in prodigality a man seems to value every man more than himself , because he prefers them , defrauding himself of necessaries , to bestow upon them . in luxury a man prefers himself to all others , robbing and cheating them by all arts and devices , to get thereby superfluities , to feed himself and his lusts. for which reason , and since also the scripture speaks so much against luxury , and not against prodigality , it may seem strange , why the laws are so severe to prodigals in interdicting and forbidding them the administration of their own estates , without putting any restraint upon the luxurious : whereas it seems that the prodigal is less an enemy to the common-wealth , than the luxurious . seeing he is ready to prefer his fellow-citizens to himself , and generally they who get the prodigals means have more wit than he , and can make better use of what they get from him ; and so should by the laws be preferred to him . but i think the reason of this is , that the law fears , that after he hath dissipated his own , he may fall a burden on the society : and therefore it confiders him as a generous kind of idiot , and so puts him under tuition , as it does an idiot . and thus it cares for him more than for the luxurious ; and it were to be wished that by the same compassion it provided also tutors for the niggard , who is in greater danger to be ruined by himself , than the prodigal by others . to which nothing can be answered , but that the law thinks this churl unworthy of its care , and that the common-wealth would lose little , though he should starve himself . since self-love is mans chief counsellor , it seems that men are more naturally inclined to luxury than prodigality : as they are inclined to love themselves better than their neighbours . but yet on a more serious reflection it will appear that even prodigality has self ▪ love to plead for it , because ambition , which is a more violent passion than sensuality , drives a man to prodigality , as that whereby he may raise his reputation by buying that fame , of which only he is greedy . the great arguments that weigh with me against luxury , are first , that luxury disorders , confounds , and is inconsistent with that just and equal oeconomy , whereby god governs the world as his own family , in which all men are but children , or servants ; for as the avaritious hoards up for one , that which should be distributed among many ; so in luxury one vitious man spends upon himself what should maintain many hundreds : and he surfeits to make them starve . this is not to be a steward , but master . nor can we think that the wise and just judge of all things , will suffer in his beautiful world , what the most negligent , and imprudent amongst us , could not suffer in his private family . the second argument is , that nature should be mans chief rule in things relating to this world ; and reason his great director under god in making use of that rule , and the eyes ( as it were ) by which we are to see how to follow it . by this nature teaches us how to proportion the means to the end , and not to imploy all the instruments whereby such an end may be procured , but only such as ▪ are necessary , and suitable for the procuring of it : which proportion luxury neither understands , nor follows ; and therefore we must conclude it unnatural and unreasonable , and that frugality is the true mathematicks of moral philosophy : and by this we may condemn not only such as senecio was in the roman history , who delighted to have his cloaths ; and his shooes , twice as large as were fit for his body , and feet ; which the luxurious laughed at , with others : but even such as keep twice as great tables , build twice as great houses , pay twice as many servants as are fit for them , are as mad as he . for though that disproportion be not so very perceptible as the other , because the bulk of a mans estate is not so easily measured and known as that of his person ; and because there are twice as many fools of this kind , as there are of the other . so that reason is out-voted , though it cannot be answered ; yet the folly is the same every where , and in this it is more dangerous , that senecio wronged only himself , whilst they oft-times wrong and ruin both their posterity and neighbours . to convince us that luxury is a great defect in our reason ; we shall ordinarily find ▪ that young men , fools , and women , are most given to it . thus i have seen a man , otherwise judicious enough , much surprized , when it was represented , that his building ( though it seemed to him , and many others , to carry no great disproportion to his estate ) yet would in forty four years ( which is but a short time ) equal his estate , allowing the interest of his mony to equal the capital summ in the space of eleven years and an half , which it did by law ; for l. forborn for forty eight years at per cent . compound interest amounts to l. s. d. and how many may forbear l. and this summ in ten years , which is but a very short time , will amount to l. by simple multiplication without compound interest : and very few consider the extravagancy of this age , in which houses and furniture go out of fashion , as hats or shooes do . nor does the expence of building contain it self within the walls ; for it obliges a man to a suitable way of living , there being nothing more ridiculous , than to see one who lived in a palace at home , travel and lodge abroad with such equipage , and in such inns , as men who live in ordinary houses do . we should therefore be very proportionable in our expence , for that which widens a mans fancy in any one thing , makes it extravagant in all things . as they who use their stomachs to too much of any one meat , will make it craving as to all others . whereas on the other hand , that which should enamour men of frugality , is , that it accustoms us to reasoning , and proportion ; observing exactly the least perceptible proportions , and the smallest consequences . which makes me call to mind the remarkable story of the holland merchant , who having married his daughter to a luxurious rich citizen , to the great dissatisfaction of his wife , she came the next day to the bride and bridegroom , and offered them the egg of a turky hen , and desired her daughter to use herself in exactly looking to the product of that egg , to consider the great things which frugality can do in other matters . but her husband and she having laughed at the lesson , the mother improved so far the egg , that within twenty years the advantage of it , and the luxury of that married couple grew so fast , that they needed the meanest assistance , and the product of the egg afforded a comfortable one , for with the considerable summ that was gathered by it , they stocked themselves anew , and by the help of the ( formerly slighted ) lesson of not despising the meanest things , raised themselves again to a very considerable estate . and if any man will but consider yearly , what he superfluously spends , and how much that would multiply in process of time , he will easily perceive that what he spends in the consequence , is vastly greater than appears to him in the first calculation : as for instance if a man who may spend l. per annum does spend , this small error of a l. a year will amount in years at per cent . to thesumm of l. s. and odd pence . and tho a man thinks it scarce worth his pains , to manage so as to preserve a l. he must be very luxurious , who thinks it not worth his pains to gain the summ of l. and it is a great defect in our reason , that those ills which follow by necessary consequence are despised as mean , because the consequences themselves are remote . and as that is the best eye , so that is likewise the best reason , which sees clearly at a great distance . another great error that luxury tempts us to , by not reasoning exactly , is , that it makes us calculate our estates with deducing what is p●●●able out of them to the poor , to the king , and to creditors , before we proportion our expence ; whereas we should spend only what is truly our own , and the law to prevent luxury tells us that , id tantum nostrum est quod deductis debitis , apud no● remanet . that is only ours which remains with us , after our debts are deduced . nor will a proportional part of our estates answer the equivalent of our debts . for if i owe a l. a year , no part of my estate that pays me a l. a year will pay it , for many accidents may hinder me to get my own rent , but no accident will procure an abatement of my debt . and this leads me to consider that frugality numbers always the accidents that may intervene amongst other creditors ; and the wise hollander observes , that a man should divide his estate in three parts , upon one third he should live , another third he should lay up for his children , and the last he should lay by for accidents . there are few men who do not in their experience find , that their whole life being ballanced together , they have lost a third part always of their revenue by accidents . and most families are destroyed by having the childrens provision left as a debt upon them . so that a man should at least endeavour to live upon the one half ; and leave the other half for his children . the next argument that discredits luxury with me , is , that it occasions many and great inconveniencies both to him who labours under it , and to the common-wealth under which he lives . the luxurious man oppresses that nature which should be the foundation of his joy , and by false reasoning he is made by this vice to believe , that because some ease and aliments are pleasant , therefore the more he takes of them , the more he will be pleased . and the first proofs by which he is convinced , that he is cheated in this , are those gouts , gravels , and other diseases , into which those vices , when they are swelled , overflow , and destroy that ground , which a gentle watering would have refreshed . then he begins to understand that mediocrity is the golden rule , and that proportion is to be observed in all the course of our life . luxury also makes a man so soft , that it is hard to please him , and easie to trouble him . so that his pleasures at last become his burden . luxury is a nice master , hard to be pleased , res est severa voluptas ; said he who knew it best : whereas the frugal , and temperate man , can by fasting till a convenient time , make any food pleasant : and is by travelling , when it is convenient , hardned sufficiently not to be troubled , by any ordinary accidents . the luxurious must at last owe to this temperance , that health and ease which his false pleasures have robbed him of ; he must abstain from his wines , feastings , and fruits , until temperance has cured him ; and i have known many , who after they have been tortured by the tyranny of luxury , whilst they had riches in abundance to feed it ; became very healthful and strong , when they fell into that poverty which they had so abhorred . some whereof have confessed to me , that they never thought themselves so happy , and that they were never so well pleased , as since they had escaped the temptations of that dangerous vice. luxury does not more ruin a man's body than it debases his mind , for it makes him servilely drudg under those who support his luxury . in pimping to all their vices , flattering all their extravagancies , and executing the most dreadful of their commands . i have oft-times remarked with great pleasure , that in common-wealths , where to be free was accounted the greatest glory , nothing reigned save frugality , and nothing was rich save the common treasure . but under those monarchies , which have degenerated into tyranny , care is taken to have those who get the publick pay , spend it luxuriously , to the end , that those they employ may still want , and so may be obliged to that contemptible slavery , to which none would bow , if they could otherwise live . it is also very observable , that those who dwell in the richest countries , which incline men to luxury , such as greece , and italy , are poor , and slaves : whereas the hard rocks of switzerland breed men who think themselves rich and happy . i heard that a churchman called that the best religion which was able to entertain a coach and six horses ; but i am sure , that if the master who was in it , knew that he had made himself a rascal to get the coach , he could not be so easie in it , as if he walked on foot with his innocence . i like well his reply , who being tempted to comply with what his conscience could not digest , said to him who tempted him , i can contentedly walk on foot , but you cannot live without a coach ; i will be advised by my innocency , consult you with your grandeur . rulers can bestow treasures , but virtue only can bestow esteem ; and all the respect that is bestowed upon a vitious man , is no more , to be valued , and is as ridiculous as a copy of verses , writ for mony , in praise of a coward . nor can either fine houses or gardens , large territories , or pleasant fields delight him , who when he walks in them , must remember that they were purchased at the rate of the curse of god , and his own infamy . from all which we may easily see , that the luxurious are not only useless , but enemies to the common-wealth wherein they live , useless because they become effeminate and soft ; unable to defend and improve their native country , enemies because they debauch the innocent , and assist the guilty . whereas the frugal man takes more pleasure in being a good example to the youth , and in opposing the lusts of tyrants , than the luxurious can do in feeding upon what their cooks prepare , or in dallying with the prostitute whom his mony can buy . the pleasure of sin lasts but for a moment , but a good conscience is a continual feast . the one pleases only those corrupted flatterers , whom the luxurious himself contemns : whilst the other pleases the heroick , the wise , and the virtuous , whom the vitious must admire in spight of his corruption . and even many thousands , who though they are not virtuous themselves , yet are by conviction , or interest forced to appear as such . i shall close these few arguments against luxury , in observing that it appears from all that hath been said ; how unsatiable both avarice and luxury are , both of them are acted by imagination which can never be satisfied , nor bounded ; the one seeks mony only , that he may have the pleasure to have it lying by him , and the other that he may please his fancy in spending it . and yet i think that avarice is a more severe master than luxury . for the luxurious man proposes only what he may spend , but the avaritious man covets every thing ; the one is satisfied sometimes in enjoying what is got , but the other gets no sooner any one thing , than he presently runs after another , and when he has reaped the fruit of his pains he is made poor again by possession . from these reflections also may arise remedies against luxury , to any thinking man , for tho when we consider the luxurious as they shine at courts , live in sumptuous palaces , saluted in the streets , adorned with panegyricks ; it is probable that most men will think , that philosophers and divines have only writ against luxury , because they could not attain to the riches that are necessary for maintaining it : yet to ballance this , let us consider the vast numbers of those whom it has drowned in pleasures , others whom it has sent to starve in prisons , and dragged to scaffolds by its temptations . i have oft-times seen the luxurious railed at with much malice , by those they sumptuously entertained , who envied the entertainer for being able to treat them so highly ; and for living so far above their own condition . concluding that they were rather called to be witnesses of the entertainers abundance , than sharers in his bounty . and though some think to make an atonement for their oppression , by living sumptuously upon its spoils , yet no wise man will pardon a robber , because he gives back a small share of the great riches he has taken . some think riches necessary for keeping great tables , and excuse this by the hopes they have of good company . and a great man told me he wished such a mans estate , that he might keep us all about him : but my answer was , that the luxurious gathered about them ordinarily the worst of company ; and worthy men valued more virtuous conversation , than sumptuous diet , which they rather shunned than followed . i believe there are few so prodigal of their mony but that they have oft some regrets for having spent it , from which the frugal man is exempted by the assurance he has from his virtue , that he can live happily upon the little he has , and can with pleasure find that he is neither oppressed by the weight of riches , nor terrified by the fear of want , breeding up his posterity not to need these great patrimonies , which he cannot give . i know that some think they are never to be charged with prodigal and useless spending , if they take exact account of their servants of what they spend ; but our inclinations may cheat us as much as our servants , and therefore i am very well pleased with the answer of that father , though miser , who having seen his son very busie in taking in his accompts , told him son , son , spend nothing you can spare , but after it is once spent , think not you can make it up by keeping an exact accompt your self , or taking in such accompts from your servants . i am so far from thinking that luxury is useful , because it sustains many poor artisans , that i think there would be no poor were it not for luxury and avarice : for all would have somewhat , and none would have too much . the common-wealth of the jews instituted by god almighty , proves most artisans to be unnecessary , and though a present innovation in this point may starve some , yet it would not starve so many , as might be easily entertained upon what the luxurious and avaritious possess beyond a due measure : and in a little time all these artisans who now drudge to please luxury , would follow other trades , whereby they might please god almighty much better ; whose service is the chief end of man , and to please whom is his chief happiness . and these arts neither provide meat nor drink , as the husbandman does : from which it follows clearly , that husbandry , and not these trades sustains the world. and there would be need of no such arts to draw mony from the rich for the supply of the poor , since this would bring men to a greater equality as to riches and poverty : it is very observable , that many of these tradesmen starve , whereas few husbandmen do , and it is also observable that prodigality and luxury entertain always the worst of men , for they are ordinarily such who trade in things that please the vitious : men being either by force , or custom , easily induced to imitate the masters on whom they depend , and to esteem those whom they serve , whereas the frugal man not only chooses fit occasions on which to spend his mony , but persons worthy of his employment . and yet if men do bestow their mony upon perfumes , pictures and such other baubles with design to let it fall unto hands which need it , their sincerity in this design will certainly rescue them from the severity of a censure which they would otherwise deserve . this discourse tends not to forbid the use of all pleasure , nor even the pleasing our senses ; for it is not to be imagined , that god almighty brought man into the world , to admire his greatness , and tast his goodness without allowing him to rejoyce in these things which he sees , and receives . the best way to admire an artist , is to be highly pleased with what he has made , and a benefactor is ill rewarded , when the receiver is not pleased with what is bestowed : his joy being the justest measure , and standard of his esteem . we find that in eden the tasting of all the sweet and delicious fruits was allowed , save only that of the tree of knowledge : and why should all these fruits have been made so pleasant to the eye , and so delicious to the tast , if it had not been to make man , his beloved guest happy there ? and i really think that the eye has got the quality of not being satisfied long with any object , nor the ear with hearing any sound , to the end that they might by this curiosity , be obliged to seek after that variety in which they may every moment discover new proofs of their masters greatness , and goodness . but i condemn the pleasing of the senses only , where more pains is taken , and more time is spent in gratifying them , than is due to those inferior or less noble parts of the reasonable creature . the soul being the nobler and more sublime part , our chief care should be laid out in pleasing it , as a wise subject should take more care in pleasing the king , than his ministers , and the master than his servants . the true and allowable luxury of the soul consists in contemplation , and thinking , or else in the practice of virtue , whereby we may employ our time in being useful to others : albeit when our senses , and other inferior faculties have served the soul in these great employments , they ought to be gratified as good servants : but not so as to make them wild masters as luxury does , when it rather oppresses than refreshes them . i do also think that our chief pleasure should not be expected from the senses ; because they are too dull , and unactive to please a thinking man , they are only capable to enjoy a little , and are soon blunted by enjoyment : whereas religion , and virtue , do by the ravishing hopes of what we are to expect , or the pleasant remembering of what we have done , afford constantly new scenes of joy , and which are justly augmented by the concurring testimonies of the best of mankind , who applaud our virtuous actions , and decry the vitious . so that the virtuous man is by as many degrees pleased beyond the vicious , as the past , and future , exceed the single moment of the present time , or as many suffrages exceed one . nor doubt i , but these who have relieved a starving family by their charity , have feasted more upon the little which they have bestowed with joy , than ever lucullus , or apicius did , in all the delicacies their cooks could invent . i am convinced , that any generous gentleman would be much more troubled to think , that his poor tenants who toil for him , are serued up to some degrees that look too like oppression , than he could be pleased with any delicacies which that superplus of rent could buy for him : and that he who has rescued a poor innocent creature from the jaws of a ravenous oppressor , finds a greater joy irradiated on his spirit , by the great and just judge ; than any general does in that night , wherein he has defeated his enemies merely for his glory . we remember to this day with veneration , and esteem , john the baptists locusts and wild hony , but the deliciousness of herods feasts lasted no longer than the tast : and even the pleasure of the present moment , which the luxurious only enjoy , is much lessened , by the prevailing conviction , which arises from that small remaining force , which is still left in the reasonable faculty of the most corrupted men : and which can never be so blinded , as not to have some glimmerings , whereby it can discover the ugliness and deformity of vice. it may surprise a serious man to see that men immediatly after being at the sacrament of baptism , or about the celebration of marriage ( which all acknowledge to be of divine institution , and which many own to be a sacrament also ) they should run out immediately into such luxurious extravagancies , as may make lookers on rather conclude , that they acknowledge no god ; than that they are obliged to him for those great mercies , or that they hope by their gratitude , to improve them into blessings . whether avarice , prodigality , or luxury be the more dangerous and polluting vice , is less worth our care than the a voiding of all three . but however , it seems that avarice lies under more disadvantages , than any of the two . for prodigality and luxury are useful to many , avarice to none . these are ordinarily the extravagancies of youth , and are cured by age ; but the other grows stronger by it . interest and self-preservation may contribute much to cure these , but both do argue most frequently to the advantage of avarice . these have a great deal of liberality in their composition , and prodigality has all that liberality has , except its moderation ; whereas avarice has nothing of virtue in it . luxury wants many things , but avarice all things . luxury may seem the more desirable quality in a governor , because they who love to please themselves , are observed to desire all may be pleased about them , or at least they are so busie in pleasing themselves , that they are not employed about those new projects , which avaritious rulers are ever inventing . the luxurious also are more easily influenced , and more exorable , because they will not endure the torture of opposing the importunity of the miserable . but i have heard it asserted , that the luxurious make the worst soldiers , because that vice effeminates and softens : whereas avarice makes men hard and laborious : and the love of pay and preferment will make the very noise of cannons become melodious . however agur thought it worthy , not only of his wish , but of his prayer , that god would give him neither poverty nor riches , but would feed him with food convenient for him : and as the life is compared to a lamp , so like a lamp it burns longest and clearest , when it is neither opprest with too much oil , nor starved for want of it : and in this likewise we have occasion of admiring the wisdom , and goodness of god , who when we break all squares , forces us even by our vices to ballance one another : and makes things return to that just proportion , which he at first designed . thus he not only opens every wise mans eyes , to see that it is his interest to hold the scales equal , betwixt riches and poverty : but when any vicious man runs to an extreme in any of the two , all others , though as vicious as he , find it their interest to lie heavy upon the other scale . if any affect an universal monarchy , all princes who are not fools , or guided by fools , or knaves , combine against him ; if a private neighbour do avaritiously incline to oppress , he will joyn , even those who were enemies before , in a firm design of bounding his violence : and the avaritious , and luxurious , are in a constant enmity against one another . so that while each endeavours to draw that which is contended for to his own side , it must necessarily remain in the middle : and whilst the frugal and virtuous man , is going about his affairs , he is secured by vicious mens being spyes upon one another : and the very seeing them run to an excess , is a new obligation on such as are wise , to pray with agur , that god would give them neither poverty nor riches . every single man also has the same ballance within himself , and thus though the excessive love of mony , incline a man to oppress , yet the fear of being oppressed , stops his carier : and many would pollute themselves , and others by adultery , gluttony , &c. if avarice would allow them to go to the price : he who is fondest of pleasure , is forced by the fear of law , and the love of health , and self-preservation , to imitate that moderation , which he would otherways neglect : for if he have enjoyed too much at any time , he is cloyed with his own excess , and is forced to commend the temperate whom he formerly scorned . the chief thing that can recommend frugality to all men , but especially to magistrates , is that it employs every thing to the use for which it was ordained . if men were enamoured with it , and made it their chief care , we should shortly see bloody wars cease every where , since ( let men talk now what they please of glory ) the great design of the war , is rather to gain land , than reputation : of which this is a convincing proof , that those who talk of glory , take more pains to gain towns and countries by bribes , and cheats , than by exposing their own persons to danger , or observing capitulations . nor should we see monarchs betrayed by their ministers , nor common-wealths by their rulers ; as now most frequently they are ; statesmen would not ruin their native country , and consequently their own posterity , that they might get superfluous riches ; nor would such as are under their care be tempted to rebel against their sovereign , to be free from their oppression , and to enter into combinations against those rulers ; but reason would make all our laws , and duty would make us obey them . if frugality prevailed , it would open the store-houses of charity , the poor would be fed , the sick would be taken care for , and the prisoner would be relieved . this would restore men to their sleep , which is now oft-times broke by the fear of want , or the oppression of abundance . this would prevent the melancholy caused by the one , and the many diseases occasioned by the other . and we should have a satisfied mind in a sound body : a frugal womans staying within doors , would prevent the jealousies of her husband , and the husband by minding his business , would thereby secure her against the infecting diseases which he contracts in his idleness : and parents living thus regularly , would not have children , who will prove rather crosses than comforts , wishing either their parents dead , through avarice : or making them beggars during their life by luxury . frugality would enable every man to live so well , that the servant needed not cheat his master , nor the tenant the landlord , but on the contrary , every man would take as great pleasure to help his neighbour , when he needed his assistance , as men do now in hunting and hawking : and certainly there must be more delight in helping a reasonable creature , bearing the image of god , that is in distress ; than in rising early , and sitting up late , and giving our selves far more toil and vexation than frugality requires , merely to kill poor innocent creatures that never offended us . i know that it is hard to reform a world , wherein that which is wanting cannot be numbered ; and that which is crooked cannot be made streight . and it seems that such devils as avarice , and luxury , cannot be cast out without fasting and prayer , but yet the opposing of these , is so much every mans interest , and is so sutable to nature ( from which men will get all possible assistance ) that if kings , and governors would concur with god and nature ; the task would be easie , as the effects would be pleasant . i cannot but commend most cordially the quakers , who have let us clearly see that if men please they may emancipate themselves from the tyranny of custom in this particular ; and this one excellent endeavour , does not only give them much tranquillity , and enables them to help all those of their persuasion to a degree , that is to be admired and commended , but it really makes them acceptable in the neighbourhood : and atones very much for the other irregularities with which they are charged : and they may convince us , 〈◊〉 least in this one point , that if such as 〈◊〉 much power and reason should concur together , they would easily make mankind happy , by making them frugal . finis . this elogy was written under the authors picture , by tho. glegg m. d. in dundee . pingere vis quâ fronte cato titubante senatu , asseruit patriae jura verenda suae ? pingere vis magnus quo tullius ore solebat dirigere attoniti linguam animamque fori ? pingere vis quantâ maro majestate canebat , et quali tetigit pollice flaccus ebur ? pinge makenzaeum pictor , namque altera non est , quae referat tantos , una tabella viros . books printed for , and are to be sold by j. hindmarsh at the golden ball over against the royal exchange in cornhill . the antiquity of the royal line of scotland fort● cleared and defended , against the exceptions 〈◊〉 offer'd by dr. stillingfleet , in his vindication of 〈◊〉 bishop of s. asaph . by sir george mackenzie , his majesty's advocate for the kingdom of scotland . a memorial for his highness the prince of orange , in relation to the affairs of scotland : together with the address of the presbyterian party in that kingdom to his highness ; and some observations on that address . by two persons of quality . an account of the present persecution of the church in scotland , in several letters . the case of the present afflicted clergy in scotland truly represented . to which is added for probation , the attestation of many unexceptionable witnesses to every particular ; and all the publick acts and proclamations of the convention and parliament relating to the clergy . by a lover of the church and his country . an historical relation of the late presbyterian general assembly , held at edinburgh , from october . to november . in the year . in a letter from a person in edinburgh , to his friend in london . notes, typically marginal, from the original text notes for div a -e sect. i. the occasion of writing these discourses . sect. ii. the extremes of frugality . sect. iii. god's design to maintain the world by frugality . sect. iv. that frugality was the basis of all vertue & government amongst the iews . sect. v. our saviour made it a standard and bulwark in his gospel . mat. . , , . sect. vi. this doctrine was continued by the apostles and primitive church . cass. de sp. aced . c. . constitut . apostol . . . tertul. apol . c. , . sect. vi. how the other common-wealths were founded on frugality , as lacedaemon , rome , holland . sect. vii . the ancient heroes and philosophers were admir'd for this virtue . notes for div a -e sect. i. the first rise of covetousness and how men were tempted to it by the conveniency of property . sect. ii. the disguise under which avarice insinuates it self , such as its promises to gratifie mens passions , and supply their necessities . sect. iii. it gets assistance from mens different temperaments . sect. iv. it is propagated by imitation and example . sect. v. it is assisted by the respective countries where men live . sect. vi. its last essay was to tempt church-men , and how . sect. vii . arguments and remedies against avarice . sect. viii . the cruelty of covetousness . sect. ix . devotion affords the strongest and best remedies against avarice . sect. x. the christian and pagan philosophy compared , as to their remedies . notes for div a -e sect. i. the origine and progress of parsimony or niggardliness . sect. ii. some expressions of scripture compared with the poets upon this subject . sect. iii. that the special bumours in morality , and their various mixture , are not yet fully enquired into , an instance whereof is given on this subject . notes for div a -e sect. i. the rise and progress of luxury . sect. ii. the disguises under which luxury insinuates it self . sect. iii. some devout and virtuous people think luxury now necessary to supply the decay of charity . sect. iv. the difference betwixt prodigality and luxury . sect. v. arguments against luxury , as first , that it is inconsistent with that egual distribution whereby god supports the world. for that egg might produce a turky , which might multiply into many : and the price of these might purchase swine , cows , &c. sect. vi. the other argument is , that luxury is most inconvenient for the luxurious man himself and the society wherein he lives . sect. vii . remedies against luxury . sect. viii . this discourse is not designed against true , but immoderate pleasures . sect. ix . whether avarice , prodigality , or luxury , be the more dangerous . a pleasant view of what effects frugality would produce in the world. sect. x. how happy the world would be if men would be moderate in their expence and pleasures . the tryal and process of high-treason and doom of forfaulture against mr. robert baillie of jerviswood traitor by his majesties special command ... mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng trials (treason) -- scotland -- early works to . scotland -- history -- - . - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - john latta sampled and proofread - john latta text and markup reviewed and edited - pfs batch review (qc) and xml conversion the tryal and process of high-treason and doom of forfaulture against mr. robert baillie of jerviswood traitor . by his majesties special command , as a further proof of the late fanatical conspiracy . edinburg , printed by the heir of andrew anderson , printer to his most sacred majesty , and reprinted at london , by tho. newcomb , . the tryal and process of high-treason , and doom of forefaulture against mr. robert baillie of jerviswood traitor . cvria justiciariae s. d. n. regis tanta in praetorio burgi de edinburgh vigesimo tertio die mensis decembris . per nobilem & potentem comitem georgium comitem de linlithgow , dominum livingstoun , &c. justiciarium generalem totius regni scotiae , & honorabiles viros , dominos jacobum foulis de colintoun justiciariae clericum , joannem lockhart de castlehill , davidem balfour de forret , rogerum hoge de harcarss , alexandrum seaton de pitmedden , & patricium lyon de carss , commissionarios justiciariae dicti . s. d. n. regis . curia legitime affirmata . intran mr. robert baillie of jerviswood prisoner indited and accused , that where notwithstanding by the common law of this , and all other well governed nations , the conspiring to overturn the government of the monarchy , or of the established government of this kingdom , or the concealing , and not revealing of any treasonable design , project , or discourse tending thereto ; or the assisting , aiding , or abaiting such as have any such designs , does infer the pains and punishment of treason . and by the third act of the first parliament of king james the first , the rebelling openly against the kings person : and by the thretty seventh act of his second parliament , the resetting , maintaining , or doing favours to open , or notour rebellers against the kings majesty , is declared treason , and punishable by forefaulture . and by the hundred fourty and fourth act of the twelfth parliament of king james the sixth , it is declared treason to reset , supply , or intercommune with traitors . and by the first act of the first session of his majesties first parliament , it is declared , that it shall be high treason for the subjects of this realm , or any number of them , less or more , upon any ground , or pretexi whatsomever , to rise , or continue in arms , to make peace or war , without his majesties special approbation . and by the second act of the second session of his majesties said first parliament , to plot , contrive , or intend death , or destruction , or to put any restraint upon his majesties royal person , or to deprive , depose , or suspend him from the exercise of his royal government , or to levy war , or take up arms against his majesty , or any commissionated by him , or to intice any strangers , or others , to invade any of his majesties dominions , or to write , print , or speak any thing that may express or declare such their treasonable detentions , it declared treason , and punishable as such . likeas , by the second act of his majesties third parliament , it is declared high treason in any of the subjects of this realm , by writing , speaking , or any other manner of way to endeavour the alteration , suspension , or diversion of the right of succession , or debarring the next lawful successour . nevertheless , it is o● verity that the said mr. robert baillie of jerviswood , shaking off all fear of god , respect and regard to his majesties authority and laws ; and having conceived most unjustly , a great and extraordinary malice and harted against his majesties person and government , and having designed most traiterously to debar his royal highness , his majesties only brother , from his due right of succession , did amongst many other traiterous acts , tending to promove that wicked design , endeavour to get himself elected one of the commissioners for negotiating the settlement of a colony of this nation in carolina , in one or other of the days of the moneths of january , february , march , april , or may , one thousand six hundred and eighty three years ; and that he might thereby have the sreer and better access to treat with the earls of shaftsbury and essix , the lord russel and others , who had entered into a conspiracy in england against his majesties person and government , and with colonel rumsay , walcot , west , and ferguson , and others who had likewise conspired the murder of his majesties sacred person , and of the person of his royal highness ; and finding that he could not get himself elected one of the said commissioners , he resolved to go to london upon his own expenses , and declared to severals ( whom he took great pains to draw in to be his accomplices ) that his design was to push foreward the people of england , who did nothing but talk , that they might go on effectually ; and after he had settled a correspondency here , he did go up to london in one or other of the saids moneths , with sir john cochran and commissar monro , and did then , and there , transact with the saids conspirators , or one or other of them , to get a sum of money to the late earl of argile , a declaired traitor , for bringing home of men and arms , for raising a rebellion against his majesty , and invading this his native countrey ; and so earnest was he in the said design , that he did chide those english conspirators , for not sending the same timcously , and lamented the delayes used in it ; and perswaded the late earl of argile and others in his name to accept of any him , rather than not to engage : and amongst the many meetings that he had at london , for carrying on the said traiterous design , there was one at his own chamber , where he did meet with the lord melvil , sir john cochran , and the cessnocks elder and younger , and amongst others , with mr. william veatch a declared traitor , and there he did treat of the carying on of the said rebellion , and of the money to be furnished by the english for argyle , for buying of armes . and that if the scots would attempt any thing for their own relief , they would get assistance of horse from england ; and from that meeting , he or ane , or other of them did send down mr. robert martin to prevent any rysing , till it should be seasonable for carying on of their designs , which mr. robert , after he came to scotland , did treat with palwart and others , for carying on of the said rebellion , by securing his majesties officers of state , his castles and forces , and by putting his correspondents here , and there associates , in readiness , to assist the late earl of argyle ; and after the said mr. baillie had engadged many of his countrey-men in england , and had assured his correspondants here , that the english were resolved to seclud his royal-highness from his due right of succession , thereby to encourage them to concur in the said rebellion , and exclusion , he flew to that hight , that he did particularly and closly correspond with mr. robert ferguson , sir thomas armstrong , collonel rumsay , and walcot , who were accessory to that horrid part of the couspiracy , which was designed against the sacred life of his majesty , and the life of his royal-highness , and did sit up several nights with them , concerting that bloody massacer : at least the said mr. robert baillie of jerviswood was , and is guilty of having correspondence with the late earl of argyle , and mr. william veatch declared traitors , and of being art and part of an conspiracy , for assisting of these who were to rise in arms against his sacred majesty , and for exclusion of his royal brother , and of concealing and not revealing the accession and proposals of others for that effect . wherethrow he has committed , and is guilty of the crymes of high treason , rebellion , and others above specified , and is art and part of the famine , which being found by ane assize , he ought to be punished with forfaulture of life , land and goods , to the terror of others to commit the like hereafter . his majesties advocat produced an act , and warrand from the lords of his majesties most honourable privy council , for pursuing , and insisting against the said mr. robert baillie of jerviswood , whereof the tenor follows : edinburgh , the twenty two day of december , one thousand six hundred and eighty four years . the lords of his majesties privy council , do hereby give order and warrand to his majesties advocat , to pursue a process of treason and forfaulture , before the lords of his majesties justiciary , against mr. robert baillie of jerviswood , to morrow at two a clock in the afternoon preceisly , and the said lords do hereby require and command , sr. george lockhart of carnwath , and sr. john lauder advocats , to concur , and assist in the said process with his majesties advocat , from the intenting until the end thereof , as they will be answerable upon their alledgance . extract by me , sic subscribitur . colin mckenzie , cls. sti. concilij . pursuers . sir george mckenzie of roshaugh our soveraign lords advocat sir george lockhart sir john lauder . advocats . procurators in defence . sir patrick hume . mr. walter pringle . mr. james graham . mr. william fletcher . mr. william baillie . advocats . the pannals procurators produced ane act of his majesties privy council , in their favours , whereof the tenor follows : edinburgh , the twenty third of december , one thousand six hundred eighty four years , the lords of his majesties privy council having considered ane address made to them , by mr. robert baillie of jerviswood , now indited at the instance of his majesties advocat ; before the lords commissioners of justiciary , of treason , do hereby require and command sir patrick hume , mr. walter pringle , mr. james graham , mr. william fletcher , mr. james falcouer , mr. william baillie advocats , to consult , compear , and debate for the petitioner , in the process of treason , mentioned in his address , without any hazard , as they will be answerable at their peril ; extract by me , sic subscribitur . william paterson , cls. sti. concilij . after reading of the inditement ; the lord justice general required the pannal to make answer thereto . the said mr. robert baillie pannal pleaded not guilty . mr. walter pringle advocat , as procurator for the said mr. robert baillie of jerviswood pannal , alleadges that he ought not to pass to the knowledge of an assize ; because he had not got a citation upon , fyfteen days , or at least on a competent time , which is usual , and absolutely necessar in all actions , and much more in criminal pursuits , especially , seing , if a competent time be not allowed to the pannal , he is precludit of the benefit of ane exculpation , without which he cannot prove his objections against witnesses , or assyzers , or any other legal , or competent defences ; and by the late act of parliament concerning the justice court , all pannalls are allowed to raise precepts of exculpation , and thereupon to cite witnesses , for proving the objections against witnesses , and assyzers , which necessarily presupposeth , that a competent time must be allowed to the pannal to execut his diligence , or otherwise , how is it possible he can prove an defence of alibi , or any other just defence : and as this is most consonant to that clear act of parliament , and to material justice , and to the rules of humanity , so this point has been already fully and often decided , and lately in the case of one robertson in july . the instance whereof , is given by his majesties advocat in his book of criminals , and title of libels , where the lords found , that albeit robertson got his inditement in prison , yet he behoved to get it upon fifteen dayes . his majesties advocat oppons the constant tract of decisions , whereby it is sound , that a person incarcerated may be tryed upon twenty four houres ; and the late act of parliament is only in the case where a summons or libel is to be raised ; but here there is no libel or summons , but only an inditement ; nor was any exculpation sought in this case , before the tryal , which is the case provided for by the act of parliament . the lords , justice-general , justice-clerk , and commissioners of justiciary , repell the defence , in respect the pannal is a prisoner , and that it has been the constant custom of the court , and that the pannal made no former application for an exculpation . sir patrick hume for the pannal , alleadges ( alwas denying the libel , and whole members , and qualifications thereof ) that in so far as the libel is founded upon harbouring , maintaining , and intercommuning with the persons mentioned in the dittay , the pannal ought to be assoylzied , because it is res hactenus judicata , he having been formerly pursued before the lords of his majesties privy council for the same crimes , and fined in an considerable sum ; and therefore that crime cannot now be made use of as a ground of treason against the pannal . his majesties advocat answers , that he restricts his libel , to the pannals entering in a conspiracy , for raising rebellion , and for procuring money to be sent to the late earl of argile , for carrying on the said rebellion ; and for concealing , and not revealing ; neither of which is referred to his oath ; and consequently was not res judicata , there being nothing referred to his oath ; but his converse and correspondence with some ministers , and others within the kingdom , and his own gardiner , and his writing letters to my lord argile ; and oppons the decreet of council it self , and restricts the libel to all the crimes not insisted on in the decreet . sir patrick hume replyes , that as to ▪ the corresponding with the late earl of argile , at any time since his foresaulture , was expreily proponed as an interrogator to the pannal in that pursuit , at his majesties advocat's instance against him , before the lords of his majesties privy council , and that not only his own correspondence by himself ; but also by major holms , mr. carstares , robert west , thomas shepherd , richard rumbold , and collonel rumsay , as the interrogator bears , as appears by a double of the act of council , written by the clerk of councils servant , and is offered to be proven by my lord advocats oath : and as to any correspondency with mr. veitch ; it is not relevant , since he was not declared rebel . sir john lauder for his majesties interest , answers , that he oppons the decreet of privy council , where no such interrogator was put to the pannal , and the decreet must make more faith than any pretended scroll , and cannot be taken away by his majesties advocats oath , to his majesties prejudice ; and for mr. william veitch , he stands expresly forefault in anno . and the doom of forefaulture , is ratified in the parliament . sir patrick hume oppons the reply , that as to the corresponding with mr. veitch , it does not appear , that he is the person mentioned in the act of parliament ; and albeit he were , as he is not , he having thereafter come home to scotland , all the punishment inflicted upon him was banishment , not to return under the pain of death , which did take off any former punishment ; and it was no crime in any person to intercommune with him , especially in another kingdom ; and by the late act of council in anno . even the conversing , and intercommuning with declared traitors , is restricted to an arbitrary punishment . his majesties advocat oppons the standing doom of forefaulture against veitch , and the proclamation , or act of council it self . the lords , justice-general , justice-clerk , and commissioners of justiciary , having considered the libel , pursued by his majesties advocat , against mr. robert baille of jerviswood , with my lord advocats declaration , whereby he restricts the same to the crimes not insisted on in the decreet of council formerly pronunced against the pannal : they find the same relevant as it is restricted , to infer the pain of treason , and remits the same to the knowledge of the assize , and repells the remnant defences proponed for the pannal , in respect of the decreet of council produced , bearing no such thing as is alleadged , and of the answers made by his majesties advocat thereto . assisa . the earl of strathmore . the earl of belcarras . sir george skeen , provost of aberdene . sir james fleming , late provest or edinburgh . sir john ramsay of whitehill . adam hepburn of humby . andrew bruce of earleshall . john stuart , tutor of alpin . alexander miln of garrin . mr. jams elies of stenhopsmilus . sir william drummond of halthornden . major andrew white , lieutennent of edinburgh-castle . mr. david grahame , sheriff of wigtoun . colin mckenzie , collector of ross . david burnet , merchant . the assise lawfully sworn , no objection of the law in the contrary . his majesties advocat for probation adduced the witnesses and writs aftermentioned ; and first , walter earl of tarras . sir patrick hume procurator for the pannal , objects against the earl of tarras , that he cannot be a witness , because he is socius & particeps criminis ; and it is clear by the . chap. stat. . rob. . concerning these that are excluded from bearing of testimony that socij & participes ejusdem criminis , vel incarcerati & vinculati , cannot bear testimony : as also , the earl of tarras being presently under an inditement of high treason , and under the impressions of fear , and death , no person in his circumstances can be admitted a witness , as is not only clear from the foresaid statute , but from the common law. his majesties advocat answers , that it is an exception from that rule , both by the common law , and ours , that in the crime of lese majestie , and especially , that branch thereof , which we call a conspiracy , socius criminis may be a witnes , and which is introduced very reasonably by lawyers , to secure the common interest of mankind , which is the chief of all interests ; and because conspiracies cannot be otherwayes proved , and not to allow this manner of probation , were to allow treason , since no man can prove a plot , but he that is upon it , and how can a man object against him as a witness , whom himself trusted with his life , his fortune , and their common plot , nor is the intenting of the lybel any stronger qualification , since every man that is socius criminis , is under the same impression , and it would rather seem the greater and nearer apprehensions a man has of death , he will be the more sincere and faithful ; nor has the earl of tarras , nor did he ever seek any security , in order to his deponing . and this has been constantly , and latlie , conform to the common law , as may be seen in the hundreds of citations set down by mascard , de probationibus , vol. . conclus . . num . and the contrary citations prove only , that regularly socius criminis cannot be a witues . sir patrick hume replyes , that the statutes of robert the first is opponed , and non est distinguendum ubi lex non distinguit , and not only was he socius criminis , which is acknowledged , but he is incarceratus , and lying under an indytment of high treason , and has thrown himself on the kings mercy , and it is not proper he should be a witness , seeing he is in the kings mercy , who may give him his life or not , and there was never a person in these circumstances , that ever was admitted a witness . mr. walter pringle adds , that the earl of tarras , is not only in the case of a person who stands lndyted for high-treason ; but must be look'd upon , as a person condemned for the said cryme , seeing he fully , and amply confest the cryme : & confessas habetur pro convicto , and never any lawyer asserted , that damnatus criminis loesae majestatis could be admitted as a witnes , and there is nothing more clear , then that by the common law , and the law of all nations , this objection ought to be sustained , for the civil law is clear , leg . . cod . de testibus and matheus in his title de probationibus , cap. de testibus , doth assert positivlie , that the cryme of lese majestie , heresie , and generally all these crymes quae sine sociis non possunt facile admitti , are not excepted . aud he asserts , that the lawyers , viz. gomesius , & decianus , who are of another opinion , do acknowledge , nominatum a reo damnandum non esse , and that they contravert only , an nominatio rei fit indicium sufficiens ad torquendum nominatum . sir george lockhart repeats , and oppons the answer , and the cryme lybelled , being a conspiration of treason , which of it's own nature is manadged , and caryed on by secrecie and contrivance ; and which is only known to the complices of the treason , and which cannot be commited sine sociis , the law of this kingdom , and of all nations , do allow socios criminis to be testes habites , and not only are they admitted in the case of such conjurations , but generally in omnibus criminibus exceptis , amongst which the crime of perduellion , and lese majestie is the chief , and it is absolutly impossible , that plots , and conspirations of treason can be otherways proven , then per socios , and such as are participes criminis , and which is the common opinion of all lawyers , as may appear by farin . quest : . and the authorities cited by him , and which is the inviolable practique of this kingdom : and as to that pretence , that the earl of tarras is under a process of treason , and has submitted to his majesties mercy , and that confessus habetur pro convicto , it imports nothing , and infers no more then that he is socius criminis , and is still a habil witnes , as to conjuration of treason socius criminis hoc ipso , that it is acknowledged , or proven , being still under the hazard of process , or condemnation , which law regards not in regard of the secrecie involved in the nature of the crime , that either witnesses neque actu neque habitu , can be present , so that the objection amounts to no less then that conjurations of treason cannot at all be proven : and as to the law cited from the majestie , it imports no more then that the objection regulariter procedit , in crimes , which of their own nature are not perdifficilis probationis , and are not inter crimina excepta such as the cryme of conspiracy and treason is . mr. williom fletcher oppons the objection , and reply , and further adds , that albeit crimen loesae majestatis be reckoned inter crimina excepta , and so have some priviledge , as to the qualification of witnesses , yet it cannot be denyed , but there are some objections competent against witness adduced for proving conspiracies , and treason , verbi causa , that a witnes is a capital enemy , or that he is sub potestate accusatoris , and the objection now pleaded , being taken complexlie , viz. that the earl of tarras is not only socius criminis , but also , that he is publico judicio reus , upon the same crime , and that as means to procure his majesties savour , he has submitted himself , and come in his majesties mercy , by an acknowledgment of the cryme , before the dyet of citation , he is obnoxious to a most just objection , viz. that he is sub potestate , and by the submission , and confession , his life and estate is now in his majesties hands , so that he is not only in the case of a reus confessus , but in the case of a witnes , who does absolutely depend upon his majesties advocate the pursuer ; and as a private accuser , could not addace his own servants to be witnesses , because they are testes domestici , and depend upon him , so far less ought a witnes to be adduced , who not only depends , as to his estate , but as to his life , and the law gives a very good reason , and which is mentioned by paulus , lib. . receptarum sententiarum , cap. . parag . ult . in these words . dese confessus , non est audiendus ut testis , ne alienam salutem in dubium deducat qui de sua desperavit ; and as to the pretence that a conjuration is a cryme so occult , that it must either be proven by such witnesses , or otherways the guilty person will escape . it is answered , that in this case . his majesties advocate had an easie remedie , for he might have pursued the pannal , before he pursued the witness , and the terror and appreheasion of the event of a process for treason cannot be constructed otherways , then to have influence upon the deposition of the witnes ; and as to the citation out of farinacius , it is only in the case of socius criminis , but when he comes to treat de teste accusato vel carcerato . quest . . articulo to . he sayes , regula sit in accusato quod is pendent● accusatione à testimonio repellitur . and be the d . rule of the same article , he sayes , it is a principle quod carceratus testimonium ferre prohibetur , and he gives this reason , quia praesumitur , quod salsum testimonium diceret pro aliquo qui ei promiserit se liberare a vinculo , and limits this rule , that he must be carceratus propter crimen . sir patrick hume adds , that it is a certain principle , that any person that is guilty infamia juris , cannot be a witness , no more than a person that is convict , and condemned of treason ; and if he were convict , and condemned of treason , he could not be a witness , even in the case of treason : so neither can the earl of tarras in this case be received a witness , for he being adduced a witness after he received his inditment , and confessed the crime , is equivalent , as if he had been actuall convict ; and whatever may be pretended , that testes infames may be admitted ; yet it was never asserted by any lawyer , that a person convict of treason can be admitted a witness . the lords repelled the objection against the earl of tarras , and ordains him to be received a witness . walter earl of tarras , aged fourty years , married , purged , and sworn ; being interrogat , if about the time that sir john cochran , and commissar monro got their commission from the carolina company for london , the pannal mr. robert baillie of jerviswood did not desire the deponent to speak to commissar monro , to try if he could get him the said pannal added to that commission , depones affirmative . being interro●at , if the said jerviswood , the pannal , did not tell the deponent that he was resolved to go to london however upon his own expenses , and that his and their going about the carolina bussiness , was but a pretence , and a blind ; but that the true design was , to push foreward the people of england who could do nothing but talk , to go more effectually about their bussiness , depones affirmative . depones that the pannal did settle a correspondence with the deponent whereby he was to give an account to the deponent of what should pass betwixt the countrey party in england , and the scots men there : and on the other hand , the deponent was to write to him what occurred here , depones that the pannal did say to the deponent , if the king would suffer the parliament of england to sit , and pass the bill of seclusion , that that was the only way to secure the protestant religion . depones that the pannal said to him , that the king might be induced to do so , if the parliament would take sharp or brisk measures with him , or the like . depones these words were spoke to him by the pannal , since the holding of the last session of this current parliament ; and before the pannal and commissar monro went for london . depons that after the pannal went to london , he did give the deponent an account by letters , that things were in great disorder there , and that he hoped there would be effectual courses taken to remeid them . depones that mr. robert martin did come to mr. pringle of torwoodlies house in may . or thereby , and brought a letter to the deponents lady unsubscribed , but the deponent knows it was jerviswoods hand-writing , who was then at london , and that mr. martin told the deponent , that things in england were in great disorder , and like to come to a hight , and that the countrey party were considering on methods for securing the protestant religion . and that archibald , sometime earl of argile , was to get ten thousand pounds sterling , whereas thirty thousand pounds sterling was sought by the scotsmen at london , which was to be sent over to holland to provide arms ; and that the late earl of argile was to land with these armes in the west-highlands of scotland , and that the deponents friend jerviswood the pannal , was to be sent over with the money . depones that philiphaugh and he went to gallowshiels house , where they met with polwort and gallowshiels , and that it was talked amongst them there , that in case those in england should rise in arms , that it was necessary in that case , that so many as could be got on the borders should be in readiness to deal with straglers and seize upon horses , and that thereafter they should joyn with those that were in arms on the borders of england . depons that in the case foresaid , it was said , it was convenient the castle of stirling , berwick , and some other strengths should be seiz'd upon ; and it was likewise spoke amongst them , that some persons should be employed to inquire what arms was in that countrey . depons , that it was spoke then , that the best time for argyle was to land in the west when there was a stur in england , or scotland , or words to that purpose . depons , that every one desired another to speak to such particular persons as they could trust , by letting a word fall indirectly upon supposition , in case of the rising in england concerning the affair for preparing of them : and that he was told by philiphaugh thereafter , that there was a word and sign to be used amongst them , viz. the sign was by loosing a button on the breast , and that the word was harmony . depons , the pannal spoke to the deponent to advertise torwoodlie , that he might acquaint mr. william veitch a forfault traitor , who was in northumberland , that he might keep himself close , and be on his guard , lest he should be catch'd ; which was since the pannal was prisoner in the tolbooth of edinburgh . and this is the truth , as he shall answer to god. sic subscribitur , tarras , linlithgow . i. p. d. alexander monro of bear-crofts , aged fourty five years , or thereby ; solutus , solemnly sworn and purg'd . depons , that the earl of tarras proposed to the deponent , that jerviswood might be made one of the commissioners for the affair of carolina , for that he could not safely stay at home ; and that the deponents answer was that he had no interest in the affair , and so could not be a commissioner . depons , that the pannal did wait for the deponent at wooller , and did go alongst with him to london , and that by the way he heard him regrate his own hazard and others , because of blackwoods sentence ; and that he heard him regrate the hazard our laws , and liberties , and the protestant religion were in . depons , that the pannal spoke to the deponent and others , more then once at london for getting of money from the english to be sent to the late earl of argile , for bringing home arms for the said earls use , as he understood , for carrying on an insurrection , and rebellion in scotland . depons , that at the time libelled , in jerviswoods chamber in london , mr. william veitch a forfault traitor was present ; and that sir john cochran did at that meeting expressly speak of money to be sent to argile for bringing home arms for invading the kingdom of scotland ; and that at another occasion he heard some of them say , that there would be twenty thousand men in scotland who would assist the rebellion , and that he heard sir john cochran and jerviswood speaking of it , but cannot be positive which of the two said it . depons , that at the meeting he heard jerviswood speak , but did not hear him oppose that treasonable proposal , or contradict the overture proposed by sir john cochran . depons , that mr. robert martin was sent down from that meeting which was at jerviswoods chamber , to scotland , to try what the people of scotland would do for their own safety : and that it was understood that the people of scotland should not rise till there should be a rising in england , and that the commission was granted to mr. robert martin by all the persons present , whereof jerviswood was one , and that there were present the lord melvill , sir john cochran , cessnocks elder and younger , mr. william carstares , mr. william veitch , jerviswood , and the deponent ; and depons they did contribute money for mr. martius journey . depons , that at his return he meeting with the deponent , told him , that matters were in that condition in scotland , and that the countrey was in such a condition as little would kindle the fire in order to the rebellion . and this is the truth , as he shall answer to god. sic subscribitur , alexander monro , linlithgow , i. p. d. james murray of philiphaugh , aged . years , married , purged and sworn , produces sour leaves of depositions , emitted by him before the lords of the secret committie , and all written and subscribed with his own hand , which being publickly read , in presence of the justices , and assize , he adheres thereto , in all points , whereof the tenot follows . upon the day of may , . upon a letter from mr. pringle of torwoodlie , i came to his house in the morning , and he presently led me to a chamber , where i found mr robert martin , who was lately come from london , with whom we stayed a little , and discoursed of the news , and about the present condition , and temper of england , and in particular of london , which mr. martin said , was much irritated through some attemps upon their priviledges , either as to the concern of the sheriffs , or their charter , but that all honest men were of good heart and very brisk , and after some general discourses to this purpose , torwoodlie , and i left him , and walked out a little , and he told me , he was expecting the e. of tarras presently , for he had sent to him ; and mr. martin had a letter to him from jerviswood , then he told me that there were great matters in agitation at london , and that mr. martin had come down with a commission from our friends there , ( i do not remember he named any ) but that i behoved not to expect , he would impart his instructions to me , for he was to communicat them only to polwart and himself , ( at least for these shyres ) and they were to pitch on such as they thought fit to intrust with the affair , whereupon he assured me , that he had great confidence in me , and his kindness to me oblidged him to send for me , to acquaint me that matters were now come to a crisis , and that he had reason to think england would shortly draw to arme , and stand by them , till they were satisfied anent the bill of exclusion , and what other security they could propose for the protestant religion , and their liberties , and that it was no project of any inconsiderable party but a design through the kingdom , and that many of the finest men , and of the greatest interest and credit there , had adjusted almost every thing necessar for the purpose , and had concerted matters with our friends there , in order to concurrence from this , and had agreed to advance money for furnishing arms here , ( i do not remember he told me more particulars at this time ) but said , polwart would be at gallow-shiels that night , and it would be necessar that the e. of tarras and i should confer with him fully , on the business , about this time the e. of tarras lighted , and torwoodlie having left us for a little time , being gone to bring mr. martin , the e. of tarras asked me , what news , i told him of mr. martins being there , but that he had given me no account of the design of his down-coming , which perhaps he would acquaint him with , but by what i had heard from torwoodlie , i understood it to be , to engadge us to rise in arms shortly , whereat the e. of tarras hummed , and said , he would look ere he leapt , such a leap , or some such expressions , presently mr. martin came , and the e. of tarras and he retired a little , after the reading an letter , he gave him , the contents whereof was ( as the e. of tarras informed me ) only an order from jerviswood , to deliver some money to the bearer , which he had left with him , and the e. of tarras called for his servant , and bad him bring up the money ; in the mean time , torwoodlie asked me , if i had acquainted the e. of tarras with what he spoke to me , and i told him , i had let something of it fall to him , but it was not to be thought , that persons of sense and quality would engadge in such designs at random ; so torwoodlie said , that ( though mr. martin would not commune with us upon his commission directly ) yet he thought it would be fit , we conferred , and without taking notice of his commission , discoursed of things upon suppositions , and as our own privat notions , abstract from any prospect of a present design , so after dinner , we four went to a chamber , and after some general discourses , of the discontents of both kingdoms , these suppositions following were discoursed ( and as i remember ) mr. martin started them all , or the most part ) viz. what if the countrey party in england should have thoughts of going to arms ( whereof he knew nothing but only supposed such a thing , for discoursing a little freely , and to know our sentiments , what we thought could be expected here in such a case ) would it not be expedient to have a settled correspondence betwixt that party there and here , and might not matters be so adjusted , that both kingdoms should draw out in one day , and might not as many be expected to undertake in these shires , and about edinburgh , as would serve to surprize , and seize our rulers ( i do not remember any named , but the then chancellour and treasurer ) and some to joyn with these on the english borders , to assist them to surprize berwick , and if for that effect , any horse , or dragoons , that should be in the bounds might not be surprized , that their horse and arms might be gotten to furnish the country people , and stirling castle ; and if argile should at the same time land in the west , and raise that countrey , would not these measures contribute much to the advancement and security of the interest of that party here , since thereby the government would be disordered , and such steps would encourage all that had an inclination to the countrey party , to draw to them frankly , and fear many of the other side to act against them , and so they might have leasure to joyn from all places ; and might it not be expected , there would be as many in this kingdom , as would be able to deal with the forces here , at least divert them from troubling england . this is the sum , as i remember , of what was proposed , and discourst of , though i cannot distinctly say , it was in this method , and expression , nor was all moved at once , but droped now and then , as the discourse seem'd to give rise to it ; and though i cannot fully re count all that was spoke on these heads , and tell distinctly , what this and that man said ; yet i remember these following answers were giving , and ( as i judged ) acquiesced to by the whole company ; and they were certainly the e. of tarras , his sentiments and mine , and every one that spoke , used this or some such precaution , that if they were concerned , or to give counsel in any such case , ( as they were not , &c. ) . as to the settling a correspondence , it was confest to be very convenient for those of a common interest ; but the present circumstances of affairs were such ( as we thought , ) that none could be found here who was fit to mannage it , and would undertake it . . as to the trysting at the same time , it could not be done without the devulging the design to all ranks of people , which none would undertake , except these already in desperat circumstances , and they could not have generally much influence . . the thing was not at all adviseable for this kingdom , since if any of englands own measures miscarried , they would not stur for any such trust ; and the spring of their motions being always at london , there might happen an interruption near the appointment , whereof these here could have no timous notice , and so might keep tryst , whereby they would be exposed a prey ; and if they should subsist any time , or prevail ( which was hardly possible ) the multitude that must be imployed , are tainted with such wild and unruly principles , that if once they got the sword in their hands , they would never be brought to order without a greater force to over-awe them ; neither would any expectation of argiles landing , be a just ground for such a tryst , considering the uncertainty of sea-voyages ; and if argile were to be the head , undoubtedly many people would conclude that he were to be suspected of private designs , and that restoring him , might lay him aside : as also , that dispair might blind his usual prudence , ●nd prompt him to unsolid , and undigested methods ; and so it was to be expected , that few of the gentry ( except such as he had special influence on , or such as were under hard circumstances ) could embarque with him , . as to the surprising rulers , &c. it was inveigh'd against , as an action not to be thought of amongst protestants ( especially when the very design of it was pretended , to secure that religion , which taught its professors to abhor and detest such principles as popish , yea un-christian ) since it could not be effectuat without blood-shed of people , secure in peace , which being by all approven , divines and casuists condemned as unlawful , and meer assassination ; it was not to be doubted , that as such a practice would cast a blot upon the whole affair , and quite take off any pretence of defensive arms , so it would scar many from joyning . these things were reasoned again and again : but i do not remember there was any formal conclusion made , but the discourse was let fall ; and mr. martin told us , if any of us had a mind for a suit of armour , he could provide as many as we pleased , from one who had made a great many lately , to honest men at london , of a new fashion , very light , and at an easie rate ; so torwoodlie and i gave him our measures , e. of tarras told he had a suit already ; then torwoodlie said to the e. of tarras and me , we would meet polwart at gallowsheils , and desired we might commun with him , anent what we had been discoursing , so we hasted away , that if possible , we might both get home that night , it being saturnday , and we unfurnished , for staying abroad , and torwoodlie whispered me just as i was mounting ( as i think ) that he was not clear we should commun before gallowshiels , for he was sometimes too much good-fellow , or the like ; so the e. of tarras and i rod away together , and upon the way we were both of opinion , that the suppositions we had discoursed of , were in effect propositions , and resolv'd , if they were insisted on by polwort , as we suspected , we would adhere to the former answer , and would undertake nothing in these methods ; when we came to gallowsheils , the laird was abroad , and polwort was not come , so we had thoughts to go away , being both damped with what had passed , and inclining to be free of farder medling ; but the lady would by no means hear of our going till her husband came , who , she assured us , was about the doors , and she having sent to call him , he would be in presently ; yet it was so late ere he came , that the e. of tarras could hardly have day enough to go home with ; so gallowsheils would not let him go , and he would not stay , unless i stay'd , so we both stayed , and not being resolv'd to discourse with gallowsheils on what passed , we we it to the tavern , on pretence i might call the baillie , and seek horses or lime , and stay'd there till polwort came ( which seemed unknown to gallowsheils ) then we returned to gallowsheils house , and after supper polwort whispered the e. of tarras and me , and enquired if we had seen mr. martin ; and we having told him we had , he enquired , if we were free to commun on the affair before gallowsheils , we told , as he thought fit , for we could trust him ; then he whispered gallonsheils , and ( as i understood afterwards ) asked if he was free to commune on matters of great secrecy and importance with that company , to which he assented , then we sat down closs together , and as i remember , polwort began the discourse : but since i am not able to follow exactly the method of our conference , or keep the very expressions used , or repeat all that was spoke , or to tell distinctly what was every mans part of the discourse ; i shall set down the heads , and most remarkable passages thereof , that i remember in some articles following ; . polwort signified that he was credibly informed ( but i do not remember he named his informer ) that the countrey party in england would draw to the fields shortly , as he heard before lambass , wherewith gallowsheils seem'd visibly surprized ; and being asked , if his heart fail'd him already , he said he did love it better truly to be walking in his own parks in peace , and quiet , than to be medling in such matters ; however he assured the company , that if there came anytroublesome world , he would joyn with them firmly ; and the e. of tarras said , he wondred to hear of any such resolution in england , for he took it for a principle amongst that party there , that they should make no stir in the kings life ( which the whole company owned to be their opinion and desire ) because that might strengthen the dukes interest ; and he suspected it was the project of the common-wealths men , with whom he believed , few scots gentlemen would joyn ; and he was almost perswaded the d. of monmouth would not concur in any rising during the kings life , to which it was answered by polwort , that he had indeed heard that principle had been generally agreed to , but it seem'd they found , they behoved either to do their business now , or lay aside hopes of doing it hereafter , which might be , that if the charter of london were let fall , they would not only lose all safe opportunity of digesting matters ; but a great part of their strength , and he heard all things were concerted mutually , betwixt monmouths friends and the heads of the commonwealth party ; and tho he heard monmouth was shy on that account , yet it was hop'd he would engage , for otherways he would be deserted by that party . . polwort told us the suppositions above-written as overtures concerted betwixt our friends at london , and the principal men of that party there ; so the e of tarras and i renewed our former answers also above-written , and maintained them with all our vigour , wherein gallowsheils joyned forwardly with us ; and polwort asserted , we went on very good grounds , and he was fully of our opinion , if things were entire but referr'd it to be considered , whether it were better to comply with some of these methods , tho not so proper and justifiable as were to be wish'd , then to disappoint the business totally , which might be of the best consequence to all the party , yet we did not condescend as i remember to undertake any of these methods . and there was a further argument adduced against the trysting above-written , viz. that it was talked there was a day appointed in england latly in shafisberry's time , which did not hold , so they were not to be relyed upon . . it was proposed to be considered what methods were most proper in the companies opinon for scotland to follow in case of englands rising , whereanent it was said , that all that could be expected or desired from scotland , was , that upon the certain news of englands being in the fields , those in the southern shires who would own that party , should presently rise , and ( how soon they could get as many conven'd as would be able to deal with stragling parties , or any sudden rising in the countrey ) march to joyn them , and that it would be fit these in the northern shires of england waited near the borders for such , and that they had officers trysted there to command , and that then it would be seasonable for argile to land in the west , and these parties on the borders might divert the forces till he had time to put himself in a posture . these things seem'd to be the sentiments of the whole company , but were not finally determined till the opinion of others who were to be communed with by polwort were known : and it was represented , there behoved not to be any wilful and obstinate adhering to our own thoughts of things , ( but an mutual condescendance to others concerned , ) otherwise it were not possible to bring a publick design to any good issue . . all the company seem'd to agree , that they should undertake nothing or move in that affair , till they had a full and certain account what england proposed , what methods they resolved to follow there , who were to be their heads , and that if they design'd any attempt on the kings person , or overturning monarchy , they would not be forward or clear to joyn : and it being here insinuated , that the most they could do ( at least for which there could be any plausible pretence to justifie ) was to draw together , and without any act of hostility , send addresses to his majesty for redress of the present abuses of the government , and for obtaining sufficient security against the hazard they apprehended to their religion and liberties . it was said by polwort that he was apt to think , that was their very design , for he had heard it was generally believed by that party in england , that if once they were in a body , the king would be prevailed with to quite the duke , to be tryed for popery , correspondence with france , and accession to the popish plot , and then if the king were once free from the influence of the dukes counsels , they were confident he might be moved to reform their abuses , and secure their religion and liberties for the future to their contentment . . it was resolved , that till we got the foresaid account from england . and were satisfied thereanent , and knew others here ( who were to be communed with ) their sentiements of what methods were most proper for us , in case we should undertake , we should not meddle further ; only it was left to the earl of tarras and me , if we thought fit to acquaint sir william scot younger with some of the matter of this conference overly , without taking notice of our informers , or such an conference ; and it was recommended to all to be enquiring ( at such as they had some trust in ) indirectly about the affection of our neigbours , and what arms there was amongst them ; that if we should get an satisfying account , and resolve to joyn , we might know where to seek men and arms suddenly : here it was said by polwort , as i think , that if the e. of tarras , torwoodlie , gallowsheils , and i once took horse , he thought the most part of the west end of tiviotdale and selkirk shire would soon come to us , especially , when they heard england was risen , then we trysted to meet there against midsummer fair , betwixt and which the forsaid account was expected , but in case it came to any of our hands sooner , we promised to advertise the rest , that we might meet , presently , if the case required ; this is the substance and sum of what passed at the forsaid conference , that i can now remember ; but i remember , i was likewise told these following particulars in privat , by polwart , or torwoodlie , ( which of them , i cannot distinctly tell ) the day of the forsaid conference , or within a short time after . . that polwart keeped the correspondence with our friends at london , i remember not positively of any of them that was named , to be on the entrigue there , except my lord melvil , sir john cochran , jerviswood , and commissar monro ( for i hardly knew any of the rest ) and as i think , commissar monro was call'd his correspondent there . . that the money to be advanced by the english partie to scotland was ready , when mr. martin came from london , and it was expected , that within few days after , it would be dispatched with some confident to holland , ( whither by bills , or in cash , i cannot say ) it was call'd ten thousand pound sterlin , and was to be imployed ( as i was told ) by that confident , at argyles sight , for buying arms , providing ships to transport them with argyle , to the west here , and such other charges . . that how soon our friends at london got notice of the safe arrival , of the confident forsaid , and all other things were finally concluded there ( which was expected would be about the middle of june , as i remember ) they would come home , and as they passed , would give them , or one of them , an particular account of all resolutions taken to be communicat to the rest , that it was not to be expected by letters , that behoved to be under figures , and dark expressions , and as i remember , they were , written as it were about the carolina business , or some houshold furniture , as i was told , for i never remember i saw any letter , either direct to london , or sent from it on that head . . i was told there was a sign , and a word agreed on by that party , so that men might know with whom they might use freedom , the word , as i remember was harmony , and the sign , the opening two buttons in the breast coat and shutting them presently ; this i communicat to the earl of tarras , but does not mind i ever saw it used , except when i visited park-hay here in town , about the end of june ; we discoursing a little freely , he asked if i had the word and sign of the carolina men , and i having given them , he said something to this purpose , that he was afraid that the carolina business did not go well , for there had been some of the managers expected here ( as i think he named jerviswood or commissar monro ) these eight days past , but there was none come , nor could he learn that any of their friends had heard from them for several posts . polwart , torwoodlie , and i met at gallowsheils , on midsummer fair , but i mind nothing passed but private whisperings . dated september . . and subscrived thus , james murray . edinburgh , december . . the deposition above-written being read to the said james murray of philiphaugh , in presence of the justices and assizers , he adheres thereto in all points upon oath . sic subscribitur , james murray . linlithgow , i. p. d. the said james murray further depons , that at their meeting at gallowsheils , it was resolved , that they should keep up their cess unpayed till their next meeting at midsummer , which was to be at gallowsheils , and should deal with all these they had influence upon to do the like , and that upon the supposition mentioned in his oath given in . it was spoke amongst them that the troupers horses should be seized upon , when they were grasing . and this is the truth , as he shall answer to god. sic subscribitur , james murray . linlithgow , i. p. d. hvgh scot of gallowsheils , aged . years , married , purged , &c. and sworn . depons , that the earl of tarras and philiphaugh did come to the deponents house , in may , . and polwart came likewise there , where there were discourses and proposals , that if the english would rise in arms , their friends in the south shires should rise with them ; and that they should seize the horses belonging to the kings troops where they grased ; and the town of berwick , and the castle of stirling : and likewise it was there discoursed anent the late earl of argiles coming to invade scotland , but because of the uncertainty of sea voyages , there was not much stress laid upon it . depons , it was also proposed , that some of the south countrey whom they trusted in should be acquainted with it , and that endeavours should be used to learn what arms was in the countrey . depons , there was some such discourse there , as that the earl of tarras , philiphaugh , torwoodlie , polwart , and some others should draw to horse with the first when the rising should be in readiness , that it might be expected that the south parts of teviotdale and selkirk shire would joyn with them . and this is the truth , as he shall answer to god. sic subscribitur , hugh scot. linlithgow , i. p. d. his majesties advocat produc'd other depositions , emitted by gallowsheils before the lords of the secret committee , whereof the tenor follows . edinburgh , the of september . gallowsheils depons , that the e. of tarras and philiphaugh , being in his house in may . discoursed of an intended rising in england , and of proposals made to scots men , to rise with them , and of london in particular , and that polwort was present at that meeting , and told he was sure the englishmen intended so , and that it was discoursed at that meeting amongst them , that it were fit to seize berwick and stirling ; and that it was talked amongst them of bringing the duke of york to tryal , and that the king would abandon him . sic subscribitur , hugh scot. perth , cancel . queensberry george mckenzie . jo. drummond . george mckenzie . edinburgh , october . . sederunt . lord chancellour . lord secretary . lord president . lord advocat . the laird of gallowsheils , prisoner in the tolbuith of edinburgh , being call'd and examin'd upon oath , depons , that in the moneth of may . the e. of tarras , hume of polwort elder , and laird of philiphaugh , came to the deponents house , himself being absent , at his coming home , they were speaking of the security of the protestant religion ; and of a party in england , who would secure , or seize the king or duke , and that if any should rise in arms to defend them , or to rescue the king and duke : there was another party who would rise in arms against them , it was proposed , that some countrey men should be spoken to , to try their resolutions , and that the resolutions , of england should be told them , to see if they would concur . but the deponent does not remember that this proposition was approven , or undertaken to be done by any present ; nor does he remember who manag'd the discourse . it was likewise propos'd , to seize the officers of state , especially the chancellour and thesaurer , and the said , sir john cochran was to come to the west from england , for advancement of the design ; and that the earl of argile was to land in the west highlands , and to raise that countrey . of these matters , all these who were present discoursed , as of an affair that they were agitating , and wherein themselves were particularly concerned , though at that time they did not conclude what their carriage should be ; the reason why the deponent cannot be more particulars is , because he was sometimes going out , and sometimes walking up and down the room ; and though the deponent cannot be positive of the very words ; yet he is positive they were either these words , or words to that purpose . sic subscribitur , hugh scot. perth cancellarius . edinburgh , december . . hvgh scot of gallowsheils being solemnly sworn in presence of the justices and assize , adheres to the depositions within , and above-written in all points , sic subscribitur . hugh scot. linlithgow , i. p. d. his majesties advocat in fortification of the former probation , adduces the printed copy of mr. william carstares depositions , emitted before the officers of state , and other lords of privy council , and leaves the same to the assise , and uses it as an adminicle of probation ; for though it was capitulat , that he should not be made use of as a witness ; yet it was agreed , that the deposition should be published : and likewise produces the principal deposition signed by himself , and the said lords . the lords , justice-general , justice-clerk , and commissioners of justiciary , admit the paper produced as an adminicle , and refers the import thereof to the inquest , and ordains the printed paper as it is collationed , to be taken in , and considered by the inquest . sir william paterson , and mr. colin mckenzie , clerks of his majesties privy council being interrogat , if they heard mr. william carstares own the depositions read , depons they saw and heard him swear , and own the same upon oath , and they collationed the printed copie with the original formerly , and now they heard it collationed , sic subscribitur , will. paterson . colin mckenzie . the deposition of mr. william carstares , when he was examined before the lords of secret committee , given in by him , and renewed upon oath ; upon the . of december . in presence of the lords of his majesties privy council . edinburgh castle , september . . mr. william carstares being examined upon oath , conform to the condescention given in by him , and on the terms therein-mentioned ; depons , that about november , or december . james stuart , brother to the laird of cultness , wrot a letter to him from holland , importing , that if any considerable sum of money could be procur'd from england , that something of importance might be done in scotland : the which letter , the deponent had an inclination to inform shepherd in abb-church-lane , merchant in london of ; but before he could do it , he wrot to mr. stuart above-nam'd to know from him , if he might do it ; and mr. stuart having consented , he communicat the said letter to mr. shepherd , who told the deponent that he would communicat the contents of it to some persons in england ; but did at that time name no body , as the deponent thinks : sometime thereafter , mr. shepherd told the deponent , that he had communicat the contents of the letter above-named , to colonel sidney , and that colonel danvers was present , and told the deponent , that colonel sidney was averse from imploying the late earl of argile , or medling with him , judging him a man too much affected to the royal family , and inclin'd to the present church-government ; yet mr. shepherd being put upon it by the deponent , still urg'd , that one might be sent to the earl of argile ; but as mr. shepherd told him , he was suspected upon the account of his urging so much ; yet afterwards he press'd , without the deponents knowledge , that the deponent being to go to holland however , might have some commission to the earl of argile , which he having inform'd the deponent of , the deponent told him , that he himself would not be concern'd , but if they would ▪ send another , he would introduce him ; but nothing of this was done : upon which the deponent went over , without any commission from any body , to holland , never meeting with james stuart above-named : he was introduc'd to the earl of argile , with whom he had never before conversed , and did there discourse what had past betwixt mr. shepherd and him ; and particularly , about remitting of money to the said earl from england ; of which the said mr. stuart had written to the deponent , namely of pounds sterling ; and of the raising of horse and dragoons ; and the securing the castle of edinburgh , as a matter of the greatest importance : the method of doing this was proposed by the deponent , to be one hour , or thereby , after the relieving of the guards : but the earl did not relish this proposition , as dangerous ; and that the castles would fall of consequence , after the work abroad was done . james stuart was of the deponents opinion for seizing the castle , because it would secure edinburgh , the magazines and arms ; as to the horse and dragoons , my lord argile was of opinion , that without them nothing was to be done ; and that if that number were rais'd in england to the said earl , he would come into scotland with them ; and that there being so few horse and dragoons to meet them , he judg'd he might get the country without trouble , having such a standing body for their friends to rendezvous to ; and the said earl said he could show the deponent the conventient places for landing , if he understood ; and as the deponent remembers , where the ships could attend . the deponent remembers not the names of the places . the deponent spoke to the lord stairs ; but cannot be positive that he nam'd the affair to him , but found him shy : but the earl of argile told him , he thought stairs might be gain'd to them : and that the earl of lowdoun being a man of good reason , and disobliged , would have great influence upon the countrey , and recommended the deponent to major holms with whom the deponent had some acquaintance before , and had brought over a letter from him to the earl of argyle ; but the deponent had not then communicate any thing to the said holms , james steuart laid down a way of correspondence by cyphers and false names , and sent them over to holms , and the deponent , for their use ( which cyphers and names , are now in the hands of his majesties officers , as the deponent supposes , ) and did desire the deponent earnestly to propose the . pound sterling abovenamed to the party in england , and did not propose any less ; for as the earl told the deponent , he had particularly calculate the expence for arms , ammunition , &c. but james steuart said , that if some less could be had , the earl would content himself , if better might not be ; but the earl always said , that there was nothing to be done without the body of horse and dragoons above-mentioned . during the time of the deponent his abode in holland , tho he had several letters from shepard , yet there was no satisfactory account , till some time after the deponent parted from the earl of argyle , and was making for a ship at rotterdam to transport himself to england . james steuart wrot to him that there was hopes of the money . the next day after the deponent came to england , he met with sir john cochran , who , with commissar monro , and jerviswood , was at london before he came over ; and depons , that he knows not the account of their coming , more then for the perfecting the transaction about carolina : and having acquainted sir john cochran with the earls demands of the pound sterling and the . horse and dragoons , sir john carried him to the lord russel , to whom the deponent proposed the affair , but being an absolute stranger to the deponent , had no return from him at that time ; but afterwards having met him accidently at mr. shepards house , where he the lord russel had come to speak to shepard about the money above-named , as mr. shepard told the deponent . the deponent ( when they were done speaking ) desired to speak to the lord russel , which the lord russel did , and having reiterate the former proposition for . pound sterling , and the . horse and dragoons , he the lord russel told the deponent , they could not get so much raised at the time , but if they had . pound to begin , that would draw people in , and when they were once in , they would soon be brought to more ; butas for the . horse and dragoons , he could say nothing at the present , for that behoved to be concerted upon the borders . the deponent made the same proposal to mr. ferguson , who was much concerned in the affair , and zealous for the promoving of it . this mr. ferguson had in october or november before , as the deponent remembers in a conversation with the deponent in cheapside , or the street somewhere thereabout , said , that for the saving of innocent blood , it would be necessary to cut off a few , insinuating the king and duke , but cannot be positive whether he named them or not , to which the deponent said , that 's work for our wild people in scotland , my conscience does not serve me for such things ; after which the deponent had never any particular discourse with ferguson , as to that matter ; but as to the other affair , ferguson told the deponent that he was doing what he could to get it effectuate , as particularly that he spoke to one major wildman who is not of the deponent his acquaintance . ferguson blamed always sidney , as driving designs of his own . the deponent met twice or thrice with the lord melvil , sir john cochran , jerviswood , commissar monro , the two cessnocks , mongomery of landshaw , and one mr. veitch , where they discoursed of money to be sent to argyle , in order to the carrying on the affair , and tho he cannot be positive the affair was named , yet it was understood by himself , and as he conceives by all present , to be for rising in arms , for rectifying the government . commissary monro , lord melvil , and the two cessnocks were against medling with the english , because they judged them men that would talk , and would not do , but were more inclined to do something by themselves , if it could be done . the lord melvil thought every thing hazardous , and therefore the deponent cannot say he was positive in any thing , but was most inclined to have the duke of monmouth to head them in scotland , of which no particular method was laid down . jerviswood , the deponent , and mr. veitch , were for taking money at one of these meetings . it was resolved , that mr. martin , late clerk to the justice court should be sent to scotland , to desire their friends to hinder the countrey from rising , or taking rash resolutions upon the account of the council , till they should see ▪ how matters went in england . the said martin did go at the charges of the gentlemen of the meeting , and was directed to the laird of polwart and torwoodlie , who sent back word that it would not be found so easie a matter to get the gentrie of scotland to concur : but afterwards in a letter to commissar monro , polwart wrote that the countrey was readier to concur then they had imagined , or something to that purpose . the deponent , as above-said , having brought over a key from holland , to serve himself and major holms : he remembers not that ever he had an axact copy of it , but that sometimes the one , sometimes the other keeped it , and so it chanced to be in his custody when a letter from the earl of argyle came to major holms , intimating , that he would joyn with the duke of monmouth , and follow his measures , or obey his directions . this mr. veitch thought fit to communicate to the duke of monmouth , and for the understanding of it was brought to the deponent , and he gave the key to mr. veitch , who as the deponent , was informed , was to give it and the letter to mr. ferguson , and he to shew it to the duke of monmouth ; but what was done in it , the deponent knows not . the deponent heard the design of killing the king and duke , from mr. shepard , who told the deponent some were full upon it . the deponent heard that aron smith was sent by those in england to call sir john cochran , on the account of carolina , but that he does not know aron smith , nor any more of that matter , not being concerned it it . shepard named young hamden frequently as concerned in these matters . signed at edinburgh castle , the . of september , . and renewed the of the same month. william carstares . perth cancell . i. p. d. edinburgh castle september . mr. william carstares being again examined , adheres to his former deposition , in all the parts of it , and depones he knows of no correspondence betwixt scotland and england , except by martin before named ; for those gentlemen to whom he was sent , were left to follow their own methods . veitch sometimes , as the deponent remembers , stayed sometimes an nicolson , stabler's house , at london-wall ; sometimes with one widow hardcastle in more-fields . the deponent did communicate the design on foot to doctor owen , mr. griffil , and mr. meed , at stepney , who all concurred in the promoting of it , and were desirous it should take effect ; and to one mr. freth in the temple , councellor at law , who said that he would see what he could do in reference to the money , but there having gone a report , that there was no money , to be raised , he did nothing in it ; nor does the deponent think him any more concerned in the affair . nelthrop frequently spoke to the deponent of the money to be sent to argyle , whether it was got or not , but the deponent used no freedom with him in the affair . goodenough did insinuate once , that the lords were not inclined to the thing , and that before , they would see what they could do in the city . the deponent saw mr. ferguson , and mr. rumsay , lurking after the plot broke out , before the proclamation , having gone to ferguson , in the back of bishopsgate-street , at some new building , whether he was directed by jerviswood , who was desirous to know how things went. rumsay was not of the deponent his acquaintance before , but they knew as little of the matter as the deponent . this is what the deponent remembers , and if any thing come to his memory , he is to deliver it in betwixt the first of october . and this is the truth , as he shall answer to god. william carstares perth , cancell . i. p. d. at edinburgh , the . of december , . these foregoing depositions , subscribed by mr. william carstares deponent , and by the lord chancellor , were acknowledged on oath by the said mr. william carstares , to be his true depositions ; and that the subscriptions were his , in presence of us undersubscribers . william carstares . perth cancell . queensberry . athol . david falconer . george mckenzie , his majesties advocat for further probation , adduces the examinations of mr , shepard , taken before sir leolin jenkins secretary of state for england , with the information or deposition of mr. zachary bourn , relating to the plot , sign'd by him and secretary jenkins , of which depositions the tenors follow . the examination of thomas shepard of london merchant , taken upon oath before the right honourable sir leolin jenkins knight , his majesties paincipal secretary of state , the . day of december . . the deponent saith , that ferguson told him on , or about the moneth of april last , that an insurrection was intended both in england and in scotland , and that for the settling that affair betwixt the two nations , mr. baillie , mr. monro , sir john cochran , sir hugh and sir george campbels , with some others ( whose names this deponent heard not ) were come to london . that the deponent had some acquaintance with mr. baillie , mr. monro , and sir john cochran , and none at all with sir hugh and sir george campbels ; that mr. baillie told the deponent , that the earl of argile demanded thirty thousand pounds of the english to capacitat him to begin the business effectually in scotland , and that he ( the said baillie likewise told the deponent , that having concerted things with the lord russel and others , he the said baillie found an impossibility of raising that sum ; after which the said baillie had acquainted the deponent , that they were certainly promised ten thousand pounds , which sum was agreed to be payed into the deponents hands , in order to be remitted into holland , for the providing of arms ; and that the said baillie told the deponent at divers times , that the said sum , or at least one half of it would be payed such a day , and such a day ; and sometimes asked the deponent , if he had received any part of the said money , to which the deponent replyed that he had not , and that he the deponent scarce thought any would be payed . and the deponent also saith , that having had some little conversation with sir john cochran , he remembers well , that both of them did sometimes lament the delays in not paying in the money , and said , that although the said ten thousand pounds were pay'd in , they , the said sir john cochran and mr. monro , fear ▪ d it would be too little ; and this deponent further sayeth not , as to any new matter . ▪ but the deponent being asked , to explain what he thought was meant by the words above-written , viz. to capacitat him ( the earl of argile ) to begin the business , he , this deponent sayeth , that he did understand by the word business , an insurrection in scotland . sic subscribitur , thomas shepard . jurat coram . l. jenkins . the information of zachary bourn of london , brewer , taken upon oath , the tenth day of december . before the right honourable mr. secretary jenkins . the informant deposeth , and sayeth , that mr. baillie set up one night , if not two , with mr. ferguson , and went several times in the evening with him to the duke of monmouth , and the chief mannagers of the conspiracy ; that ferguson told the deponent , that he the said baillie was the chief man for the scots , next to the lord argile ; that the said baillie did sit up the greatest part of one night , with the said ferguson ; at which time this deponent believeth they were busie in preparing the intended declaration , which the deponent has the more reason to believe , in as much as the said ferguson did go about to show him the deponent , such a paper , wherein the said ferguson was hindered by the coming up stairs of some person , to speak with the said ferguson , that the said ferguson told the deponent , that the main business of the said baillie , in meeting the saids conspirators , was in order to get from them the ten thousand pounds , promised for the buying of arms , for the insurrection intended in scotland . that the deponent saw mr. william carstares come often to the lodgings of the said ferguson ; but that the said ferguson never told the deponent of any discourse held by him with the said carstares : and further this deponent saith not ▪ sic subscribitur , zac. bourn . jurat coram . l. jenkins . his majesties advocate likewise produced several warrands , and papers to prove , that those depositions are sign'd by sir leolin jenkins . his majesties advocate also produced the books of adjournal , bearing mr. william veitch to be a forefault traitor , and the act of parliament whereby the forefaulture is ratified , his majesties advocat's speech to the inquest . my lords and gentlemen , you have now a conspiracy against his mejesties sacred person , and royal government , so fully discover'd , that they must want reason as well as loyalty , who do not believe the discovery ; and they must be enemies to sincerity , as well as to the king , who do not acknowledge it . beside , that the councils of all the three nations , thought the proof sufficient , for indicting a general thanksgiving through all these nations ; and that the judges of england thought the same strong enough to infer forefaulture of life and estate , against some of all ranks there ; you have a discovery made here from the late e. of argiles own letters , and the confession of his own emissaries , the two surest proofs that law ever invented , or the nature of humane affairs can allow ; and i am this day to add to all this , a new sort of proofs in the process that i now lead against this pannal , from the confessions of noblemen and gentlemen , who have been engaged in this wicked conspiracy ; and who from a sense of their guilt , are content freely to depose against their nearest relation , and their most intimate friend , in which having thus cleared to you , that there was really such a conspiracy , i shall , in the next place , proceed to prove this pannals accession to it . it cannot be imagined , that we would willingly involve our countrey men in it , without a conviction stronger then our kindness to scotland ; nor did his majesties servants accuse this pannal , without the opinion of the ablest lawyers of the kingdom , who did , with them concur , to think that there was not the least occasion of doubting left , to the most indifferent inqueist of his guilt , after they had seriously , and with reflection , read over , and pondered the probation now laid before you . the person accused of accession to this cryme is the ring-leader of all those , who in this kingdom concurr'd with the english conspirators , as you may see by the testimonies of all who have deposed ; and it was indeed fit and just to begin with the most guilty , so that if he be not convicted , there should no man be punished for this conspiracie ; all the noise we have heard of it , is but a cheat , the kings judges have been murderers , all the witnesses have been knaves , and such as dyed for it have been martyrs . the accession charged on the pannal , is not an accidental escape , nor is it proved by witnesses , who can be suspected of unkindnes to his person , or his cause , for it is a long tract of a continued design , gone about with the greatest deliberation and concern imaginable , and proved by his nearest relations , and persons so deeply engadged in that cause , ( for which he suffers , ) that they were content with him to venture their lives and fortunes in that quarrel . he is not accused of a crime that can amount only to a single murder , though that be a dreadful cryme , but a rebellion , which was to draw upon us a civil war , that murder of murders , in which hundreths of thousands were to fall ; and to crown all , he was to 〈◊〉 , and to be the 〈…〉 of a rebellion , in which one of the first steps was to kill his sacred majestie , and his royal brother ; and one of the chief witnesses which i have led against him , is bourn , which bourn confessed that he was to kill the king , and who confesses the pannal sat up several nights with ferguson , the other contriver of the kings murder , and so familiar was he with him , that bourn depons , that the said pannal had been with ferguson , at the drawing of the manifesto , whereby he was not only to be an actor , but to be the justifier of that horrid villanie : and therefore bourns depons , that ferguson , ( the best judge in that case ) looked upon him as the chief man , next to argyle ; but because no man is presumed to go to such a hight , without previous inclination and motives , i shall to convince you , that this gentleman was very capable of all that was lybelled against him , remember you , that he is nephew , and son in law to the late waristoun , bred up in his family and under his tutory ; about the time of this plot it was undenyably known , and is now sufficiently proved , by two present witnesses , the earl of tarras and commissar monro , that he thought himself desperat , knowing himself to be guilty of treason by blackwoods case ; and as it 's presumable , that a man that 's guilty of one point of treason , will commit another ; so when a man is desperat as to his life and fortune , he is capable of any thing ; he was likewise animated to commit this cryme , by the intelligence he had that there was a plot in england , carryed on by men of so great parts , fortune and influence , and by the too probable hopes , that they would get all the western shires to joyn with them here , because of the common guilt , in which they had engadged themselves , by their late extravagances , they made an account of an assistance of twenty thousand men ; and by philiphaughs deposition , that these gentlemen expected the concurse of the southern-shires ; and thus , i am to prove to you a cryme , which is in it self , so probable and liklie , that it should need little probation , tho i have adduced for your conviction sufficient evidences , albeit the cryme were in it self very unliklie . the crymes which i hope i have proved , are , that jerviswood the pannal transacted for money to the late earl of argyl , a declared traitor . . that he designed to raise a rebellion . . that he intercommuned with the earl of argyl and mr. veitch declared traitors . . that he was present , where it was treated either that argyle should have money from the english and assistance from scotland , or that a rebellion should be raised , and that he did not reveal the samine ; and all these being sound relevant separation it is sufficient for me to have proved any one of them . and if a gentleman was lately sound guilty of high-treason , by the opinion of all the lords of session , for not revealing , that sir john cochran sought fifty pound sterling from him , though he refused the same , and tho he believed , it was sought for a charitable subsistance to , preserve him from starving ; what deserves this pannal , who sought thirty thousand pound sterling , to buy him arms , to invade his native countrey ? that jerviswood was designing to carry on a rebellion , or at least was accessory , or ( as our law terms it ) was art and part thereof , is clearly prov'd ; but that in this occult and hidden crime , which uses not to be prov'd by clear witnesses ; i may lead you thorow all the steps of the probation , which like the links of a chain , hang upon one another . you will be pleased to consider , that . it is proved that he desired a blind commission to go to england , not to manage the assairs of the carolina company , as he confess'd , but to push the people of england to do something for themselves , because they did only talk and not do ; and what he would have them to do , appears too clearly , because he tells the earl of tarras it was probable , that if the king were briskly put to it by the parliament of england , he would consent to exclude the duke from the succession : here is not only a treasonable design , ( though a design be sufficient in treason ) but here are express acts of treason proved , viz. the treating with the earl of tarras upon this design , the settling a correspondence with him for the prosecution of it , and the writing letters from london to him concerning it , and the sending down mr. martin to compleat it by a general rising ; as he design'd to push on the english , so he prosecutes closely 〈◊〉 design upon all occasions . on the road he complains cunningly and bitterly , that our lives , laws and liberties , and the protestant religion were in danger , the stile and method of all such as design to rebel ; after he arrives at london , he engages the conspirators there to assist the late earl of argile , a declar'd traitor , with money to buy arms ; this was indeed to push the english to do the most dangerous things by the most dangerous man , and in the most dangerous methods . he enters also in a strict correspondence with ferguson the contriver , with shepard the thesaurer , and carstares the chaplain of the conspiracy . alexander monro another present witness , proves that he argued with him , that it was necessary to give argile money expressly for carrying on the rebellion , and that they did meet at jerviswoods chamber where this was spoke of , and from which mr. robert martin was sent to their friends in scotland to know what they would do ; and though the silly caution was , that they sent him to prevent their rising , yet a man must renounce common sense , not to see that the design was to incite them to rebellion , and to prevent only their doing any thing in this rebellious design , by which the , might lose themselves in a too early and abortive insurrection here , till things were ready in england . for , . this commission was given him in a place , and by a company who had been themselves treating immediatly before of sending money to the late e. of argile to buy arms , and certainly those arms were to be bought for men , and not for a magazine . . they were treating how many men could be raised in scotland . . carstares deposition bears , that martin was sent to hinder rash resolutions , till they saw how matters went in england , and the return to their embassy bore , that it would not be an easie matter to get the gentry of scotland to concur ; but afterwards better hopes of their rising was given , which could not have been , if the true commission had not been to raise scotland . . that sir john cochran made a speech to that purpose , is expressly prov'd , and that jerviswood spoke to the same purpose , is prov'd by a necessary consequence ; for since it 's prov'd that he spoke , and that he did not speak against it , it must necessarily follow that he spoke for it , though the witness is so cautious , that he cannot condescend upon the words now after so long a time ; and it is against sense to think , that jerviswood who in privat press'd the same so much upon commissar monro , and who was the deacon-conveener here , and who , as mr. martin their envoy declared , was the person who was to be sent for the arms , should not himself have been the most forward man in that design , but above all exitus acta probat , this commissioner , ( who being a meer servant , durst not have proposed any thing from himself , being a mean person , and being one , who , as the earl of tarras deposes , would say nothing , but what was in his paper : ) does expresly declare , that he came from jerviswood and others ; and in the meeting with him , a rebellion is actually formed , and it is resolved , they should seize the king's officers of state , garisons , and forces , and that they should joyn with the late e. of argyle , and put their own forces in a condition to joyn with these forces that were to come from england , and they gave a sign , and a word , which uses only to be done in actual war ; so here is treason clearly prov'd , by two present witnesses , from the first design to it's last perfection . nor can it be objected , that they are not concurring witnesses , but testes singulares upon separat acts , for in reiterable crimes , witnesses deposing upon different acts ; do prove if the deeds tend to the same end ; as for instance , if one witnes should depose , that they saw a traitor sit in a council of war , in one place , and in another place , they saw him in arms , or that one saw him assist at a proclamation in one place , and saw him in arms in another ; or that one saw him writ a treasonable paper , and another saw him use it ; these witnesses are still considered as contestes , or concurring witnesses , and ten or twelve inqueists have so found , and upon their verdict , rebells have been lately hang'd . the learn'd judges of england being all met together did expresly find , that one witnes proving , that a. b. said , that he was going to buy a knife to kill the king , and another deposing , that he saw him buy a knife , without telling for what , that these two witnesses were contestes , and prov'd sufficiently the cryme of treason , yet there the one witnes , prov'd only a remote design , and the other an act , which was indifferent of it's own nature , and became only treasonable by the connexion ; but no witnesses ever deposed upon things so coherent , and so connected together , as these do , for they depose still upon the same person , carrying on the same design of a rebellion ; as to which , in one place , he is exciting his own nephew , and telling him his resolutions , and settling a correspondence with him , at another time , he presses commissar monro to the same rebellion . at a third , he holds a meeting at his own chamber , and speaks concerning it , and from that meeting , he sends a trusty , who formes the rebellion . besides all this , tho two witnesses be sufficient , i have adduced mr. william carstares chief conspirator , and who choos'd rather to suffer violent torture , than to disclose it , he likewise deposes upon all these steps , and connects them together , and this his deposition is twice reiterated , upon oath , after much premeditation . and i likewise adduce two depositions taken upon oath , by sir leolin jenkins , who was impower'd by the law of england , and at the command of the king , and the council of england , upon a letter from his majesties officers of state here , in which deposition , shepard , one of the witnesses , deposes , that baillie came frequently to him , and desired him to advance the money , and lamented the delays , and that there was so little to be advanced ; and who should be better believed then one who was his own trustie , and a person who was able to advance so great a sum ; bourn , another of the witnesses , deposes , that ferguson told him , that the pannal spoke frequently to him concerning the same money , and that he sat up several nights with ferguson upon the said conspiracy ; and who should be better believed then fergusons confident , and one who was so far trusted in the whole affair , that he was to take away that sacred life , which heaven has preserv'd by so many miracles . against these three depositions , you have heard it objected , that non testimonia sed testes probant , especially by our law , in which , by an express act of parliament , no probation is to be led , but in presence of the assise and pannal . to which it is answered , that these depositions are not meer testimonies ; for i call a testimony , a voluntar declaration , emitted without an oath , and a judge ; but these depositions are taken under the awe of an oath , and by the direction of a judge . . shepard was confronted with the pannal himself , and he had nothing to say against him ; whereas the great thing that can be objected against testimonies ( and by our statute especially ) is that if the party who emits the testimony had been confronted with the pannal ; the impression of seeing a person that was to die , by his deposition , would have made him afraid to depose laxly ; and the pannal likewise might , by proposing interrogators and questions , have cleared himself , and satisfi'd the judges in many things depos'd against him : but so it is that mr. shepard having been confronted with the pannal , before the king himself , who is as far above other judges , in his reason and justice , as he is in his power and authority ; he deposes that the pannal was the chief mannager of this conspiracy , next to argile , and that he was so passionate to have this money to buy arms , that he lamented the delays ; and can it be imagined that mr. shepard whom he trusted with his life and his fourtune , and whom all their party trusted with their cash , would have depos'd any thing against him that was not true , especially when he knew that what he was to depose , was to take away his life and his fortune ; or that if the pannal had been innocent , he would not when he was confronted with mr. shepard , before the king himself , have roar'd against mr. shepard , if he had not been conscious to his own guilt . there is a surprise in innocence , which makes the innocent exclaim , and it inspires men with a courage , which enables them to confound those who depose falsly against them ; and in what occasion could either of these have appear'd , more than in this , wherein this gentleman was charg'd to have conspir'd with the greatest of rascals , against the best of princes ; and that too in presence of the prince himself , against whom he had conspir'd ; but guilt stupifies indeed , and it did never more than in this gentlemans case , whose silence was a more convincing witness than mr. shepard could be . mr. carstares likewise knew when he was to depone , that his deposition was to be used against jerviswood , and he stood more in awe of his love to his friend , than of the fear of the torture , and hazarded rather to die for jerviswood , than that jerviswood should die by him : how can it then be imagin'd , that if this man had seen jerviswood in his tryal , it would have altered his deposition ; or that this kindness , which we all admir'd in him would have suffer'd him to forget any thing in his deposition , which might have been advantageous in the least to his friend : and they understand ill this hight of friendship , who think that it would not have been more nice and careful , than any advocate could have been : and if castares had forgot at one time , would he not have supplyed it at another ; but especially at this last time , when he knew his friend was already brought upon his tryal : and that this renew'd testimony was yet a further confirmation of what was said against him ; and albeit the kings servants were forced to engage , that carstares himself should not be made use of as a witness against jerviswood ; yet i think this kind scrupulosity in carstares for jerviswood , should convince you more than twenty suspect , nay than even indifferent witnesses ; nor can it be imagined , that the one of these witnesses ; would not have been as much afraid of god , and his oath at london , as at edinburgh ; and the other in the council chamber in the forenoon , as in the justice-court in the afternoon . . the statute founded on , does not discharge the producing of testimonies otherways than after the jury is incloss'd ; for then indeed they might be dangerous , because the party could not object against them : but since the statute only discharges to produce writ , or witnesses , after the jury is inclos'd ; it seems clearly to insinuat , that they ought to prove when they are produc'd in presence of the party himself , as now they are . and though the civil law did not allow their judges to believe testimonies , because they were confin'd to observe strict law ; yet it does not from that follow ; that our juries , whom the law allows to be a law to themselves , and to be confin'd by no rule , but their conscience , may not trust intirely to the depositions of witnesses , though not taken before themselves , when they know that the witnesses , by whom , and the judges , before whom these depositions were emited , are persons beyond all suspition , as in our case . but yet for all this , i produce these testimonies , as adminicles here only to connect the depositions of the present witnesses , and not to be equivalent to witnesses in this legal process ; albeit , as to ▪ the conviction of mankind , they are stronger than any ordinary witnesses . when you , my lords and gentlemen , remember that it is not the revenge of a privat party , that accuses in this case ; and that even in privat crimes , such as forgery , or the murder of children , &c. many juries here have proceeded upon meer presumptions , and that even solomon himself ▪ founded his illustrious decision , approv'd by god almighty , upon the presum'd assertion of a mother ; i hope ye will think two friends deposing , as present witnesses , adminiculated and connected by the depositions of others , though absent ; should beget in you an intire belief , especially against a pannal , who has been always known to incline this way , and who , though he was desired in the tolbooth to vindicate himself from those crimes , would not say any thing in his own defence , and though he offers to clear himself of his accession to the kings murder , yet sayes nothing to clear himself from the conspiracy entered into with the late earl of argile , for invading his native countrey , which is all that i here charge upon him , and which he inclines to justifie , as a necessary mean for redressing grievances ; i must therefore remember you , that an inquest of very worthy gentlemen did find rathillet guilty , tho there was but one witness led against him , because when he was put to it , he did not deny his accession : and two rogues were found guilty in the late circuit at glascow , for having murdered a gentleman of the guard , though no man saw them kill him ; but the murderers having been pursued , they run to the place out of which the pannals then accused were taken , none having seen the face of the runaweys ; and the pannals being accus'd : and press'd to deny the accession , shun'd to disown the guilt , but desired it might be proved against them . this may convince you that there are proofs which are stronger then witnesses ; and i am sure that there were never more proving witnesses then in this case , nor were the depositions of witnesses ever more strongly adminiculated . remember the danger likewise of emboldening conspiracies against the kings sacred life , and of encouraging a civil war , wherein your selves and your posterity may bleed , by making the least difficulty to find a man guilty by the strongest proofs that ever were adduced in so latent a crime as a conspiracy is . and i do justly conclude , that whoever denys that a conspiracy can be thus prov'd , does let all the world see that he inclines that conspiracies should be encouraged and allow'd . our age is so far from needing such encouragements , that on the other hand in this , as in all other crimes , because the guilt grows frequent and dangerous , the probation should therefore be made the more easie , tho in this case the king needs as little desire your favour , as fear your justice . and i have insisted so much upon this probation , rather to convince the world of the conspiracy , than you that this conspirator is guilty . thereafter the lords ordained the assize to inclose , and return their verdict to morrow by nine a clock in the morning . edinburgh , december . . the said day , the persons who past upon the assie of mr. robert baillie of jerviswood , return'd their verdict in presence of the saids lords ; whereof the tenor follows . the assize , all in one voice , finds the crimes of art and part in the conspiracy , and plot libelled ; and of concealing , and not revealing the same , clearly proven against mr. robert baillie the pannal , in respect of the depositions of witnesses and adminicles adduced . sic subscribitur , strathmore chancellor . after opening and reading of the which verdict of assyze ▪ the lords , justice general , justice clerk , and commissioners of justiciary ▪ therefore , by the mouth of james johnstoun dempster of court , decerned and adjudged the said mr. robert baillie of jerviswood to be taken to the mercat cross of edinburgh , this twentie fourth day of december instant , betwixt two and four a clock in the afternoon , and there to be hanged on a gibbet till he be dead , and his head to be cut off , and his body to be quartered in four , and his head to be assixt on the nether-bow of edinburgh , and one of his quarters to be assixt on the tolbooth of jedburgh , another on the tolbooth of lanerk , a third on the tolbooth of air , and a fourth on the tolbooth of glasgow ; and ordains his name , fame , memory , and honours to be extinct , his blood to be tainted , and his arms to be riven forth , and delate out of the books of arms , so that his posterity may never have place , nor be able hereafter to bruik , or joyse any honours , offices , titles or dignities , within this realm in time coming ; and to have forfaulted , ammitted and tint all and sundry his lands , heritages , tacks , steadings , rooms , possessions , goods and gear whatsoever , pertaining to him , to our soveraign lords use , to remain perpetually with his highness , in property , which was pronunced for doom . sic subscribitur . linlithgow . james foulis , j. lockhart , david balfour , roger hog , al. seton , p. lyon. extracted forth of the books of adjournal , by me mr. thomas gordon , clerk to the justice court , sic subscribitur . tho. gordon . in pursuance of which sentence , his majesties heraulds , and pursevants , with their coats display'd ( after sound of trumpets , ) did publickly , in face of the court ( conform to the custom , in the sentences of treason ) in his majesties name and authority , cancel , tear and destroy the said mr. robert baillie his arms , threw them in his face , trampl'd them under foot ; and ordain'd his arms to be expunged out of the books of herauldry , his posterity to be ignoble , and never to injoy honour and dignity in time coming : and thereafter went to the mercat-cross of edinburgh , and solemnly tore and cancelled the said mr. robert baillie his arms , and affixed the famine on the said mercat-cross reversed , with this inscription ; the arms of mr. robert baillie late of jerviswood traitor . finis notes, typically marginal, from the original text notes for div a -e nota , that the earl of tarras depon'd nothing against jerviswood but what the other two witnesses depon'd against himself before the tryal , and upon which thereafter they being renew'd , the earl was forfaulted ; so that there could be no ground of suspicion from , his circumstances . a true and plain account of the discoveries made in scotland, of the late conspiracies against his majesty and the government extracted from the proofs lying in the records of his majesties privy council, and the high justice court of the nation : together with an authentick extract of the criminal process and sentence against mr. robert baillie of jerviswood / extracted by command of his majesties most honourable privy council of scotland ... mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing m estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a true and plain account of the discoveries made in scotland, of the late conspiracies against his majesty and the government extracted from the proofs lying in the records of his majesties privy council, and the high justice court of the nation : together with an authentick extract of the criminal process and sentence against mr. robert baillie of jerviswood / extracted by command of his majesties most honourable privy council of scotland ... mackenzie, george, sir, - . baillie, robert, d. . england and wales. privy council. [ ], p. by thomas newcomb, for susanna forrester ..., reprinted at london : . reproduction of original in huntington library. ascribed to sir george mackenzie. cf. nuc pre- . "the tryal and process of high-treason and doom of forfaulture against mr. robert baillie of jerviswood traitor" has special t.p. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project 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the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng trials (treason) -- scotland -- early works to . scotland -- history -- - . - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - judith siefring sampled and proofread - judith siefring text and markup reviewed and edited - pfs batch review (qc) and xml conversion a true and plain account of the discoveries made in scotland , of the late conspiracies against his majesty and the government . extracted from the proofs lying in the records of his majesties privy council , and the high justice court of the nation . together with an authentick extract of the criminal process and sentence against mr. robert baillie of ierviswood . extracted by command of his majesties most honourable privy council of scotland ; and published by his majesties command . reprinted at london , by thomas newcomb , for susanna forrester in kings-street westminster . . a true and plain account of the discoveries made in scotland , of the late conspiracies against his majesty , and the government . the king's majestie having , on certain great considerations , indicted a parliament , to hold at edinburgh , of iuly . did render that meeting the more illustrious , by nominating his royal brother commissioner , to represent his majesty in it . the fanatical party , who let no occasion slip , to promove their designs , and to disturb the settled government , did at this time , use all their endeavours , to have as many of those infected with their principles , elected commissioners for the parliament , as the little power and interest they had in the nation could procure , and even where they could not hope to succeed , they had the insolence to attempt , thereby pursuing closly what they constantly design , that is , pertinaciously to disturb , where they cannot alter , and to found a reputation to their party , by much noise , though to little purpose . at the time of meeting of the parliament , their first consult was to strick at the head , and by invading the right of the monarchy , to pull it down so far , as to have the king , in the person of his commissioner , subjected to the same rules and inquisitions , with other subordinat members . the king by his laws , having prescribed rules to those who serve him in that great court , and council : they , according to the laws of their leagues and covenants , propose that the parliament should prescribe the same to the king , consonant enough to their beloved design of co ordination in power . had this succeeded , they with this one blow , had overthrown the parliament , by laying the commissioner aside : but as men oft-times design bold treasons with abundance of resolution , yet are frighted from the execution , by the danger , as well as ugliness of the crime , so this insolent resolution dar'd not shew its face , being strangl'd by their own fears . and seeing they could not dissolve the parliament , they , in the next place , resolv'd to disappoint the design of it ; and indeed , if the maintaining of an unjust interest could warrand the action , they had reason so to do : for the fanatical-party having , by their own great industry , and the supine negligent● ( to say no worse ) of these trusted by the king , to suppress them , not only kept up , but encreased their pernicious brood ; so that they began to appear formidable , both to the king and the countrey : and one of their great hopes , whereby their party increased , being founded on the short continuance of the supply granted by the nation , for maintaining the forces , they could little doubt , but that all loyal subjects would not only continue , but also further augment them , rather then leave the seditious , in a capacity to disturb the government . therefore , as a necessary expedient to preserve fanaticism , they resolved by all possible means , to hinder any continuation of the supplie . but they soon found , that the votes of their party had neither number nor weight . these well-natur'd subjects , finding that they could not disappoint , thought it convenient to perplex ; and since they could not do what they would , they resolv'd to do all they could . and albeit the late earl of argile , and some others , who were under too great obligations to the king's majesty , and his royal-highness , to appear on the side of their friends in the good old cause ; whilst the opposition was so bare-fac'd , and the hope of success so little . yet lest their little flock should be discouraged , they began then to animat them the more close , and ( as they thought ) undiscern'd methods . and now the cause being in an apparent decay , they labour'd to refresh it , with its first milk , the pretence of religion . wherefore a new security for religion was proposed ; and albeit our laws had formerly provided , what was necessary for this ; yet it could not be expected that those , who aimed at debate for religion , should rest-satisfied with what settled it . so the doctrine of the church , the canons of councils , and the laws of the kingdom being all lookt upon as nothing : argyle , sir iohn cochran , salton , the earl of tarras , philiphaugh , stairs , gallowsheils , and others of that crew , would needs provide a greater security than these afforded ; and indeed it was congruous for those who were tainted with new doctrines , to desire new sanctions : for this end they pressed a committee , for drawing an act to secure the protestant religion , which was no sooner proposed then granted ; accordingly a committee was appointed , consisting for the most part of west-countrey men , who upon short deliberation prepared a long act , which at its first appearance in the articles , was soon discerned to be an invasion upon the prerogative , under the name of a defence for religion , and not to have many more lines than incroatchments upon the royal right : whereupon it was rejected ; and in place of it a general and plain ratification of all the former good laws , which had past for security of the protestant religion , was drawn , approven , and acquiesced in , by the parliament . but fanaticks are not of a temper to give over , for notwithstanding of this good law , murmurings were heard , clamors were raised , and open protestations were made for f●rther security in religion . wherefore a new committee was appointed , for preparing an act to be drawn from the proposals for that end . the party which clamored for the protestant religion ( but in effect intending good offices to the fanatical party ) did seek after what conduc'd to their by-ends , which as they were easily discovered , were as soon rejected : argyle , sir iohn cochran , the earl of tarras , stairs , philiphaugh , gallowshiels , and their adherents fall at last on an expedient , as they thought insuperable by the kings servants , and which would force them on the dilemma of opposing religion , or the soveraignity . in the first year and parliament of king iames the sixth , when the differences betwixt queen mary and many of the nobility were in their greatest hight , and she forc'd to resign her government , being a prisoner ; there were several acts past in that , and some subsequent parliaments , which incroached on the prerogatives of the crown , the king being then an infant ; and amongst others , that wherein the confession of faith was insert , had in it several clauses altogether extrinsick to a confession of faith , for which that act by its title was chiefly design'd : and tho these acts and clauses which derogated from the rights of the crown , were often rescinded , or corrected , and the prerogative fully vindicated in many succeeding parliaments : yet these who intended more disturbance to the state , nor security for religion , took occasion after their other proposals were rejected , to offer the renewing of the said act of the first parliament of king iames the sixth , as an expedient for securing the protestant religion , as it is there profess'd ; concluding , that if that act were renewed , it would derogate from the pesterior laws , which corrected what related to the prerogative ; or if the renewing of it were refus'd , they might take occasion from that refusal , to impose on the people , that the kings commissioner and the parliament design'd not the security of the protestant religion : but the parliament defeated both these projects , by taking into the test not that act , but the protestant religion contained in it ; for the parliament was far from reviving , much less for inserting in the test any part of that act , which did incroach on the royal prerogative , the episcopal government , and policy , or whatever was extrinsick , or contradictory to the protestant religion contained in it . this , as all other disappointments , incited rage in those who resolved not to be satisfied ; and those pretended patrons of the protestant religion , will overturn it , and tear the securest test that could be made for it , rather then permit , that monarchy and it should stand together ; and finding that this test , as it did absolutely secure the protestant religion , so in just consequence thereof , it knocked fanaticism on the head : therefore to work they fall against it , with all the force of their imaginations ; and none appeared more violent then those who formally with undiscreet violence had press'd it , whilst they hop'd to invenom it , with a mixture of the poison of the covenant . but 'mongst them all , none acted with more industry , or more malice , then the late earl of argile , who being by education and choice sufficiently fanatical , yet having dissembled it for a while , thereby to keep himself in the government , and to draw it to a concurrence in his particular designs , and oppressions , whereby he kept a great estate , defrauding all creditors , and bringing many families to beggary ; he found this parliament pry a little into these mysteries , for they having made some motion in doing right to the earls of errol , marischal and strathmore , whose estates were exposed for argiles debt , whilst he enjoy'd his own estate , without owning a relief to them : therefore , albeit in the beginning of the parliament , he professed a fervour for carrying on of the king's service , yet ( his zeal to the old cause , being prick'd on by this invasion of his new right ) in the course of it , none was so active , or used more indirect ways to disappoint it . but being over-power'd by the loyal members , who were ten to one of the dis-affected ; albeit he , and other sticklers , were allowed to word the test at their pleasure , and did accordingly add to it all those clauses which since hath given pretences of scruple to many who have refused it ; yet no sooner was the session of parliament adjourned ; but the said late argile industriously , first at edinburgh , and afterward in traversing several shires , did insinuate all the prejudices he could devise against the tenor of the test : thereby endeavouring ( and not without some success ) to increase the dissatisfied party , and fit the nation the more for cumbustion : so passing home to the shires of argile , and tarhet , he fix'd the clergy and laity thereof in these seditious sentiments . thereafter he returns to edinburgh , giving it out openly , that he would not take the test ; but to make his refusal the more malicious , proposes to his royal highness , and those of the government , that he might be allowed to take it with his own explanation , which exposition he put in writ , and dispersed it ; being of that tenor and contryvance , as to cast all the obligations therein loose , making his fancy the rule of his religion , and his own loyalty the standard of his allegeance , according to which he was only to ty himself . his majesties commissioner , and the council , being well informed of his seditious carriage , both in city , and countrey , and fully confirmed in their judgments , of his malicious design in this his paraphrase on the test ; and finding that thereby he had not only perverted the sense of his majesties laws , contrary to their true meaning and intention ; but that he had endeavoured to shake the people loose from their allegeance , and make all obligations thereto illusory : and that by these methods , he did with boldness and impudence , found a schism in the church , and faction in the state , publickly owning them in the face of council : on which grounds he was most justly pursued by the kings advocat , before the soveraign justice court , and there by learn'd judges , and a jury , not only of his peers , but many of them his nearest relations ; his accusation was found relevant and proven , and judged a sufficient ground to infer the pains appointed by law for treason . albeit his father had been one of the most obstinate , and most pernicious rebels against the royal family , and that he himself had been educated in these principles , and had entered early into those practices : and albeit it be notourly known , that his private discontents and debates against his father , and the penury to which those had reduced him , were the motives which made him joyn with middleton in the hills , bringing no power with him to that army , and acting as little in it ; but by assuming the honour of what was acted by m●naughton : and that at last he was instrumental to break that party by faction ; which though this was clearly discerned by middleton at the time , yet he judged fit to dissemble it , both for encouraging the high-landers , and giving reputation to his majesties affairs , upon which account also at argiles , then lord lorn's earnest suit he did give testificates to him of his own wording , which those of undoubted loyalty did not require , and indeed were only useful to such whose actions and principles needed vindication ; yet under pretence of these , together with the great assistance of the duke of lauderdail , having attained to so immense donatives from his majesty both in estate and dignity , it was not easie to believe , he should retain that hereditary malignity , at least to such a degree as to become an open rebel ; but the ethiopian cannot change his skin ; for albeit the kings majesty , and his royal highness were so far from any resolution of taking his life , that he was allowed all freedom in prison , even after he was found guilty ; and that no further prejudice was design'd to him , than to take from him those jurisdictions and superiorities , which he and his predecessors had surreptitiously acquired ; and were used by him and them to destroy many honest and considerable familes , sometimes by stretches of law , and at other times by violence and force , but always under shelter and pretence of these jurisdictions : and that some reparation might have been made to his just creditors , and some donatives to those , whom he and his father had formerly rob'd and destroy'd , for their fidelity and loyalty to their king : and the super-plus ( if any were ) was intended for his lady and children ; which was the hight of clemency , there being indeed more debt upon the estate then the whole of its value : yet being more conscious of his own guilt then his prince did apprehend , he dar'd not rely upon that clemency , whereof he had tasted so plentifully ; but abusing the favour of his open imprisonment , for verifying of his other crimes , he added this one , of breaking the prison , and flying from the laws . no king but ours could after all this think of favouring his family , but his majesty will not only favour but restore , and before it was known that the late argile had more debt then estate , in a royal largese , he gifts more to his children by thrice then their father could lawfully give them , had he never been forsault . could it have been thought that any christian , or gentleman , could have been guilty of ungratitude to so benign and bountiful a prince ; and yet that the late earl of argile , did after the receiving so many favours , and the profession and boasting of so much loyalty ; not only enter in a horrid conspiracy for rising in arms , but gave at least courage by his bold undertakings to those who conspir'd the murther of his sacred majesty , and his royal highness ; and this conspiracy does demonstrate what was his meaning in that paraphrase upon the test , which fools and knaves have justified as very loyal and orthodox . but with what forwardness argile and others did enter into a conspiracy for overturning the monarchical government , destroying the sacred person of the king , and of his only brother , and for pulling ruine upon the three kingdoms by a civil war , the evident proofs of unsuspect witnesses , and the concurrence of many authentick papers and documents with these depositions , will not only sufficiently prove , but amount to the quality of a demonstration , all the pieces being considered together ; and with what earnestness he acted , doth evidently appear from these following evidences . for shortly after argiles escape , information was given from the west that he had caused secure the militia arms of argile and tarbet shires , as also a considerable quantity of the kings arms were given to him in trust , besides a little magazine which he had of his own , and some pieces of cannon , and that he had employed some merchants to bring arms from abroad to be landed securely in some of his remote high-land castles . and upon inquiry , one william campbel master of a ship at newport-glasgow was found to be conduc'd for this end , as his deposition taken before some of the officers of state doth clearly evince . edinburgh , the last day of august , . in presence of the lords chancellor , and advocat , william campbel skipper at newport-glasgow , being examined upon oath , depons , that in march last he was fraughted by iohn campbel merchant in glasgow for norway , france , or elsewhere , for three months certain , conform to a charter-party produc'd by him ; and about that same day he having desired to know what could be his prospect of his voyage to norway with so small a ship and loading , he refused to tell him till he were at sea , and being at the back of the lews a day or two after they set off , the said iohn campbel then said , now skipper i will tell you the design of our voyage , which is to go to norway and loaden dails , and out of that to amsterdam and buy arms , and to take in the same to cairnbulg ; and the deponent having asked him what he would do with these arms there , he answered , may not my lord come to his own again , and have use for them ; and the deponent understanding these arms were to be made use of against the king , the deponent answered , that when he was made burgess of dunbartoun there was an oath taken of him to be true to the king , and the present government , as it is established ; and upon the deponents refusal to comply with him in the said voyage , he got the ships company upon his side , who beat and abused the deponent ; and having gone from that to norway , he behoved to suffer all the voyage ; there being no justice in these remote places where he came to , from which , being upon their voyage to holland , the ship was by providence cast away , for which they blam'd the deponent , as having done the same wilfully . and this is the truth , as he shall answer to god. sic subscribitur will. campbell . g. gordon cancell . edinburgh , the of ianuary , . in presence of the secret committee , the said william campbel being re-examined , adheres to his former deposition ; and further declares , that he offered to the then lord chancellor , to apprehend the said iohn campbel ; but the chancellor made no answer to him , but whispered the general in the ear ; and he heard afterwards that the said campbel had escaped . and this is the truth , as he shall answer to god. sic subscribitur will. campbel . at the same time surmises were heard , from amongst the fanaticks from all parts , of argiles intention to land in the west with arms , and to raise that countrey , and to joyn with the western shires ; and in summer , gordon of earlston being apprehended at newcastle , the papers taken with him , and his own depositions made upon oath in scotland did give good grounds for suspition of some imminent design , which apprehensions were raised by a little accident which happened at the time ; for upon the first noise of the discovery of the conspiracy in england earlston being in prison in edinburgh tolbooth , the keeper came in to visit , him ; who found him asleep ; but he awakening at the time , the keeper told him that now the conspiracy was broke out : how ( says earlston ) is argile then landed ? of which expression the keeper having given notice to some councellers , earlston was examined upon the meaning of the expression , who plainly confess'd , that both in england and holland he had information of argiles buying of arms with intention to land in scotland , and that at the same time he was informed that the english were to rise in several places of england . alexander gordon of earlston his deposition , before a committee of his majesties privy council , and two of the iustices . edinburg , the of september , . sederunt . privy counsellors . the earl of linlithgow . lord livingston . lord president of the session . lord collington . lord castlehill . justices . lord pitmedden . lord harcarss . the earl of linlithgow elected praeses . alexander gordon being further interrogate upon the interrogators given in anent the conspiracy in england , declares , that the first time he heard of any design of rising in arms , was at the time when the competition was anent the sheriffs at midsummer was a year , and then he heard the duke of monmonth was to head the rebels , and this he had from iohn nisbet and one mr. murray a scots man then at london , and declares that in ianuary last the declarant being in holland , he heard by general report that the late earl of argile was to raise some thousands of high-landers to assist the rebels in england by making a diversion , and was to get a sum of money for that effect , and that in march last he having received a letter in holland from iohn nisbet then in london , he came over to london , where he met with the said nisbet and murray , who told the declarant , they design'd to rise presently in england , and to rendezvous in six or seven places at one time , particularly at coventry and london , and that they computed several thousands in york-shire who were to joyn with them ; that murray desired the declarant to go along with him to meet with the late lords russel and gray , and the lord wharton , ( but of wharton they said they were not very sure , being a fearful man ) and with mr. ferguson , and spoke of several old officers of cromwels that were to be there , but the declarant not being for the present rising , shunned to meet with these persons , or any of them ; and both nisbet and murray told the declarant , that sir iohn cochran was with them , and heard from these two persons , that both the cessnocks were concerned in that business : as to the letter written by io. n. of the of march , and directed for the declarant at rotterdam , declares that iohn nisbet wrote the said letter , and that under the metaphor of trade throughout the whole letter , is meaned the design of rising in arms and a rebellion , and that by the word dispatching the old rotten stuff , is meaned either the excluding the sectaries from joyning with them , or destroying the government , both civil and ecclesiastial , which last the declarant supposes rather to be the meaning of the words ; and that by the factors are meaned their emissaries for carrying on the rebellion ; and for that strange thing that was to fall out that week or the next , the declarant thinks is meaned the suddain muster of the rebels ; in the close of the letter which says , things are full as high as i tell you , is meaned that the rebellion was instantly to break out ; and having met with iohn nisbet after his coming from holland , the said nisbet explained to him , that the sense of the said letter was , as is above-said . as to the little letter direct to the declarant under the name of pringle , of the second of may ● , declares that the name of the subscriver , which is blotted out , was so blotted before it came to his hand ; but by the contents of it , he knows it is from one robert iohnstoun , a tennent or vassal to the lord gray on the border , and that the traders and trading there spoke of , is the design'd rebellion ; and that the said robert iohnstoun offered to come into scotland with the declarant to have seen some of our dis-affected people here , and to have met with them ; and that a. y. mentioned in the said letter , which the letter says laboured to undervalue the dis-affected party in scotland , which he calls your goods , is the name of andrew young , who stays about newcastle , whom he supposes to be a suspected person , because he was afraid collonel struthers would apprehend him ; and that he supposes the way that that letter came to his hand , was from some person that was at a meeting at tweeds-moor about that time , where were present several of these people that had commission from the several districts , but he himself was not at that meeting . sic subscribitur al. gordon . linlithgow i. p. c. follows the letter direct b● jo. n. which was found upon earlston . london march , . sir , on saturday last i had the occasion of seeing a letter from you , directed for mrs. gaunt , in whose absence mrs. ward had received it , at the reading of which i was not a little troubled , considering my full resolutions signified to you in my last ; for effectuating of which i had spoke for passage , and taken my farewel of mother gaunt , she going into the countrey : and that very week i was set upon by that gentleman with whom i stay , and io. iohnston with some others to stay but a moneth , and if that did not accomplish somewhat in hand to help trading , then i should be no longer detain'd ▪ after i was prevailed to retract so far , i ordered io. who had time at command , to give you an ample account of matters ; and withal io. was desired by our friends from scotland to stand here in my place the like engagements of secrecy , &c. being taken , and thereupon i ordered him to shew you the grounds of my staying , and to desire if you inclined to cross the water to come this way , but since many are the confused , yea troubled thoughts that have possessed me for yielding , concerning which , 〈…〉 my yielding to it , take the subsequent account . in my last , or it precedent to it , i shewed you that trading was very low here , and many breaking , which has made the merchants ( such as they are ) to think that desperate diseases must have desperate cures ; and while they have some stock , it will be better to venture out , than to keep shop and sit still till all be gone , and then they shall not be able to act , but let all go : which resolution i thought a thing not to confide in , seing the most of them are fire-side merchants , and loves not to venture where storms are any thing apparent . but about my departing they shewed the model of affairs in such order , that i see venture they must , and venture they will ; whereupon 〈◊〉 first demanded how our trade would be carried on . answer , they knew well what goods had proven most prejudicial to the trade , and therefore they thought to insist upon negatives , in which whatever i proposed is assented to , as i find ▪ and thus they thought best to still some criticks in the trade : and by this means first to endeavour the dispatching the old rotten stuff before they order what to bring home next . this lookt somewhat strange to me , but when i consider all circumstances , i think they for themselves do best in it : for our merchants i made account only to have had some stock for to set the broken ones up again , and so bid them here fare-wel , and they to try their way , and we ours ▪ since they think fit that some of these whom we have found ( as you will say , when you hear them named ) treacherous dealers in our trade , consulted , and accordingly have done : whereupon i fear , or rather hope that our merchants , tho broke , will rather desire to live a while longer as they are , than joyn with such , &c. to advance the trade ; unless surer grounds of their fidelity be gotten , the● is , or can be expected , and this is the bottom of all my sorrow . but to proceed , i find ( if all hold that is intended ) that they think it is almost at a point to set forward , if they had their factors home , who are gone to try how the countrey will like such goods , as they are for , or against the making sale of . friends , i mean merchants , wrote to me , that after i had spoken to you , possibly you might come this way , the better , thereby to advise them what to do in this case , for i have signified somewhat of it to them , but not so far as this , because i thought to have seen you long ere this time : but i hope you will not misconstruct of my staying , seing in it i designed nothing but advancement of our trade ; but once this week these factors sent for will be here , and then matters will in instanti , either off or on , break , or go thorow . wherefore in reference to friends , i desire you will advise me what to do , if you cannot , or think it not convenient to come here ; if you do , let a letter preceed , and if any strange thing fall out this * week or the next , i will again post it towards you ; i think when this and the next week is gone ( and no news come from you ) that i shall set forward , being still so ready , as that in hours i can bid adieu : the whiggs are very low as well in city as in the suburbs , all meetings being every sunday beset with constables to keep them out , and what they get is stollen , either at evening or morning . this winter many of the great bankers and goldsmiths in lombardstreet are broken and gone ; the ba●tam factory in the indies is taken by the dutch ; confusion , confusion in town and countrey , such as you never saw . mrs. ward and several others desire to be remembred to you . my endeared respects to your self and b. with the young men arrived . this i have writ in short , and in hast , expecting a line with as great hast as you see is needful , for matters are full as high as i tell you . farewel . from your friend and servant , while io. n. postscript . be sure that you direct not for bednal-green ; but for me at mr. mead's in stepney , near london . by this time the conspiracy had broke out in england , and by the papers sent down from the council-board there to the king's officers in scotland ; it was plain , that argile and some other scotsmen had joyned in the conspiracy , as appears by what follows . the abstract of the english depositions . thomas shephard on the . of iune . deposed , that mr. ferguson told him of an general insurrection intended in england and scotland , and that in order to it , sir iohn cochran , mr. baille of ierviswood , mr. monro , sir hugh campbel , and sir george campbel of cesnocks ▪ were come up to treat with the englishmen about it , and that argile had made a proposition , offering for . pound to begin the rebellion in scotland , and to raise a great force ; and ere it were undone , he would begin with . that mr. baillie of ierviswood told him frequently , what steps were made in this , and that the lord russel , &c. had agreed to raise . pound , and that they expected the other . pound to be raised in the city , which failing , the scots-men were to go beyond sea , and that baillie told him , he had advised the earl of argile to accept of this . pound , and that he would remit it into shepards hand , and that mr. charleton had undertaken to raise the pound . the said shepard declares , that he spoke with commissar monro sometimes of this money , and that sir iohn cochran knows of it also , and that monro complained to him that it was too little , and that the delay of paying it would ruin them all : on the . of august , the said shepard declares , that baillie did send carsteres to him , to speak further of these things , and that sir iohn cochran did also regrate the delay in payment of the money , all this the said shepard deposes upon oath ; as is contain'd in his deposition repeated in the following process , page . major holms declares , that he knew from mr. carstares , that some person proposed the raising of . pound to be given to argile for buying of arms , towards his going into scotland , and that . pound was agreed upon , that the duke of monmouth and lord russel , did send him word by carstares , that the money was to be remitted to argile for the said end , and that he the said holmes had writ so much to argile at carstares desire , that argile did send to him many letters in cyphers , and that mr. spence knew how to direct them , that he shew'd some of argiles letters to carstares , and that carstares had often spoke to him , both in the coffee-house and exchange , about argiles going into scotland , to carry on the conspiracy : that he cannot decypher the long letter marked number . nor can he positively say to whom it was directed , but was to have been carried by carstares to ferguson , and by him to the other chief men concerned in the design : that the letters marked number , , is from the countess of argile to her husband , and that the letter marked number , was from argile to his lady , which he knew by a mark on the back ; that spence went by the name of butler , and that the late earl of argiles letters were direct to him by spence , that castares told him , the persons concerned had condescended to give . pounds to argile , that he did so write to argile , and that argile had writ to him , that . pounds was the least he could accept of ; this was given in by holms on the . and . of december , . zechariah bourn on the . of december . before secretary ▪ ienkins deposeth , that mr. baillie did sit up a night or two with mr. ferguson in the deponents house , and that they went several times to the managers of the conspiracy , that ferguson told him their main business with the conspirators was , for getting . pound promis'd to promove the insurrection in scotland , and that baillie was the chief man in it next to argile , that ferguson told him he was to go over with the bills of exchange , and that argile was to command the scots . robert west declares , that ferguson told him that argile would raise a sturdy commotion in scotland , if he had but . pounds ; that cessnock , sir iohn cochran , and other scots , were come up to london , under pretence of treating for carolina ; but in truth to consert matters for a design in scotland . on the th of iuly , . hepburn , a scots vagrant minister declared , that he knew by several hands and persons , that there was a plot , and a rising intended both in scotland and england . all these depositions were taken in england , except earlstons and campbels . after this , one mr. spence , who past under the name of butler , being apprehended there , was sent to scotland . major holms declared , that spence did pass under the name of butler , that he came over from holland with a cargo of argiles books , to disperse them , that he landed at harwich , that he could open argiles letters , and was the person who directed many of argiles letters to him . these proofs , with what occurr'd in england , were sufficient to convince all men of the truth of this conspiracy ; but the perversness of fanatick humors will neither admit of confession nor amendment : for albeit the evidence did fully convince juries and judges : albeit parties confess associations and resolutions to amend the government in their own methods : albeit some acknowledge designs to surprize the kings guards , others to have a parliament called ( whether the king will or will not ) to judge of the government ; and severals with great remorse reveal their own resolutions to murder the sacred person of the king , and his royal brother , and they adhering to this confession ; yet fanaticks will neither believe it , nor allow others to do so , but with unheard of impudence treat so weighty a matter in ridicule , as if they who before had acted all , which now could be feared should be now esteem'd incapable to fall in the like actions , albeit they openly avow the same principles : and bold pamphleters adventure to impose these clear proofs as apert falshoods upon the credulous world , and too many were so ill minded as to believe them . but it 's hoped , that what follows will convince all good men of the truth of what was discovered , and silence all libellers , if darkness must give place to light. at the time of the discovery of the conspiracy in england , several letters , with two keys for opening some mystical words contain'd in them , were found with major holms and others , which letters were known to be argiles hand-writ , by those who were acquainted with it , and afterwards being confess'd by the said holms to be so ; they were considered in england , and some imperfect decyphers made of some of them there : many of which letters , with the keys , and these decyphers were sent down to scotland ; but they appeared so perplex'd , what with cyphers , what with other secret contrivances in writing , as that some who then had the chief management of affairs there , by their supine negligence made but little procedure in discovering them : until a secret committee was appointed by his majesty , who considering that those letters might contain matters of importance ; did apply themselves with earnestness to search into them ; but finding them very intricate , and that the decyphers which were sent from england did open nothing to purpose : they employed one mr. gray of crichie , and gave him for the first experiment , that letter written by the lady of argile to her husband , thereupon to make an essay , which indeed proved more uneasie to unfold , then any of the rest ; yet with much travel , he did very ingeniously discover , first , that every cypher was made up of two figures , next , that every letter of the alphabet was denoted by three different cyphers , which were promiscuously used in one and the same word ; as likewise that there was mute-figures mix'd in with many words , the more to confound the discoverer : so that upon application of the triple alphabet , hereafter set down , to this and several others of the letters ; it was found to open them exactly . of which first discovery mr. gray having given an account to the lords of the secret committee , they found it evident , and appointed the rest of the letters , the english keys , and all other papers relating to that business to be given him for his help in further discoveries ; all which being considered , it was observed , that the middle alphabet of that triple one found out in scotland , was the same with that found out in england , which was made use of by argile himself in his letters ; yet his way of using it in his writings was so perplex'd by the interposition of a great many mute-figures , that tho the key was found out there , yet some of the letters could not be opened : and in full evidence of this first discovery , the said letter is afterward set down , both as it was written in the cypher , and also as it was decyphered , to which is added the triple alphabet , the warrand thereof . the letter from the countess of argile to her husband . marked number . , the . . i came here on tuesday , where i found ● , and the , , of the all the came to see , and and ● came with came by an with all and , i never saw so for . we hear of a great circuit court hath been at stirlin , there were three shires met there or . and m. of m. and the kings troop , and e. b. came with the herotors of fife , and his troop . m. of m. went to glasgow , but some of his troop is at stirlin , and there were some of them sent to to edinburgh for an prisoner they say they call smith ; and friday last the . of iune , of the kings troop came with that smith the length of an place they call inch-belly-bridge as they go to glasgow ; there is they say a moss , and near it a house and a barn ; and as they came near the barn armed men fired at the gentlemen of the guard , and shot dead one mr. murray , he had one shot in his forehead , in his body , and one in his shoulder ; and an other of the gentlemen called iohn bannatine was shot thorow the arm and side , his arm broken to splinders , that he is dead before this time ; the prisoner when he saw them , lighted off his horse , and run to them , and got an long gun from his fellows and ran into the moss , the gentlemen pursued , but got none of them taken , but many is in pursuit of them . it 's a horrid way for any that bears the name of christians to associat persons to murder on the high-ways : there is an story going here that there was a ship put in to newcastle which had some box from rebellious people in holland , and when they came to land , a waiter came to search the ship , and the box was cast into the sea , at which the waiter called the ship-master to catch the box as he would be answerable ; so it 's said , it was got and sent to the king , and that io. br. and some of l. st. andrews murderers was come to scotland to make trouble , but i would hope such a crew shall never get fitting here nor harbour . i must here bid you adieu , i use not to write so much news as this is . i got not writ last week , because poor is sick , and i will not to every , i have got nothing done in my affairs , our trade goes ill on ; but will to i am sorry i for i am this far on my way to and to see i shall give account when i come back , and i fear till then i will not get writ , for my boy is sick . i sent the letter to who i saw on wednesday , told me he had received yours ; but did not yet which i confess i thought a little strange , being at least days with him to stay with but would not , but said it was not meet nor for to at this thought none would be so as to take that not , i said never stood to shew his constant to and all that belonged to is very doing that hope hath no and i hear , for there is a to to get but knows not yet ; there was as has it makes in some for with the of their hath so for them all that hath procured a great deal of love from the and somewhat from others it 's the ● thing tho it could not ● they could not an they ck the and a to the who too great of there was one here a of that lives in . that was most ii on for speaking i spoke to for but none befriended or appear'd for him but who did , the was only good of the other tho the favorit of the was and ja. i ii long letter to who i think . postscript . let these news be known to your scots friends . this letter opened . stirling the of june i came here on tuesday , where i found a great meeting , e. perth , m. mon. e. marr. gen. dr. and the advocat , four lords of the session ; all the lords came here to see w. f. and q. and r. came with w. d. came by an order with all fife heretors and d's troop . i never saw f. so vexed for d. countrey ( here is in plain writing some scots news till it came to this ) i got not write the last week , because poor archie c. is sick ; and i will not trust my letters to every one , i have got nothing done in my affairs , our trade goes ill on ; but god i hope will help me to bear all . i am sory i can do nothing for w. i am this far on my way to inveran and to see my dear h. i shall give l. account when i come back : and i fear till then i will not get write , for my boy is sick . i sent the letter to l. mat. who i saw on wednesday , d. told me he had received yours , but did not yet read it , which i confess i thought a little strange , being at least eight dayes with him , i invited d. here to stay with w ▪ but d. would not , but said i knew it was not meet , fit , nor safe for d. to ly at this house ; i said i thought none would be so ill , as to take that ill ; d. came not , i said f. never stood to shew his constant kindness to w. and all that belonged to d. l. matl . is very busie here doing what d. i hope hath no pleasure in ▪ and i hear for all d. does there is a warrant to l. castlehill to get d. place ; but l. m. knows not yet . there was never such work as has been here , it makes all in fear , some summoned for speaking with intercommuned people the stile of their horn. eight years ago : f. hath so stickled for them all , that it hath procured him a great deal of love from the countrey , and somewhat else from others , it s the strangest thing , tho it could not be proven they could not get an absolvitor , they take the test , and pay a great deal to tam gordon the clerk , who gets too great a deal of money , there was one here a feuar of w. that lives in salen that was most unjustly summoned here by one paton for speaking treason , i spoke to l. m. for d. but none befriended d. or appeared for d. but. f. who did bring d. off . the treason was only good of w. the other tho the favorit of the clerk was found a liar , and iames oliphant absolved , o but i could write a long letter to w. who i think happy be others . postscript . let these news be known to your scots friends . nota , that after this letter was deciphered , the letter d. which was denoted by the figure , could not be found out , until the secret committe appointed the kings advocat and sir william paterson , one of the clerks of the privy council , to examine the countess of argile upon the meaning thereof , who declared that it was no proper name , but wherever it was placed in the letter , it stood for a relative . the clavis of this letter d. stands for the relatives he , his , their , him , &c. w. stands for argile , and his lady , or me , yours , &c. l. stands for lorn , conform to the countess her deposition . l. m. stands for lord maitland . f. q. r. the key of words , whereof two copies were found with major holms , one of them being mr. carstares hand writ , and confest by him to be the key of their correspondence , in which also there is an alphabet different from the other three , for which as yet we have found no use ; the middle column is thought only to be mute figures , to confound the design of the key . so that one word is only set down for another , as ker stands for king , birch for england , brand for scotland , &c. king ker d. york corse d. mon. white e. roch. whit e. halifax whyte the court west the council westli one of the council east the torries westly the whiggs brown the city wilson the mayor watson sheriffs brun court of aldermen baxter common council barker l. russel weste e. essex wilson dissenting lords browne bishops of england wood the clergy child non-conformists chyld england birch france birche the states heart the prince harwood forces hal horse hilyard foot hickman of the one or — other , a tick after . his so many partners . and so forth a — a stroak after , thus . his so many neighbours . arms chylde money hall or lib sterl . for the number or , with a stroak , or tick , as above , but the ves beneath , and the ths before , or a little figure underneath to mark the number . so many associats or sharers with him . officers ramsey a general bareley col. sidley ramsoy mr. holms barclay commissar monro reid sir iohn cochran rac mr. carstairs red mr. stewart harlay mr. athol harlaie mr. huntly ross scotland brand council there boid chancellor calender queensberry davidson d. ham. boyd e. argile forrest scots forces forret scots fanaticks goven scots n. c. ministers lands scots clergy menzies the west mason the high-lands wright the south . ma●son the north nairn edenburgh ross the castle masone dumbareon thoms●n the east tomson the scots gent. grein the gent. at lond. gray the borders menzies ships for their number a figure added mr. berrie a garrison bierre religion bass popery sibbet papists long scots nobility one of them a friend of h. sibit the alphabet . a b c d e f g h i k l m n o p q r s t u v w x y z & an addition in the key , written by mr. carstares . old friend is tome . mr. kiffin is bishop . mr. cox is crafts . lock is huxter . cessnock is cozens . ierviswood is ball. to surprize is to speak with . to land is to go to . to march is to deal . to make prisoner is to agree . to fight is to talk . to disarm is to help . to kill is to see . to give quarters is to ●ear . to overcome is to find . here follows the alphabetical key , found out by the said mr. gray , which opened the countess of argiles letter . a b c d e f g h i k l m n o p q r s t u w x y z ● the next letter decyphered by the foresaid mr. gray , answering exactly to the middle alphabet of the said key ; was a little one written in a paper , and inclosed in a letter to mr. west , at mr. staples in south-wark coffeehouse , in bartholomew-lane , london , dated the of iune ( the letters direct to major holms being declared by spence and mr. carstares to pass under this kind of direction , ) which little paper inclosed within the said letter , here follows both in cypher , and decypher . a little letter written by argile , all in cypher , and confounded with mutes . ● ● ● . the said letter decyphered . if d. m. be made prison er he is lost to all intents and purposes , thrice m. reds made proposition of every thing might secure , brand without a box , and then to deal with birch , but it is not talking will do it , and what is hapened needs not hinder but should further ' em . this letter was opened by the middle alphabet before set down : so the significant figures read thus in plain writing . if d. * m. be made prisoner , he is lost to all intents and purposes , thrice mr. reds made proposition of every thing might secure brand without a box , and then to deal with birch : but it is not talking will do it , and what is happened , needs not hinder , but should further ' em . by m. red , mr. carstares is signified , brand is scotland , and birch england , according to the key of words , which was found with major holms : mr. carstares deposition insert in ierviswoods process will further inform as to the tenor and intent of this letter . this letter was writ in all probability after that he heard , that the conspiracy was discovered ; for the plain letter in which this cypher was inclosed , seem'd to be a part of his lamentations . the letter follows . iune . sir , i have received yours instant , with the inclosed , which is indeed sad ; yet god guides the world , and all will work to the end he intends , and what he purposes will at length prevail . i had newly read the first treatise of the big book you sent me , pray read the last lines of the d chapter , pag. of that treatise , and if you please some leaves before , and the that follows , he mistakes the calculations of the numbers of years , but the matter looks as like our present circumstances as any such thing can do , if the party were alive he could say little more : what you writ will make me long to hear again : our scribe it seems is an unhappy man : desire m. b. to buy me b. vshers prophecy , which i have seen in print by it self ; and if it be possible to get me a copy of that little book you once lent me , wherein is a speech i copied ; he may look for it . this letter was also direct to mr. west . by these two letters , it appears ; that albeit by the providence god the conspiracy was discovered , and the designs thereof defeated , yet nothing would either divert or deterr argile from prosecuting so glorious a work : for so he had promised before it was discovered , by several of his letters ; as appears particularly by one direct to mr. west , dated iune . another adressed to holms , marked n. . iune . sir , this morning i received yours , instant , but can say little till i meet with mr. red ; only you may be sure , it will not be a small matter will make me desert your service , and especially no concerns of my own : and none shall be more sparing of your credite that understands the trade . i doubt not after i have spoke with him , to convince you of what i shall then give you as my opinion , and leave the issue to god almighty . i am very sensible of all your kindness to me , and of good honest m. l. pray return him my thanks : as for my other friend that is the life of all , pray tell him i must once see him before i need that you offer to send me , it will be then time enough to dispose of it ; and if it be made use of , i hope he shall hear of it to his satisfaction : i perceive by it , he hopes well of me : it made me smile when i read your letter : when i know that mr. b. is with you i can write at greater length of all your affairs . i will now long to hear how the last parcel of goods i sent you pleases the merchants , they were long of coming , but i hope are not yet out of time , and what ever the fault is may be helped in the next parcel . adieu . haste back . m. b. direct the inclosed by his advice . directed . mr. west , at mr. shepneys south-wark coffee-house in bartholomew-lane . london . here follows another letter , marked number . direct by argile to his lady , of the same date , which was known by major holms , t● be f●r the count●s● , by a particular mark upon the back of it , which he shew to his 〈◊〉 . sir , this is only to tell you that all your friends here are in health ( god be thanked ) our news from england are very various and uncertain , and mr. b. is gone to london , and to return in a month , or less ; i doubt not he will write to you : i have heard nothing from , nor , . these six months . adieu . the decypher of the said letter· this is only to tell you that all your friends here are in health ( god be thanked ) our news from england are very various and uncertain , and mr. b. is gone to london , and to return in a month , or less ; i doubt not he will write to you : i have heard nothing from l , nor l , m. these six months . this letter is decyphered by the aforesaid alphabetical key , and by the countess of argiles deposition , the letter l , stands for lorn , and the letters l , m , for lord maitland . mr. gray of crichie having considered these following letters of argiles , which after discovery , were found to comprehend the designs more plainly , and finding such a perplex'd contexture and in-cohesion of the words , as he had not observed , at any time before , in this way of writing : he concluded it to be a work of very great difficulty to open them ; yet his success in former discoveries , gave him encouragement to make an attempt . but in the mean time , having informed the lords of the secret committee , that it appeared from the postscript of the long letter ( where argile says , in plain writing , that mr. butler ( which is spence ) knows how to write to me , and understands my address , and to instruct you ; and if not , he had lost six hours work ) that the said mr. spence could do the business : and they finding , that what was already decyphered , did give such evidence of a conspiracy and treasonable designs against the king , and his government , which being joyn'd with earlstons deposition , and the letter taken upon him from io. n. they judged themselves bound in duty , to offer what was discovered to the consideration of his majesties most honourable privy council in scotland , and thereupon , according to the law and practice of the nation , did call before them the said spence , and after all arguments of perswasion and command were used , and these passages in argiles letter , whereby it appeared he was instructed to open them , were represented unto him ; yet ( notwithstanding of his duty and alledgeance to his prince , and that it was judicially declared , that what he deposed , should not militate against him ) he still refusing to open the letters , or to depon that he could not ; yea , not so much as to answer other interrogators , which did arise from matter of fact clearly proved against him . they afterwards proceeded to torture , according to the custom of nations , in the like cases , which had its desired effect . for upon the day of august , he not only acknowledged that he was the mr. butler , or m. b. mentioned in argiles letters ; but also undertook to shew the way of reading the following letters , to the then thesaurer deput , now lord secretary , and to the lord register , upon their promise not to divulge the same ( which accordingly they performed ) and so he gave in a copy of the letters opened . but mr. gray ( after some pains taken ) understanding from the lord register that all the words of the letters were significant words , whereof he had formerly been doubtful ; there being of words in the long letter , monosyllab● , he did fall upon the way of opening these letters , which not only did confirm the sense mr. spence , had given of them ; but made it a demonstration : so that by the way of opening afterwards set down , the matter was more clearly proved , then it could have been done by the attestation of many witnesses : by which was discovered both the blackness of the treason , and the great care taken for keeping it secret . for , . things were express'd under new words : so that indeed upon the matter it is a new language . . these words were written in cyphers . . this cypher consisted of a triple alphabet . . many words were intermix'd with mute-cyphers . . in some of these letters all the relatives were express'd by figures , as in the lady argiles letter , the figure , or the letter d , stands for the relatives he , his , him , &c. . that tho mr. spence was instructed to shew the way of reading the following letters , yet he knew nothing of the purpose contain'd in them , all the material words being in cypher . . the words in the long letter were so ordered , that words in course were interposed betwixt the and word in sense , and as many betwixt the and , and so forth to the last word of the letter : then beginning with the word there was words betwixt that and the next in sense , and so forth till they came to the penult word : again beginning with the word of the letter , betwixt which and the next in sense : there interveen'd only words , and so forward to the end . . in the short letter words were interposed betwixt the first and second , and so to proceed as in the other . by which unequal destribution and gradual decresce of the interjected words , the method of reading became the more mysterious and intricate ; but the way fallen upon by mr. gray giving so clear and convincing evidence of the method , it leaves no ground of doubt concerning the matter : for in the long letter there being colums , and each column containing ● words , argiles way of using them is , he begins at the head of the first column , and proceeds to the foot of it , then beginning at the bottom of the second column , he rises to the head thereof , thereafter begins at the top of the column , and goes on after that manner till he come to the upmost word of the column , which tho it be last word in order , yet it is but the word in sense : whereby all the words were plac'd in their right sense and plain view , as the letter both in its mask and decypher doth clearly evince ; yet one word being added or abstracted in the said order of the words , the letter should return to its first chaos of nonsense . the letters follow , together with their decyphers , and ways of opening . this is a letter wherein argile gives an account to his confederates in england , of the proceedings of the kings ministers in scotland , thereby endeavouring to disparage them , all written with his own hand . west much way daily at i i● with then or or a if to at in of he cause other to keep and also did persons any thing they of any if gave any mr. m. did thereof knew these and relation and go he any with any in or ● ● he send air to be sheils is as done extremities to them knew if ● others any other and knew to if or to if persons of and imploy person him any thing others say they plea●e will to to of money out of him if their now he the ● he who who of person did or they or any to a here where any arrived the and you are ● ● you that others conversed since write to the was imployed and knew or present kept with going to the of for the perswade go be for fear found to or above that the ● go ● away drawn correspondence ● any of ●● ● mr. the ● my or and with at had for of ● ● ● are as pre●dent is desirous things given the privat or the if send party person m. to any other and with and or or to ● effect named disswade the to or money swear ● ● any persons and roll to any the if any black place meeting the c. and for m. any they rebels before meeting stile l. in go what as , lib. ss . there rests just — . the decypher of the foresaid letter , as it was done in england , with some amendments here , which answered exactly with the middle alphabet , found out in scotland . west much may daily at i if with bothwel then or commission or a if to re - bels at in sentence of he cause other to keep and also did tennents persons any thing they of any if gave any mr. m. did thereof knew these and relation london and go he treaty any with any in or intercommuned he send air to be alarmed sheilds is as done extremities to them knew ● ministers if arms others any other and knew to if or to if persons of and imploy clerk person him any thing others say they please will to to of money out of him if their now he the cessnock he glasgow who who of person did or they or any to a here where any arrived the and you are tennent you that others conversed since write to the was imployed and knew or present kept with going e. l. to the of for the perswade go be for fear found to or above that the circuit go cesnock away drawn correspondence government any of hamilton mr. the kings my or and with at had for of interrogators are as president is desirous things given e. the privat or the if send l. party person m. to any other and with and or or to court porteous effect named diswade the to or money swear rebellion any persons and roll to glasgow any the if any blackwoods place meeting the c. and for m. any they rebels before meetings stile l. in go what as . lib. ss . there rests just — the copy of the said letter , as it was given in upon oath by mr. spence . west-shields is arrived , the president is as much alarmed as any , and as desirous what may be done where you are ; things go daily to extremities ; here are interrogators given in at air to a tennent of e. l. i send them to you for the stile : if he knew any that had private meetings with intercommun'd ministers , or others , at , or before bothwel , or if they conversed with the rebels then in arms , or since ; and if they , or any others did write , or send any commission with any person , to my l. m. or any other of the king's party for a treaty , and who was the person , and if he knew who imployed mr. m. c. to go to glasgow and hamilton to the rebels , and if he knew of any meeting at lowdon , or cesnock , or any other place in relation to the present government , and blackwoods sentence , and if he kept correspondence with any of these persons now with-drawn , and if he knew of their going away , or the cause thereof , and if e. l. cesnock , or any other did imploy him to go to glasgow to mr. m. clerk of the circuit court , to keep any person out of the porteous roll , and gave him money for that effect ; and also , if any of the above-named persons did any thing to perswade , or disswade any tennents of others to go to the rebellion , persons they say will be found to swear any thing they please , for fear , or money . follows the method or way of opening the foresaid letter discovered by mr. gray , for further confirmation . the foresaid letter set down according to the method of opening before narrated . west - sheilds is arrived the president is as much alarmed as any and as desirous what may be done where you are things go dayly to extremities here are interrogators given in at air to a tennent of e. l. i send them to you for the stile if he knew any that had privat meetings with intercomun'd ministers or others at or before bothwell or if they conversed with the rebels then in arms or since and if they or any others did write or send any commission with any person to my l. m. or any other of the kings party for a treaty and who was the person and if he knew who imployed mr. m. c. to go to glasgow and hamilton to the rebels and if he knew of any meeting at loudon or cessnock or any other place in relation to the present government and blackwoods sentence and if he kept correspondence with any of these persons now with - drawen and if he knew of their going away or the cause thereof and if e. l. cessnock or any other did imploy him to go to glasgow to mr. m. clerk of the circuit court to keep any person out of the porteous roll and gave him money for that effect and also if any of the above named persons did any thing to perswade or diswade any tennents of others to go to the rebellion persons they say will be found to swear any thing they please for fear or money . the long letter written with argiles own hand , which was address'd to major holms , and marked number . iune . tho i cannot by this post send you a full account of your affairs , yet i send you as much as may make you take measures what bills to draw upon me , which i hope you will fully understand by mr bs. help ; the whole account amounted to several pages ; but i only give you one to total , as sufficient . i gone so i and refuse object first you time much is way the our would of altogether concerned do upon absolutely do to do effectually as that it be to is at all be money of and to and they have is at be that no some their , &c. part as against the but concurrence from be less nor like place and interest is small and power against need do bring which birch that cannot time are out upon an to projected meat very may little done the been purse i to shall my lists ● to great venture they prospect provided have can willing god given conference week brown i of things said some the now their my head guard mention things which to your hope some ago as over some if do spoke for of know and encouragement confer have and self be order resolve and to reckoning all and undertake honest or was far be shooes undertaking many of to for purchase was as is the a possibly us of by force it tho so how the credite for time birch and some greatest them concerned will for and to and station good may only the if more will if should expect tollerably standing and by and necessar the the more the hazarded to it and think urge so necessar i the that so affairs have business very i possible of i send here against my till what little upon know not which money i service any what shall resolve thee at did least effectually thought and far if business reckoned for still the there i or stuck you upon money by first sum if then bills well that need trouble something very a frighten the probably not the tho the once for and will and to money could foolish browne many the not to gods brand besides stay iob seat yet to proposed a deal the things as all once less any drink well on know i as pay whether never the received to any calculate about to that that the such with you i other i i for considerable be particular add i are of lest i but all have it enemies to cannot to friends made part i write wish may be service mr. an whole there consider persons it when knowing any and payments to i it low shall little little meaning intelligence thing out had which tents usual whole with and by the more of if but the that blessing raise a can virgins supply to call not keep imaginable tho them standing many number only at standing a first considerable with more can them countrey in and there it was weeks half i so to at think needs precise i the the it a within what requisite not sum truly this grounds to say mr. thing nor know they as hath the grounds occasioned i they both do is red only let i distance in i half in i the little would first shall number very and the consider small confess them work proposed please cannot are brand it the be then be little have the but it will and as we yet together only it for buy it consider imploy better interest small so to some a future the to total the absolute of and designed and wagons are but of proposed or and because what add as out meddle touch of i knowing merchant there it that what is ● red i not but i of expect of up i enforce at be that should a is in considerable put i done this all have by the not to had before able will i if and a they have will is for shall necessars the or of if is is they very incident for the dayly not cloaths necessar to there the necessar best of the events little to hope many sum were for so in we them more will in and it had any many yet be may all and will it without and not but more got triple on is very now be god and but is what a if odds it as near named not brush of not less power proposed an of thought my and go you in or resolved so i intend hear them our to neither to will much till any the know on in proposition could what other i of could be the and be but that easie were i all differ was absolutely soon more to sent above at well right foot their together provisions the suddenly that will take will of the be unwilling the will can at is get brand not no should the much their not and men the are be while do to advantage the husbanding for number is be for only to whole provisions charges good can to i i my meddle money as freely for the and be es●ates do project all after see be i it such you all the yet i distance to dare them direction gods hands in on not prevent and have some help may from a a be pray very i i necessars and that to a occasion prices the submit they but not own had made be do men some of sum be necessar such bestowed nothing they one it money of brand not to sent engaged whole with a concerned own money next prove money far then but some impossible first be be most to of to up do tho there done case and yet number without hard appointed left like give will after necessar proposed as should leave hard had number i peremptor i stood possibly those thought juncture i do mention this as as mean other i as neither give know offer have adieu . gil. st. the total sum is . which will be payed to you by mr. b. follows in plain writing on the back of the letter . i have found two of the books i wrote to mr. b. were lost , i believe he hath the blew one , we have received his letter , i have nothing more to say to him at present , i hope he knows how to write to me , and understands my address , and to instruct you ; if he do not , i have lost six hours work . adieu . the decypher of the said letter as it was done in england , with some amendments since , which answers exactly with the middle alphabet found out in scotland . sir , iune . tho i cannot by this post send you a full account of your affairs , yet i send you as much as may make you take measures what bills to draw upon me , which i hope you will fully understand by mr. b's help ; the whole account amounted to several pages ; but i only give you one to total as sufficient . i gone so i and refuse object first you time much is way the our would of altogether concerned do upon absolutely do to do effectua●ly as that it be to is at all be success money horse of and to h orse and they have is at be that no some there foot &c sight part as against the but concurrence from be less nor like place and interest is small and power against need do bring which birch that cannot time are out upon an ho rse to recruited projected meat very may little done the been pur●e i to shal my lists i to great venture they prospect provided have can willing god given conference week brown i of things said some the now there my head guard mention de signs things which to your hope some ago as over some if do spoke for of know and encouragement con●e● have and felt be order resolve and to reckoning all and undertake honest or was far be shoes und●rtaking many of to for purchase was as is the a possibly us of by force it tho so how the credit for time birch and some greatest them concerned will for and to and aid station good may only the if more will if should expect tollerably standing and by and necessar the the more the hazarded to it and think urge so necessar i the that so affairs have business very i possible of i send hear against my till what little upon know not which money assistance i service any what shall resolve the at did least effectually thought and far if business reckoned for still the there i or stuck you upon money by first sum if then bills dragoon● forces well that . beat multitudes need trouble something very a frighten the probably not the tho the once for and success will assistance and to money could foolish browne many the not to gods brand besides stay job seat yet to proposed arms a deal the things as all once less any drink well on know i as pay whether never the received to any calculate about to that that the such with you i other i● for considerable be particular add i are o● lest i but all have it enemies to cannot to an account to friends made part i write wish may be service mr. an whole there consider persons it when knowing any and payment to i it lo● shall little little meaning intelligence thing out had which tents usual whole with militia and by the more of it but the that blessing raise a protestant horse can virgins supply to call ireland not keep imaginable tho them joyn standing many number horse only at standing a multitude first considerable with more can them countrey commanded in and there arms it was weeks half i so to at think needs precise i the the it a within what requisite not sum truly this g●ounds to say mr. thing nor know they as hath the grounds occasioned i they noth do is red only let i distance in i half in i the little would assistance first shall number very and the consider small con●ess then work proposed please cannot are brand it pe●ple the ●e arms them ●e appearing gathered little forces stirling have the but it will forces and as we yet togethe● only it for buy it consider imploy better interest small so to some horse a future the to total the absolute of and design'd and wagons ar● but of proposed or and because what add as out meddle touch of i knowing merchant there it that what is affair attempt red i not but i of expect of up i enforce at be that should a is in con●●●erable put i done this all have by the not to had before able will i if and a they have will is for souldier shall necessars the or of if is is they very incident for the daily not cloaths necessar to their the necessar best of the war events little to hope repress many sum were for so in we them more will in and it had any many yet be may all militia and will it without and not but more got triple on is very foot now be god and but is what a if odds it as near named not brush of not less power proposed an of thought my and go you in or resolved so i intend hear them our friends to neither to will much till any the know on in proposition could what other i of could be the and be but that easie were i all differ was absolutely soon more to sent above at well right foot their together provisions the suddenly that action will take will of the be unwilling the will can at is get brand not arms no should the much there not and men the are be while do to advantage the husbanding for number is be for shoes only to whole provisions charges good can to ii my meddle money as freely for the an be estates do project all after see be i it such you all horse the yet i distance to dar them direction gods hands in on not prevent and have some help may from a a be pray very ii necessars and that to a occasion prices the submit they but not own had made be do men some of sum be necessar horse such bestowed nothing they one it money of brand not to sent engaged whole with a concerned own money next prove money far then but some impossible first be be most to of heretors to up do tho there done case and yet number without hard appointed least like give will after necessar proposed as should leave hard had number i peremptor j horse stood possibly those thought juncture i do mention this as as mean other i as neither give know offer have . adieu . gil. st. the total sum is — . which will be payed to you by mr. b. written in plain sense on the back of the letter . i have found two of the books i wrote to mr. b. were lost , i believe he hath the blue on : we have received his letter . i have nothing more to say to him at present : i hope he knows how to write to me , and understands my address , and to instruct you , if he do not , i have lost six hours work . adieu . the copy of the said letter , as it was given in by mr. spence , according to the plain sense thereof , without the preface or postscript , being set down already with the cypher and decypher . i know not the grounds our friends have gone upon , which hath occasioned them to offer so little mony as i hear , neither know i what assistance they they intend to give ; and till i know both , i will neither refuse my service , nor do so much as object against any thing is resolved , till i first hear what mr. * red , or any other you send shall say ; only in the mean time i resolve to let you know as much of the grounds i go on , as is possible at this distance , and in this way . i did truly in my proposition mention the very least sum , i thought could do our business effectually , not half of what i would have thought requisite in an other juncture of affairs ; and what i proposed i thought altogether so far within the power of those concerned , that if a little less could possibly do the business , it would not be stood upon : i reckoned the assistance of the horse absolutly necessar for the first brush , and i do so still : i shall not be peremptor to urge the precise number named , but i do think there needs very near that number effectually ; and i think as easie had as or and it were hard that it stuck at the odds . i leave it to you to consider if all should be hazarded , upon so small a differ . as to the money , i confess what was proposed , is more by half then is absolutely necessar at the first weeks work , but soon after all the sum was proposed , and more will be necessar , if it please god to give success ; and then arms cannot be sent like money by bills : there are now above horse and dragoons , and foot at least of standing forces in † brand , very well appointed and tollerably well commanded , it is right hard to expect that countrey people on foot , without horse ; should beat them the triple their number ; and if multitudes can be got together , yet here follows the foresaid letter , plac'd in eight columns , and words in every column , wanting both preface and postscript which was written in plain sense . i know not the grounds our friends have gone upon which hath occasioned them to offer so little money as i ●ear neither know i what assistance they they intend to give and till i know both i will neither refuse my service nor do so much as object against any thing is resolved till i first hear what mr. red or any other you send shall say only in the mean time i resolve to let you know as much of the grounds i go on as is possible at this distance and in this way i did truly in my proposition mention the very least sum i thought could do our business effectually not half of what i would have thought requisite in an other juncture of affairs and what i proposed i thought altogether so far within the power of those concerned that if a little less could possibly do the business it would not be stood upon i reckoned the assistance of the horse absolutly necessar for the first brush and i do so still i shall not be peremptor to urge the precise number named but i do think there needs very near that number effectually and i think . as easie had as or . and it were hard that it st●ck at the odds i leave it to you to consider if all should be hazarded upon so small a differ as to the money i confess what was proposed is more by half then is absolutely necessar at the first weeks work but soon after all the sum was proposed and more will be necessar if it please god to give success and then arms cannot be sent like money by bills there are now above . horse and dragoons and . foot at least of standing forces in brand very well appointed and tollerably well commanded it is right hard to expect that countrey people on foot without horse should beat them the triple their number and if multitudes can be got together yet they will need more arms more provisions and have more trouble with them but the case is if something considerable be not suddenly done at the very first appearing and that there be only a multitude gathered without action tho that may frighten a little it will do no good the standing forces will take up some station probably at stirling and will to their aid not only have the militia of . foot and . horse but all the heretors &c. to the number it may be of . and tho many will be unwilling to ●ight for the standing forces yet the most part will once joyn and many will be as concern'd for them as any can be against them and tho we had at first the greatest success imaginable yet it is impossible but some will keep together and get some concurrence and 〈◊〉 not only in brand but from birch and ireland it will not then be time to call for more arms far less for money to buy them no money nor credit could supply it we should prove like the foolish virgins consider in the next place how brown can imploy so much money and so many horse better for their own interest tho the protestant interest were not concerned is it not a small sum and a small force to raise so many men with and by gods blessing to repress the whole power of brand that some hope are engaged against us besides the horse to be sent need possibly stay but a little while to do a job if future events do not bring the seat of the war to brand which is yet more to the advantage of birch as to the total of the money that was proposed by the best husbanding it cannot purchase arms and absolute necessar for one time for a militia of the number they are to deal with and there is nothing out of the whole design'd to be bestowed upon many things usual and necessars for such an undertaking as tents waggons cloathes shooes horse horse - shooes all which are not only necessar to be once had but dayly to be recruited far less out of the whole sum projected was any thing proposed for provisions of meat or drink intelligence or incident charges some very honest well - meaning and very good men may undertake on little because they can do little and know little what is to be done all i shall add is i made the reckoning as low as if i had been to pay it out of my own purse and whether i meddle or meddle not i resolve never to touch the money but to order the payments of necessars as they shall be received and i shall freely submit my self to any knowing souldier for the lists and any knowing merchant for the prices i have calculate when there is an occasion to confer about it it will be a great encouragement to persons that have estates to venture and that consider what they do that they know that there is a project and prospect of the whole affair and all necessars provided for such an attempt if after i have spoke with mr. red i see i can do you service i will be very willing if i be not able i pray god some other may but before it be given over i wish i had such a conference as i write of to you a week ago for i expect not all from brown some considerable part of the horse may i hope be made up by the help of your particular friends i have yet some things to add to enforce all i have said which i cannot at this distance and some things are to be done to prevent the designs of enemies that i dare not now mention lest it should put them on their guard i have a considerable direction in my head but all is in gods hands . they will need more arms , more provision , and have more trouble with them ; but the case is , if something considerable be not suddenly done , at at the very first appearing , and that there be only a multitude gathered without action , tho that may frighten a little , it will do no good , the standing forces will take up some station , probably at stirling , and will to their aid , not only have the militia of . foot , and . horse , but all the heretors , &c. to the number , it may be of . and tho many will be unwilling to sight for the standing forces , yet the most part will once joyn , and many will be as concerned for them , as any can be against them ; and tho we had at first the greatest success imaginable , yet it is impossible but some will keep together , and get some concurrence and assistance , not only in * brand , but from † birch , and ireland ; it will not then be time to call for more arms , far less for money to buy them , no money nor credit could supply it , we should prove like the foolish virgins : consider in the next place how * browne can imploy so much money , and so many horse , better for their own interest , tho the protestant interst were not concerned ; is it not a small sum , and a small force , to raise so many men with , and by gods blessing to repress the whole power of brand , that some hope are engaged against us , besides the horse to be sent , need possibly stay but a little while to do a job , if future events do not bring the seat of the war to brand , which is yet more to the advantage of birch , as to the total of the money that was propos'd by the best husbanding it , cannot purchase arms , and absolute necessars for one time , for a militia of the number they are to deal with , and there is nothing out of the whole design'd to be bestowed upon many things usual , and necessar for such an undertaking , as tents , waggons , cloathes , shoes , horse , horse-shoes ; all which are not only necessar to be once had , but dayly to be recruited , far less out of the whole sum projected , was any thing proposed for provisions of meat or drink , intelligence , or incident charges , some very honest , well-meaning , and very good men , may undertake on little , because they can do little , and know little what is to be done . all i shall add is , i made the reckoning as low as if i had been to pay it out of my own purse ; and whether i meddle or meddle not , i resolve never to touch the money , but to order the payment of necessars , as they shall be received ; and i shall freely submit my self to any knowing souldier for the lists , and any knowing merchant ; for the prices i have calculate , when there is an occasion to confer about it , it will be a great encouragment to persons that have estates to venture , and that consider what they do , that they know that there is a project , and prospect of the whole affair , and all necessars provided for such an attempt , if after i have spoke with mr. † red , i see i can do you service , i will be very willing ; if i be not able , i pray god some other may ; but before it be given over , i wish i had such a conference as i write of to you a week ago , for i expect not all from * browne , some considerable part of the horse may i hope be made up by the help of your particular friends . i have yet some things to add , to enforce all i have said , which i cannot at this distance , and some things are to be done to prevent the designs of enemies , that i dare not now mention , lest it should put them on their guard . i have a considerable direction in my head , but all is in god hands . nota , that the foregoing marginal notes are so explain'd by the key of words , pag. . here follows mr. spence his deposition in so far as it relates to the two foregoing letters , whereof he had given in the copies above set down in plain sense : the queries put to him , and many of his answers being little to this purpose , they are not all here subjoyned , but only these that immediatly relate to the letters . part of spence his deposition . at the castle of edinburgh , the of august , . mr. william spence , of the age years , or thereby , not married , solemnly sworn , depons , that in the paper subscribed by him , the letter dated iune , and the other without date , marked a , are written plain , and in the true sense , so far as his knowledge reaches , and that he had no key to open the letters with , but the alphabetical cypher : that by the gilders , stivers , mentioned in the end of the long letter , he understands that it is the key thereof ; and by the payment of the same , he understands the way of using it . that he does truly believe there was an insurrection intended , within these two years ; and as for what is to come , he cannot tell what the people abroad may be doing : that he had often heard of designs and associations ; but that they were directly intended to hinder the duke his succession to the crown , he cannot say : for all that he understood was pretended for the ground of any designs of arms , was the defence of the protestant religion , the liberties of the kingdom ; and if against the duke , his succession only , in so far as that might be prejudicial to these : and that he thinks upon the kings death troubles may probably arise : that mr. west to whom the letters were directed , was not one of that name , but major holms to the best of his knowledge : and this is the truth as he shall answer to god. sic subscribitur w. spence . these foregoing letters are exactly set down , both such as were in cypher , and these in plain letter , all written with argiles own hand ( except that from his lady ) conform to the principals , compared therewith , before the lords of the secret committee : together with the decyphers , and other ways of opening , perfectly agreeing both in the sense and design , with the triple alphabet , the key of words , and the method before narrated . there was also ( besides these ) several other letters , both in cypher and plain writ found with major holms ; all of them , as in a chain , knitting together the undenyable evidences of this hellish machination ; but these above set down , being the most material , and sufficient to convince all , except those of invincible obstinacy , it was not thought fit to burden the reader , or incumber this short narrative with more of them . all the principal letters and cyphers , with the keys of words , and a great many depositions taken both here and in england , are lying in the records of his majesties privy council in scotland . it 's further to be considered , that all these letters being taken at one time with major holms , who was argiles trustee for conveying them , it is not to be supposed , but that much more of this stuff has been interchanged betwixt him and those of that confederacy : as appears from the alphabet written with the key of words , for which alphabet as yet there is no use found : and also from the key it self , wherein tho there be upwards of new coyn'd words , yet in all this parcel of letters there is not six of them made use of ; which likewise appears evidently from the tenor of all his letters , and particularly from the beginning of the long letter , pag. . where he says , i did truly in my proposition mention the very least sum , &c. and a little after he says , and what i proposed i thought altogether so far within the power of those concerned , &c. and towards the end of that same letter , he says , but before it be given over , i wish i had such a conference as i wrote of to you a week ago , &c. by which , and many other passages and circumstances , what is above-said , becomes undenyable . the method or way of opening the long letter , discovered by mr. gray , for further confirmation . but for further discovery of this treason , the secret committee finding that mr. william carstares , one of the prisoners sent down from england , was not only frequently mention'd in several of argiles letters , but related to in them as one of the principal agents in these affairs ; they endeavour to bring him to a confession , but all endeavours were fruitless , untill he was put to the question , according to law and custom of this , and other nations in such cases , where persons under great and pregnant presumptions of the knowledge of crimes , refuse to confess , they are by law to be put to torture , especially where they refuse to depone upon oath to the interrogators proposed , their depositions being always declared to be of no force nor danger to themselves ; all which concurred both in mr. carstares and mr. spence : this man albeit he was not easily brought to confess , yet once brought to it , seem'd very ingenuous . and what he deposed at several times , is insert to a word in his deposition ; which is not here insert , to evite prolixity , being at full set down in ierviswoods process hereto subjoyned , pag. . every step discovering a new scene of treason , the secret committee did order the apprehending of polwart , torwoodlie , philiphaugh , gallowsheils , and the earl of tarras , as those who had corresponded with other scotsmen and englishmen in england on these treasonable designs : polwort and torwoodlie being indeed most active , and conscious to themselves of the highest guilt , were more watchful over themselves then others , and so escaped before they were taken ; the other three were brought in to edinburgh , where philiphaugh and gallowsheils , did at their first appearance freely and voluntarly confess , as is subjoyned in the said process against ierviswood , pag. , , , , , , , , , . both these had assurance that their confessions should not militate against themselves , without which they could not legally be examined upon oath in so capital a crime . alexander monro another of the prisoners being likewise examined , did depone , as is subjoyned in the said process ; and shortly thereafter the earl of tarras , without either craving or receiving any security , but on a sincere remorse for his guilt , did give in an ingenuous confession of what he knew of the design , as it is there also subjoyned pag. , , . these depositions and testimonies both in england and scotland concurring to bring a manifest guilt on baillie of ierviswood , as one of the most active and violent in these conspiracies , whereby he did design with all possible rigour , and imaginable violence , to destroy the sacred person of his majesty , and his royal brother , to overturn the monarchical government of britain , to destroy our established religion , the property and liberty of all subjects , to settle all the power in the hands of bloody and fanatical assassinats , to break off the happy peace and tranquility wherewith god hath blessed us , under the reign of a most gracious king ; and in place thereof to throw these nations into ruine and war , and to bring over our isle a deluge of blood ; he was pitched upon as the first person who should be brought to tryal for these execrable crimes ; and accordingly on the of december , he was brought before the justice court , the privy council having commanded such advocats as he named , to plead in his defence , so far as law could allow ; the libel adduced against him being found relevant beyond all controversie , he was by a jury of noblemen , barons , and others his peers , found guilty of these execrable crimes , and by the proofs adduced against him in presence of the judges , jury , panual , and a croud of all kind of people who were auditors , they were all convinced of his guilt ; wherefore he was on the of december condemn'd to the death of a traitor , being hang'd , quartered , and his quarters affix'd . the plain and evident probation adduced against baillie of ierviswood in this process , the probation and confessions of captain thomas walcot and iohn rouse in england , not only at the time of their trial , but at the time of their death , when all dissimulation was to little purpose ; the faint defences of the lord russel and collonel sidney , with the open prevarications in their confessions , and the certain demonstration by the discoveries which are laid open in argiles letter , and the concurring circumstances of the keys which discovers his language , the identity of the decypher found out in england and in scotland , without any correspondence betwixt the decyphers , with that discover'd by mr. spence , argiles own servant and trustee ; the unalterableness of the position of the words in these letters discovered by mr. gray , which in any other position can make no sence , do not only amount to a sufficient probation , but to an evident and irrefragable demonstration of the truth of the conspiracy in its blackest view : and chiefly of the late argiles unalterable malice to his king and country , which he would have past as a standard in his exposition and paraphrase of the test , under the names of his religion and his loyalty ; in which sense only he was to swear it then , and to vindicat it since in his book : and any who will but consider the foregoing evidences , must have the famine opinion of the truth of his book , and of the justice of his plea. and no body can doubt the truth of such evidences , but such as would rather wish these villanies execute then discovered . finis . the tryal and process of high-treason and doom of forfaulture against mr. robert baillie of jerviswood traitor . by his majesties special command , as a further proof of the late fanatical conspiracy . edinburg , printed by the heir of andrew anderson , printer to his most sacred majesty , and reprinted at london , by tho. newcomb , . the tryal and process of high-treason , and doom of forefaulture against mr. robert baillie of jerviswood traitor . cvria iusticiariae s. d. n. regis tanta in praetorio burgi de edinburgh vigesimo tertio die mensis decembris . per nobilem & potentem comitem georgium comitem de linlithgow , dominum livingstoun , &c. iusticiarium generalem totius regni scotiae , & honorabiles viros , dominos jacobum foulis de colintoun iusticiariae clericum , ioannem lockhart de castlehill , davidem balfour de forret , rogerum hoge de harcarss , alexandrum seaton de pitmedden , & patricium lyon de carss , commissionarios iusticiariae dicti . s. d. n. regis . curia legitime affirmata . intran mr. robert baillie of jerviswood prisoner indited and accused , that where notwithstanding by the common law of this , and all other well governed nations , the conspiring to overturn the government of the monarchy , or of the established government of this kingdom , or the concealing , and not revealing of any treasonable design , project , or discourse tending thereto ; or the assisting , aiding , or abaiting such as have any such designs , does infer the pains and punishment of treason . and by the third act of the first parliament of king iames the first , the rebelling openly against the kings person : and by the thretty seventh act of his second parliament , the resetting , maintaining , or doing favours to open , or notour rebellers against the kings majesty , is declared treason , and punishable by forefaulture . and by the hundred fourty and fourth act of the twelfth parliament of king iames the sixth , it is declared treason to reset , supply , or intercommune with traitors . and by the first act of the first session of his majesties first parliament , it is declared , that it shall be high treason for the subjects of this realm , or any number of them , less or more , upon any ground , or pretext whatsomever , to rise , or continue in arms , to make peace or war , without his majesties special approbation . and by the second act of the second session of his majesties said first parliament , to plot , contrive , or intend death , or destruction , or to put any restraint upon his majesties royal person , or to deprive , depose , or suspend him from the exercise of his royal government , or to levy war , or take up arms against his majesty , or any commissionated by him , or to intice any strangers , or others , to invade any of his majesties dominions , or to write , print , or speak any thing that may express or declare such their treasonable intentions , it declared treason , and punishable as such . likeas , by the second act of his majesties third parliament , it is declared high treason in any of the ●ubjects of this realm , by writing , speaking , or any other ma●ner of way to endeavour the alteration , suspension , or diversion of the ●ight of succession , or debarring the next lawful successour . nevertheless , it is o● ve●ity that the said mr. robert baillie of ierviswood , shaking off all fear of god , respect and regard to his majesties authority and laws ; and having conceived most unjustly , a great and extraordinary malice and hatred against his majesties person and government , and having designed most tra●●erously to debar his royal highness , his majesties only brother , from his due right of succession , did amongst many other traiterous acts , tending to promove that wicked design , endeavour to get himself elected one of the commissioners for negotiating the settlement of a colony of this nation in carolina , in one or other of the days of the moneths of ianuary , february , march , april , or may , one thousand six hundred and eighty three years ; and that he might thereby have the freer and better access to treat with the earls of shaftsbury and essex , the lord russeb and others , who had entered into a conspiracy in england against his majesties person and government , and with colonel rumsay , walcot , west , and ferguson , and others who had likewise conspired the murder of his majesties sacred person , and of the person of his royal highness ; and finding that he could not get himself elected one of the said commissioners , he resolved to go to london upon his own expenses , and declared to severals ( whom he took great pains to draw in to be his accomplices ) that his design was to push foreward the people of england , who did nothing but talk , that they might go on effectually ; and after he had settled a correspondency here , he did go up to london in one or other of the saids moneths , with sir iohn cochran and commissar monro , and did then , and there , transact with the saids conspirators , or one or other of them , to get a sum of money to the late earl of argile , a declaired traitor , for bringing home of men and arms , for raising a rebellion against his majesty , and invading this his native countrey ; and so earnest was he in the said design , that he did chide those english conspirators , for not sending the same timeously , and lamented the delayes used in it ; and perswaded the late earl of argile and others in his name to accept of any sum , rather than not to engage : and amongst the many meetings that he h●d at london , for carrying on the said traiterous design , there was one at his own chamber , where he did meet with the lord melvil , sir iohn cochran , and the c●ssnocks elder and younger , and amongst others , with mr. william veatch a declared traitor , and there he did treat of the carying on of the said rebellion , and of the money to be furnished by the english for argyle , for buying of armes . and that if the scots would attempt any thing for their own relief , they would get assistance of horse from england ; and from that meeting , he or ane , or other of them did send down mr. robert martin to prevent any rysing , till it should be seasonable for carying on of their designs , which mr. robert , after he came to scotland , did treat with palwart and others , for carying on of the said rebellion , by securing his majesties officers of state , his castles and forces , and by putting his correspondents here , and there associates , in readiness , to assist the late earl of argyle ; and after the said mr. baillie had engadged many of his countrey-men in england , and had assured his correspondants here , that the english were resolved to seclud his royal-highness from his due right of succession , thereby to encourage them to concur in the said rebellion , and exclusion , he slew to that hight , that he did particularly and closly correspond with mr. robert ferguson , sir thomas armstrong , collonel rumsay , and walcot , who were accessory to that horrid part of the conspiracy , which was designed against the sacred life of his majesty , and the life of his royal-highness , and did sit up several nights with them , concerting that bloody massacer : at least the said mr. robert baillie of ierviswood was , and is guilty of having correspondence with the late earl of argyle , and mr. william veatch declared traitors , and of being art and part of an conspiracy , for assisting of these who were to rise in arms against his sacred majesty , and for exclusion of his royal brother , and of concealing and not revealing the accession and proposals of others for that effect . wherethrow he has committed , and is guilty of the crymes of high treason , rebellion , and others above specified , and is art and part of the famine , which being found by ane assize , he ought to be punished with forfaulture of life , land and goods , to the terror of others to commit the like hereafter . his majesties advocat produced an act , and warrand from the lords of his majesties most honourable privy council , for pursuing , and insisting against the said mr. robert baillie of ierviswood , whereof the tenor follows : edinburgh , the twenty two day of december , one thousand six hundred and eighty four years . the lords of his majesties privy council , do hereby give order and warrand to his majesties advocat , to pursue a process of treason and forfaulture , before the lords of his majesties justiciary , against mr. robert baillie of ierviswood , to morrow at two a clock in the afternoon preceisly , and the said lords do hereby require and command , sr. george lockhart of carnwath , and sr. iohn lauder advocats , to concur , and assist in the said process with his majesties advocat , from the intenting until the end thereof , as they will be answerable upon their alledgance . extract by me , sic subscribitur . colin mckenzie , cls. sti. concilij . pursuers . sir george mckenzie of roshaugh our soveraign lords advocat sir george lockhart advocat . sir iohn lauder . advocat . procurators in defence . sir patrick hume . mr. walter pringle . mr. iames graham . mr. william fletcher . mr. william baillie . advocats . the pannals procurators produced ane act of his majesties privy council , in their favours , whereof the tenor follows : edinburgh , the twenty third of december , one thousand six hundred eighty four years , the lords of his majesties privy council having considered ane address made to them , by mr. robert baillie of ierviswood , now indited at the instance of his majesties advocat ; before the lords commissioners of justiciary , of treason , do hereby require and command sir patrick hume , mr. walter pringle , mr. iames graham , mr. william fletcher , mr. iames falconer , mr. william baillie advocats , to consult , compear , and debate for the petitioner , in the process of treason , mentioned in his address , without any hazard , as they will be answerable at their peril ; extract by me , sic subscribitur . william paterson , cls. sti. concilij . after reading of the inditement , the lord justice general required the pannal to make answer thereto . the said mr. robert baillie pannal pleaded not guilty . mr. walter pringle advocat , as procurator for the said mr. robert baillie of ierviswood pannal , alleadges that he ought not to pass to the knowledge of an assize ; because he had not got a citation upon fyfteen days , or at least on a competent time , which is usual , and absolutely necessar in all actions , and much more in criminal pursuits , especially , seing , if a competent time be not allowed to the pannal , he is precludit of the benefit of ane exculpation , without which he cannot prove his objections against witnesses , or assyzers , or any other legal , or competent defences ; and by the late act of parliament concerning the justice court , all pannalls are allowed to raise precepts of exculpation , and thereupon to cite witnesses , for proving the objections against witnesses , and assyzers , which necessarily presupposeth , that a competent time must be allowed to the pannal to execut his diligence , or otherwise , how is it possible he can prove an defence of alibi , or any other just defence : and as this is most consonant to that clear act of parliament , and to material justice , and to the rules of humanity , so this point has been already fully and often decided , and lately in the case of one robertson in iuly . the instance whereof , is given by his majesties advocat in his book of criminals , and title of libels , where the lords found , that albeit robertson got his inditement in prison , yet he behoved to get it upon fifteen dayes . his majesties advocat oppons the constant tract of decisions , whereby it is found , that a person incarcerated may be tryed upon twenty four houres ; and the late act of parliament is only in the case where a summons or libel is to be raised ; but here there is no libel or summons , but only an inditement ; nor was any exculpation sought in this case , before the tryal , which is the case provided for by the act of parliament . the lords , justice-general , justice-clerk , and commissioners of justiciary , repell the defence , in respect the pannal is a prisoner , and that it has been the constant custom of the court , and that the pannal made no former application for an exculpation . sir patrick hume for the pannal , alleadges ( alwas denying the libel , and whole members , and qualifications thereof ) that in so far as the libel is founded upon harbouring , maintaining , and intercommuning with the persons mentioned in the dittay , the pannal ought to be assoylzied , because it is res hactenus judicata , he having been formerly pursued before the lords of his majesties privy council for the same crimes , and fined in an considerable sum ; and therefore that crime cannot now ●e made use of as a ground of treason against the pannal . his majesties advocat answers , that he restricts his libel , to the pannals entering in a conspiracy , for raising rebellion , and for procuring money to be sent to the late earl of argile , for carrying on the said rebellion ; and for concealing , and not revealing ; neither of which is referred to his oath ; and consequently was not res judicata , there being nothing referred to his oath ; but his converse and correspondence with some ministers , and others within the kingdom , and his own gardiner , and his writing letters to my lord argile ; and oppons the decreet of council it self , and restricts the libel to all the crimes not insisted on in the decreet . sir patrick hume replyes , that as to the corresponding with the late earl of argile , at any time since his forefaulture , was expresly proponed as an interrogator to the pannal in that pursuit , at his majesties advocat's instance against him , before the lords of his majesties privy council , and that not only his own correspondence by himself ; but also by major holms , mr. carstares , robert west , thomas shepherd , richard rumbold , and collonel rumsay , as the interrogator bears , as appears by a double of the act of council , written by the clerk of councils servant , and is offered to be proven by my lord advocats oath : and as to any correspondency with mr. veitch ; it is not relevant , since he was not declared rebel . sir iohn lauder for his majesties interest , answers , that he oppons th● decreet of privy council , where no such interrogator was put to the pannal , and the decreet must make more faith than any pretended scroll , and cannot be taken away by his majesties advocats oath , to his majesties prejudice ; and for mr. william veitch , he stands expresly forefault in anno . and the doom of forefaulture , is ratified in the parliament . sir patrick hume oppons the reply , that as to the corresponding with mr. veitch , it does not appear , that he is the person mentioned in the act of parliament ; and albeit he were , as he is not , he having thereafter come home to scotland , all the punishment inflicted upon him was banishment , not to return under the pain of death , which did take off any former punishment ; and it was no crime in any person to intercommune with him , especially in another kingdom ; and by the late act of council in anno . even the conversing , and intercommuning with declared traitors , is restricted to an arbitrary punishment . his majesties advocat oppons the standing doom of forefaulture against veitch , and the proclamation , or act of council it self . the lords , justice-general , justice-clerk , and commissioners of justiciary , having considered the libel , pursued by his majesties advocat , against mr. robert baille of ierviswood , with my lord advocats declaration , whereby he restricts the same to the crimes not insisted on in the decreet of council formerly pronunced against the pannal : they find the same relevant as it is restricted , to infer the pain of treason , and remits the same to the knowledge of the assize , and repells the remnant defences proponed for the pannal , in respect of the decreet of council produced , bearing no such thing as is alleadged , and of the answers made by his majesties advocat thereto . assisa . the earl of strathmore . the earl of belcarras . sir george skeen , provost of aberdene . sir iames fleming , late provest of edinburgh . sir iohn ramsay of whitehill . adam hepburn of humby . andrew bruce of earleshall . iohn stuart , tutor of alpin . alexander miln of gar●in . mr. iams elies of stenhopsmilus . sir william drummond of halthornden . major andrew white , lieutennent of edinburgh-castle . mr. david grahame , sheriff of wigtoun . colin mckenzie , collector of ross. david burnet ▪ merchant . the assise lawfully sworn , no objection of the law in the contrary . his majesties advocat for probation adduced the witnesses and writs aftermentioned ; and first , walter earl of tarras . sir patrick hume procurator for the pannal , objects against the earl of tarras , that he cannot be a witness , because he is socius & particeps criminis ; and it is clear by the . chap. stat. . rob. . concerning these that are excluded from bearing of testimony that socij & participes ejusdem criminis , vel incarcerati & vinculati , cannot bear testimony : as also , the earl of tarras being presently under an inditement of high treason , and under the impressions of fear , and death , no person in his circumstances can be admitted a witness , as is not only clear from the foresaid statute , but from the common law. his majesties advocat answers , that it is an exception from that rule , both by the common law , and ours , that in the crime of lese majestie , and especially , that branch thereof , which we call a conspiracy , socius criminis may be a witnes , and which is introduced very reasonably by lawyers , to secure the common interest of mankind , which is the chief of all interests ; and because conspiracies cannot be otherwayes proved , and not to allow this manner of probation , were to allow treason , since no man can prove a plot , but he that is upon it , and how can a man object against him as a witness , whom himself trusted with his life , his fortune , and their common plot , nor is the intenting of the lybel any stronger qualification , since every man that is socius criminis , is under the same impression , and it would rather seem the greater and nearer apprehensions a man has of death , he will be the more sincere and faithful ; nor has the earl of tarras , nor did he ever seek any security , in order to his deponing . and this has been constantly , and latlie , conform to the common law , as may be seen in the hundreds of citations set down by mascard , de probationibus , vol. . conclus . . num . and the contrary citations prove only , that regularly socius criminis cannot be a witnes . sir patrick hume replyes , that the statutes of robert the first is opponed , and non est distinguendum ubi lex non distinguit , and not only was he socius criminis , which is acknowledged , but he is incarceratus , and lying under an indytment of high treason , and has thrown himself on the kings mercy , and it is not proper he should be a witness , seeing he is in the kings mercy , who may give him his life or not , and there was never a person in these circumstances , that ever was admitted a witness . mr. walter pringle adds , that the earl of tarras , is not only in the case of a person who stands indyted for high-treason ; but must be look'd upon , as a person condemned for the said cryme , seeing he fully , and amply confest the cryme : & confessus habetur pro convicto , and never any lawyer asserted , that damnatus criminis loesae majestatis could be admitted as a witnes , and there is nothing more clear , then that by the common law , and the law of all nations , this objection ought to be sustained , for the civil law is clear , leg . . cod . de testibus and matheus in his title de probationibus , cap. de testibus , doth assert positivlie , that the cryme of lese majestie , heresie , and generally all these crymes quae sine sociis non possunt facile admitti , are not excepted . and he asserts , that the lawyers , viz. gomesius , & decianus , who are of another opinion , do acknowledge , nominatum a reo damnandum non esse , and that they contravert only , an nominatio rei ●it indicium sufficiens ad torquendum nominatum . sir george lockhart repeats , and oppons the answer , and the cryme lybelled , being a conspiration of treason , which of it's own nature is manadged , and caryed on by secrecie and contrivance ; and which is only known to the complices of the treason , and which cannot be commited sine sociis , the law of this kingdom , and of all nations , do allow socios criminis to be testes habiles , and not only are they admitted in the case of such conjurations , but generally in omnibus criminibus exceptis , amongst which the crime of perduellion , and lese majestie is the chief , and it is absolutly impossible , that plots , and conspirations of treason can be otherways proven , then per socios , and such as are participes criminis , and which is the common opinion of all lawyers , as may appear by farin . quest : . and the authorities cited by him , and which is the inviolable practique of this kingdom : and as to that pretence , that the earl of tarras is under a process of treason , and has submitted to his majesties mercy , and that confessus habetur pro convicto , it imports nothing , and infers no more then that he is socius criminis , and is still a habil witnes , as to conjuration of treason socius criminis hoc ipso , that it is acknowledged , or proven , being still under the hazard of process , or condemnation , which law regards not in regard of the secrecie involved in the nature of the crime , that either witnesses neque actu neque habitu , can be present , so that the objection amounts to no less then that conjurations of treason cannot at all be proven : and as to the law cited from the majestie , it imports no more then that the objection regulariter procedit , in crimes , which of their own nature are not perdifficilis probationis , and are not inter crimina excepta such as the cryme of conspiracy and treason is . mr. williom fletcher oppons the objection , and reply , and further adds , that albeit crimen loesae majestatis be reckoned inter crimina excepta , and so have some priviledge ▪ as to the qualification of witnesses , yet it cannot be denyed , but there are some objections competent against witness adduced for proving conspiracies , and treason , verbi causa , that a witnes is a capital enemy , or that he is sub potestate accusatoris , and the objection now pleaded , being taken complexlie , viz. that the earl of tarras is not only sucius criminis , but also , that he is publico judicio reus , upon the same crime , and that as means to procure his majesties savour , he has submitted himself , and come in his majesties mercy , by an acknowledgment of the cryme , before the dyet of citation , he is obnoxious to a most just objection , viz. that he is sub potestate , and by the submission , and confession , his life and estate is now in his majesties hands , so that he is not only in the case of a reus confessus , but in the case of a witnes , who does absolutely depend upon his majesties advocate the pursuer ; and as a private accuser , could not adduce his own servants to be witnesses , because they are ●estes domestici , and depend upon him , so far less ought a witnes to be adduced , who not only depends , as to his estate , but as to his life , and the law gives a very good reason , and which is mentioned by paulus , lib. . receptarum sententiarum , cap. . parag . ult . in these words . de se conf●ssu● , non est audiendus ut testis , ne alienam salutem in dubium deducat qui de sua desperavit ; and as to the pretence that a conjuration is a cryme so occult , that it must either be proven by such witnesses , or otherways the guilty person will escape . it is answered , that in this case , his majesties advocate had an easie remedie , ●or he might have pursued the pannal , before he pursued the witness , and the terror and apprehension of the event of a process for treason cannot be constructed otherways , then to have influence upon the deposition of the witnes ; and as to the citation out of farina●ius , it is only in the case o● ●ocius ●riminis , but when he comes to treat de ●este accusatio vel carcerato . quest. . articulo to . he sayes , regula sit in accusato quod is pendent● accusatione à testimonio repellitur ▪ and be the d. rule of the same ar●icle , he sayes , it is a principle quod carceratus testimonium ferre prohibetur , and he gives this reason , quia praesumitur , quod falsum testimonium diceret pro aliquo qui ei promiserit se liberare a vinculo , and limits this rule , that he must be carceratus propter crimen . sir patrick hume adds , that it is a certain principle , that any person that is guilty infamia juris , cannot be a witness , no more than a person that is convict , and condemned of treason ; and if he were convict , and condemned of treason , he could not be a witness , even in the case of treason : so neither can the earl of tarras in this case be received a witness , for he being adduced a witness after he received his indi●ment , and confessed the crime , is equivalent , as if he had been actuall convict ; and whatever may be pretended , that testes infames may be admit●ed ; yet it was never asserted by any lawyer , that a person convict of treason can be admitted a witness . the lords repelled the objection against the earl of tarras , and ordains him to be received a witness . walter earl of tarras , aged fourty years , married , purged , and sworn ; being interrogat , if about the time that sir iohn cochran , and commissar monro got their commission from the carolina company for london , the pannal mr. robert baillie of ierviswood did not desire the deponent to speak to commissar monro , to try if he could get him the ●aid pannal added to that commission , depones affirmative . being interro●at , if the said ierviswood , the pannal , did not tell the deponent that he was resolved to go to london however upon his own expenses , and that his and their going about the carolina bussiness , was but a pretence , and a blind ; but that the true design was , to push foreward the people of england who could do nothing but talk , to go more effectually about their bussiness , depones affirmative . depones that the pannal did settle a correspondence with the deponent whereby he was to give an account to the deponent of what should pass betwixt the countrey party in england , and the scots men there : and on the other hand , the deponent was to write to him what occurred here ; depones that the pannal did say to the deponent , if the king would suffer the parliament of england to sit , and pass the bill of seclusion , that that was the only way to secure the protestant religion . depones that the pannal said to him , that the king might be induced to do so , if the parliament would take sharp or brisk measures with him , or the like . depones these words were spoke to him by the pannal ▪ since the holding of the last session of this current parliament ; and before the pannal and commissar monro went for london . depons that after the pannal went to london , he did give the deponent an account by letters , that things were in great disorder there , and that he hoped there would be effectual courses taken to remeid them . depones that mr. robert martin did come to mr. pringle of torwoodlies house in may . or thereby , and brought a letter to the deponents lady unsubscribed , but the deponent knows it was ierviswoods hand-writing , who was then at london , and that mr. martin told the deponent , that things in england were in great disorder , and like to come to a hight , and that the countrey party were considering on methods for securing the protestant religion . and that archibald , sometime earl of argile , was to get ten thousand pounds sterling , whereas thirty thousand pounds sterling was sought by the scotsmen at london , which was to be sent over to holland to provide arms ; and that the late earl of argile was to land with these armes in the west-highlands of scotland , and that the deponents friend ierviswood the pannal , was to be sent over with the money . depones that philiphaugh and he went to gallowshiels house , where they met with polwort and gallowshiels , and that it was talked amongst them there , that in case those in england should rise in arms , that it was necessary in that case , that so many as could be got on the borders should be in readiness to deal with straglers and seize upon horses , and that thereafter they should joyn with those t●at were in arms on the borders of england . depons that in the case foresaid , it was said , it was convenient the castle of stirling , berwick , and some other strengths should be seiz'd upon ; and it was likewise spoke amongst them , that some persons should be employed to inquire what arms was in that countrey . depons , that it was spoke then , that the best time for argyle was to land in the west when there was a stur in england , or scotland , or words to that purpose . depons , that every one desired another to speak to such particular persons as they could trust , by letting a word fall indirectly upon supposition , in case of the rising in england concerning the affair for preparing of them : and that he was told by philiphaugh thereafter , that there was a word and sign to be used amongst them , viz. the sign was by loosing a button on the breast , and that the word was harmony . depons , the pannal spoke to the deponent to advertise torwoodlie , that he might acquaint mr. william veitch a forfault traitor , who was in northumberland , that he might keep himself close , and be on his guard , lest he should be catch'd ; which was since the pannal was prisoner in the tolbooth of edinburgh . and this is the truth , as he shall answer to god. sic subscribitur , tarras , linlithgow . i. p. d. alexander monro of bear-crofts , aged fourty five years , or thereby ; solutus , solemnly sworn and purg'd . depons , that the earl of tarras proposed to the deponent , that ierviswood might be made one of the commissioners for the affair of carolina , for that he could not safely stay at home ; and that the deponents answer was that he had no interest in the affair , and so could not be a commissioner . depons , that the pannal did wait for the deponent at wooller , and did go alongst with him to london , and that by the way he heard him regrate his own hazard and others , because of blackwoods sentence ; and that he heard him regrate the hazard our laws , and liberties , and the protestant religion were in . depons , that the pannal spoke to the deponent and others , more then once at london for getting of money from the english to be sent to the late earl of argile , for bringing home arms for the said earls use , as he understood , for carrying on an insurrection , and rebellion in scotland . depons , that at the time libelled , in ierviswoods chamber in london , mr. william veitch a forfault traitor was present ; and that sir iohn cochran did at that meeting expressly speak of money to be sent to argile for bringing home arms for invading the kingdom of scotland ; and that at another occasion he heard some of them say , that there would be twenty thousand men in scotland who would assist the rebellion , and that he heard sir iohn cochran and ierviswood speaking of it , but cannot be positive which of the two said it . depons , that at the meeting he heard ierviswood speak , but did not hear him oppose that treasonable proposal , or contradict the overture proposed by sir iohn cochran . depons , that mr. robert martin was sent down from that meeting which was at ierviswoods chamber , to scotland , to try what the people of scotland would do for their own safety : and that it was understood that the people of scotland should not rise till there should be a rising in england , and that the commission was granted to mr. robert martin by all the persons present , whereof ierviswood was one , and that there were present the lord melvill , sir iohn cochran , cessnocks elder and younger , mr. william carstares , mr. william veitch , ierviswood , and the deponent ; and depons they did contribute money for mr. martins journey . depons , that at his return he meeting with the deponent , told him , that matters were in that condition in scotland , and that the countrey was in such a condition as little would kindle the fire in order to the rebellion . and this is the truth , as he shall answer to god. sic subscribitur , alexander monro , linlithgow , i. p. d. james murray of philiphaugh , aged . years , married , purged and sworn , produces ●our leaves of depositions , emitted by him before the lords of the secret committie , and all written and subscribed with his own hand , which being publickly read , in presence of the justices , and assize , he adheres thereto , in all points , whereof the tenot follows . upon the day of may , . upon a letter from mr. pringle of torwoodlie , i came to his house in the morning , and he presently led me to a chamber , where i found mr robert martin , who was lately come from london , with whom we stayed a little , and discoursed of the news , and about the present condition , and temper of england , and in particular of london , which mr. martin said , was much irritated through some attemps upon their priviledges , either as to the concern of the sheriffs , or their charter , but that all honest men were of good heart and very brisk , and after some general discourses to this purpose , torwoodlie , and i left him ▪ and walked out a little , and he told me , he was expecting the e. of tarras presently , for he had sent to him ; and mr. martin had a letter to him from ierviswood , then he told me that there were great matters in agitation at london , and that mr. martin had come down with a commission from our friends there , ( i do not remember he named any ) but that i behoved not to expect , he would impart his instructions to me , for he was to communicat them only to polwart and himself , ( at least for these shyres ) and they were to pitch on such as they thought fit to intrust with the affair , whereupon he assured me , that he had great confidence in me , and his kindness to me oblidged him to send for me , to acquaint me that matters were now come to a crisis , and that he had reason to think england would shortly draw to arms , and stand by them , till they were satisfied anent the bill of exclusion , and what other security they could propose for the protestant religion , and their liberties , and that it was no project of any inconsiderable party but a design through the kingdom , and that many of the finest men , and of the greatest interest and credit there , had adjusted almost every thing necessar for the purpose , and had concerted matters with our friends there , in order to concurrence from this , and had agreed to advance money for furnishing arms here , ( i do not remember he told me more particulars at this time ) but said , polwart would be at gallow-shiels that night , and it would be necessar that the e. of tarras and i should confer with him fully , on the business , about this time the e. of tarras lighted , and torwoodlie having left us for a little time , being gone to bring mr. martin ; the e. of tarras asked me , what news , i told him of mr. martins being there , but that he had given me no account of the design of his down-coming , which perhaps he would acquaint him with , but by what i had heard from torwoodlie , i understood it to be , to engadge us to rise in arms shortly , whereat the e. of tarras hummed , and said , he would look ere he leapt , such a leap , or some such expressions , presently mr. martin came , and the e. of tarras and he retired a little , after the reading an letter , he gave him , the contents whereof was ( as the e. of tarras informed me ) only an order from ierviswood , to deliver some money to the bearer , which he had left with him , and the e. of tarras called for his servant , and bad him bring up the money ; in the mean time , torwoodlie asked me , if i had acquainted the e. of tarras with what he spoke to me , and i told him , i had let something of it fall to him , but it was not to be thought , that persons of sense and quality would engadge in such designs at random ; so torwoodlie said , that ( though mr. martin would not commune with us upon his commission directly ) yet he thought it would be fit , we conferred , and without taking notice of his commission , discoursed of things upon suppositions , and as our own privat notions ▪ abstract from any prospect of a present design , so after dinner , we four went to a chamber , and after some general discourses , of the discontents of both kingdoms , these suppositions following were discoursed ( and as i remember ) mr. martin started them all , or the most part ) viz. what if the countrey party in england should have thoughts of going to arms ( whereof he knew nothing but only supposed such a thing , for discoursing a little freely , and to know our sentiments , what we thought could be expected here in such a case ) would it not be expedient to have a settled correspondence betwixt that party there and here , and might not matters be so adjusted , that both kingdoms should draw out in one day , and might not as many be expected to undertake in these shires , and about edinburgh , as would serve to surprize , and seize our rulers ( i do not remember any named , but the then chancellour and treasurer ) and some to joyn with these on the english borders , to assist them to surprize berwick ; and if for that effect , any horse , or dragoons , that should be in the bounds might not be surprized , that their horse and arms might be gotten to furnish the country people , and stirling castle ; and if argile should at the same time land in the west , and raise that countrey , would not these measures contribute much to the advancement and security of the interest of that party here , since thereby the government would be disordered , and such steps would encourage all that had an inclination to the countrey party , to draw to them frankly , and scar many of the other side to act against them , and so they might have leasure to joyn from all places ; and might it not be expected , there would be as many in this kingdom , as would be able to deal with the forces here , at least divert them from troubling england . this is the sum , as i remember , of what was proposed , and discourst of , though i cannot distinctly say , it was in this method , and expression , nor was all moved at once , but droped now and then , as the discourse seem'd to give rise to it ; and though i cannot fully re●count all that was spoke on these heads , and tell distinctly , what this and that man said ; yet i remember these following answers were giving , and ( as i judged ) acquiesced to by the whole company ; and they were certainly the e. of tarras , his sentiments and mine , and every one that spoke , used this or some such precaution , that if they were concerned , or to give counsel in any such case , ( as they were not , &c. ) . as to the settling a correspondence , it was confest to be very convenient for those of a common interest ; but the present circumstances of affairs were such ( as we thought , ) that none could be found here who was fit to mannage it , and would undertake it . . as to the trysting at the same time , it could not be done without the devulging the design to all ranks of people , which none would undertake , except these already in desperat circumstances , and they could not have generally much influence . . the thing was not at all adviseable for this kingdom , since if any of englands own measures miscarried , they would not stur for any such trust ; and the spring of their motions being always at london , there might happen an interruption near the appointment , whereof these here could have no timous notice , and so might keep tryst , whereby they would be exposed a prey ; and if they should subsist any time , or prevail ( which was hardly possible ) the multitude that must be imployed , are tainted with such wild and unruly principles , that if once they got the sword in their hands , they would never be brought to order without a greater force to over-awe them ; neither would any expectation of argiles landing , be a just ground for such a tryst , considering the uncertainty of sea-voyages ; and if argile were to be the head , undoubtedly many people would conclude that he were to be suspected of private designs , and that restoring him , might lay him aside : as also , that dispair might blind his usual prudence , and prompt him to unsolid , and undigested methods ; and so it was to be expected , that few of the gentry ( except such as he had special influence on , or such as were under hard circumstances ) could embarque with him . . as to the surprising rulers , &c. it was inveigh'd against , as an action not to be thought of amongst protestants ( especially when the very design of it was pretended , to secure that religion , which taught its professors to abhor and detest such principles as popish , yea un-christian ) since it could not be effectuat without blood-shed of people , secure in peace , which being by all approven , divines and casuists condemned as unlawful , and meer assassination ; it was not to be doubted , that as such a practice would cast a blot upon the whole affair , and quite take off any pretence of defensive arms , so it would scar many from joyning . these things were reasoned again and again : but i do not remember there was any formal conclusion made , but the discourse was let fall ; and mr. martin told us , if any of us had a mind for a suit of armour , he could provide as many as we pleased , from one who had made a great many lately , to honest men at london , of a new fashion , very light , and at an easie rate ; so torwoodlie and i gave him our measures , e. of tarras told he had a suit already ; then torwoodlie said to the e. of tarras and me , we would meet polwort at gallowsheils , and desired we might commun with him , anent what we had been discoursing , so we hasted away , that if possible , we might both get home that night , it being saturnday , and we unfurnished , for staying abroad , and torwoodlie whispered me just as i was mounting ( as i think ) that he was not clear we should commun before gallowshiels , for he was sometimes too much good-fellow , or the like ; so the e. of tarras and i rod away together , and upon the way we were both of opinion , that the suppositions we had discoursed of , were in effect propositions , and resolv'd , if they were insisted on by polwort , as we suspected , we would adhere to the former answer , and would undertake nothing in these methods ; when we came to gallowsheils , the laird was abroad , and polwort was not come , so we had thoughts to go away , being both damped with what had passed , and inclining to be free of farder medling ; but the lady would by no means hear of our going till her husband came , who , she assured us , was about the doors , and she having sent to call him , he would be in presently ; yet it was so late ere he came , that the e. of tarras could hardly have day enough to go home with ; so gallowsheils would not let him go , and he would not stay , unless i stay'd , so we both stayed , and not being resolv'd to discourse with gallowsheils on what passed , we we it to the tavern , on pretence i might call the baillie , and seek horses or lime , and stay'd there till polwort came ( which seemed unknown to gallowsheils ) then we returned to gallowsheils house , and after supper polwort whispered the e. of tarras and me , and enquired if we had seen mr. martin ; and we having told him we had , he enquired , if we were free to commun on the affair before gallowsheils , we told , as he thought fit , for we could trust him ; then he whispered gallowsheils , and ( as i understood afterwards ) asked if he was free to commune on matters of great secrecy and importance with that company , to which he assented , then we sat down closs together , and as i remember ▪ polwort began the discourse ; but since i am not able to follow exactly the method of our conference , or keep the very expressions used , or repeat all that was spoke , or to tell distinctly what was every mans part of the discourse ; i shall set down the heads , and most remarkable passages thereof , that i remember in some articles following ; . polwort signified that he was credibly informed ( but i do not remember he named his informer ) that the countrey party in england would draw to the fields shortly , as he heard before lambass , wherewith gallowsheils seem'd visibly surprized ; and being asked , if his heart fail'd him already , he said he did love it better truly to be walking in his own parks in peace , and quiet , than to be medling in such matters ; however he assured the company , that if there came any troublesome world , he would joyn with them firmly ; and the e. of tarras said , he wondred to hear of any such resolution in england , for he took it for a principle amongst that party there , that they should make no stir in the kings life ( which the whole company owned to be their opinion and desire ) because that might strengthen the dukes interest ; and he suspected it was the project of the common-wealths men , with whom he believed , few scots gentlemen would joyn ; and he was almost perswaded the d. of monmouth would not concur in any rising during the kings life , to which it was answered by polwort , that he had indeed heard that principle had been generally agreed to , but it seem'd they found , they behoved either to do their business now , or lay aside hopes of doing it hereafter , which might be , that if the charter of london were let fall , they would not only lose all safe opportunity of digesting matters ; but a great part of their strength , and he heard all things were concerted mutually , betwixt monmouths friends and the heads of the commonwealth party ; and tho he heard monmouth was shy on that account , yet it was hop'd he would engage , for otherways he would be deserted by that party . . polwort told us the suppositions above-written as overtures concerted betwixt our friends at london , and the principal men of that party there ; so the e of tarras and i renewed our former answers also above-written , and maintained them with all our vigour , wherein gallowsheils joyned forwardly with us ; and polwort asserted , we went on very good grounds , and he was fully of our opinion , if things were entire but referr'd it to be considered , whether it were better to comply with some of these methods , tho not so proper and justifiable as were to be wish'd , then to disappoint the business totally , which might be of the best consequence to all the party , yet we did not condescend as i remember to undertake any of these methods . and there was a further argument adduced against the trysting above-written , viz. that it was talked there was a day appointed in england latly in shaftsberry's time , which did not hold , so they were not to be relyed upon . . it was proposed to be considered what methods were most proper in the companies opinion for scotland to follow in case of englands rising , whereanent it was said , that all that could be expected or desired from scotland , was , that upon the certain news of englands being in the fields , those in the southern shires who would own that party , should presently rise , and ( how soon they could get as many conven'd as would be able to deal with stragling parties , or any sudden rising in the countrey ) march to joyn them , and that it would be fit these in the northern shires of england waited near the borders for such , and that they had officers trysted there to command , and that then it would be seasonable for argile to land in the west , and these parties on the borders might divert the forces till he had time to put himself in a posture . these things seem'd to be the sentiments of the whole company , but were not finally determined till the opinion of others who were to be communed with by polwort were known : and it was represented , there behoved not to be any wilful and obstinate adhering to our own thoughts of things , ( but an mutual condescendance to others concerned , ) otherwise it were not possible to bring a publick design to any good issue . . all the company seem'd to agree , that they should undertake nothing or move in that affair , till they had a full and certain account what england proposed , what methods they resolved to follow there , who were to be their heads , and that if they design'd any attempt on the kings person , or overturning monarchy , they would not be forward or clear to joyn : and it being here insinuated , that the most they could do ( at least for which there could be any plausible pretence to justifie ) was to draw together , and without any act of hostility , send addresses to his majesty for redress of the present abuses of the government , and for obtaining sufficient security against the hazard they apprehended to their religion and liberties . it was said by polwort that he was apt to think , that was their very design , for he had heard it was generally believed by that party in england , that if once they were in a body , the king would be prevailed with to quite the duke , to be tryed for popery , correspondence with france , and accession to the popish plot , and then if the king were once free from the influence of the dukes counsels , they were confident he might be moved to reform their abuses , and secure their religion and liberties for the future to their contentment . . it was resolved , that till we got the foresaid account from england , and were satisfied thereanent , and knew others here ( who were to be communed with ) their sentiements of what methods were most proper for us , in case we should undertake , we should not meddle further ; only it was left to the earl of tarras and me , if we thought fit to acquaint sir william scot younger with some of the matter of this conference overly , without taking notice of our informers , or such an conference ; and it was recommended to all to be enquiring ( at such as they had some trust in ) indirectly about the affection of our neighbours , and what arms there was amongst them ; that if we should get an satisfying account , and resolve to joyn , we might know where to seek men and arms suddenly : here it was said by polwort , as i think , that if the e. of tarras , torwoodlie , gallowsheils , and i once took horse , he thought the most part of the west end of tiviotdale and selkirk shire would soon come to us , especially , when they heard england was risen , then we trysted to meet there against midsummer fair , betwixt and which the forsaid account was expected , but in case it came to any of our hands sooner , we promised to advertise the rest , that we might meet , presently , if the case required ; this is the substance and sum of what passed at the forsaid conference , that i can now remember ; but i remember , i was likewise told these following particulars in privat , by polwart , or torwoodlie , ( which of them , i cannot distinctly tell ) the day of the forsaid conference , or within a short time after . . that polwart keeped the correspondence with our friends at london , i remember not positively of any of them that was named , to be on the entrigue there , except my lord melvil , sir iohn cochran , ierviswood , and commissar monro ( for i hardly knew any of the rest ) and as i think , commissar monro was call'd his correspondent there . . that the money to be advanced by the english partie to scotland was ready , when mr. martin came from london , and it was expected , that within few days after , it would be dispatched with some confident to holland , ( whither by bills , or in cash , i cannot say ) it was call'd ten thousand pound sterlin , and was to be imployed ( as i was told ) by that confident , at argyles sight , for buying arms , providing ships to transport them with argyle , to the west here , and such other charges . . that how soon our friends at london got notice of the safe arrival , of the confident forsaid , and all other things were finally concluded there ( which was expected would be about the middle of iune , as i remember ) they would come home , and as they passed , would give them , or one of them , an particular account of all resolutions taken to be communicat to the rest , that it was not to be expected by letters , that behoved to be under figures , and dark expressions , and as i remember , they were written as it were about the carolina business , or some houshold furniture , as i was told , for i never remember i saw any letter , either direct to london , or sent from it on that head . . i was told there was a sign , and a word agreed on by that party , so that men might know with whom they might use freedom , the word , as i remember was harmony , and the sign , the opening two buttons in the breast coat and shutting them presently ; this i communicat to the earl of tarras , but does not mind i ever saw it used , except when i visited park-hay here in town , about the end of iune ; we discoursing a little freely , he asked if i had the word and sign of the carolina men , and i having given them , he said something to this purpose , that he was afraid that the carolina business did not go well , for there had been some of the managers expected here ( as i think he named ierviswood or commissar monro ) these eight days past , but there was none come , nor could he learn that any of their friends had heard from them for several posts . polwart , torwoodlie , and i met at gallowsheils , on midsummer fair , but i mind nothing passed but private whisperings . dated september . . and subscrived thus , iames murray . edinburgh , december ▪ . the deposition above-written being read to the said iames murray of philiphaugh , in presence of the justices and assizers , he adheres thereto in all points upon oath . sic subscribitur , james murray . linlithgow , i. p. d. the said iames murray further depons , that at their meeting at gallowsheils , it was resolved , that they should keep up their cess unpayed till their next meeting at midsummer , which was to be at gallowsheils , and should deal with all these they had influence upon to do the like , and that upon the supposition mentioned in his oath given in . it was spoke amongst them that the troupers horses should be seized upon , when they were grasing . and this is the truth , as he shall answer to god. sic subscribitur , james murray . linlithgow , i. p. d. hvgh scot of gallowsheils , aged . years , married , purged , &c. and sworn . depons , that the earl of tarras and philiphaugh did come to the deponents house , in may , . and polwart came likewise there , where there were discourses and proposals , that if the english would rise in arms , their friends in the south shires should rise with them ; and that they should seize the horses belonging to the kings troops where they grased ; and the town of berwick , and the castle of stirling : and likewise it was there discoursed anent the late earl of argiles coming to invade scotland , but because of the uncertainty of sea voyages , there was not much stress laid upon it . depons , it was also proposed , that some of the south countrey whom they trusted in should be acquainted with it , and that endeavours should be used to learn what arms was in the countrey . depons , there was some such discourse there , as that the earl of tarras , philiphaugh , torwoodlie , polwart , and some others should draw to horse with the first when the rising should be in readiness , that it might be expected that the south parts of teviotdale and selkirk shire would joyn with them . and this is the truth , as he shall answer to god. sic subscribitur , hugh scot. linlithgow , i. p. d. his majesties advocat produc'd other depositions , emitted by gallowsheils before the lords of the secret committee , whereof the tenor follows . edinburgh , the of september . gallowsheils depons , that the e. of tarras and philiphaugh , being in his house in may . discoursed of an intended rising in england , and of proposals made to scots men , to rise with them , and of london in particular , and that polwort was present at that meeting , and told he was sure the englishmen intended so , and that it was discoursed at that meeting amongst them , that it were fit to seize berwick and stirling ; and that it was talked amongst them of bringing the duke of york to tryal , and tha● the king would abandon him . sic subscribitur , hugh scot. perth , cancel . queensberry george mckenzie . io. drummond . george mckenzie . edinburgh , october . . sederunt . lord chancellour . lord secretary . lord president . lord advocat . the laird of gallowsheils , prisoner in the tolbuith of edinburgh , being call'd and examin'd upon oath , depons , that in the moneth of may . the e. of tarras , hume of polwort elder , and laird of philiphaugh , came to the deponents house , himself being absent , at his coming home , they were speaking of the security of the protestant religion ; and of a party in england , who would secure , or seize the king or duke ; and that if any should rise in arms to defend them , or to rescue the king and duke : there was another party who would rise in arms against them , it was proposed , that some countrey-men should be spoken to , to try their resolutions , and that the resolutions , of england should be told them , to see if they would concur . but the deponent does not remember that this proposition was approven , or undertaken to be done by any present ; nor does he remember who manag'd the discourse . it was likewise propos'd , to seize the officers of state , especially the chancellour and thesaurer , and the said , sir iohn cochran was to come to the west from england , for advancement of the design ; and that the earl of argile was to land in the west highlands , and to raise that countrey . of these matters , all these who were present discoursed , as of an affair that they were agitating , and wherein themselves were particularly concerned , though at that time they did not conclude what their carriage should be ; the reason why the deponent cannot be more particulars is , because he was sometimes going out , and sometimes walking up and down the room ; and though the deponent cannot be positive of the very words ; yet he is positive they were either these words , or words to that purpose . sic subscribitur , hugh scot. perth cancellarius . edinburgh , december . . hvgh scot of gallowsheils being solemnly sworn in presence of the justices and assize , adheres to the depositions within , and above-written in all points , sic subscribitur . hugh scot. linlithgow , i. p. d. his majesties advocat in fortification of the former probation , adduces the printed copy of mr. william carstares depositions , emitted before the officers of state , and other lords of privy council , and leaves the same to the assise , and uses it as an adminicle of probation ; for though it was capitulat , that he should not be made use of as a witness ; yet it was agreed , that the deposition should be published : and likewise produces the principal deposition signed by himself , and the said lords . the lords , justice-general , justice-clerk , and commissioners of justiciary , admit the paper produced as an adminicle , and refers the import thereof to the inquest , and ordains the printed paper as it is collationed , to be taken in , and considered by the inquest . sir william paterson , and mr. colin mckenzie , clerks of his majesties privy council being interrogat , if they heard mr. william carstares own the depositions read , depons they saw and heard him swear , and own the same upon oath , and they collationed the printed copie with the original formerly , and now they heard it collationed , sic subscribitur , will. paterson . colin mckenzie . the deposition of mr. william carstares , when he was examined before the lords of secret committee , given in by him , and renewed upon oath ; upon the . of december . in presence of the lords of his majesties privy council . edinburgh castle , september . . mr. william carstares being examined upon oath , conform to the condescention given in by him , and on the terms therein-mentioned ; depons , that about november , or december . iames stuart , brother to the laird of cultness , wrot a letter to him from holland , importing , that if any considerable sum of money could be procur'd from england , that something of importance might be done in scotland : the which letter , the deponent had an inclination to inform shepherd in abb-church-lane , merchant in london of ; but before he could do it , he wrot to mr. stuart above-nam'd to know from him , if he might do it ; and mr. stuart having consented , he communicat the said letter to mr. shepherd , who told the deponent that he would communicat the contents of it to some persons in england ; but did at that time name no body , as the deponent thinks : sometime thereafter , mr. shepherd told the deponent , that he had communicat the contents of the letter above-named , to colonel sidney , and that colonel danvers was present , and told the deponent , that colonel sidney was averse from imploying the late earl of argile , or medling with him , judging him a man too much affected to the royal family , and inclin'd to the present church-government ; yet mr. shepherd being put upon it by the deponent , still urg'd , that one might be sent to the earl of argile ; but as mr. shepherd told him , he was suspected upon the account of his urging so much ; yet afterwards he press'd , without the deponents knowledge , that the deponent being to go to holland however , might have some commission to the earl of argile , which he having inform'd the deponent of , the deponent told him , that he himself would not be concern'd , but if they would send another , he would introduce him ; but nothing of this was done : upon which the deponent went over , without any commission from any body , to holland , never meeting with iames stuart above-named : he was introduc'd to the earl of argile , with whom he had never before conversed , and did there discourse what had past betwixt mr. shepherd and him ; and particularly , about remitting of money to the said earl from england ; of which the said mr. stuart had written to the deponent , namely of pounds sterling ; and of the raising of horse and dragoons ; and the securing the castle of edinburgh , as a matter of the greatest importance : the method of doing this was proposed by the deponent , to be one hour , or thereby , after the relieving of the guards : but the earl did not relish this proposition , as dangerous ; and that the castles would fall of consequence , after the work abroad was done . iames stuart was of the deponents opinion for seizing the castle , because it would secure edinburgh , the magazines and arms ; as to the horse and dragoons , my lord argile was of opinion , that without them nothing was to be done ; and that if that number were rais'd in england to the said earl , he would come into scotland with them ; and that there being so few horse and dragoons to meet them , he judg'd he might get the country without trouble , having such a standing body for their friends to rendezvous to ; and the said earl said he could show the deponent the conventient places for landing , if he understood ; and as the deponent remembers , where the ships could attend . the deponent remembers not the names of the places . the deponent spoke to the lord stairs ; but cannot be positive that he nam'd the affair to him , but found him shy : but the earl of argile told him , he thought stairs might be gain'd to them : and that the earl of lowdo●n being a man of good reason , and disobliged , would have great influence upon the countrey , and recommended the deponent to major h●lms with whom the deponent had some acquaintance before , and had brought over a letter from him to the earl of argyle ; but the deponent had not then communicate any thing to the said holms , iames steuart laid down a way of correspondence by cyphers and false names , and sent them over to holms , and the deponent , for their use ( which cyphers and names , are now in the hands of his majesties officers , as the deponent supposes , ) and did desire the deponent earnestly to propose the . pound sterling abovenamed to the party in england , and did not propose any less ; for as the earl told the deponent , he had particularly calculate the expence for arms , ammunition , &c. but iames steuart said , that if some less could be had , the earl would content himself , if better might not be ; but the earl always said , that there was nothing to be done without the body of horse and dragoons above-mentioned . during the time of the deponent his abode in holland , tho he had several letters from shepard , yet there was no satisfactory account , till some time after the deponent parted from the earl of argyle , and was making for a ship at rotterdam to transport himself to england . iames steuart wrot to him that there was hopes of the money . the next day after the deponent came to england , he met with sir iohn cochran , who , with commissar monro , and ierviswood , was at london before he came over ; and depons , that he knows not the account of their coming , more then for the perfecting the transaction about carolina : and having acquainted sir iohn cochran with the earls demands of the pound sterling and the . horse and dragoons , sir iohn carried him to the lord russel , to whom the deponent proposed the affair , but being an absolute stranger to the deponent , had no return from him at that time ; but afterwards having met him accidently at mr. shepards ho●se , where he the lord russel had come to speak to shepard about the money above-named , as mr. shepard told the deponent . the deponent ( when they were done speaking ) desired to speak to the lord russel , which the lord russel did , and having reiterate the former proposition for . pound sterling , and the . horse and dragoons , he the lord russel told the deponent , they could not get so much raised at the time , but if they had . pound to begin , that would draw people in , and when they were once in , they would soon be brought to more ; but as for the . horse and dragoons , he could say nothing at the present , for that behoved to be concerted upon the borders . the deponent made the same proposal to mr. ferguson , who was much concerned in the affair , and zealous for the promoving of it . this mr. ferguson had in october or november before , as the deponent remembers in a conversation with the deponent in cheapside , or the street somewhere thereabout , said , that for the saving of innocent blood , it would be necessary to cut off a few , insinuating the king and duke , but cannot be positive whether he named them or not , to which the deponent said , that 's work for our wild people in scotland , my conscience does not serve me for such things ; after which the deponent had never any particular discourse with ferguson , as to that matter ; but as to the other affair , ferguson told the deponent that he was doing what he could to get it effectuate , as particularly that he spoke to one major wildman who is not of the deponent his acquaintance . ferguson blamed always sidney , as driving designs of his own . the deponent met twice or thrice with the lord melvil , sir iohn cochran , ierviswood , commissar monro , the two cessnocks , mongomery of landshaw , and one mr. veitch , where they discoursed of money to be sent to argyle , in order to the carrying on the affair , and tho he cannot be positive the affair was named , yet it was understood by himself , and as he conceives by all present , to be for rising in arms , for rectifying the government . commissary monro , lord melvil , and the two cessnocks were against medling with the english , because they judged them men that would talk , and would not do , but were more inclined to do something by themselves , if it could be done . the lord melvil thought every thing hazardous , and therefore the deponent cannot say he was positive in any thing , but was most inclined to have the duke of monmouth to head them in scotland , of which no particular method was laid down . ierviswood , the deponent , and mr. veitch , were for taking money at one of these meetings . it was resolved , that mr. martin , late clerk to the justice court should be sent to scotland , to desire their friends to hinder the countrey from rising , or taking rash resolutions upon the account of the council , till they should see how matters went in england . the said martin did go at the charges of the gentlemen of the meeting , and was directed to the laird of polwart and torwoodlie , who sent back word that it would not be found so easie a matter to get the gentrie of scotland to concur : but afterwards in a letter to commissar monro , polwart wrote that the countrey was readier to concur then they had imagined , or something to that purpose . the deponent , as above-said , having brought over a key from holland , to serve himself and major holms : he remembers not that ever he had an axact copy of it , but that sometimes the one , sometimes the other keeped it , and so it chanced to be in his custody when a letter from the earl of argyle came to major holms , intimating , that he would joyn with the duke of monmouth , and follow his measures , or obey his directions . this mr. veitch thought fit to communicate to the duke of monmouth , and for the understanding of it was brought to the deponent , and he gave the key to mr. veitch , who as the deponent , was informed , was to give it and the letter to mr. ferguson , and he to shew it to the duke of monmouth ; but what was done in it , the deponent knows not . the deponent heard the design of killing the king and duke , from mr. shepard , who told the deponent some were full upon it . the deponent heard that aron smith was sent by those in england to call sir iohn cochran , on the account of carolina , but that he does not know aron smith , nor any more of that matter , not being concerned it it . shepard named young hamden frequently as concerned in these matters . signed at edinburgh castle , the . of september , . and renewed the of the same month. william carstares . perth cancell . i. p. d. edinburgh castle september . mr. william carstares being again examined , adheres to his former deposition , in all the parts of it , and depones he knows of no correspondence betwixt scotland and england , except by martin before named ; for those gentlemen to whom he was sent , were left to follow their own methods . veitch sometimes , as the deponent remembers , stayed sometimes an nicolson , stabler's house , at london-wall ; sometimes with one widow hardcastle in more-fields . the deponent did communicate the design on foot to doctor owen , mr. griffil , and mr. meed , at stepney , who all concurred in the promoting of it , and were desirous it should take effect ; and to one mr. freth in the temple , councellor at law , who said that he would see what he could do in reference to the money , but there having gone a report , that there was no money , to be raised , he did nothing in it ; nor does the deponent think him any more concerned in the affair . nelthrop frequently spoke to the deponent of the money to be sent to argyle , whether it was got or not , but the deponent used no freedom with him in the affair . goodenough did insinuate once , that the lords were not inclined to the thing , and that before , they would see what they could do in the city . the deponent saw mr. ferguson , and mr. rumsay , lurking after the plot broke out , before the proclamation , having gone to ferguson , in the back of bishopsgate-street , at some new building , whether he was directed by ierviswood , who was desirous to know how things went. rumsay was not o● the deponent his acquaintance before , but they knew as little of the matter as the deponent . this is what the deponent remembers , and if any thing come to his memory , he is to deliver it in betwixt the first of october . and this is the truth , as he shall answer to god. william carstares perth , cancell . i. p. d. at edinburgh , the . of december , . these foregoing depositions , subscribed by mr. william carstares deponent , and by the lord chancellor , were acknowledged on oath by the said mr. william carstares , to be his true depositions ; and that the subscriptions were his , in presence of us under subscribers . william carstares . perth cancell . david falconer . queensberry . george mckenzie , athol . his majesties advocat for further probation , adduces the examinations of mr , shepard , taken before sir leolin ienkins secretary of state for england , with the information or deposition of mr. zachary bourn , relating to the plot , sign'd by him and secretary ienkins , of which depositions the tenors follow . the examination of thomas shepard of london merchant , taken upon oath before the right honourable sir leolin jenkins knight , his majesties paincipal secretary of state , the . day of december . . the deponent saith , that ferguson told him on , or about the moneth of april last , that an insurrection was intended both in england and in scotland , and that for the settling that affair betwixt the two nations , mr. baillie , mr. monro , sir iohn cochran , sir hugh and sir george campbels , with some others ( whose names this deponent heard not ) were come to london . that the deponent had some acquaintance with mr. baillie , mr. monro . and sir iohn cochran , and none at all with sir hugh and sir george campbels ; that mr. baillie told the deponent , that the earl of argile demanded thirty thousand pounds of the english to capacitat him to begin the business effectually in scotland , and that he the said baillie likewise told the deponent , that having concerted things with the lord russel and others , he the said baillie found an impossibility of raising that sum ; after which the said baillie had acquainted the deponent , that they were certainly promised ten thousand pounds , which sum was agreed to be payed into the deponents hands , in order to be remitted into holland , for the providing of arms ; and that the said baillie told the deponent at divers times , that the said sum , or at least one half of it would be payed such a day , and such a day ; and sometimes asked the deponent , if he had received any part of the said money , to which the deponent replyed that he had not , and that he the deponent scarce thought any would be payed . and the deponent also saith , that having had some little conversation with sir iohn cochran , he remembers well , that both of them did sometimes lament the delays in not paying in the money , and said , that although the said ten thousand pounds were pay'd in , they , the said sir iohn cochran and mr. monro , fear●d it would be too little ; and this deponent further sayeth not , as to any new matter . but the deponent being asked , to explain what he thought was meant by the words above-written , viz. to capacitat him ( the earl of argile ) to begin the business , he , this deponent sayeth , that he did understand by the word business , an insurrection in scotland . sic subscribitur , iurat coram . thomas shepard . l. ienkins . the information of zachary bourn of london , brewer , taken upon oath , the tenth day of december . before the right honourable mr. secretary ienkins . the informant deposeth , and sayeth , that mr. baillie set up one night , if not two , with mr. ferguson , and went several times in the evening with him to the duke of monmouth , and the chief mannagers of the conspiracy ; that ferguson told the deponent , that he the said baillie was the chief man for the scots , next to the lord argile ; that the said baillie did sit up the greatest part of one night , with the said ferguson ; at which time this deponent believeth they were busie in preparing the intended declaration , which the deponent has the more reason to believe , in as much as the said ferguson did go about to show him the deponent , such a paper , wherein the said ferguson was hindered by the coming up stairs of some person , to speak with the said ferguson , that the said ferguson told the deponent , that the main business of the said baillie , in meeting the saids conspirators , was in order to get from them the ten thousand pounds , promised for the buying of arms , for the insurrection intended in scotland . that the deponent saw mr. william carstares come often to the lodgings of the said ferguson ; but that the said ferguson never told the deponent of any discourse held by him with the said carstares : and further this deponent saith not ▪ sic subscribitur , zac. bourn . iurat coram . l. ienkins . his majesties advocate likewise produced several warrands , and papers to prove , that those depositions are sign'd by sir leolin ienkins . his majesties advocate also produced the books of adjournal , bearing mr. william veitch to be a forefault traitor , and the act of parliament whereby the forefaulture is ratified , his majesties advocat's speech to the inquest . my lords and gentlemen , you have now a conspiracy against his majesties sacred person , and royal government , so fully discover'd , that they must want reason as well as loyalty , who do not believe the discovery ; and they must be enemies to sincerity , as well as to the king , who do not acknowledge it . beside , that the councils of all the three nations , thought the proof sufficient , for indicting a general thanksgiving through all these nations ; and that the judges of england thought the same strong enough to infer forefaulture of life and estate , against some of all ranks there ; you have a discovery made here from the late e. of argiles own letters , and the confession of his own emissaries , the two surest proofs that law ever invented , or the nature of humane affairs can allow ; and i am this day to add to all this , a new s●rt of proofs in the process that i now lead against this pannal , from the confessions of noblemen and gentlemen , who have been engaged in this wicked conspiracy ; and who from a sense of their guilt , are content freely to depose against their nearest relation , and their most intimate friend , in which having thus cleared to you , that there was really such a conspiracy , i shall , in the next place , proceed to prove this pannals accession to it . it cannot be imagined , that we would willingly involve our countrey men in it , without a conviction stronger then our kindness to scotland ; nor did his majesties servants accuse this pannal , without the opinion of the ablest lawyers of the kingdom , who did , with them concur , to think that there was not the least occasion of doubting left , to the most indifferent inqueist of his guilt , after they had seriously , and with reflection , read over , and pondered the probation now laid before you . the person accused of accession to this cryme is the ring-leader of all those , who in this kingdom concurr'd with the english conspirators , as you may see by the testimonies of all who have deposed ; and it was indeed fit and just to begin with the most guilty , so that if he be not convicted , there should no man be punished for this conspiracie ; all the noise we have heard of it , is but a cheat , the kings judges have been murderers , all the witnesses have been knaves , and such as dyed for it have been martyrs . the accession charged on the pannal , is not an accidental escape , nor is it proved by witnesses , who can be suspected of unkindnes to his person , or his cause , for it is a long tract of a continued design , gone about with the greatest deliberation and concern imaginable , and proved by his nearest relations , and persons so deeply engadged in that cause , ( for which he suffers , ) that they were content with him to venture their lives and fortunes in that quarrel . he is not accused of a crime that can amount only to a single murder , though that be a dreadful cryme , but a rebellion , which was to draw upon us a civil war , that murder of murders , in which hundreths of thousands were to fall ; and to crown all , he was to 〈◊〉 ▪ and to be the 〈…〉 a rebellion , in which one of the first steps was to kill his sacred majestie , and his royal brother ; and one of the chief witnesses which i have led against him , is bourn , which bourn confessed that he was to kill the king , and who confesses the pannal sat up several nights with ferguson , the other contriver of the kings murder , and so familiar was he with him , that bourn depons , that the said pannal had been with ferguson , at the drawing of the manifesto , whereby he was not only to be an actor , but to be the justifier of that horrid villanie : and therefore bourns depons , that ferguson , ( the best judge in that case ) looked upon him as the chief man , next to argyle ; but because no man is presumed to go to such a hight , without previous inclination and motives , i shall to convince you , that this gentleman was very capable of all that was lybelled against him , remember you , that he is nephew , and son in law to the late waristoun , bred up in his family and under his tutory ; about the time of this plot it was undenyably known , and is now sufficiently proved , by two present witnesses , the earl of tarras and commissar monro , that he thought himself desperat , knowing himself to be guilty of treason by blackwoods case ; and as it 's presumable , that a man that 's guilty of one point of treason , will commit another ; so when a man is desperat as to his life and fortune , he is capable of any thing ; he was likewise animated to commit this cryme , by the intelligence he had that there was a plot in england , carryed on by men of so great parts , fortune and influence , and by the too probable hopes , that they would get all the western shires to joyn with them here , because of the common guilt , in which they had engadged themselves , by their late extravagances , they made an account of an assistance of twenty thousand men ; and by philiphaughs deposition , that these gentlemen expected the concurse of the southern-shires ; and thus , i am to prove to you a cryme , which is in it self , so probable and liklie , that it should need little probation , tho i have adduced for your conviction sufficient evidences , albeit the cryme were in it self very unliklie . the crymes which i hope i have proved , are , that ierviswood the pannal transacted for money to the late earl of argyl , a declared traitor . . that he designed to raise a rebellion . . that he intercommuned with the earl of argyl and mr. veitch declared traitors . . that he was present , whe●● it ●as treated ▪ either that argyle should have money from the english ▪ and assistance from scotland , or that a rebellion should be raised , and that he did not reveal the famine ; and all these being sound relevant separati●n ▪ it is sufficient for me to have proved any one of them . and if a gentleman was lately found guilty of high-treason , by the opinion of all the lords o● session , for not revealing , that sir iohn cochra● sought fifty pound sterling from him , though he refused the same , and tho he believed , it was sought for a charitable subsistance to preserve him from starving ; what deserves this pannal , who sought thirty thousand pound sterling , to buy him arms , to invade his native countrey ? that ierviswood was designing to carry on a rebellion , or at least was accessory , or ( as our law terms it ) was art and part thereof , is clearly prov'd ; but that in this occult and hidden crime , which uses not to be prov'd by clear witnesses ; i may lead you thorow all the steps of the probation , which like the links of a chain , hang upon one another . you will be pleased to consider , that . it is proved that he desired a blind commission to go to england , not to manage the affairs of the carolina company , as he confess'd , but to push the people of england to do something for themselves , because they did only talk and not do ; and what he would have them to do , appears too clearly , because he tells the earl of tarras it was probable , that if the king were briskly put to it by the parliament of england , he would consent to exclude the duke from the succession : here is not only a treasonable design , ( though a design be sufficient in treason ) but here are express acts of treason proved , viz. the treating with the earl of tarras upon this design , the settling a correspondence with him for the prosecution of it , and the writing letters from london to him concerning it , and the sending down mr. martin to compleat it by a general ●●sing ; as he design'd to push on the english , so he prosecutes closely 〈◊〉 design upon all occasions . on the road he complains cunningly and bitterly , that our lives , laws and liberties , and the protestant religon were in danger , the stile and method of all such as design to rebel ; after he arrives at london , he engages the conspirators there to assist the late earl of argile , a declar'd traitor , with money to buy arms ; this was indeed to push the english to do the most dangerous things by the most dangerous man , and in the most dangerous methods . he enters also in a strict correspondence with ferguson the contriver , with shepard the thesaurer , and carstares the chaplain of the conspiracy . alexander monro another present witness , proves that he argued with him , that it was necessary to give argile money expressly for carrying on the rebellion , and that they did meet at ierviswoods chamber where this was spoke of , and from which mr. robert martin was sent to their friends in scotland to know what they would do ; and though the silly caution was , that they sent him to prevent their rising , yet a man must renounce common sense , not to see that the design was to incite them to rebellion , and to prevent only their doing any thing in this rebellious design , by which they might lose themselves in a too early and abortive insurrection here , till things were ready in england . for , . this commission was given him in a place , and by a company who had been themselves treating immediatly before of sending money to the late e. of argile to buy arms , and certainly those arms were to be bought for men , and not for a magazine . . they were treating how many men could be raised in scotland . . carstares deposition bears , that martin was sent to hinder rash resolutions , till they saw how matters went in england , and the return to their embassy bore , that it would not be an easie matter to get the gentry of scotland to concur ; but afterwards better hopes of their rising was given , which could not have been , if the true commission had not been to raise scotland . . that sir iohn cochran made a speech to that purpose , is expressly prov'd , and that ierviswood spoke to the same purpose , is prov'd by a necessary consequence ; for since it 's prov'd that he spoke , and that he did not speak against it , it must necessarily follow that he spoke for it , though the witness is so cautious , that he cannot condescend upon the words now after so long a time ; and it is against sense to think , that ierviswood who in privat press'd the same so much upon commissar monro , and who was the deacon-conveener here , and who , as mr. martin their envoy declared , was the person who was to be sent for the arms , should not himself have been the most forward man in that design , but above all exitus acta probat , this commissioner , ( who being a meer servant , durst not have proposed any thing from himself , being a mean person , and being one , who , as the earl of tarras deposes , would say nothing , but what was in his paper : ) does expresly declare , that he came from ierviswood and others ; and in the meeting with him , a rebellion is actually formed , and it is resolved , they should seize the king's officers of state , garisons , and forces , and that they should joyn with the late e. of argyle , and put their own forces in a condition to joyn with these forces that were to come from england , and they gave a sign , and a word , which uses only to be done in actual war ; so here is treason clearly prov'd , by two present witnesses , from the first design to it's last perfection . nor can it be objected , that they are not concurring witnesses , but testes singulares upon separat acts , for in reiterable crimes , witnesses deposing upon different acts ; do prove if the deeds tend to the same end ; as for instance , if one witnes should depose , that they saw a traitor sit in a council of war , in one place , and in another place , they saw him in arms , or that one saw him assist at a proclamation in one place , and saw him in arms in another ; or that one saw him writ a treasonable paper , and another saw him use it ; these witnesses are still considered as contestes , or concurring witnesses , and ten or twelve inqueists have so found , and upon their verdict , rebells have been lately hang'd . the learn'd judges of england being all met together did expresly find , that one witnes proving , that a. b. said , that he was going to buy a knife to kill the king , and another deposing , that he saw him buy a knife , without telling for what , that these two witnesses were contestes , and prov'd sufficiently the cryme of treason , yet there the one witnes , prov'd only a remote design , and the other an act , which was indifferent of it's own nature , and became only treasonable by the connexion ; but no witnesses ever deposed upon things so coherent , and so connected together , as these do , for they depose still upon the same person , carrying on the same design of a rebellion ; as to which , in one place , he is exciting his own nephew , and telling him his resolutions , and settling a correspondence with him , at another time , he presses commissar monro to the same rebellion . at a third , he holds a meeting at his own chamber , and speaks concerning it , and from that meeting , he sends a trusty , who formes the rebellion . besides all this , tho two witnesses be sufficient , i have adduced mr. william carstares chief conspirator , and who choos'd rather to suffer violent torture , than to disclose it , he likewise deposes upon all these steps , and connects them together , and this his deposition is twice reiterated , upon oath , after much premeditation . and i likewise adduce two depositions taken upon oath , by sir leolin ienkins , who was impower'd by the law of england , and at the command of the king , and the council of england , upon a letter from his majesties officers of state here , in which deposition , shepard , one of the witnesses , deposes , that baillie came frequently to him , and desired him to advance the money , and lamented the delays , and that there was so little to be advanced ; and who should be better believed then one who was his own trustie , and a person who was able to advance so great a sum ; bourn , another of the witnesses , deposes , that ferguson told him , that the pannal spoke frequently to him concerning the same money , and that he sat up several nights with ferguson upon the said conspiracy ; and who should be better believed then fergusons confident , and one who was so far trusted in the whole affair , that he was to take away that sacred life , which heaven has preserv'd by so many miracles . against these three depositions , you have heard it objected , that non testimonia sed testes probant , especially by our law , in which , by an express act of parliament , no probation is to be led , but in presence of the assise and pannal . to which it is answered , that these depositions are not meer testimonies ; for i call a testimony , a voluntar declaration , emitted without an oath , and a judge ; but these depositions are taken under the awe of an oath , and by the direction of a judge . . shepard was confronted with the pannal himself , and he had nothing to say against him ; whereas the great thing that can be objected against testimonies ( and by our statute especially ) is that if the party who emits the testimony had been confronted with the pannal ; the impression of seeing a person that was to die , by his deposition , would have made him afraid to depose laxly ; and the pannal likewise might , by proposing interrogators and questions , have cleared himself , and satisfi'd the judges in many things depos'd against him : but so it is that mr. shepard having been confronted with the pannal , before the king himself , who is as ●ar above other judges , in his reason and justice , as he is in his power and authority ; he deposes that the pannal was the chief mannager of this conspiracy , next to argile , and that he was so passionate to have this money to buy arms , that he lamented the delays ; and can it be imagined that mr. shepard whom he trusted with his life and his fortune , and whom all their party trusted with their cash , would have depos'd any thing against him that was not true , especially when he knew that what he was to depose , was to take away his life and his fortune ; or that if the pannal had been innocent , he would not when he was confronted with mr. shepard , before the king himself , have roar'd against mr. shepard , if he had not been conscious to his own guilt . there is a surprise in innocence , which makes the innocent exclaim , and it inspires men with a courage , which enables them to confound those who depose falsly against them ; and in what occasion could either of these have appear'd , more than in this , wherein this gentleman was charg'd to have conspir'd with the greatest of rascals , against the best of princes ; and that too in presence of the prince himself , against whom he had conspir'd ; but guilt stupifies indeed , and it did never more than in this gentlemans case , whose silence was a more convincing witness than mr. shepard could be . mr. carstares likewise knew when he was to depone , that his deposition was to be used against ierviswood , and he stood more in awe of his love to his friend , than of the fear of the torture , and hazarded rather to die for ierviswood , than that ierviswood should die by him : how can it then be imagin'd , that if this man had seen ierviswood in his tryal , it would have altered his deposition ; or that this kindness , which we all admir'd in him would have suffer'd him to forget any thing in his deposition , which might have been advantageous in the least to his friend : and they understand ill this hight of friendship , who think that it would not have been more nice and careful , than any advocate could have been : and if carstares had forgot at one time , would he not have supplyed it at another ; but especially at this last time , when he knew his friend was already brought upon his tryal : and that this renew'd testimony was yet a further confirmation of what was said against him ; and albeit the kings servants were forced to engage , that carstares himself should not be made use of as a witness against ierviswood ; yet i think this kind scrupulosity in carstares for ierviswood , should convince you more than twenty suspect , nay than even indifferent witnesses ; nor can it be imagined , that the one of these witnesses ; would not have been as much afraid of god , and his oath at london , as at edinburgh ; and the other in the council chamber in the forenoon , as in the justice-court in the afternoon . . the statute founded on , does not discharge the producing of testimonies otherways than after the jury is inclos'd ; for then indeed they might be dangerous , because the party could not object against them : but since the statute only discharges to produce writ , or witnesses , after the jury is inclos'd ; it seems clearly to insinuat , that they ought to prove when they are produc'd in presence of the party himself , as now they are . and though the civil law did not allow their judges to believe testimonies , because they were confin'd to observe strict law ; yet it does not from that follow , that our juries , whom the law allows to be a law to themselves , and to be confin'd by no rule , but their conscience , may not trust intirely to the depositions of witnesses , though not taken before themselves , when they know that the witnesses , by whom , and the judges , before whom these depositions were emited , are persons beyond all suspition , as in our case . but yet for all this , i produce these testimonies , as adminicles here only to connect the depositions of the present witnesses , and not to be equivalent to witnesses in this legal process ; albeit , as to the conviction of mankind , they are stronger than any ordinary witnesses . when you , my lords and gentlemen , remember that it is not the revenge of a privat party , that accuses in this case ; and that even in privat crimes , such as forgery , or the murder of children , &c. many juries here have proceeded upon meer presumptions , and that even solomon himself , founded his illustrious decision , approv'd by god almighty , upon the presum'd assertion of a mother ; i hope ye will think two friends deposing , as present witnesses , adminiculated and connected by the depositions of others , though absent ; should beget in you an intire belief , especially against a pannal , who has been always known to incline this way , and who , though he was desired in the tolbooth to vindicate himself from those crimes , would not say any thing in his own defence , and though he offers to clear himself of his accession to the kings murder , yet sayes nothing to clear himself from the conspiracy entered into with the late earl of argile , for invading his native countrey , which is all that i here charge upon him , and which he inclines to justifie , as a necessary mean for redressing grievances ; i must therefore remember you , that an inquest of very worthy gentlemen did find rathillet guilty , tho there was but one witness led against him , because when he was put to it , he did not deny his accession : and two rogues were found guilty in the late circuit at glascow , for having murdered a gentleman of the guard , though no man saw them kill him ; but the murderers having been pursued , they run to the place out of which the pannals then accused were taken , none having seen the face of the runaweys ; and the pannals being accus'd : and press'd to deny the accession , shun'd to disown the guilt , but desired it might be proved against them . this may convince you that there are proofs which are stronger then witnesses ; and i am sure that there were never more proving witnesses then in this case , nor were the depositions of witnesses ever more strongly adminiculated . remember the danger likewise of emboldening conspiracies against the kings sacred life , and of encouraging a civil war , wherein your selves and your posterity may bleed , by making the least difficulty to find a man guilty by the strongest proofs that ever were adduced in so latent a crime as a conspiracy is . and i do justly conclude , that whoever denys that a conspiracy can be thus prov'd , does let all the world see that he inclines that conspiracies should be encouraged and allow'd . our age is so far from needing such encouragements , that on the other hand in this , as in all other crimes , because the guilt grows frequent and dangerous , the probation should therefore be made the more easie , tho in this case the king needs as little desire your favour , as fear your justice . and i have insisted so much upon this probation , rather to convince the world of the conspiracy , than you that this conspirator is guilty . thereafter the lords ordained the assize to inclose , and return their verdict to morrow by nine a clock in the morning . edinburgh , december . . the said day , the persons who past upon the assie of mr. robert baillie of ierviswood , return'd their verdict in presence of the saids lords ; whereof the tenor follows . the assize , all in one voice , finds the crimes of art and part in the conspiracy , and plot libelled ; and of concealing , and not revealing the same , clearly proven against mr. robert baillie the pannal , in respect of the depositions of witnesses and adminicles adduced . sic subscribitur , strathmore chancellor . after opening and reading of the which verdict of assyze , the lords , justice general , justice clerk , and commissioners of justiciary ▪ therefore , by the mouth of iames iohnstoun dempster of court , decerned and adjudged the said mr. robert baillie of ierviswood to be taken to the mercat cross of edinburgh , this twentie fourth day of december instant , betwixt two and four a clock in the afternoon , and there to be hanged on a gibbet till he be dead , and his head to be cut off , and his body to be quartered in four , and his head to be affixt on the nether-bow of edinburgh , and one of his quarters to be affixt on the tolbooth of iedburgh , another on the tolbooth of lanerk , a third on the tolbooth of air , and a fourth on the tolbooth of glasgow ; and ordains his name , fame , memory , and honours to be extinct , his blood to be tainted , and his arms to be riven forth , and delate out of the books of arms , so that his posterity may never have place , nor be able hereafter to bruik , or joyse any honours , offices , titles or dignities , within this realm in time coming ; and to have forfaulted , ammitted and tint all and sundry his lands , heritages , tacks , steadings , rooms , possessions , goods and gear whatsoever , pertaining to him , to our soveraign lords use , to remain perpetually with his highness , in property , which was pronunced for doom . sic subscribitur . linlithgow . james foulis , i. lockhart , david balfour , roger hog , al. seton , p. lyon. extracted forth of the books of adjournal , by me mr. thomas gordon , clerk to the iustice court , sic subscribitur . tho. gordon . in pursuance of which sentence , his majesties heraulds , and pursevants , with their coats display'd ( after sound of trumpets , ) did publickly , in face of the court ( conform to the custom , in the sentences of treason ) in his majesties name and authority , cancel , tear and destroy the said mr. robert baillie his arms , threw them in his face , trampl'd them under foot ; and ordain'd his arms to be expunged out of the books of herauldry , his posterity to be ignoble , and never to injoy honour and dignity in time coming : and thereafter went to the mercat-cross of edinburgh , and solemnly tore and cancelled the said mr. robert baillie his arms , and affixed the famine on the said mercat-cross reversed , with this inscription ; the arms of mr. robert baillie late of jerviswood traitor . finis notes, typically marginal, from the original text notes for div a -e * nota , that this week his majesty was expected from new-mercat , but came . dayes sooner , by reason of the fire . * monmouth . * carstares . † scotland . * scotland . † england . * dissenting lords . † carstares . * dissenting lords . notes for div a -e nota , that the earl of tarras depon'd nothing against jerviswood but what the other two witnesses depon'd against himself before the tryal , and upon which thereafter they being renew'd , the earl was forfaulted ; so that there could be no ground of suspicion from his circumstances . observations upon the laws and customs of nations, as to precedency by sir george mackenzie ... mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing m estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) observations upon the laws and customs of nations, as to precedency by sir george mackenzie ... mackenzie, george, sir, - . [ ], [i.e. ] p. printed by the heir of andrew anderson ..., edinburgh : . reproduction of original in duke university library. errata p. 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texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng precedence -- early works to . - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - jonathan blaney sampled and proofread - jonathan blaney text and markup reviewed and edited - pfs batch review (qc) and xml conversion observations upon the laws and customs of nations , as to precedency . by sir george mackenzie of rosehaugh , his majesty's advocat in the kingdom of scotland . petron . — hos gloria tulit honores . edinbvrgh . printed by the heir of andrew anderson , printer to his most sacred majesty . anno domini , m. dc . lxxx . to the king. may it please your sacred majesty , this book , having for its subject precedency , should have , for its patron , that king from whom our precedency flows , as rays do from the sun : and beside the nobleness of the questions here discuss'd , wherein crowned-heads are oft-times the clients , and honour the prize ; these discourses have the great charms of newness and variety , which do singly so delight this age , without any other advantage . i know , sir , that dedications have degenerated into panegyricks ; but why should i say any thing of you , of whom the most of your subjects believe better things , than the most eloquent of your advocats can express ? it being amongst the other wonders of your life , that you are the best lov'd , though not the best obey'd king in christendom ; the one being the effect of our conviction , and the other of your admired clemency . and yet i might be allowed to say as much of your majesties merit , as some others of your subjects ; having in those many occasions i had of attending you upon our publick concerns , been oftentimes both pleas'd and asham'd to find you understand my trade ( that great art of reasoning ) far better than my self ; discovering to me the weakness of some of my reasons , and improving others . but what i admir'd more was , ( for i admire iustice more than wit ) to find your majesty alwayes more concern'd for your peoples security , than for your own prerogative : so that if any kingdom be happier than we , it is because they understand better their own interest and not because they have a better king. leaving then , sir , this beaten path , i hope all wise and just men may expect , that none who owe you and your predecessors the interest they have in your kingdoms and parliaments , because of the titles you have bestowed upon them , will be so ungrate and imprudent as to oppose you , to please a re-publican party , who would turn them out of all that interest they have now in the government , and punish them most remarkably , by levelling them with the populace which some adore . there is not a nobleman in these nations , who has not been raised by the royal bounty ; all preferments of the army or long robe , being the reflex of your favour upon their merit , and without which , their greatest parts had been at best , but excellent colours lodg'd in the dark : and therefore , when they get precedency , preferments , matches , or respect , for being noblemen , they ought to consider to whom they owe all this , and to remember how little they signified when a common-wealth prevailed : and if any of their creatures us'd them , as some have done the monarchy , we should hear that eloquence , which is now us'd to decry the government and your ministers , employed in railing against the ingratitude of those their creatures . nor is it to be feared , that the nobility and gentry , who value themselves so much upon the just descent of their blood , will bear patiently that the royal line should be cut , or the succession diverted from its just and royal channel ; since your descent , great sir , has the advantage over not only all subjects , but likewise over all monarchs , that we know , when their predecessors rose from among the vulgar ; whereas , the first thing history discovers of yours , is , that they were kings : god having wrapt up your origin in this wonderful mysteriousness , as it were , to teach your subjects , that you hold your imperial crown of him , alone and immediatly ; and in shewing them how to reverence you , has oblieged you to depend upon his divine majesty , the only and immediat author , as well as support , of your power and greatness ; and who has heap'd upon you so great , and so remarkable mercies , as may in letting your enemies see his just indignation against them , let you also see , what sincere and exemplary piety he , as your kind and omnipotent master , expects from you. i know , sir , that you will allow me to own , that i hate slavery , and love property , as well as any of our high pretenders : but , i think our freedom and property securer under your majesty , whose right cannot be shaken , without the ruine of ours ; it being your great interest to maintain that law , which makes so many thousands obey you , in spight of their ambition and avarice . and i still see , that the true proprietar is the kindest master ; whereas , on the other hand , it is certain , that they who oppose most the government , are those who did themselves cruelly oppress us under the late vsurpers , or their impenitent children ; those , who being picqu'd at want , or loss of preferment , are acted by revenge and malice ; or these who are so easily fool'd , as to believe those who are such , and who inveigh against your just power , that they themselves may thereby become arbitrary ; many of whom are themselves greater grievances than any they exclaim against , and greater judgements than any they threaten . so that all we can expect is , to empty our veins and purses , for the liberty of being sold or trampled upon , as formerly , by such as have neither so great interest in us , nor affection for us ; whilst you , sir , generously pity what you may chastise , and suffer our extravagancies to grow up to be their own punishment . none of us can say , that we , or our predecessors have for six hundred years , felt the tyrannie of any of our kings : nor can any of us deny , that all our miseries and civil wars have sprung from the ambition and factiousness of subjects , who design'd indeed to govern them and us ; which should in reason make us rather jealous of our own factiousness , than of our monarchie . and therefore , sir , that god may alwayes teach your subjects to be just to your merit , and to remember the last age ; and may make your ministers careful to maintain , but not to stretch your prerogative , shall be the constant and ardent prayer of , may it please your sacred majesty , your majesties most faithfull , most humble , and most loyal subject and servant , george mackenzie . the contents . chap. i. the precedency of kings and common-wealths . chap. ii. of the precedency due to the kings of scotland . chap. iii. that the crown of scotland was not subject to england . chap. iv. the debates betwixt the kings of pole , sweden , denmark , &c. and other princes . chap. v. the precedencies amongst common-wealths . chap. vi. of the precedency of the electors , and the princes of the empyre . chap. vii . of the precedency of church-men . chap. viii . general observations concerning the precedency of subjects . chap. ix . the precedency due to women . fourty four considerable questions concerning precedency , resolved , viz. question . whether in competitions betwixt kingdoms , states , and towns , is their present condition to be considered , or what they were formerly ? quest. . whether a kingdom becoming a common-wealth , or a common-wealth a kingdom , does their former precedency remain ? quest. . whether he who is elected to a dignity , ought to have precedency thereby , as if he were actually admitted ? quest. . whether ought one who has been twice or oftener elected to any dignity , be preferred to him who was only once elected ? quest. . what influence hath the conjunction of moe dignities upon precedency ? quest. . how far do former dignities influence a present advancement , and determine the precedency depending thereupon ? and what rank is due to honorary and extraordinary offices ? quest. . whether amongst such as have equal dignity , the first in time ought to be preferred ? quest. . when many are promoted at once in the same writ , or when many are nominate in the same commission , whether is the order of naming therein express'd to be observed ? quest. . in what cases does age prefer , and what is its prerogative in the matters of precedency . quest. . whether does appearancy of blood give precedency before actual investiture and possession ? quest. . whether does the apparent heir his assuming and using the title and precedency of his predecessor , make him lyable to his predecessor's debts , and infer a passive title against him , as we speak ? quest. . whether does the appearancy of blood give precedency , where the predecessor is not dead ? quest. . whether should an elder brother , who was born before the father was preferred to the dignity of a king , marquess , earl , &c. be preferred to a younger brother who was born after his father had attained to either of these dignities ? quest. . whether ought a son , who is in publick imployment and dignified , to precede a father who is not ? quest. . whether may he who has the survivance of an imployment , challenge any precedency upon that account ? quest. . whether does the daughter of a lord , who would himself have been an earl if he had lived , take place from the daughter of a younger earl ? quest. . whether if the elder brother be mad , or dumb , &c. does the second brother get the same precedency , as if his brother were dead ? quest. . which of two or moe twins ought to precede , when it is controverted which of them was first born ? quest. whether do natural children born before a lawful marriage precede ? and should they be preferred to the children born in a lawful marriage , if they be legittimated thereafter ? quest. whether ought the order of the nomination to be observed in commissions , where the persons are ranked otherwise then can be consistent with the king 's former express grants ? quest. . in the competition betwixt two who are advanced at the same time , but in different writs , as if two patents were subscribed by his majesty to two several earls on the same day ; which of the two were to be preferred ? quest. . whether is precedency to be ruled according to the date of the provision , investiture , or actual possession ? quest. . whether does the dignity of him who bestows the honour , regulate the precedency that is bestowed among equals ? quest. . whether can a prince nobilitate any of his own subjects in the territories of another prince ? quest. . whether when the president of any court or incorporation is absent , may the eldest member convocate the incorporation ? and who ought to precede in that case ? quest. . whether may a peer be degraded , because he hath not an estate sufficient to entertain a person of his quality , and by whom may he be degraded ? quest. . whether is a patent never made use of by the father , valid after his death ? quest. . whether if the father use any low or base trade which derogates from nobility , will his children and descendents lose it thereby ? quest. . one having resigned a dignity or imployment , and returning thereafter thereto , whether does he who has so resigned return to his former precedency ? quest. . whether may a nobleman resign his honours in favours of a third party ? and if the king's confirmation thereupon will exclude the nearest agnats , who would else have succeeded by their right of blood ? quest. . whether does the former right of precedency remain with him who has resigned the office by which he enjoyed the precedency ? quest. . if a person do not of himself resign , but be called from his charge by the prince to another imployment , and one provided to his place , and returning thereafter to his first dignity by the princes command , whether does he get precedency according to his first or last installment ? quest. . whether does he who is suspended from the exercise of an office , return to the same precedency when the suspension is taken off ? quest. . two having offices , and changing one with another their imployments for a time , whether when they resume their former imployments , do they return to their former precedency ? quest. . whether is he , who is restored by the prince to a dignity from which he was degraded , to be restored to the same precedency which he had formerly ? quest. . whether have the ambassadours of monarchs the precedency from other monarchs or princes themselves , if personally present , even as the kings would do whom they represent ? and if in all cases , an ambassadour ought to have the same precedency that is due to his constituent ? quest. . whether have such as have been ambassadours , or have been in such honourable imployments , any precedency thereby when their imployment is ended ? quest. . what place is due to the representatives of subjects , such as vicars , deputes , assistants ? &c. quest. . what precedency is due to assessors appointed for iudges , and to extraordinary iudges ? quest. . whether can the king creat now an new earl , and ordain him to precede all the former earls , or any such number of them as he pleases ? quest. . whether if a king should creat an earl , with precedency to all other earls , during his life ? or if when an earl is forefaulted , will his lady in either of these cases retain the precedency she formerly enjoyed during her husbands life ? quest. . whether amongst those of the royal-line , does the next to the royal-stock precede ? or does the precedency belong to the eldest of that branch ? quest. . whether , or when is the right or left hand the chief mark of precedency ? and whether is the place opposite to the seat of the chief person who sits betwixt the two , preferable to either right or left hand ? quest. . whether in improbations raised to secure precedency , can certifications be granted as well against patents of honour , as against other writs ? courses taken by princes and iudges , when they intend to shun the deciding of controversies concerning precedency , and to preserve the rights of all the competitors . errata . page . line . dele former . p. . l. . read the french words thus , aubaines , sont estrangers nais en pais , &c. l. penult , for in the dependent , r. independent . p. . l. . for imitating , r. intimating . l. . for then , r. when . p. . l. . r. filiolem . p. . l. . r. was not then decided . p. . near the foot , r. & aliis magnatibus . l. penult . r. sons . p. . l. . r. senescallo . p. . l. . r. his procutor . l. . for antoun , r. aiton . p. . quest. . l. . r. current . p. . quest. . l. . r. defective . p. . l. . r. officium . l. . dele at the same time . p. . l. . for perceed . r. precede . p. . l. . r. unnecessar . literal faults and errours in the pointing , may be easily perceived by the reader . advertisement from the author , to be subjoyned to the third chapter of the precedency . being desired to prove , that from chronology it is impossible , that kenneth . king of scots , did row edgar king of the english saxons over the dee ; i prove it thus : kenneth the . did not succeed to the crown of scotland , till the year . at which time , ethelred , edgars youngest son , did reign in england : ethelred having begun his reign , anno . two years before kenneths coming to the crown of scotland . it is also remarkable , that heylen relates , that the king of scotland was ordained at the council of constance , to precede the king of castile , as being one of the five absolute monarchs ; which was inconsistent with his being a tributary , or homager prince . this was done in presence of the king of englands ambassador , who reclaimed not , as certainly he had done , if the king of scotland had been vassal to his master . by all which we see how solidly heylen writes upon this subject . and the learned speed doth in his history of great britain most solidly , and modestly , in many parts thereof , clear us from this pretension ; and especially in the life of william the conqueror , who , to clear marches between scotland and england , did set up a cross at stranmoor , with the arms of england on the south side , and the arms of scotland on the north side ; the king of scotland doing only homage for cumberland . and in the life of edward the first , when some of the great men of scotland waited on edward in northumberland , in the controversie betwixt the bruce and baliol ; he sayes , that edward made then claim to the superiority of sotland , alledging that the crown of scotland was holden of him . to whom the scots replyed , that they were ignorant , that any such superiority belonged to the king of england , neither could they make answer to such things without a king , &c. and that thereupon the king delivered to them his letters patents , in which he acknowledged , that the coming of those scots , on this side the water of tweed , should not be at any other time urged to prejudice them , for coming again into england ; that is , ( sayes he ) that their example should not so be drawen to an argument of king edwards right over them , as if they were to come again upon duty : so prudently jealous ( sayes this author ) were these patriots of their countries liberty . and a little after , he acknowledges , that king edward was then plotting this homage , because scotland wanted a head. he also confesses , that baliol lost the love of the scots , by the homage he had made , and that by letters to king edward , he did afterward renounce this homage as being contrary to his oath , as extorted by violence , and as being made without consent of the three estates . and speaking of king edwards big oath , as that he swore by the lord , he would consume all scotland from sea to sea , if he heard any more debate in that ; adds , that the scots did boldly enough reply , that in this cause they would shed their blood , for defence of justice , and their countries liberty . and further , in the reign of edward the third , he observes , that this short lif'd pretence , was renounced by that king , who quitted scotland of all claim and pretence of right to the superiority thereof , and delivered up the roll , called ragmans roll , wherein were contained the names of those few scots who had been forced to acknowledge this superiority . advertisement from the printer . it being objected by some , who are not so well acquainted with the methods taken by heraulds , in handling the art of blasoning , that many old sirnames , and noble families of this kingdom , are omitted , and not set down in the treatise of herauldry , and others of less note insert : to satisfie such , it is answered , that the author did never design , ( as no other writer on that subject ever did ) to publish a register of all the sirnames and bearings in the nation , ( these being to be found in the lyons registers only ) nor does he intend any advantage to such as are insert , or disadvantage to such as are left out ; as not being induced to name any for instances of bearings , either from the antiquity and greatness of the families , and sirnames , or his relation and kindness to them , but meerly from the specifick suitableness of their armes to the several kinds of charges and ornaments treated of throughout the work. it is to be noticed , that the observe made preced . p. . l. . of a mistake committed p. . is now unnecessary ; the sheet wherein that mistake was , being since re-printed . of precedency . chap. i. the precedencie of kings and common-wealths . mens ambition , as well as curiosity , doth breed in them a desire to understand this subject , which is a part of the civil law , and law of nations ▪ exceeding as far all other parts of the law , as honour exceeds money ; but the same ambition , which makes men very curious to know this subject , will make them very unwilling to hear any thing that may decide against themselves : and so such as writ upon it run a great risque of displeasing those whom they intended to satisfie . but my designe being to defend , and inform my own countrey , i shall be little disappointed , though i want praise and esteem , since i do not deserve , or expect either : and he is an unworthy man , who does not think the serving his countrey a sufficient sallarie , for greater pains than i have here bestowed . amongst those who are supreme , kings have the preference from commonwealths ; and amongst kings , the emperour is allowed the first place , by the famous ceremonial of rome , as succeeding to the roman emperours , who are alleadged to have been universal monarchs ; because in scripture they are said to have taxed the whole world . and therefore the german and italian lawyers , who are subject to the empyre , have with very much flattery , asserted that the emperour is the vicar of god in temporals , bald. in l. . c. de iure aur . an . and that jurisdictions are derived from him , as from the fountain ; calling him , dominum & caput totius orbis : and for this they do very impertinently cite several texts of the civil law , which being laws made by the romans themselves , cannot bind or prove against other nations . nor is the translation of the old roman dignity upon charles le maigne by leo the . of greater authority , amongst such as acknowledge the pope to be no infallible judge . and whatever may be debated against other kingdoms , which were once subject to the roman empyre ; yet his plea against scotland is very ill founded , since in the opinion of scalliger , and the best of historians , scotland nor its kings were never subject to the roman empyre , nor conquered by them ; for they , to defend themselves against the scots , were forced to build a wall , called vallum adriani , which is extant to this day as an undenyable proof , that scotland did set limits to the roman empyre : and thus as scalliger observes , romani imperii fuit olim scotia limes . it is likewise pretended by the german lawyers , that the emperour ought to precede all others ; because he is crowned with three crowns , one of iron at aquisgrane , one of silver at milan , and one of gold at st. peters church , gloss. ad clement . . and since the king of the romans who is but emperour in hope , debates with other kings , as in anno . he who is actual emperour , ought to be preferred to them . for the emperour it is also pretended , that in the ottomon court , and in all other courts , the emperours ambassadors are still preferred , and that he only is still styled , your majesty , in all adresses made to him by all other kings , as by france , anno . by pole , anno . &c. and that the kings of pole , sweden , denmark , and others have taken confirmations from him , & ab eo petierunt veniam aetatis , hering . de fidejus . c. . and yet the kings of britain and france may debate the precedency with him , because the empyre is but elective , whereas they are hereditary , the empyre is a limited , but they have absolute monarchies , vide peregrin . de jur . fise . tit . . num . . the french king debates his precedency with the king of spain ; the spaniard contending that he ought to be preferred , because he is the most catholick king , and king of maniest kingdoms ; and some of them are so foolish as to say , that the spainish nation is more ancient than the french , as owing their origin to athamaricus , one of the first governours amongst the goths . but for the french it is answered , . that they are the most christian kings . . that they are consecrated and anoynted . . that swardus was first king of that nation , in the reign of alexander the great . . that they were preferred in many general councils to the spaniards , as in the lateran council , anno . in the council of constans , anno . and in the council of basil , anno . that the venetians preferred the french after much debate , anno . the case being submitted by both to that senate ; and pius the iv. preferred him at rome , anno . the king of spain having appealed from the venetian to him . and though the emperour has of late decided in favours of spain , yet that decision is little considered , because of the relation which the emperour has to the spainish crown ; and therefore the french king does very wisely send only envoys and residents to the imperial court , lest if he sent ambassadours , the spainiards might be preferred to his . nor was this precedency ever acclaimed by the spaniard , till the reign of charles the v. who being both emperour and king of spain , did begin this debate ; which after many contests , the spainiard has at last ceded , having commanded his ambassadour , the marquess de la fuente , to acknowledge the same to the most christian king , in satisfaction of the injury done to his ambassadour , in anno . at london . the king of great britain founds his precedency to both , upon . his being king of that isle , which was first christian. . upon his being anointed , and one of the quatuor vncti , which were before all other kings . . that having conquered france , in the time of henry the v. he has right to all the precedency which france can acclaim . and to spain , the king of england was preferred in the general councils of pisa , constans , and basil. i find likewise in golstad . lib. . cap. . that pope iulius the ii. decided , after debate , in favours of henry the ii. king of england , against ferdinand the v. caspar . eup. thesaur . polit . part . . apot . . and therefore in the book of roman ceremonies , . england was placed before castil . nor can it be denyed , but that charles the v. in ranking the knights of the golden fleece , did give the right hand to the king of england , and the left to the king of spain . and though of late the court of rome has decided in favours of spain , yet that proceeds from the dislike that rome had to england for its separation , and the great esteem which dayly grows there for spain ; because spain has never indulged any who have left the romish church . chap. ii. of the precedency due to the kings of scotland . i must here crave leave to say , that the king of great britain may justly claim the precedency from all those kings , as he is properly king of scotland . for it is an uncontroverted ground in law , that amongst those of equal dignity , he , who first attained to that dignity , is to be preferred , l. . c. de consul . quis enim prior esse debet in eodem genere dignitatis , nisi qui prior eum adeptus est , l. . ff . de albo scribendo . with which agrees the canon law , cap. . de major . & ob . and this is declared the uncontraverted test of precedency , by crus , de jur . preced . pag. . menoch . concil . . & cuj . ad l. . c. de consul . and we see that this rule holds in all other dignities , without respect to riches , or multitude of possessions : and thus amongst dukes or earles in all nations , the first who attained to the dignity , is still preferred ; though others be much richer , and have suceeded to moe earldoms . this being then the true and solid ground of preference , i may truly subsume , that the king of scotland being equall in dignity , with the kings of england , france , and spain , attained to that dignity , before either of these . for our king fergus came into scotland . years before the birth of christ ; whereas polydor an english historian , confesses that egbert the first king of england , did begin his reign eight hundred years after our saviours birth , and the king of scotland marryed the daughter of ambrosius aurelius , who was the first king of the britans , and whose reign preceeded the origin of the english kingdom . as to the monarchy of spain , and their race of kings , they are no older than rudolphus king of the romans , elected in the year . by whom the house of austria did rise to this dignity . as to the kings of france who now reign , they are only descended from hugh capet , who usurped that throne in anno . and not being descended of either the carolovingian or merovingian races , they cannot compet with our kings , achaius king of scotland having been contemporary with charles le maigne , the first of the carolovingian race ; and yet achaius was but the . of our kings , and the leagues betwixt achaius and the said charles , are asserted not only by our historians and the french , but confessed by all strangers . to evite this argument , some historians have of late asserted , that we had no kings before fergus the ii. and cambden observes , that the scots were unknown till the dayes of constantine the great , which is a most unjust and groundless calumnie ; since four monastries of our nation , viz. melrose , pluscarden , paisley and scoon , did keep constant and distinct annals of all that past in this nation , after the establishment of the christian religion , which was in anno . and have transmitted to us what was delivered to them , by the pious and remarkable christians of those first ages of the world , who , as they were eye-witnesses of what past since our christianity , so are not to be presumed to have recorded any thing of what preceeded their own age , without sufficient warrand : and as it is incredible , that so sincere and pious men would have lyed , so it is not imaginable , that so many societies would have conspyred together , in a whole tract of so circumstantiat a history as ours is ; and there can be nothing brought to convell the faith of so large a history , but what may , with the same force , be urged against the whole roman history , few or none having related what is said in the roman history , besides the romans themselves : whereas galdus ( or as tacitus names him , galgacus ) opposed agricola under domitian ; and that he was a scot , is clear by lipsius notes upon that place , egregium membrum , & qualta multa in corpore hujus orationis galgaci scoti : but the text makes this most clear to me , for this discourse is said to have been made , ad montem grampium , which is known to be a scottish tract of hills , dividing the north and south of scotland . hegesippus , who lived in the dayes of hadrian the emperour , and so an hundred and ten years before constantine ▪ does write of the scots as a warlike people , to whose authority cambden can make no answer , but that he contraverts the authority of the translation or impression ; by which answer , all antiquity may be confounded ; and seing that translation was the work of st. ambrose , it cannot but be above all censure . claudian does make the scots to have reigned in the dayes of honorius , for in his second consulat he has , — scotumque vago mucrone sequutus ●regit hiperboreas , remis audacibus , undas . and in another place he sayes , scotorum cumulos flevit glacialis iernae . and william of westminster confesses , that we came into britain in the . year after christ : beda likewise another english man , makes us to have been in this isle , before the dayes of iulius caesar. and as it cannot be denyed , that we were still subject to monarchy , so no historian can pretend , that we obeyed any race , save that which now reigns : whereas we can condescend , where the english and french were conquered by strangers , and had their royal line dethroned , and inverted . another ground of precedency may be adduced for the king of scotland , from his being the undoubted lineal sucessour of . kings : whereas the lyne of france runs no higher than hugh capet , who lived in anno . and did in that time dethrone the former race : the kings of spain , are only descended from the counts of tierstiem . and the present kings of england are descended from william the conquerour . so that whatever may be pretended for the antiquity of those kingdoms , yet their kings are not so ancient as ours : and precedency ought to be given , amongst equals , to the eldest race , and not to the eldest kingdom . in such dignities , the preference must be given , either according to the antiquity of the people or countrey , or race which reigns there . if the countrey be considered , there can be no precedency acclaimed by any ; for as all countreys were created at the same time , so none can know which of these kingdoms were first inhabited : and that none can be preferred upon the antiquity or riches of their countrey , is clearly determined by lawyers , regionis , locique , cui principes praesunt , ratio , & sic de eorum locorum praestantia , veterum elogia necquicquam ad praecedentiam faciunt , gothofred . de praeced . cap. . num . . if we consider the antiquity of the people , who are commanded , though that could give precedency to them , or to any who represented them , yet that ought not to give precedency to the king ; for , principum precedentia metienda est ex sua dignitate , non extra : and the learned speronius speronii , hath proved this in a large discourse , written in the italian tongue ; but if this be considered as a ground of precedency , then we ought to be preferred to the english ; for we are still the same people and nation , but the english are not the old britans , but are a mixture descending from danes , saxons , and french : and so we being the eldest people , our king ought to have the precedency upon that account . even as our king was preferred to the late kings of ierusalem , though they commanded the people who now live in iudea , and who came in place of the ancient iews , a kingdom very ancient formerly . but the antiquity of the race that reigns , is the ground of precedency : for this reason it is , that the elder brother succeeds , without respect to the greatness of estate , or antiquity of those whom he commands . and though these considerations give preference inter impares dignitate , yet inter pares dignitate , familia quae prior dignitatent est adepta , semper praeferenda in incedendo , sedendo , &c. menoch . consil . . num . . rebuff . ad l. . c. de consul . platea ad l. . c. ut dignit . ordo . and since it shall be proved , even from forreign histories cited in this chapter , that we had kings before any of the races now reigning in either of these , our kings ought to be preferred to them . since christianity was established , christian princes have been preferred according to the date of their having received the christian faith , gothofred . de jur . praeced . cap. . num . . grotius de jur . bel . lib. . . cap. . and that is the chief ground of precedency observed in the court of rome , and especially in general councils ; but i conceive it ought not to be a ground of precedency any where else , since amongst equals , the antiquity of blood ought to be preferred to the date of christianity ; christianity rather discharging all care for precedency : but even according to this rule , the eldest christian race ought to be preferred , religion having still respect to christian parents ; whereas on the other hand , it is of no advantage to any person , that he succeeds to an estate which was formerly possest by christians , these having no connection with one another : and a man should by the same rule be preferred , because he dwells in a house where christianity was first professed , which were in it self very ridiculous : and if the first christian race be allowed the preference , the king of scotland ought to be preferred ; for donald king of scots imbraced the christian faith in anno . before either william the conquerour succeded to england , or hugh capet to france , and long before spain obeyed this race of monarchs ; for which we can cite not only our own historians , but baronius ad annum . duchesne , and many others , and particularly beda and polidor , the worthiest of english historians . beda relates , that imbuebantur a scotis parvuli anglorum , quin & ipse alsridus anglorum rex , in insulis scotorum operam dedit , & sacras literas didicit , lib. . hist. c. . reges angliae cupidi salutis aeternae , legatos ad eugenium quartum scotorum regem miserunt , ut ille digneretur viros idoneos mittere , per quos illi christianae fidei rudimenta docerentur , & sacro baptismatis fonte abluerentur , quod ille haud gravate indulsit . which clears fully , that our kings were christian before those of england , and so ought to be preferred to the kings of england , by their own arguments , and their own authors . king donalds conversion is attested by bellar. in his answer to king iames , by barronius , ad annum . sanderus lib. . de clav . david arnoldus de conversione gentium , &c. and since king donald was before fergus the second , it appears clearly , even from forreign histories , that we had kings before fergus the ii. . i cannot deny , but that in the council of constans , england and france were preferred to scotland : but that proceeded , as gothofred . observes , from the partiality of the church of rome , which alwayes preferred those who were able to do them most service ; but if we consider the principles of the christian religion : according to these , that race ought to be preferred , whose title is justest ; and i am sure , that according to this rule , scotland ought to be preferred , for its kings have not usurped over the people which they governed . and not only does religion consider this ground of preference , as suteable to devotion ; but the law considereth it , as suteable to justice : and lawyers have therefore thought a succession of kings , enjoying a just title , free from violence and tyrrany , one of the chief grounds of preference and precedency . and thus vasquez . in praefat . ad illustres questiones , sayes , that multum ad nobilitatem & praelationem confert , ex veris & legittimis regibus , & non a tyrannis descendisse . nor does the custome either of courts or councils , invert the precedency which is founded upon antiquity , and the right of blood , from which consuetude cannot derogat in the matter of precedency , since that consuetude is only respected in law , quae in se rationabilis juri nec naturae nec gentium contrariatur : and likewayes since this matter of precedency is setled by lawyers , upon these solid foundations , for securing the publick peace and interest of mankind , it were unjust that the same should be so easily overthrown by the partiality of interested church-men , or the pride and power of other competing and rival princes ; and therefore to secure the rights of justice and blood , against all such invasions , lawyers have unanimously concluded , that consuetudine induci non potest ut prior in dignitate praeferatur posteriori , crus . de praeemi . cap. . which principle they so farr assert as to conclude , that this could not be conceded even by express paction , rumellin . dissert . . thes . . even though that paction were confirmed by an oath , rippa . ad l. . ff . de donat . and albeit it may seem that every man may renounce that which is introduced in his own favours ; yet to this it is answered , that men cannot renounce what is introduced in their own favours , when that which they renounce was not principally introduced in their favours , but arose to them necessarily , by the laws of nature and nations , or was introduced principally , in favours of the common interest of mankind , rather than of them , and in which , third parties would likewise be concerned : all which is clear not only by the principles of reason , but by l. . ff . de pactis , and it cannot be denyed , but that the precedency from the antiquity of blood , is no such private right as may be renounced , it being a priviledge not given by law , but arising from nature , lex non data , sed nata , and introduced for regulating the common interests of mankind , and preventing their differences or oppressions ; whereas how unfortunate or irregular should men be ? if subjects might force their magistrates , or younger brothers the elder , or stronger princes the weaker , to renounce by paction , or might serue from them by custom and inadvertance , the seniority and precedency due to them ; whereas now , the impossibility of prevailing in such designes , takes happily away all lusting after them , and whatever may be ascribed to consuetude or decisions in that precedency , which because it sprung meerly from custome , may be regulated by it , or in dubious cases , where a grain weight may cast a ballance ; yet i see no law nor reason that can be adduced , for taking away by decisions , negligence , or consuetude , a clear right of precedency , founded upon the antiquity of blood. especially since all who writ upon precedency are clear , that no man can prejudge his successors , as to the precedency due to them by blood , licet positus in dignitate suo ipsius facto , possit sibi prejudicium afferre , non tamen praejudicare potest quoad successores suos , dec. consil . . num . . vid. gothofred . de praeced . pag. . rub. decis . . qui tradit ea quae a genere & natura tribuuntur , non obstante facto majorum manent incolumia . which rule should rather hold in kings than in any else , because they are but administrators . but in this case , there is no decision against our kings , nor have they ever consented to any such preference : and therefore whatever may be said for others , against them , in a possessory judgement , the matter of right is still intire . vasquez . the illustrious spainish lawyer , did , at the council of trent , adduce several arguments for the precedency of the king of spain , which , if they were well founded , would i confess , inferr a precedency to england and france , and which i shall the willinglier adduce and answer , that i have heard them urged for france and spain , against the king of britain ; and because they are the generall topicks and common places , which are necessary to be known , and understood for clearing not only the precedency of princes , but even of the nobility and gentry . the first is , that these who are most powerfull and greatest , ought still to be preferred , c. statuimus de major . & obed . and he must be accounted most powerful , who is most powerfull , the time of the debate : nam qualitas adjecta verbo , debet intelligi secundum tempus verbi , l. in dilectis § si extraneas ff . de noxalibus . the second is , that those who command the noblest and best subjects , are accounted the noblest and best , authent . de defensoribus civitatum § nos igitur . . riches are the rise and occasion of dignity , and therefore are the chief grounds of precedency amongst equals . . he is to be preferred in dignity , whom generally men esteem the greatest . . since honour is the reward of pains , and dangers , those who take most pains , and are lyable to most dangers for christendom , and the christian faith , ought to have the precedency , in christendom , and amongst christian princes : and that pains and dangers are grounds of predency , is urged from l. semper § negotiatores ff . de jur . immunitat . . as all goodness is the nobler , the more communicative it be , so these must be concluded the noblest , by whom most people have advantage : and therefore these kings , under whom trades flourish most , and who bestow sallaries upon , and give a livelyhood to most men , ought by mankind to be preferred . to a'l which arguments it is answered , that if preference were to be given by choice , and did not descend from the right of blood and antiquity , then the former arguments were indeed considerable , and ought to direct the electors ; but where the antiquity of blood can be instructed , it still gives precedency , as is clear from the authors above cited . and thus though we do confess , that the kingdoms of france and spain , and particularly the kingdom of england , are richer , greater , and more considerable upon these accounts , than scotland is ; yet since the race of our kings is more ancient than either of theirs , i conclude , that therefore they ought to be preferred . chap. iii. that the crown of scotland was not subject to england . some english historians , lawyers , and heralds , do too frequently abuse the world with a most groundless tradition ; by which they contend , that the kings of scotland were vassals to the kings of england , and did them homage for the crown of scotland : which if it were true , would have taken from the kings of scotland , not only the precedency , for which i have been debating , but would have placed them after the kings of castile , and many others to whom they were preferred . and therefore , not only to remove this objection , but to free my country from this most unjust imputation , i am resolved ( with very much respect to the english nation , whose wit , courage , and learning , i very much esteem ) to inform the curious , how unjust this pretence is ; and to which i have been not only inclined , but forced , upon the reading of a rapsodie printed lately , by mr. prin , in vindication ( as he speaks pag. . ) of the dominion of the english kings , against the vngrate , perfidious , and rebellious kings of scotland . in which none of the learned or discreet english are concerned , since i find none who deserve that praise , engaged in this debate , which has been agitated only by such of that excellent nation , as have had more humor than discretion . i deny not , but that the kings of scotland did hold the lands of northumberland , cumberland , and westmerland , in capite , of the crown of england , and that they did them homage for it , which was not dishonourable to scotland , that being most ordinary amongst soveraigne princes : for thus , henry king of england , and severall others of their kings , did homage to philip , and other kings of france , for the provinces possest by them in france ; and the king of spain does at this day homage yearly to the pope , for naples and sicily . and yet the homage done for these countrys , has been the occasion of an ignorant mistake in some , and a malicious pretext for others , to misrepresent the homage done for these counties , as done for the kingdom of scotland . and the occasion of getting these provinces from england , is too honourable to be denyed by us ; it being most undenyable , that the scots being called in to assist first the britans against the romans , and thereafter the saxons against the danes , they had these provinces bestowed upon them , as a reward of what they had done , and an encouragement to them to continue their friendship for the future . and by a statute made by st. edward , and ratified by william the conquerour , as holinshed observes , the scots were for that service likewise naturalized english , for which naturalization that statute gives two reasons , one , quia omnes ferme scoti proceres ex anglis conjuges coeperunt ; & ipsi rursus ex scotis ; and the other was , quia simul & in unum contra danos , & norvegos atrocissime pugnaverunt . but that the kings of scotland did hold the crown of scotland , as vassals of england , or did homage to the kings of england therefore , will appear to be most false from the following arguments ; which must not be tryed by the law of england , but by the civil and feudal laws , which are now become the laws of nations , and are reverenc'd as the sole judges in all differences betwixt nation and nation , and which must be presumed equal to both nations , since made by neither . . all lands are presumed to be free from servitude , except the servitude be clearly instructed ; but much more are all kingdoms presumed to be free , since ex natura rei , kings and kingdoms are independent , & qualitas quae inesse debet , inesse presumitur , ; and by how much the presumptions are strong , by so much ought the probation , which elids them be the stronger . and albeit all domestick proof ought to be rejected in all cases , as suspect and partial ; yet the english can adduce nothing , for obtruding this servitude upon us , save the testimonies of their own historians , lawyers , and heralds . . the natural and legal way of proving any man to be a vassal , is by production of the feudal contract , betwixt the superiour and vassal ; all feus requiring necessarily writ in their constitution : nor can vassalage be legally prov'd otherwise ; whereas here the english can produce no formal , nor original constitution of this fue ; such as is to be seen betwixt the pope , and the king of spain , the emperour , and the princes of the empyre , &c. for all they can adduce , is only posteriour acknowledgements of this vassalage , via facti , which is but a begging of the question ; and these , being but accessories , and consequential inferences , cannot subsist , except the original constitution be first proved , no more then the payment of feu duties to a superiour , either by force , ignorance , or mistake , could prove the payer to be vassal for the future , except the originall feu were produced : and as this is necessary in law , so it cannot be imagined in reason , but that some obligation in writ , or feudal contract , would have been taken by the english , who were a very wise people , and consulted very prudently their own securities in every thing else : and if this contract had been once entred into , it had been yet extant , since the english cannot alleadge , that ever they lost any of their monuments , or records : and it is clear that we had charters for these lands we held in england , and that england had charters at the same time , for the lands they held in france : and it is very observeable , that in the reign of king edward the . that king stiles himself , rex , & superior dominus regni scotiae ; , during his violent usurpation over scotland ; whereas never any king of england did so formerly : and yet , if they had had any such pretensions , they had assumed the same titles ; but this imaginary title began , and ended with the force , which only maintained it . . the english cannot condescend upon any reason , which might have prevailed with the scots , to have become vassals to england , nor any particular time when they first became vassalls ; and all they can alleadge is , that upon some impressions of force , some of our own kings being prisoners , or some of our people being opprest , they did elicite from them acknowledgements of a vassalage , formerly stated : whereas force , renders all acknowledgements null ; and that these acknowledgements were null upon many other accounts , and that the kings of england have been forced , to grant the like to other princes , shall be proved clearly , in answer to the instances which the english adduce . . scotland has been habite , and repute , and acknowledged to be a free monarchie , and their kings independent and supreme ; and that not only by all forreign princes , ( the best judges in this case ) who have received and preferred their ambassadours , as the ambassadours of free princes , but even in general councils , the king of scotland has been preferred to the kings of castile , hungary , pole , navarr , cyprus , bohemia , denmark ; and thus they were ranked by pope iulius the ii. anno . vid. besold . sinop. doct . politicae . lib. . cap. . which could not have been done , if he had been only a feudatory prince ; since all free princes , are preferred to all feudatory princes : yea , and if scotland had been vassals to england , for the crown of scotland , the kings of england had certainly craved , and obtained the precedency from other kings upon that account , since he had been rex regum . and since france craved to be preferred to spain , because the king of england was his vassal , as chassanaeus observes , part . consider . . so much rather ought the kings of england to have been preferred ; because they might have alleadged , that there was a crown holden of them , whereas they held only some feu-lands of the kings of france . . not only christian princes and councils , but even popes have declared scotland to be a free kingdom , and independent from england . and thus pope honorius allowed to scotland , that is subjects should not be obliged to answer , by way of appeal , to any court without their own kingdom , salva solummodo authoritate sedis apostolicae . . edward king of england having petitioned pope innocent the iv. that the kings of scotland might not be anoynted or crowned , without his knowledge , quod non posset se facere , ipso inscio in regem coronari vel inungi , the said pope did refuse the same , presentibus procuratoribus parium in consilio lugdunensi , satis per hoc determinans regnum scotiae regno angliae non subesse . . the king of england having likewise petitioned the same pope innocent , that he might have liberty to collect the tiths of scotland , since he had right terrarum omnium suae jurisdictioni subjectarum , the same was also refused . . pope boniface the eight , does in a letter to edward king of england , declare , that ad celsitudinem regiam potuit pervenisse , qualiter ab antiquis temporibus , &c. quodque regnum scotiae ( sicut accepimus ) a progenitoribus tuis , regni angliae regibus feudale non extitit , nec existit , &c. the copy of which letter i have at present . and duchesne writing the history of great britain , does , pag. . relate , that le mesine pape renvoya d' autres lettres au roy d' anglterre , pour soustenir que le royaume de escosse ne dependoit point d' anglterre , & que contre le droit divin , & la justice il s' en vindicoit la subjection . that is to say , the same pope sent letters at the same time , to the king of england , in which he maintained , that the kingdom of scotland was no way subject to that kingdom , and that his seeking to subject it to him as superiour , was contrare to the law of god and men. . by the feudal law and law of nations , a vassal cannot mortifie any part of his feu , without the consent of his superiour ; because the superiour , by the mortification , looses the services due to him out of his feu , church-men being obliged to no reddendo , but praeces & vota : and therefore in all mortifications made by vassals , the superiours confirmation is still required ; and it cannot be imagined , but that if scotland had been a feu holding of england , the popes , their conclaves , and the monastries themselves , would have sought confirmations from the kings of england , of the mortifications made by the kings and subjects of scotland , there being more erections of that kind in scotland , than in any nation of equal revenue ; and yet never any such confirmation was sought or pretended to : but on the contrare the pope still confirms these erections , as made per reges scotiae , as he does in all other nations , or the kings of scotland confirm these erections , if they be made by any of his vassals : and it is observable , that the pope does in these confirmations designe our king , regem scotiae , and not scotorum . . the historians also of other nations , did concurr with those of our nation in asserting this freedom ; and thus arnisaeus , the best lawyer who has writ upon these politick questions , does look upon this pretence , as a meer fiction , lib. . cap. . anglus scotorum regem habebat sibi fiduciarium sive ratione aliquot regionum , sive ratione ipsius regni , ut nimis audacter asserit . math. steph. nam haec vetustate temporis , & obscuritate authorum sunt incerta . and duchesne pag. . speaking of scotland , asserts positively , that its kings does recognosce no superiour but god , and is every way a soveraign prince , notwithstanding of the old pretentions of england , le roy le possede en toute souverainté sans recognoistre au cun superieur que dieu , bien que c ' estoit ancienne praetension des anglois , que le roy d'escosse est vassal de leur couronne . . not only have forreign princes , general councils , and the lawyers and historians of other nations , declared scotland to be a free kingdom , but even the kings of england , have acknowledged this freedom , and independency ; as may appear by these instances . . the king and parliament of england , have treated with the ambassadours of scotland ; whereas no superiour can treat with his own vassal , as a forreigner ; nor can a vassal send ambassadors to his superiour ; for an ambassadour must be equal to him , to whom he is sent , and is , in law , no way lyable to his jurisdiction . and this is , amongst others , the opinion of alberic . gentil . an engglish lawyer , de legationibus l. . c. . and it is clear from liv. lib. . & lib. . . king henry of england , being to enter upon a war with simeon , earl of leister , did intreat supply from alexander king of scots ; and lest this might inferr any acknowledgement of his superiority , he did by letters under his hand , and by his ambassadours publickly declare , that he did not crave this aid as superiour , to which superiority he had no pretence . . the same king alexander , being invited to assist at the coronation of king edward , and being unwilling to go there , lest it might inferr an acknowledgement , king edward did declare , quod non ex debito , sed ex gratia tantummodo hoc petebat . . the same king alexander , being to make homage in england to king edward , for the lands of penrith and tindale , which he held of king edward , he did publickly protest , quod non pro regno scotiae , sed pro terris in anglia , dictum homagium faciebat ; rexque iste angliae hujusmodi homagium admisit : per quod praesumitur talia fuisse , & similia prius facta homagia , regno angliae per reges scotiae : nam talia fuisse praesumitur , quale fuit illud declaratum & expositum homagium ; nam talia sunt subjecta , qualia praeadicata admittunt . which are the very words used in the answer made by the scots , before the pope , where all the former four instances are fully discussed , and were offered to be proved by witnesses , beyond all exception ; the writs themselves having been designedly taken away by king edward . and fordon has in his history , unprinted copies of several letters , written by the said pope boniface and others , declaring that those instances consisted in their knowledge , and some of those instances are fully repeated , by duchesne pag. . who is to be believed , since he is a stranger : and even matthew paris , a learned english historian , does declare , that king richard the first did , when he was going to the holy war , disclaim this pretended superiority over scotland , anno . which disclamation is likewise observed by hovedean , another historian of the same nation : and when matthew paris speaks of the homage done to the king of england , he makes it only to be for his lands in england , rex scotorum willielmus , fecit homagium regi anglorum ricardo de jure suo in anglia . which is ordinarly the stile used by historians , when they writ of this subject : and thus duchesne sayes , that alexander made homage to henry the third , for his possessions in england , but refused to make him homage for scotland ; and that king alexander sent a cartell to king henry , for asserting that he had made him homage for scotland . the copy of the homage is yet extant at rome , and the minute of it is thus exprest , in the records of our old abbacies , memorandum , anno gratiae milesimo ducentesimo septuagesimo octavo , apostolorum simonis & iudae apud westmonasterium , alexander rex scotiae , fecit homagium domino edwardo regi angliae , filio regis henrici sub his verbis , ego devenero hominem vestrum pro terris , quas de vobis teneo in regno angliae , de quibus homagium vobis debeo , salvo regno meo ; tunc dixit episcopus norvicensis , & salvum sit regi angliae , si jus habuerit ad homagium vestrum de regno ; cui rex statim respondit , aperte dicens , ad homagium regni mei scotiae nullus jus habet , nisi solus deus , nec de ullo teneo nisi solo deo . . king alexander having dyed without males , edward the first , treated for a marriage , betwix margaret , princess of scotland , called the maid of norway , and edward his son : in which there are many pregnant acknowledgements of this freedom , volentes & concedentes , quod deficientibus praedictis edwardo & margarita , vel eorum altero , absque liberis extantibus , in omni casu & eventu , in quo ad proximiores haeredes regnum praedictum debeat de jure reverti , integre habere , absolute absque ulla subjectione , revertatur & restituatur iisdem . and in the close of that paper it is said , that there shall be no prejudice done to either of the kingdoms , quin libere habeant statum suum : and in the deputation given by the governours of scotland , dated at melross , anno . for treating that marriage , this express reservation is insert , salvis tamen in omnibus & singulis , & per omnia , libertate & honore regni scotiae : which reservation is likewise insert , in a warrand granted by king edward , for treating the said marriage . and it is observable , that in all the scottish addresses to him , and accepted by him , he is only designed rex angliae , dominus hiberniae , & dux aquitaniae , but never designes himself , dominus superior scotiae , till after the war ; which shews , that his former airie title was very unjust . . as the kings of england have acknowledged the scots to be no vassals , so have their laws and lawyers . for it is contented by these , that the scots were aliens to england , and could not have succeeded to any estate in england , without being naturalized ; whereas alibi genitura , presupposes , that the alibi nati , are not vassals : for this jus alibi geniturae , called by the french , droit d' aubeyne , is settled upon this maxime of the feudal law , that because feus are granted by over-lords or superiours , upon designe and promises , that their vassals shal serve them upon all occasions , against all persons , and never reveal their secrets , nor conceal what may be their disadvantage ; therefore feudalists do justly conclude , that no man can be leidge man to two supreme superiours or over-lords , because these duties are imprestable to both ; seing the secrets of the one , may be incompatible with the safety of the other , and they may , by warring against one another , distract the alleadgeance of their vassal . and because men are more prone to serve their native prince , then others , therefore strangers are alwayes suspect , nor have they allowance to sell the feus , to which they succeed , lest they should carry away the price out of the country , and possibly imploy it against the same country . which principle seems at first to have flowed from the roman law , by which , the goods of strangers dying in rome , fell to the exchequer or fisk , & fiebant caduca . with this foundation of the feudal law , founded upon so clear reason , do the customs of other nations agree ; who account not these aliens , who live under the same alleadgeance : thus rageau pag. . aubains sont estrangers , mais 〈◊〉 , qui n' est pa de la soveraignete de la courounne de france . vid. bacquet . du droit d' aubeyne , printed in the year , . and by the custom of milain , ( the expertest feudalists of all the world ) alibi genitura extends not to any , who have sworn alleadgeance , and live within the spainish dominions , though not within milain : since then the english would not allow us the right of sucession , nor the other benefits due naturally to subjects , it was strangely monstruous and repugnant , that they designed to make the world believe that we were subjects . it is also very remarkable , that if our kingdom had been only a feu holding of england , our nobility could not have precedency from others , according to their antiquity ; for all the nobility of the superiour kingdom ought , in the opinion of such as writ of precedency , to be preferred to these , who live in the vassal-kingdom . . if scotland had been a feu to england , the king of england as superiour , would have had the keeping of our young princes , and the disposing of them in marriage , and the feu would have been in his hand , during their minority , that being implyed in the right of proper feus , by the feudal law : and this must be presumed to have been a proper feu , as all feus are presumed to be , except the vassal can prove , that the nature of the feu was impropriated for the vassals advantage . but yet no king of england did ever pretend , to the guardianship of our young princes , nor to name governours during their minority : but on the contrare , alexander king of scotland , having left only a young princess , called margaret , who was nice to the king of england , he did not pretend to the keeping of the young princess , but intreated that she might be married , to edward the second his son ; and that if there should be no issue of that marriage , scotland should remain a free kingdom , as it was formerly , inthe dependent from all pretentions of the kings of england : which is likewise another acknowledgement , made by the kings of england themselves , of the independency of scotland . and if the kings of england had been superiours of scotland , there would have been some vestige of this superiority , to be seen in our laws ; whereas all our laws call still our crown , the imperial crown of scotland : or in our coyne , all coyns bearing some impressions from the superiour . and the kings of england might have remanded from our courts , or out of our country , such as had committed crimes against their kings , or laws : it being an undoubted principle of the feudal law , that qui habet dominium directum , potest jurisdictionem suam explicare , tam in territorio vassalli , quam in suo : habet enim dominus jurisdictionem cumulativam cum vassallo . but so it is , that it can never be alleadged , that the kings of england offered to exerce any jurisdiction in scotland , or did require any criminals , who had fled into scotland , to be delivered up to them : nor did ever the english pretend to punish such scotsmen , as were taken fighting against them abroad , as traitors , and guilty of treason ; as certainly they would have done , if they had been vassals to england : but on the contrair , the english did also ransome them , and use them every way , as they did other strangers and forreigners . . the scots having intended a declarator of freedome against edward the first , king of england , the process was delegated by pope boniface the viii . to baldredus , one of the greatest lawyers of that time , who considered very fully , the reasons proponed hine inde , by both parties , and having made a full report to the pope , the pope did very sharply reprove the king of england , and declared , that scotland did not depend upon it , any manner of way ; and that the english had attacked scotland most unjustly , against all both divine and humane laws ; as duchesne observes pag. . the letter it self that was writ to the king of england , with all the process ( which was called processus baldredi ) being yet extant , in fordons chronicle : and it cannot be denyed , but that england might have expected much more favour , from the pope , than scotland could ; since they payed him a constant revenue , called peters pence ; and since england was known to afford much greater casualties to the pope , then could have been expected from this kingdom . in stating the arguments , which are proposed by the english , for proving that the kings of scotland were vassals , for their crown , to england ; i shall begin with these , which were insisted upon by king edward the . in the former process . the first was , that brutus , descended from the trojans , did conquer britain , and divided it amongst his three sons , to the eldest of whom , called by historians locrin , or locuus , as he is termed in that process , he left logria , now called england : to the second , called albanactus , he left albanie , now called scotland : to the third , called camber , he left cambria , now called wales . but humbert king of the huns , having killed albanactus , locrin the elder , to revenge his brothers death , did kill humbert , and reunite albanie to logria or england . the second was , that donvall king of the britans , killed staterius king of scotland , who rebelled against him , and became master of the whole isle ; which dunvall having two sons , belinus and brounus , he left the superiority of scotland with england , to the eldest , and the property only of scotland to the second . the third was , that arthur king of the britans , having overcome scotland , he gave that kingdom to angusell , who acknowledged him as his superiour , and carried the sword before him . the fourth was , that aldestan king of england , having conquered constantine king of scotland , did pray to god , that by the intercession of st. iohn de benlaco , he might by a miracle , be declared the just superiour of scotland : whereupon he did strick with his sword , at a rock near dumbar , and made a gape in it a full yard in length . the fifth was , that william king of scotland , did acknowledge himself vassal , to william the conquerour ; alexander king of scots , acknowledged himself vassal to king henry : and that the nobility of scotland called in the said edward , to arbitrate the differences betwixt the bruce and baliol. peter heylen , speaking of scotland in his geographie pag. . affirms , that the kings of scotland were still vassals to the crown of england ; which he endeavours to confirm by these arguments , . by the homages , services , and other duties , done by the kings of scotland , to those of england : malcome the third doing homage to william the conquerour , as william one of his successors , did to henry the second ; and that not only for three counties in the north of england , or the earldome of huntingdoun ( as is by some pretended ) but for the very crown it self : kenneth the third being also one of those titulary or vassal kings , who rowed king edgar over the dee . . by the interposing of king edward the first , and the submission of the scots to that interposing , in determining the contraversie of succession , betwixt bruce and baliol : as in the like case , philip the fair adjudged the title of artoys , which was holden of the crown of france , and then in question betwixt the lady mawd , and her nephew robert : or as king edward the third , in the right of the said crown of france , determined of the controversie , betwixt iohn earl of montford , and charles of bluis , for the dukedom of bretaigne . . by the confession , and acknowledgement of prelats , peers , and others the estates of scotland , subscribed by all their hands , and seals , in the roll of ragman ; wherein they did acknowledge the superiority of the kings of england , not only in regard of such advantages , as the sword had given him , but as his original and undoubted right : which roll was treacherously delivered into the hands of the scots , by roger mortimer , earl of march , in the begining of the reign of king edward the third . . by the tacite confession of the kings themselves ; who in their coyns , commissions , and publick instruments , assume not to themselves the title of kings of scotland , but of reges scotorum , or the kings of the scots , and thereby imitating , that though they are kings of the nation , yet there is some superiour lord ( king paramount as we may call him ) who hath the royalty of the land. . by the judgements , arrests of the courts of england , not only in the times of king edward the first , but in sometimes since : for ●hen william wallace , a scotsman by birth , and the best souldier of that country , was taken prisoner , and brought to london , he was adjudged to suffer death as a traitor ; which had been illegal and unrighteous judgement , had he been a prisoner of war , and not lookt upon by the judges as subject to the crown of england . the like done in the case of simeon fra●●ll , another of that kingdom , in the same kings reign . in like manner , in the time of king edward the third , it was resolved in the court , in the lord beaumonts case , when it was objected , that one of the witnesses was a scot , and therefore as an alien not to give his evidence , that his testimony was to be allowed , because the scots , in the law of england , did not go for aliens . and when one , indicted for a rape , in the thirteenth year of queen elizabeths reign , desired a medietatem linguae , because he was a scots-man , and so an alien ; it was denyed him by the court , because the scots were not reputed here as aliens , but as subjects rather . so also , when robert vmsramville , lord of kyme , was summoned to the parliament of england , in the reign of king edward the third , by the name of robert earl of angus , which is a dignity in scotland ; and after in a writ against him , was called by his own name of vmsramville , without any addition of that honour , the writ was adjudged to abate ; which i conceive , the learned judges had not done , if scotland had not been reputed , to be under the vassalage of the kings of england . . and lastly , by a charter of lands and arms , which i have in my custody , granted by king edward the first , in the last year of his reign , to peter dodge of stopworth , in the countie of chester , one of the ancestors of my mother : in which it is exprest , that the said lands and arms were conferred upon him , by that king for his eminent services encontre son grand enemi & rebel baliol king of scotland , and vassal of england . in answer to these objections , founded upon the reign of brutus ; i need say no more , save that cambden , and the other learned english writers , do look upon the same , as a meer fiction . and for proving the crown of scotland to hold of england , there must be authentick documents in writ produced , as has been formerly debated : and this does sufficiently answer all that is said of bellinus , king arthur , &c. but to refute these fictions , and to show how much of cheat is in all these contrivances , i need only cite a passage , from the learned aylet sammes , in his britannia antiqua , pag. . whose words are , that which gave some authotity to this fiction , was the use king edward the first made of it , in vindicating his title to scotland , against the pretence of pope boniface , and the church of rome , who laid claim to that kingdom by ancient right , as part of st. peters patrimony , and that churches demesne . it appears , that the monks and friers had a great hand , in making out this title by brute , which story was now new vampt , and from all parts sent out of these shops , where at first it had been forged and hammered out . and this doth more evidently appear , if we consider many other parts of the same letter , as it is found in the records cited by mr. prin ; but especially that miracle of king adelstane , who ( in perpetuam rei memoriam ) to give an evident signe of his right to scotland , with his sword , struck a blow upon a rock near dumbar , that he cleft it at least an elne wide . as to the homage made by king malcome , to william the conquerour , it is answered , that the matter of fact is absolutely denyed : and not only do our historians , and the historians of forreigners , mention no such submission , but they do on the contrair , relate , that william the conquerour having come with a designe to conquer scotland , he was forced by malcome king of scotland to a peace , very honourable and advantagious for scotland ; one article whereof was , that william the conquerour should restore such of the english nobility , as had fled to scotland for shelter , to their estates and honours . and how can it be imagined , that scotland being then very unite , and living under a most warlike prince , would have submitted to a king , who had too much to do at home ; or that king malcome would have submitted to him , whom he forced to restore even the english , who had rebelled against him . and as the constitution of vassalage requires writ , so if any such vassalage had been acknowledged , he had accepted of a charter holding of the conquerour , as all the other vassals did . as to king williams homage to henry the second , it is answered , that william having been treacherously made prisoner , he was forced by a long and tedious imprisonment , to make this homage ; and consequently , the homage it self was null , being extorted by force , and made by a person who was not sui juris , being in prison . it being certain by the laws of all nations , that deeds done by prisoners are null ; but especially in this case , where the deed was such , as that it would have been null however . for even the most absolute kings , are so far from being able to alienate their kingdom , or enslave it , that by so doing , ( as some say ) they forfeit their own right , and make the throne void for the next successour , who is not obliged by what they have done . and if any such act as this were binding , then england , by the same argument , had remained a feu of the empyre ; since richard the first their king did homage to henry the emperour , for england ; and king iohn his brother , did the like homage to the pope , and offered to hold england , in capite , of murmelius a sarazen . king edgar's being rowed over the dee , by kenneth king of scotland , is taken off by the former answer , though it were true as it is not , nor can it be made appear , by a chronological computation , if the enquiry were worth our pains . the great instance founded upon the homage made by the baliol , is as weak ; since it is known , that king robert the bruce refused to do homage to king edward , choosing rather to want a crown , then to be a vassal for it : but iohn baliol the other competitor , preferring his ambition to his native country , was therefore justly disowned by the nobility , who ( as duchesne a stranger to us observes ) sent ambassadours to king edward , to show him that they did revoke , and disown the homage made by the baliol , and asserted their primitive liberty . and so hateful an act was this esteemed in him , that he losed the crown by it ; whereas had this pretence of england been founded upon any justice , it could never have been so severly either opposed or punished . but though baliol had been a lawful king as he was not , ( king robert the bruce's title being preferable in law ; ) yet could not the baliol have subjected the kingdom in vassalage to england , since by the feudal law , a superiour cannot superinduce or interpose another superiour , nec sine vassalli consensu alienare jus suum directum , c. . § ex eodem descendit de leg. lotharii . and though some debate , that by such alienations of the superiority , the superiour forfeits his right , yet all agree that the alienation is null ; nulla & irrita , d. d. in cap. imperialem § praeterea de prohibit . alien . per fredric . curt. p. . num . . & latissime rosenth . cap. . conclus . . whereas it is pretended , that the parliament of scotland consented ; it is answered , that any parliamentary consent is altogether denyed : for though we have exact records of all our parliaments , yet there is not so much as mention made amongst all our statutes or books , of any parliament held by iohn baliol. and albeit prin has published all the records , which the english have upon this subject , yet he dares not so much as assert , much less produce the copy of any such act of parliament : and certainly if there had been such an act of parliament , not only the records of that parliament , but that particular act had been carefully preserved and published ; and that this parliament and statute is a meer fiction , appears not only by our own , but forreigne historians . and it is not imaginable , that the greater part of the nobility and kingdom , having immediatly disowned the baliol , for acknowledging this subjection , that they would themselves have ratified it in a free parliament . but though this were true as it is not , yet there is not any kingdom so loyal , happy , or invincible , but some few cowards or rogues may be found in it , who may assume the name of a parliament , and disown the true interest of the kingdom , without any warrand from the people for that effect . and i would very willingly know , if england remains still vassal to the pope , because a monk prevailed with king iohn , to hold his crown of him ? or if portugal should not be acknowledged a free crown , because spain did once elicite from them a national consent , by force of arms ? or if these three or four pretended english parliaments , who acknowledged oliver cromwel the usurper , did settle a legal right upon him by their concourse ? nor did prescription supply here the original illegality of that consent ; for the scots did immediatly reclame , and did within much fewer years , than prescription requires , restore themselves to their liberty , under the conduct of that glorious prince , king robert the bruce , for whom god did so miraculous things , as did convince the world , how much the lord of hosts detasted the bribry , and cruelty of king edward the first : et ita res facile redeunt ad suam naturam , & quae mox rediit divertisse non videtur . but to show how great aversion even that generation had , for any such submission to the english monarchy , i have set down the copy of a letter yet extant , under all the seals of our nobility , directed to pope iohn , in anno . wherein they declare , that if their king should offer to submit to england , they would disown him , and chuse another . not that the power of electing kings , was ever thought to reside in our nobility ; but because it was represented to them , as the opinion of all lawyers , that a king could not alienat his kingdom , or submit himself by his sole consent , to a forreigne prince : since by that alienation and submission , he does forfeit his right to the crown . as to which letter likewise i think fit to observe , to prevent any mistake as to the calculation of the number of our kings , that the writers thereof have , as is usual with us , numbred amongst our kings such of the royal family , as were for the time regents or viceroys . the letter follows . sanctissimo patri in christo ac domino , domino ioanni , divina providentia sacrosanctae romanae & vniversalis ecclesiae summo pontifici , filii sui humiles & devoti , duncanus comes de fyfe , thomas ranulphi . comes moraviae , dominus manniae , & vallis anandiae , patricius de dumbar , comes marchiae , malisius comes de strathern , malcolmus comes de levenox , willielmus comes de ross , magnus comes cathaniae & orcadiae , & willielmus comes sutherlandiae , walterus senescallus scotiae , willielmus de soules buttelarius scotiae , iacobus dominus de dowglas , rogerus de moubray , david dominus de brechine , david de grahame , ingelramus de vmsravile , ioannes de meneteith custos comitatus de meneteith , alexander frazer , gilbertus de haia constabularius scotiae , robertus de keith mariscallus scotiae , henricus de sanctoclaro , ioannes de grahame , david de lindesey , willielmus olifant , patricius de grahame , ioannes de fenton , willielmus de abernethie , david de weyms , willielmus de monte fixo , fergusius de ardrosan , eustachius de maxwell , willielmus de ramsay , willielmus de monte alto , alanus de moravia , douenaldus campbell , ioannes camburn , reginaldus le chen , alexander de seton , andreas de lescelyne , & alexander de straton , caeterique barones & libere-tenentes , ac tota communitas regni scotiae , omnimodam reverentiam filiolem , cum devotis pedum osculis beatorum . scimus , sanctissime pater & domine , & ex antiquorum gestis & libris colligimus , quod inter caeteras nationes egregias , nostra sciz . scotorum natio multis praeconiis fuerit insignita : quae de majori scythia per mare tirenum , & columnas herculis transiens , & in hispania inter ferocissimos , per multa temporum curricula , residens , a nullis quantumcunque barbaricis poterat alicubi subjugari ; indeque veniens , post mille & ducentos annos a transitu populi israelitici , sibi sedes in occidente quas nunc obtinent , expulsis britonibus , & pictis omnino deletis , licet per norwegienses , danos & anglos saepius impugnata fuerit , multis sibi victoriis , & laboribus quamplurimis adquisivit ; ipsasque ab omni servitute liberas , ut priscorum testantur historiae , semper tenuit . in quorum regno , centam & tresdecem reges de ipsorum regali prosapia , nullo alienigena interveniente , regnaverunt . quorum nobilitates & merita , licet ex aliis non clarerent , satis tamen patenter effulgent , ex eo quod rex regum dominus iesvs christvs , post passionem & resurrectionem suam , ipsos in ultimis terrae finibus constitutos quasi primos , ad suam fidem sanctissimam , convocavit : nec eos , per quemlibet in dicta fide , confirmari voluit , sed per suum primum apostolum , quamvis ordine secundum vel tertium , sanctum andream meritissimum beati petri germanum , quem semper ipsis praeesse voluit ut patronum . haec autem sanctissimi patres & praedecessores vestri solicita mente pensantes , ipsum regnum populum , ut beati petri germani peculium , multis favoribus & privilegiis quamplurimis muniverunt . itaque gens nostra , sub ipsorum protectione , libera hactenus deguit & quieta ; donec ille princeps magnificus rex anglorum edwardus , pater istius qui nunc est , regnum nostrum acephalum , populumque nullius mali aut doli conscium , nec bellis aut insultibus tunc assuetum , sub amici & confoederati specie , innumerabiliter infestavit : cujus iujurias , caedes & violentias , praedationes , incendia , prelatorum incarcerationes , monasteriorum combustiones , religiosorum spoliationes & occisiones , alia quoque enormia , quae in dicto populo exercuit , nulli parcens aetati aut sexui , religioni aut ordini , nullus scriberet , nec ad plenum intelligeret , nisi quem experientia informaret . a quibus malis innumeris , ipso juvante qui post vulnera medetur & sanat , liberati sumus per serenissimum principem , regem & dominum nostrum , dominum robertum , qui pro populo & haereditate suis , de manibus inimicorum liberandis , quasi alter maccabaeus , aut josue labores & taedia , inedias & pericula , laeto sustinuit animo : quem etiam divina dispositio , & juxta leges & consuetudines nostras , quas usque ad mortem sustinere volumus , juris successio , & debitus nostrorum consensus & assensus , nostrum fecerunt principem atque regem . cui tanquam illi per quem salus in populo facta est pro nostra libertate tuenda , tam iure quam meritis tenemur , & volumus in omnibus adhaerere . quem , si ab inceptis desistet , regi anglorum aut anglicis nos , aut regnum nostrum volens subjicere , tanquam inimicum nostrum , & sui nostrique iuris subversorem statim expellere niteremur ; & alium regem nostrum , qui ad defensionem nostram sufficiet , faciemus : quia quamdiu centum vivi remanserint , nunquam anglorum dominio aliquatenus volumus sebjugari . non enim propter gloriam , divitias aut honores pugnamus , sed propter libertatem solummodo , quam nemo bonus nisi simul eum vita amittit . hinc est , reverende pater ac domine , quod sanctitatem vestram , cum omni praecum instantia , genu flexis cordibus exoramus ; quatenus sincero corde , menteque pia recensentes , quod apud eum cujus vices in terris geritis , non sic pondus , & pondus nec distinctio iudei & graeci , scoti aut anglici , tribulationes & angustias nobis & ecclesiae dei illatas ab anglicis , paternis occulis intuentes ; regem anglorum , cui sufficere debet quod possidet , eum olim anglia septem aut pluribus solebat sufficere regibus , monere & exhortari dignemini , ut nos scotos in exili degentes scotia , ultra quam habitatio non est , nihilque nisi nostrum cupientes in pace dimittet . cui pro nostra procuranda quiete quicquid possumus , ad statum nostrum respectu habito , hoc facere volumus cum effectu . vestra enim interest , sancte pater , hoc facere , qui paganorum feritatem , christianorum culpis exigentibus , in christianos saevientem aspicitis , & christianorum terminos arctari indies : quare ne quid vestrae sanctitatis memoriae derogat , & si , quod absit , ecclesia in aliqua sui parte vestris temporibus patiatur ecclipsin aut scandalum , vos videritis . exhortet igitur christianos principes , qui , non causam ut causam ponentes , se singunt in subsidium terrae sanctae , propter guerras quas habent cum proximis ire non posse : cujus impedimenti causa est , vereor , quod , in minoribus proximis debellandis , utilitas proprior & resistentia debilior aestimantur . sic quam laeto corde dictus dominus rex noster , & nos , si rex anglorum nos in pace dimittet , illuc iremus ; qui nihil ignoret satis novit : quod christi vicario totique christianitati ostendimus & testamur . quibus si sanctitas vestra anglorum relatibus nimis credula , fidem sinceram non adhibet , aut ipsis in nostram confusionem favere non desinat ; corporum excidia , animarum exitia , & caetera quae sequentur incommoda , quae ipsi in nobis , & nos in ipsis fecerimus , vobis ab altissimo cro●imus imputanda . ex quo sumus & erimus in his quae tenemur , tanquam obedientiae filii , vobis tanquam ipsius vicario in omnibus complacere ; ipsique tanquam summo regi & iudici , causam nostram tuendam committimus : cogitatum nostrum jactantes in ipso , sperantesque finem , quod in nobis virtutem faciet , & ad nihilum rediget hostes nostros . serenitatem & sanctitatem vestram conservet altissimus ecclesiae suae sanctae per tempora diuturna . datum apud monasterium de aberbrothock in scotia , sexto die aprilis , anno gratiae milesimo trescentesimo vicesimo , anno vero regni regis nostri supra dicti , quintodecimo . this answers likewise ragmans roll ; nor are we to consider who consented to slavery : since it is known that not only the dowglass , the grahame , and wallace , but thousands of others , never yeilded even to that short impression : and their country preserved its priviledges , by their loyalty ; it being an undoubted principle in law , that in re pari potior est conditio prohibentis , & in re communi nemo dominorum juri quicquam facere potest invito altero , l. subimus ff . ad exhibendum . to that argument by which it is urged , that our kings did never assume the title of kings of scotland , but called themselves only kings of scots , it is answered , that the argument is very ridiculous ; for first it is founded upon a false supposition , it being most evident from our writs in the reign of king david the maiden , that our king was entituled , rex scotiae ; but in the confirmation of the abbacy of aberbrothick , king william is called rex scotiae , and his queen regina scotiae . like as in that register , there is a charter granted by king iohn of england , wherein ad petitionem willielmi regis scotiae , he grants a liberty to the monks of aberbrothick , to transport their goods through england , free from custome : and matth. par. in many treatises related by him gives them that title : and pope innocent the third , in an express rescript in the body of the canon law cap. . decret . de immunit . eccles. writes innocentius iii. illustri regi scotiae , which behoved to be to king william , who did reign in that popes time . nor is this argument from the designation concluding , since it is not convertible ; for even feudatory kings did , and do assume their designation from the kingdom they hold , as the kings of naples , sicily , &c. which evinces that it follows not necessarly , that the kings of these kingdoms are feudatory kings ; because they were designed reges scotorum , and not scotiae . and in many places of his history matth. paris calls the kings of england , reges anglorum , as in the whole lives of king iohn , henry the third . it appears also , by the former transaction betwixt edward the first , and the governours of scotland , that margaret is even by the king of england , constantly designed regina ac domina scotiae : and i observe , that in the contract of marriage , betwixt henry the vii . for his daughter queen margaret , and iames the iv. that sometimes the king of scotland is called rex scotorum , and sometimes rex scotiae , in the same paper ; and the commission granted by the king of scotland , for compleating that marriage , is called commissio regis scotiae pro matrimonio ; in all which contract , the king of scotland is called , charissimus noster frater , a title never granted to a feudatory king by his superiour , and the people of scotland , are there called subditi regis scotiae , whereas if the king of scotland , had been only a feudatory prince , we had been subjects to the king of england , and not to the king of scotland . and there needs no other argument against heylen , to prove that the kings of scotland , were oft-times called reges scotiae , than the instance brought by himself , of the charter granted by king edward the first to peter dodge , wherein baliol is confessed by himself to be called roy de escosse , king of scotland : and this proves that the said heylen layes down grounds , which are not only false , but inconsistent . but secondly , though this were true , yet it proves nothing ; seing the goths and picts were a free people ; and yet their kings were called reges pictorum & gothorum , which phrase was ordinary amongst conquering nations , such as the scots were , whose princes having at first no fixed kingdom , did , whilst their people were spreading themselves in collonies , rather assume a title from the people , than from their country . and seing men are vassals and not land , it will follow , according to the terms used by feudalists , that seing our kings were reges scotorum , that therefore the men were not vassals ; and so they hold not their land of the crown of england , nor were ejus subvassalli , aut valvassores . the argument urged from many decisions in england , finding that we were punishable as traitors in england , and that we were lookt upon as subjects and not as aliens , by their judges , deserves no other answer , then that since their kings by their power , could not make us vassals , neither could their parliaments or judges treat us as such ; and if their gown-men could have made us such , they needed not have imployed arms to have shed so much blood in the quarrel : nor can such domestick testimonies prove in a case of so great importance . and yet even the english proceedings against those of our nation shows , that their own judicatories and lawyers , consider us not as vassals , but as the subjects of a free and independent kingdom . and amongst many other instances , i shall only remember that of queen mary , against whom that nation proceeded not as a vassal , but as a person who had made her self lyable to their jurisdiction , ratione loci delicti . which is very clear by zouch . de judicio inter gentes , part . . sect . . whose very words i have here set down , to prove not only this , but that the kings of scotland were absoluti , and equal to , and independent from those of england , being both pares & absoluti principes , his words are , erant boni rerum estimatores , qui asperius cum illa actum affirmabant , eo quod fuerit princips libera & absoluta , in quam solius dei sit imperium , quod in majestatem peccare non posset , cui subdita non fuerit quod par in parem non habeat potestatem , unde judicium imperatoris in robertum siciliae regem , irritum pronounciatum est , quia imperio ejus non esset subditus . alii aliter censebant , illam scilicet , subditam esse etsi non originariam , tamen temporariam ; quia duo absoluti principes quoad authoritatem , in uno regno esse non possunt ; parem in parem habere potestatem , quoties paris judicio se submiserit , vel expresse verbis , vel tacite contrahendo , vel delinquendo , intra paris scilicet jurisdictionem , & papam sententiam imperatoris in robertum siculùm rescidisse , quod factum in territorio imperiali non fuerit , sed papali . denique nullum magnum extare exemplum , quod non aliquid ex iniquo habeat . and in the process against the bishop of ross , as it is related both by the forreign lawyers , and by cambden , it clearly appears that he was proceeded against , not as a subject of england , but as a meer stranger , who not being subject ratione originis , became subject ratione delicti , as they alleadged . and the learned author of the late jus maritimum , pag. . having spoken of the jurisdiction of england over ireland , has these words , but in scotland it is otherwayes , for that is a kingdom absolute , and not like ireland , which is a crown annexed by conquest , but the other is by union : and though they be united under one prince ad fidem , yet their laws are distinct , so as they had never been united ; and therefore the execution of the judgements in each other , must be done upon request , and that according to the law of nations . nor need i answer the argument brought from the procedure , against the heroick wallace and others , for these instances show rather an excessive resentment upon present hostilities , then the justice of those , who against the law of nations , proceeded to murther such as were indeed prisoners of war , fighting for their own native king and country : and even the english of that age , by entring into truces , ransoming of prisoners , and doing all other things ( which are only allowable in a just war ) may convince all mankind , that in this and the like instances , they succumb'd to the bitterness of their present passion . i must here also crave leave to assert , that though vassals are not to be treated as aliens , yet we find very frequently in history , that whole nations have been naturalized , and have had all the priviledges of subjects communicated to them , without being vassals or subjects : and thus the pelopidae were naturalized persians , by artaxerxes king of the persians , and allowed to enjoy all their priviledges , in remuneration of the great services done by them to the persians , as plutarch observes in the life of pelopidas : and thus the athenians communicated their priviledges to the rhodians ; and the latins to the romans , as livius observes lib. . and it is very clear , that the like was done by the english to us , by a statute of st. edward , which is yet extant in a book called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 published by william lambert , anno . and ratified by the conquerour , amongst the good laws of that prince , as hollenshed observes . amongst others who are to be reputed of the same nation with the english , we find the scots mentioned in the statute ; for which two reasons are given in it , quia omnés ferme scoti proceres ex anglis conjuges coeperunt , & ipsi rursus ex scotis , & sic sacti sunt duo in carne una ; that is to say , because most of all the scotish nobility did take wives of english extraction , and the english of scotish . the second reason added in that statute is , quia simul & in unum contra danos & norwegos atrocissime pugnaverunt . and it is very well known to such as understand history , that untill these late and unhappy wars , occasioned by the shires of northumberland , westmorland and cumberland , the scots assisted the english in all their wars ; especially , as that statute sayes , against the danes and norwegians , by whom they were called by those invaders , to share in the victory ; but they refused the offer , and fought near two hundred years against these usurpers : in which wars , they are said to have lost two kings , with an hundred thousand men ; all which the scots might have preveened , by suffering the danes to pass peaceably to england , through their territories . and it is observable in the histories of both nations , that the danes were never expulsed from england , till they were first beat in scotland ; till at last they were forced to swear , that they should never return into this isle ; and in return of which assistance , we got from england this priviledge in the same manner , that lewis the xii . communicated to us a general naturalization in france , with all the priviledges competent to the natives of that kingdom , when we were forced to associat with it , to secure our selves against the invasions of our old friends . chap. iv. the debates betwixt the kings of pole , sweden , denmark , &c. and other princes . the king of sweden pretends to precedencie from the other two ; and nolden in his treatise of nobilitie , chap. . num . . leaves the precedencie betwixt sweden and denmark to be dubious : and though some prefer the dane as a member of the empyre , grafted therein in anno . yet others think him , upon that account , the less preferable , because he is thereby in a manner no free and soveraign prince ; peter king of denmark having really become vassal to fredericus . emperour , otto . fris. lib. . cap. . but pontanus relates that the emperour did upon this account give him the right hand , and thereby preferred him to sweden . i find also in the council of basil , that ravallus arch-bishop of vpsale , did claim precedencie to his master the king of sweden from all the christian princes , he being the true successour of the gothish kings , who exacted tribute even from the emperours and kings of france . both denmark and sweden , claim the precedencie from the king of pole , as an elective and limited monarch : and in the ceremonial of rome , pole is placed after the other two : and it is undenyable , that sigismund king of swed , being chosen king of pole , he did in all his papers prefer always the title of sweden to that of pole. the king of pole has debated for precedency with the king of portugal , in anno . but at rome , pope iulius the second , preferred portugal : and yet the debate was renewed under charles the fifth , in whose reign , both their ambassadours meeting in his court at church , and the ambassadour of portugal having possest the first place , the other made a sign , as if he would have spoken in private with him , at which the portugal rose , whereupon the polonian run in to his seat , hottoman de legat. lib. . cap. . the king of hungarie contests for precedency with the king of pole : but in the interview betwixt maximilian the emperour , sigismund king of pole , vladislaus king of hungarie , and lodowick king of bohemia , in anno . the king of pole was preferred to walk on the emperours right hand . but this controversie being renewed at the council of trent , they , as all other kings were ordained to take place , not according to their dignities , but according to the date of the production of their commissions in the council . the king of hungarie argues for the precedency from the king of bohemia : because , amongst the emperours titles , hungarie is set down before bohemia ; but bohemia oppons the golden-bull of charles the fourth emperour , wherein it is ordained , that in all acts which concern the empire , bohemia shall proceed all other kings : so that it seems that the king of hungarie ought to preceed in all things not relating to the empire ; but that bohemia is to preceed in all that relates thereto . there are other soveraigns who are not crowned-heads , such as savoy , mantua , florence , ferara , parma , venice , who debate also their respective precedencies in this manner . the duke of savoy is by pius the fifth , declared to be the first prince of italy , and in the chappels of france , venice , &c. gets the first s●●l , and as king of cyprus pretends to be ranked amongst the crowned-heads : but it may be admir'd why the duke of savoy takes the title of royal highness ; for , if he be king of cyprus , he ought to have the title of majesty ; and if he be not king , royal highness is not due to him . and the duke of mantua did contend with him , though his competition was not sustained , vid. crus . pag. . and though the title of eminencie was bestowed upon the dutchess of mantua , by ferdinand the second ; yet that was a complement bestowed by the emperour , rather with respect to her sex , and her relation to the imperial family , then to the true dignity due to her as dutchess of mantua , vid. limneum , iur. pub . lib. . cap. . the duke of florence was still preferred to the duke of ferara , by charles the fifth , and port. lib. . resp. juris . . confesses , that florence was acknowledged to be first , by the emperour , by rome , and by france : but yet paul the third considering that the dutchie of florence was onely erected in anno . whereas the family of est , were raised to be dukes by paul the third , . and were declared dukes of ferara by the emperour , . did therefore prefer ferara to florence . chap. v. the precedencies amongst common-wealths . it cannot be denyed , but that kings and crowned-heads have the precedency from common-wealths ; though they contend that they being the freest of all men , are the noblest ; and being in effect a countrey of kings , ought to be preferred to any one king : especially , since their government is elder then that of kings , men having drawn themselves into societies , before they either submitted to kings who assum'd that government by force , or elected kings , because they could not agree amongst themselves . there are some common-wealths who claim precedency , as having right to kingdoms : and thus venice claim'd the same precedency with crown'd-heads in the popedom of vrban the eight , and innocent the fifth , because they had right to the kingdom of corsica ; but this was denyed . genoa contended with venice for precedency at the coronation of the king of cyprus , . but that king preferred venice : and to extinguish these differences amongst the common-wealths of italy , venice is by opinion of all lawyers , preferred to all the common-wealths of italy , calefat . de equestr . dignit . n. . crus . de preced . pag. . genoa and sienna did also contend , anno . at the coronation of charles the fifth ; but the debate was then decided : and yet crus . pag. . prefers genoa . the states general contend with venice , and all other common-wealths , as being the more powerful , and being a society of common-wealths . they pretend also to precedency from all the princes of the empire , as being more independent then they , and being equal to kings ; whereas these princes are but subjects , which is delicately debated by besold . de praeced . cap. . but yet the present emperour has preferred the electors to all ambassadours of common-wealths , by an express ordinance related in crus . p. . and now holland , as having a kindness for the empire , treats the ambassadours of the electors , as those sent by crowned-heads : and in return of that kindness , the electors treat such as are sent from holland , with the same respect , memor . ambassad . pag. . of old the duke of savoy did preceed the common-wealth of venice : but emanuel philbert duke of savoy , during the oppression he lay under from charles the fifth , put himself under the protection of venice , and became a son of st. mark ; and thereafter , as the father behov'd to preceed the son , the dukes of savoy yeelded to venice : and as that duke pretends right to the crown of cyprus , by the marriage of anne of cyprus , and the donation of charlot of cyprus : so venice pretends right to the same crown by the donation of catharine cornara , widow to iames king of cyprus . the difference is now thus settled , that venice shall treat the ambassadours of savoy , as they do these of kings , with the title of excellency , and savoy shall allow venice the precedency , memor . ambassad . pag. . mazarin treated the ambassadours of the common-wealth of england , as those sent from kings , mem. ambassad . pag. . the cantons of swisse were even of late a part of the empire : but by the treaty betwixt the empire and the king of swed , . they are declared free states , et in possessione seu quasi possessione libertatis , & exemptionis ab imperio . and now their ambassadours or envoys take place after the venetian , and states general . and albeit nolden de stat. nobil . thinks that if they were called to fit with the states of the empire upon any extraordinar occasion , they were not to be preferred to the princes of the empire , and much less to the electors : for licet jura principum habent passive & materialiter , principes tamen non sunt formaliter & active . yet other lawyers prefer them to all the other states and princes of the empire , except the electors , crus . pag. . the french king treats them with the title of magnifiques seigneurs : and though their deputies could not prevail with the french king , in anno . and . to be covered when he received them ; yet i conceive , that now they will be received as the ambassadours of holland or venice , who are covered at their reception , since in anno . they are acknowledged to be a free state. the grison ambassadours were received in anno . as the ministers sent by the princes of the empire , and with the same honours . chap vi. of the precedency of the electors and the princes of the empire . amongst the princes of the empire , the electors are still preferred : which electoral colledge ( though said to be founded by the emperour otho the third , and pope gregory the fifth , anno ) yet it is more probable , that the said constitution arose from the great difficulties under which the empyre was sunk , after the death of frederick the second . amongst the electors , the ecclesiasticks are preferred to the laicks . the ecclesiastick electors , are , the arch-bishops of mentz , cullen , and treves , whose precedency amongst themselves was first determined by charles the fourth : so as that the bishop of treves was to sit just over against the emperour ; the bishop of mentz , was to take place in all his own dyocie , and in all germany ▪ whereas the arch-bishop of cullen , was to take place in all his own dyocie , and in italy , and france . and of old in the election of the emperour , the bishop of mentz was preferred as arch-chancellor of germany : the arch-bishop of treves as arch-chancellour of france : and the arch-bishop of cullen as arch-chancellour of italy ; which order was confirmed by frederick the . anno . the secular electors are ranked thus , by the golden-bull of charles the fourth . the duke of saxony carries the sword , immediately in all processions before the emperour : the count-palatin the imperial aple , walking on the emperours right hand : the marquess of brandenburg the scepter , on the left hand ; and the king of bohemia was to follow him immediately . but when they sit at any solemnity , by the same bull , the king of bohemia ( being a crowned-head ) was to sit first , upon the emperours right hand , after the king of the romans , and the arch-bishops of mentz , and cullen : and upon the left , after the ecclesiastick electors , the duke of saxony had the first place , and the marquess of brandenburg the second . but yet i find beutherus , and other german lawyers , contend from old manuscripts , that at first brandenburg had the precedency from the electors , palatin , and saxony . the duke of bavaria did of old contend with the duke of saxony , in anno . and their debates continued by protestations for many years ; and with the elector palatin , till the emperour lewis the fourth ordained the palatin and bavaria to preceed one another alternately : though since the late waries of germany , the elector palatin having usurped the crown of bohemia , the duke of bavaria was made the first elector in his place , the elector palatin being now the last of the electors . it is also observable , that if any of the electors themselves be present , they are preferred to the ambassadours , and representatives of all the absent electors ; as was decided in anno . . excepting onely the ambassadours of austria , and the ambassadours of forreign kings , were still allowed to take place from all the electors , except the king of bohemia , in all the solemnities of the empire . but the ambassadours of common-wealths having claimed the same precedency , the emperour leopold has decerned against them , in favours of the electors , crus . lib. . cap. . the eldest sons of the electors preceed all the other princes of the empire . the arch-dukes of austria have the first seat next to the electors . chap. vii . of the precedency of church-men . i need not debate the differencies that have fallen in amongst the patriarchs of rome , constantinople , antioch , alexandria , and ierusalem : those of rome and constantinople having claimed precedency , because their see were the seats of the roman and grecian empires ; those of ierusalem claiming preference , because the chief priest-hood was once settled there ; those of antioch claiming precedency , because antioch was the first seat of christianity , as is clear by the . chapter of the acts ; and those of alexandria , pretending that they were equal to the roman patriarch , at least , because alexandria was the chief city of the east before the building of constantinople , and the church thereof being by euseb. lib. . said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . vide , salmas . de primat . pap . cap. . thus far did precedency invade even religion , and raise emulation amongst those who pretended to be the greatest paterns of humility . the roman patriarch was by phocas the emperour raised above all the rest , in the year . since which time they have raised themselves by several degrees to the papacy , though it cannot be denyed but even before that time , the bishops of rome had the first seat in all councils , as is clear by iustinians novella . . cap. . and in the council of nice , adrian bishop of rome had 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : but the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the power of preceeding did still belong to the emperours , as hath been fully cleared by crusius and others : and though it be pretended , that constantine the great did from christian humility , prefer the successour of st. peter as vicar of iesvs christ to himself ; and that in the canon law , cap. constantinus . dist. . the emperour constantin is brought in acknowledging himself to have led the popes bridle , and in the famous ceremonial of rome : fol. . the emperour is allowed no higher place then the popes foot-stool ; yet frederick the . emperour did contentiously debate this precedency with adrian the fourth , since which time it hath been variously acquiesced in by popes and emperours . and though the legats be representatives of the popes , yet thuan tells us , lib. . that the learned brissonius president of the parliament of paris , would not suffer the popes legat to preceed him . and at the coronation of charles the fifth , the pops legat was denyed the precedency from the electors . the cardinals have debated for precedency with the patriarchs , though by the novella , . c. . iustinian places patriarchs next to the pope : and panormit . in cap. antiqua x de privileg . & excess . praelat . prefers the patriarchs to the cardinals ; and now by the concession of sextus quintus , that pope , hath raised the cardinals to an equal degree with kings , and if kings be present at table , or other solemnities with cardinals , if there be but one king , he is to sit after the first cardinal bishop , and if there be moe kings , they sit mixtly with the cardinals , first a cardinal and then a king : but though this holds amongst popish princes , yet the authour of les memoirs des ambassadeurs does observe , that leicester , grotius , and the other ambassadours of protestant princes never yeelded precedency to cardinals , till lockhart ambassadour for cromwel yeelded it to cardinal mazarine ; where he likewise observes , that though the prince of condie , yeelded the precedency to cardinal rechlieu , yet the count of soisson refused it . the bishops of scotland preceed in this manner . arch-bishops of st. andrews , arch-bishops of glasgow . bishops of edinburgh , bishops of galloway , bishops of dunkel , bishops of aberdeen , bishops of murray , bishops of rosse , bishops of brechin , bishops of dumblane , bishops of caithness , bishops of the isles , bishops of argyl , bishops of orknay . i find by letter in anno . that before king iames going into england , the marquesses of scotland did take place from the arch-bishops ; but now the arch-bishops take place from all dukes and marquesses , in imitation of england : and by a letter in anno . renewed in anno . the arch-bishop of st. andrews is to take place from all subjects , which is to be limited , as not to exclude the kings children , and brothers as i conceive ; and de facto the arch-bishops of st. andrews ceds to the chancellour , since the letter . the bishops of england preceed thus ▪ arch-bishops of canterbury , arch-bishops of york . bishops of london , bishops of durham , bishops of winchester , bishops of st. davids , bishops of ely , bishops of norwich , bishops of hereford , bishops of salisbury , bishops of peterborough , bishops of carlisle , bishops of worcester , bishops of rochester , bishops of landaff , bishops of lincoln , bishops of bangor , bishops of exeter , bishops of chichester , bishops of st. asaph , bishops of oxford , bishops of lichfield and coventrie , bishops of bristol , bishops of glocester , bishops of chester , bishops of bath and wells . chap. viii . general observations concerning the precedency of subjects . nobility is devided with us , as in england in nobiles majores & minores , the greater and the lesser nobility : under the greater are comprehended all such as are lords of parliament : under the lesser are comprehended knights and gentlemen . and though all these be not peers of parliament , yet they are all peers to one another ; and thus a gentlemen may be offered to a dukes daughter , whose ward and marriage falls to the king , as has been often decyded , nor can that match be refused upon the account of inequality : and it hath been found , that though noblemen must be judged by their peers , yet landed gentlemen may pass upon their assyse ; and a nobleman is oblieged to accept of a challenge from a gentleman as his peer , where duels are lawful . under the word barron all our nobility are comprehended , as is clear by the . act. parl. . ia. d . and the inscription of the first parliament of k. ia. th . where the parliament is said to be holden per regis & regni tutorem una cum praelatis barronibus & burgorum commissariis . albeit the parliament of rob. . was cum episcopis , abbatibus , prioribus , comitibus , barronibus , & aliis magnatibus , which shews , that there were other magnates infra barrones . it may be doubted , whether the younger son of dukes , marquesses , &c. are to be ranked inter nobiles majores , since they sit not in parliament ; or inter nobiles minores , since they are designed lords , and take place from many of the nobiles majores . the sons of the kings of france were all kings , and soveraigns in the first two races , because , according to the old german custom , the few and honours were devided equally amongst the sons : as now all the sons of a duke are dukes there , &c. but thereafter all the other children , except the eldest , got onely place and precedency according to their offices or dignities , until philip de valois succeeded as prince of the blood in a remot degree ; after which , the french thought fit to give precedency to those , who might one day be their king : and so all the princes of the blood got precedency from all subjects . with us the kings children , uncles , and nephews , onely had precedency from all subjects ; and in scotland no remoter degree preceed as princes of the blood , for the families of hamiltoun , kinghorne , fintrie , and others are descended from our kings by lawful marriages , but had no precedency upon that account . the first place next to the king is due to the prince of scotland amongst us , who is likewise duke of rothesay ; as the second son is earle of ross , that being an appanage inseparable from him by act of parliament : but at present his royal highness is with us duke of albany , as he is duke of york in england . it has been doubted , whether the kings son , uncle , nephew , &c. have the precedency from the kings officers in the actual exercise of their office , as at coronations , riding of parliaments , in which it is the constables priviledge to ride upon the kings right hand , and the marishals on his left , in his return from the parliament house : the reason of which difficulty is , because these are acts which follow the office and not blood , and the nature of the action requires that they should be posted , where they may be most serviceable . i find likewise , that this hath been debated in france , whereupon in anno . henry the third emitted an ordinance in favours of the princes of the blood ; and with us , his royal highness the duke of york at his majesties coronation preceeded all the officers . amongst the princes of the blood , the last descended from the royal family has still precedency accordingly ; but though this hold in the branches , yet the eldest of the same branch will preceed all of that branch , and thus the prince palatins grand-child would succeed to the crown before prince rupert his brother , though prince rupert be several degrees nearer . i find that of old all church-men were ranked together , and were first ranked before all laicks : and thus the parliament of king robert the first , was habito solemni tractatu cum episcopis , abbatibus , prioribus , comitibus ; and even before the kings sons , brothers , or nephews . thus king robert the first grants a charter to the abbacy of aberbrothick , confirming a ratification made to them be lundie , wherein the witnesses are , reverendis waltero & gilberto episcopis , &c. davide duce de rothesay , comite de carrick , carissimo nostro filio primigenito , roberto duce de albania comite fyffe & fratre nostro : and even the abbots and priors were ranked before them , and when any of them were officers of state , they were named according to their ecclesiastick preferments : thus iacobo sancti andreae episcopo , galvino archiepiscopo glaseuensi cancellario nostro . and in the session when it consisted of half church-men , half laicks , the church-men sat on the chancellors right hand , and voted first : but it does not follow from these instances , that therefore of old any church-man did take place from the kings son , no more then that a bishop took then place of an earl , because he was named before them . the archbishop of st. andrews was by a special letter in anno . and renewed in ianuary , . declared to have the precedency from the chancellor , and all his majesties subjects : in time of popery , he was legatus natus , and both then and now he is totius scotiae primas ; but though by this letter he is ordained to take the place of all subjects , yet i think it would not give him place from the kings sons , uncles , and nephews , though they be likewise subjects ; since the word subjects must be here interpret according to the custom of nations , by which these near relations of princes are preferred to all other subjects . the nobility of scotland were either declared such by feudal erections , their lands being erected by the king in a dutchy , earldom , &c. which did of it self make him a duke or earl , in whose favours the lands were so erected ; or else they got patents of honour , declaring them dukes , earles , &c. and this is a much later way , none being nobilitated by patents amongst us before king iames the first . the third way of nobilitating with us , is by creation and solemn investiture , the whole form whereof will in all its ceremonies be best known by the following narration . the form of the creation of the marquess of hamilton , and marquess of huntly , tuesday the of april , . in his majesties great chamber in the abbay of holy-rood-house , where the like ceremony was wont to be done , being richly hung with tapistry , five stages or degrees of timber were erected ; one for his maiesty on the west-side , whereon his majesties chair of state was set under the pale of honour ; one for the duke ; one for the earles ; one for the lords ; and one for the knights : there was also before the throne a table covered with cloath of gold , whereon was laid the sword , scepter , and crown , the noblemen attending the ceremony in their respective seats in their robes , and his majestie in his rob-royal , being placed in his chair , the queen sitting by ; the lyon king of arms , and master of ceremonies , with the heraulds and pursivants in their coats , and trumpets sounding , brought in before his majesty these two noblemen , viz. the earles of arran and huntly , the first conveyed be the duke of lennox , and earl of mar , the second be the chancellor , and earl of caithnes . thereafter the lyon asked his majesty , if his majesty would be pleased to promote these noblemen to further honours : his majesty answered , yes . then the lyon , master of ceremonies , with heraulds , pursivants , and trumpets , conveyed them into the green council-chamber , where they were devested of their comital robes , and vested in the habit of a marquess , and so were again conveyed to his majesties presence thus , the ordinary macers that attend the chancellor and session making place : master of ceremonies . trumpets sounding with the noblemens colours at their trumpets , pursivants in their coats ; heraulds in their coats ; four gentlemen for each of the persons to be created , bearing their honours , viz. for my lord arran , robert hamilton of goslington , the penon ; alexander hamilton of fenton , the banner ; claud hamilton of shawfield , the marquess crown ; iohn campbel of ardkinlas , the patent . for my lord huntly , iohn ogilvy of the craig , the penon ; iohn crichton of frendraught , the banner ; mark ker of ormistoun , the crown ; alexander gordon of strathdon , the patent . lyon king of arms. the two earles conveyed be the forenamed noblemen in their respective robes , and crowns on their heads : coming before the king they made their reverence ; then they were led up by the master of ceremonies some steps , and sitting down on their knees on velvet cushions , the lyon made an harrangue , both to his majesty and to them , declaring to the noblemen , that it pleased his majesty to promote them to that dignity , and that he desired them to fear god , and obey his power : then he took their oaths , that they should obey god , his majesty , and mantain the religion then profest . thereafter the lyon delivered to his majesty the patents , and his majesty redelivered them to the lyon , who gave them to the noblemen , in token that they should obey god and his majesties laws : afterwards , the lyon delivered his majesty the marquesses coronets , his majesty redelivered them to the lyon , the lyon put the crowns on their heads , saying , iohn marquess of hamilton , earl of arran , lord even , &c. george marquess of huntly , earl of enzie , lord gordon , and badzenoch , &c. the same was proclaimed furth of the windows by the heraulds and pursivants , with sound of trumpet : then were they conveyed to their seats , and placed above the earles , upon the kings left hand , trumpets sounding . the lyon desired his majesty to honour the gentlemen , who bare the honours , with the honour of knight-hood , his majesty consented : the lyon caused them sit down on their knees at the foot of all the stage , and after he had made an exhortation to them , and received all their oaths , they holding up their hands , and promising to obey all the injunctions , the lyon presented the sword to his majesty , who stroke each of them therewith on the right shoulder , and sir offered the spur , the lyon first proclaiming their styls , and after the heraulds and pursivants at the windows with sound of trumpet . i find this difference in the creation of many earles from what is here set down , that the four gentlemen bear the honours thus , the first , the penon ; the second , the standart ; the third , sword and belt ; the fourth , the crown ; and lastly , the lyon bear the patent in a velvet bag : and that the lyon offered first to his majesty the sword and belt , and receiving it back , put it on the person nobilitat . as also when the king was not present , and after his going to england , the ceremony was performed be his majesties high commissioner , if there was one at the time ; or otherwise a writ was direct to the lord chancellor appointing him commissioner for that creation , and then the first thing that was done after the person to be created was brought in , the lyon gave the patent to the commissioner , who gave it to the register , or clerk of council to be read . and i observe this in all our old creations , that if the person to be dignified was a lord formerly , he was conveyed in be two lords , and the ceremony of the new creation being over , was conveyed to his place by two of that degree to which he was advanced . the english nobility are sometimes created by being called in a write to parliament , under the designations of earles , viscounts , &c. which way is unknown to us in scotland , though the king may introduce it at his pleasure . the precedency amongst subjects is thus established in both kingdoms . dukes of the blood royal , other dukes according to their creation , the eldest sons of dukes of the blood royal , marquesses according to their creation , dukes eldest sons , earles according to their creation , marquesses eldest sons , dukes younger sons , viscounts according to their creation , earles eldest sons , marquesses younger sons , barrons whom we call lords , viscounts eldest sons , earles younger sons , barrons eldest sons , barronets , viscounts younger sons . but the officers in england are by act of parliament , henry the . thus ranked : lord chancellour , lord thesaurer , the lord president of the privy council , the lord privy seal . these four being of the degree of a barron , or above , shall sit in parliament and all assemblies of council , above dukes not being of the blood royal. the lord great chamberlain , the lord high constable of england , the earl marishal of england , the lord admiral of england , the lord great master or steward of the house , the lord chamberlain of the houshold . these last six , and the kings principle secretary , take place according to their present state ; so that if they be barrons , they take place above all barrons ; if earles , above all earles ; if dukes , above all dukes . by a decree and establishment under the great seal of england o. iacobi , the following persons are thus ranked , knights of the garter , knights of the privy council , the master of the wards and liveries , the lord chancellor , and under-thesaurer of the exchequer , the chancellor of the dutchy , the chief justice of the kings bench , the master of the rolls , the chief justice of the common pleas , the chief barron of the exchequer , the other judges and barrons of the degree of the coif , the younger sons of viscounts , the younger sons of barrons , the barronets . the precedency amongst our nobility differs nothing from what is here set down , england and we agreeing in all points since the union of the two kingdoms ; and especially since the coronation of king charles the first , at which time , he declared he would have it so : but to prevent differences betwixt the nobility of both kingdoms , it was ordered , that all those of the same degree in england , should in england take place from all those of the same degree in scotland ; and all those of the same degree in scotland , should in scotland take place of the english : that is to say , all the english dukes should take place in england of all the scots dukes ; and all the scottish dukes in scotland , should take place of all the english dukes , which was very just and suetable to the laws of nations . but as to the ranking of our officers , we differ much from england : for clearing whereof , it is fit to know , that with us there were officers of the crown , and officers of state : the officers of the crown were all designed of scotland , as constabularius scotiae , &c. in king malcom the ii. his parliament ; the offices then extant were , the chancellour , the justice general , the chamberlain , the steward , the constable , and marishal ; and they are thus ranked and have their respective fees. but by the act . parl. . ia. . the offices of the crown are declared to be , the thesaurer , secretar , the collector , ( which office is now joyned with the thesaurers ) the justice general , justice clerk , advocat , master of requests , clerk of register : and though these be called officers of the crown there , i conceive they differ not from the officers of state ; and these words officers of the crown , and officers of state are now equipollent terms , so far that all the officers of state are officers of the crown by this act : but the high chamberlain , constable , admiral , and marishal , are officers of the crown , but are not officers of state ; the speciality of officers of state being , that in all acts or meetings which concern the state , they sit as members by vertue of their office , as in parliaments , conventions , &c. where the chamberlain and admiral come not as such , nor the constable and marishal if they were not earles . the officers of state have oft contended for precedency amongst themselves : and therefore king iames did in privy council , upon the . of iune , . declare , that in that and all other parliaments , none should sit as officers of state , save eight , and though there should be moe of the saids officers by deputation , division , or otherwise ; yet eight onely should sit , which eight he did thus rank by act of council ; thesaurer , privy-seal , secretary , register , advocat , justice clerk , thesaurer-deput , mr. of requests : and yet his majesty having appointed sir archibald atchison to be second secretary , and he having contended that his place was to be next the principal secretary ; this was opposed by the register and advocat , founding themselves upon the said act of council : it was answered thereto , that his majesty might , notwithstanding of the said act , have as many secretaries as he pleased , and by that his majesty was only limited to eight officers of state in parliament ; but that notwithstanding thereof , he might make use of any eight he pleased , and accordingly he had made use of the chancellor , collector , and comptroller , as officers of state in several parliaments , notwithstanding that they are none of the eight officers mentioned in this act ; likeas k. ia. had appointed the lord chancellor , being a nobleman , to sit amongst the noblemen , and not as chancellor , or an officer of state : the council did remit this debate to the king. i find that upon the . of february , . the whole matter of precedency amongst his majesties officers and counsellors is thus stated : the lord chancellor , the lord thesaurer , the arch-bishop of st. andrews , the arch-bishop of glasgow , the earles and viscounts according to their ranks , bishops according to their ranks , lord privy seal , lord secretary , lord register , lord advocat , lord justice clerk , lord thesaurer-deput , the lords of the session according to their admission , barrons and gentlemen , being counsellors , according to their admission . it is observable from this act , that lords of the session have precedency from privy councellors in scotland , otherwise any counsellor of an elder admission would be preferred to them ; and yet in england , privy councellors are preferred to all the judges , and even to the chief justices : and with us i find no privy councellor take place as such , from any person whatsoever , which seems very strange ; for since the judicatur it self is placed before the session , and that its president hath precedency from the president of the session , that therefore its judges ought to preceed the judges of the session . do . though the lords of session are lords of council and session , yet there being secret councellors , gives them a greater nearness , and argues a greater trust : and in all matters of precedency , these are the chief topicks for precedency . o. in law counsellours are called by the emperour , pars corporis nostri l. quisquis c. ad l. iul. majest . and so to assault them was treason , and is with us. o. in france this question betwixt the members magni concilii , and the senators of the parliament of paris , is debated by boerius , and he prefers the counsellours ; and in sweden they have place from all the nobility . o. the lords of privy council have more supereminent power , then the lords of session : for they can stop the precedor of the justices , they can adjourn the session , they can grant precognitions , moderat punishments , &c. notwithstanding of all which , such respect has our kings to the lords of session , who distribute justice equally to the people , that they still preferred them to all the subjects , except the lords of parliament , and their eldest sons . it has been contended by the younger sons of noblemen , that they ought to have precedency from the lords of session ; because , sayes the second son of an earl , i have precedency from the eldest son of a lord , and yet he has place from the lords of session , and it is a certain rule in precedency , that if i preceed you , i must preceed him who preceeds you : and if an earles second son , and a lords eldest son , and a lord of session did meet together , the earles second son could not preceed the lords eldest son , except he preceeded also the lord of session . to which nothing can be answered , save that the eldest sons of peers , being presumptive peers , and such as will be peers , it is fit that the lords of session , who have but a temporary precedency , should not preceed them . but i find that though in england , the younger sons of the preceeding rank , take still the place from the eldest son of the next mediat , as the younger sons of dukes , from the eldest sons of earles , and the younger sons of marquesses from the elder sons of viscounts : and that all the chain of precedency is founded upon this gradation , and that it seems that nature has led men to this establishment ; yet the eldest sons of our lords ( lord barons ) refuse to cede to the second sons of earls , and it was so of old with us , and that which may be given as a reason for this , is , that it is unreasonable , that they who are to be peers , and to have a constant title , should cede to such as have but a temporary honour ; but if this reason were sufficient , the younger sons of dukes should not preceed the eldest sons of lord barons . with us the eldest sons of lord barons are design'd masters , as the master of rosse , &c. and of old the uncles of lords , after the death of their elder brother , though he left a son , were called masters , till the nephew had a son : for which i know no other reason but that , because they wanted a tittle , they took this : for their father being lord , there was no degree below to take , as the elder sons of earles took that of lord. and i believe , that thus the word master was given in england to meaner people , when their name was not known : for though the word dominus was refused by augustus , as importing slavery , which the romans could not bear , rather then from a secret impulse , as st. augustin sayes , in respect our saviovr was then born , who was the true master , since sueton tells , that tiberius also refused this title ; yet in complement even then such as were not known , were called domini : obvios ( sayes seneca ) si nomen non succurrit , dominos salutamus , and thereafter with the roman slavery this title grew from being a complement , to be a duty : and thus the grecian emperour was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and the eldest son 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : and from this title of master , came meship amongst us , which was given to all such as had not a special title , as lord , sir , &c. by act of parliament likewayes , . may . the lord president of the session is declared to have precedency from the register , advocat , and thesaurer-deput ; and the register and advocat , are ordained by the same act to have precedency from the thesaurer-deput : but the thesaurer-deput pretending that he is in effect thesaurer in the thesaurers absence , and not the thesaurer-deput , and that the foresaid act of parliament was in absence , he now pretends precedency from both the register and advocat . to the end the several offices may be the better understood , it is fit to know that the chancellor is in effect the first officer in the nation , and is by his office , and by a particular statute , president in all courts , act . parliament . charles the second , which act of parliament was made to declare that he was presedent of the exchequer , as well as of other courts , this having been pretended to by the thesaurer : he hath his title not from the power of cancelling , as the old gloss sayes , that cancellarius est qui habet officium scripta responsaque principis inspicere , & male scripta cancellare ; for it is not imaginable that he would take his title from what he destroys , and not from what he does : but from the cancelli and barres , within which the judges did sit inclosed , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as is clear by cassiodor lib. . epist. . those cancellarii of old were in effect the clerks , and the chancellour is so called now , because , he signs all the publick papers , and appends the seal , ideo quod ad eum universae publicae referrentur conscriptiones , ipseque eas annulo regis sive ▪ sigillo firmaret , simaque lib. . calls him questor legum , conditor regalis , consilii , particeps , iustitiae arbiter : which names i conceive are given to him , because novel . . divinae jussiones debent habere subscriptionem gloriosissimi questoris , and many of the novels are signed questor legum . i find that in the laws of king malcolm keanmore , the chancellour is placed before all the officers , and sometimes many of the considerable earles are placed betwixt him and the rest of the officers : thus king alexander grantes a charter , testibus willielmo de bosco cancellario meo , malcolmo comite de fyffe , alano senescall● scotiae , &c. some think that there is a difference betwixt cancellario meo , whom they make director of the chancery , and cancellario regni , whom they make high chancellour : and others make a difference betwixt cancellarium regni & cancellarium regis , as spotswood in his history observes . but i find that the high chancellour is called cancellarius meus , as in the foresaid charter , and sometimes cancellarius simply , and sometimes cancellarius noster , and sometimes regni , and sometimes cancellarius scotiae ; and the same willielmus de bosco , is in the chartularies of aberbrothick , and calco , or kelso , named under all these designations . i find the director of the chancery , was onely a servant to the chancellour of old : for in king malcolms time , amongst the fees to be payed to the chancellours clerks , there is a fee to be payed to his clerks for the breeves , which breeves belong to the director of the chancery ; and therefore skeen does justly observe , hinc liquet officium directoris cancellariae apud majores nostros ad cancellarium pertinuisse , and which is very clear by the statutes of king rob. . cap. . vers . . i find that in these laws , iusticiarius , that is to say , the justice general is placed next the chancellour , but afterward scotland was divided in two justitiaries , on upon the south-side of forth , who was called iusticiarius lothaniae , and in old charters iudex laudoniae : and the other on the north-side of forth . the justice general is now neither officer of the crown , nor officer of state ; but yet he thinks he ought to have precedency from the president of the session , the justice court being older than the session ; and being president of a supream court , he is to preceed any inferiour member of any other supream court : and the king by declaring that he advanced the register , when he made him justice general , has clearly signified , that the justice general ought to preceed the register : this place likewise has been generally possessed by noblemen , and is the same with us , that the chief justice of the kings bench is in england : and this jurisdiction was amongst others possessed at rome , by the praefectus praetorio , who was their chief magistrat . the justice clerk by the foresaid statutes of king malcolm , appears to have been but his clerk ; and though by the foresaid act of the . parliament k. ia. . the justice clerk be named before the register and advocat , yet that is onely ob continentiam causae , because they are set down , the justice , justice clerk , and their deputs . it is observable by that act , that the justice general is put after the thesaurer and secretary , and there the justice clerk is not made his officer , as in the laws of king malcolm keanmore . i find that alanus , iusticiarius scotiae , designs himself hostiarius & iusticiarius scotiae , which shews that hostiarius was a preferable office : and this i take to be commander of the kings hoast ; for ostiarius is not written with an h , and is a meaner office then justice general : this charter is granted in anno . to the abbacy of aberbrothick , and though others may mistake the ranking of a mans titles , yet the bearer will carefully rank his own designations . the third officer named in those laws is the high chamberlain , camerarius domini regis : and i find him in all the old writes placed as witness , before all the other officers , next to the chancellour . there was magnus camerarius , who was chief judge over all the burrowes ; and there were other under chamberlains , who are oftentimes designed camerarii , without the adjection of magnus ; and i find in a charter granted be k. david , in anno . the witnesses are , alexandro domino huyme , magno camerario nostro , iohanne domino drumond iusticiario nostro , ricardo murehead secretario nostro , & waltero drumond nostrorum rotulorum , & registri , ac a consiliis . it is observable , that the officers were oft-times named according to the quality of the bearers , and not according to the precedency of the offices : but in the former charter , dominus de huyme ▪ and dominus de drumond , being of the same quality , the chamberlain is put before the justice general . this office of chamberlanry was possessed heritably of late by the dukes of lennox , and the badge was a golden key . this office is the same with praepositus sacri cubiculi , mentioned by iustinian , and equall'd by him to the praefectus praetorio , and placed inter illustres palatinos , or counts of the palace , and is now in france called grand chambrier , and was constantly possessed by the family of burbon . i find the magnus camerarius placed before the thesaurer in a confirmation , anno . to the abbacy of aberbrothick . senescallus domini regis , is next in these laws , that is to say , the high steward of scotland , and allanus senescallus scotiae , is very famous in all the old charters , and he is still placed before the constable and marischal : and it appears , that the high steward , and the steward of the kings house were the same , for those laws mention only the steward of the kings house ; but now the prince is senescallus natus scotiae : under him are there placed the panetarius , who commands over all the bakers , and buttelarius , who commands over all the keepers of taverns , &c. i find the lord souls was buttelarius scotiae , in the letter before set down , directed from the nobility of scotland to the pope , in the reign of king robert the bruce ; and i have seen a charter , wherein iohn and thomas murrayes , sons to the governour of scotland sir andrew murray , were designed panetarii scotiae , upon the forfeiture of iohn cunning earl of monteith , in anno . which earl of monteith was formerly panetarius . next to these are named in the foresaid laws , the constable and marischal : but now the constable and marischal take not place as officers of the crown , but according to their creation as earls ; the reason whereof i conceive to be , because of old , offices did not prefer those who possessed them , but they took place according to their creation ; whereas now the privy-seal precedes all dukes , and the secretary takes place before all of his own rank : but the constable and marischal , being now the onely two officers of the crown that are heretable in scotland , continue to possess as they did formerly : but in france , england , and all other places , the constable and marischal take place as officers of the crown ; and it seems very strange , that these who ride upon the kings right and left hand , when he returns from his parliaments , and who guard the parliament it self , and the honours , should have no precedency by their offices ; and yet i cannot deny , but that of old , other earls were placed before them , for in the former charter granted by king alexander , malcolm earl of fife is placed before them . and i conceive their precedency has not risen of late to the same proportion with others ; because of late our armies have been commanded by other officers , and so there was little use for the constable and marischal . the constable with us in these northern-nations , is the same office that the comes stabuli was under the roman empire , which may be confirmed by two clear testimonies of great antiquity , one is of aimon . lib. . cap. . land ▪ gesilis regalium praepositus equorum , quem vulgo comes stabuli vocant ; the other is from rhegino , lib. . annalium burchardum comitem stabuli sui ( quem corrupte constabulum appellabis ) cum classe misit in corsicam : though the learned cujac . does believe that this title comes from the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which signifies , a company of men of war , ad l. unic . de comit. & tribun . scolar . and there are some who derive it from the word koning , which signifies a king ; and staple , which signifies a hold , because some constables were commanders of the kings houses : but i find that the high constable did command the kings armies , but was expresly debarred from commanding either his houses or garrisons ; as l'oiseau well observes , lib. . cap. . because , says he , it was a great power that one man should command both the army , and the garrisons : the badge of his office was , and is a naked sword , which in the roman empire was the badge of the office , praefecti praetorio ; and trajan giving the naked sword to suro licinius , who was his praefectus praetorio , gave it with these words , pro me si mereor in me ; which words were thereafter put by buchanan , with a naked sword upon the money , coined during the minority of king iames the sixth . the constable with us , was by the laws of king malcolm cap. . judge to all crimes committed within twelve miles to the kings house or habitation ; though skeen observes , that the best manuscripts bear only two leagues : but now his jurisdiction is only exercised either as to crimes or otherwise , during the time of parliament , which some extend likewise to all general conventions . the marischal is a german word and office originally , as the learned tillet proves fully , a marker of camps ▪ and the ax which he bears as the badge of his office , was that instrument wherewith he did break the ground , though now this part of his office is delegated to the marischal du camp. the marischal commanded the horse as tillet proves , whereas the constable commanded both : but yet our learned craig calls the constable onely praefectus equitum ; and yet as tillet observes , the marischal was not under the constable , else he could not be an officer of the crown : for it is essential to all officers of the crown , and officers of state , to depend upon none but the king. of old i find the orders in military cases run , to our constable and marischal . the office of marischal has never been out of the family of keith : but the earls of athol and several others have been constables of scotland ; and therefore it is that the earl marischal hath no other title ; but the high constable designs himself earl of errol . we had no knight marischal in scotland till king charles the firsts coronation , in anno . at which time it was erected by a letter to the privy council ; by his office he is to take place immediately after the younger sons of lords . the thesaurer is not mentioned amongst these officers of the crown under king malcolm keanmore , and of old it has been thought but an office of the kings house ; for in a confirmation granted to the abbacy of aberbrothick , in anno . by king iames the fifth , after reverendissimis episcopis , and dilectis consanguineis , are enumerate as witnesses , dilectis familiaribus nostris roberto barton , nostro thesaurario & computorum nostrorum rotulatore : nor do i find a thesaurer designed as witness in any of the kings charters till then , though some foolishly think that panetarius was thesaurer . and though the word familiar counsellour be now given to all officers of state , who are not earls , because they cannot be called cousins ; yet of old it was only given to those of the kings own family , and was derived à familia , though now familiar is thought to be the same with intimate . till of late , thesaurer , comptroller , and collector of the augmentations were three different offices , but now they are all joyned in one : comptroller is in the old registers called rotulator . the thesaurer takes now place , as second officer of state , next to the chancellor ; next to the thesaurer is the president of the privy-council ; after him the privy-seal ; but the secetary is only first of his own rank , that is , if a duke , the first duke , &c. of old the secretary was a very honourable imployment ; for as cassiodor , lib. . opist . . well observes , honor hic datur egregiis , dum ad imperiale secretum , tales constat elegi , in quibus reprehensionis vitium non potest inveniri . but yet i find the secretary onely named in the former confirmation , inter familiares : of old i find he was stiled , clericus regis , though some interpret this clericus regis , to be either clerk-register , or the kings confessor , and clerk to his closet , and some that he was almoner . we have no master of requests now , that charge being swallowed up by the secretaries office ; their office with us was , as at rome , to represent to the king the complaints of the people , referendarii says cassiodor . lib. . dolores alienos asserunt , conquerentium vota satiant , & per eos iudices corriguntur . i find that advocatus fisci , now our kings advocat , or atturney-general , was dignified with the title of comes , which is now earl , l. jubenius i. de advoc. divers . jud . and with the titles of clarissimus & spectabiles , which was only bestowed on the chief nobility , l. . & . eod . tit . and from this seems to have flowed our calling them lord advocat ; and the french calling them messire , which title only the chancellor and advocat there get : upon this officer , rome in the reign of claudius the emperour , bestowed so much honour , that he said , tantum honoris & authoritatis concessisse procuratori caesaris , ut eum suis legibus adaequaverit , volueritque ut quod ipse statuisset perinde ratum esset , ac si ab ipso foret constitutum : and of old they were still of the order of knights ; for tacitus in the life of agricola , says , utrumque avum procuratorem caesaris habuit quae equestris nobilitas est . the kings advocat is with us , as in france , consiliarius natus , that is to say , is by vertue of his office a privy counsellor , in a more peculiar way than the rest : for i find by the records of council in queen maries time , that the register and justice-clerk are expresly mentioned in the commission of council , but the advocat is in all the sederunts , though he be not named in the commission . and though with us it was not allowed to the kings advocat , till sir thomas hope's time , that he should be present at the lords advising of causes , where the advocat was himself interested ; yet i conceive , in causes which he pleads meerly upon the kings account , he ought to be present even when the cause is advising : this was allowed advocato fisci , for trajan writing to plinius , commands eos adhibere in consilium à praesidibus cum de causa fiscali agitur , which explains very well , l. . de iur fisc. where si fiscus alicui status controversiam faciat , fisci advocatus adesse debet , quare si sine fisci advocato pronunciatum sit divus marcus rescripsit , nihil esse actum & ideo ex integro cognosci opportere : of which office the learned budeus gives this character , magistratus is est in quem omnes suas actiones , princeps , populus , universi transcripserunt , asylum legum , arx iustitiae , innocentiae vim passae , aut iudicio circumventae , propugnaculum , intercessor rerum malarum , suasor rerum bonarum , praesentis semper animi , actor , & defensor , de sententia iuris & equitatis . i find , that though per l. nemo c. de assessor . no man can be both a judge and advocat , yet the kings advocats in france have been allowed to be judges at the same time they were advocats ; for it was thought that the office of kings advocat , did naturally participate both of the judge and advocat , and so was not inconsistent with the imployment of a judge , l. ult . c. de advocat . fisc. and this was so decided by the parliament of paris , in iune . and from this we probably in scotland took occasion , a little after that time , to make sir william oliphant , and of late sir iohn nisbet , both advocats and lords of the session . the almoner with us has no precedency for ought i know , though in france , le grand aumosnier is thought to be an officer of the crown : he is very oft a witness in all our charters granted be our kings , and some think that clericus noster was almoner . i find that cockburn of lanton , who was also custos magni sigilli , in the second year of king robert the thirds reign , is made heretable ostiarius nostri parliamenti , that is to say , usher of the parliament . the lyon and he does debate who shall go next to the king , or his commissioner , in parliament and conventions , the usher pretending , that if he behoov'd to go after the lyon , he behooved to go before the heraulds , and so he behooved to walk between the lyon and his brethren , which were not decent , ( though both in england , and with us , i find , that several degrees of persons do in all processions , walk between the garter or lyon and his brethren heraulds ; ) likeas , it is implyed in the nature of the ushers office , that he should immediately usher him to whom he is usher ; but in england , i find , that at the cavalcad , when his majesty entred london , in anno . and at his coronation , garter king of arms did walk in the midst , having the mayor of london on his left hand , and the knight of the black-rod on his right : and the author of les memoirs des ambassadeur tells us , that in anno . at the procession , for celebration of that solemn peace betwixt france and spain , the king of arms did walk immediately before the french king , le roy d'armes marchant immediatement devant le roy. i am likewise informed , that in england , the precendency runs thus , king of arms , usher of the black-rod , master of ceremonies , and after him the gentlemen of the privy-chamber , &c. the title of duke came from dux , a leader and commander of an army , and was at first a title of office , but now is a dignity given by kings and princes , to men of blood and good merit ; and with us , the prince of scotland ( as is already said ) is duke of rothesay . the word marquess was first appropriate to the lords of the marches and frontiers , but is since become a title of special dignity betwixt a duke and earl. earl came from the saxon word ear-ethel , which was abridged to ear-el , and afterwards by abbreviation earl , with the dutch called eorle ; and at this day the germans use the word grave for it : they are in latine called comites with us , because in the roman empire , comitatus was called the court of the prince , l. . de testament . militar . l. . ff . de re militar . and those who attended the emperor were called comites , or his companions : they were appointed to be governours of the several countrys of the empire , which were from them called comitatus or counties , and earls are to this day designed earls of such a shire ; but the kings thereafter , being desirous to have their subjects depending immediately upon themselves , did appoint sheriffs in their place to command the counties , who are therefore still called vice-comites . some were likewise appointed to command towns , and so these comites vrbium , were of a meaner degree , than the comites provinciarum ; but now earls who have their designations from towns , are in the same degree with those who have their designations from provinces . counts palatine were such as had office in the kings palace , and had their name à palatio , as is clear by the whole titles , c. de palavinis sacrar . largit . & tit . de castren . palatinorum peculio : but it is fit to know that these counts palatin , or officers of the palace differed in the roman law from domestici , for the domestici these were properly and onely those who were of the emperours guards , as is clear , by l. . c. de protect . & domest . and cujac . upon that law . the counts palatin in england were such as had regal power within their own jurisdictions , nor do i in my reading find any counts palatin in scotland , save walterus palatinus de stratherne , who designs himself atholiae & cathaniae comes ; he gives his lands of cortowhy to the bishop of brichen , in anno . and i believe the reason why we have so few counts palatin in scotland , is , because our lords of regality have the same power ; but properly the officers of the kings house are onely now what the comites palatini were of old . for regulating the precedency amongst earles and lords with us , k. iames the . did grant a commission to some noblemen in march . who upon citation did pronunce the following decreit , according to which decreit these noblemen are at present ranked , and if any of the noblemen therein prejudged do reclaim , they use to raise a reduction of the said decreit before the session , and adject a conclusion of declarator , craving it may be found and declared that they ought to have precedency from the noblemen whom they therein cite : this decreet is from its effect called the decreet of ranking , whereof this is the tenor. at edinburgh the th . of march , . anent our soveraign lords letters directed , makand mention ; forasmuch as his majesty and the lords of his secret council , considering the great contentions and differencies , quilks many times occurrit and fell out amongst the nobility of this kingdom of scotland , anent the precedency and priority in ranking and voting in parliament , and general councils , and how that this their contentions lay ever unremembred or agitat , but at the very instance of their meeting at his majesties parliaments and coventions , at whilk time there was greater matter of impashment offered to the estates to compone their differences , then to intreat upon the principal subjects , for whilk they were assembled : his majesty and the saids lords , therefore being careful to have this contention removed , and the contraversies and elists , whilks arises amongst the nobility for that cause settled and pacified , wherethrow the estates and nobility being freed and relieved of such matter of contention , they may in peace , love , and amity , concur together , and deliberat upon such matters as shall be entreated and motioned in parliament hereafter : his majesty for this effect has given his highnes commission under the great seal , to a number of his nobility , and who are most indifferent , and no wayes suspect of partiality , to conveen and call before them , the hail noblemen of this kingdom of scotland , and according to their productions and verifications to set down every mans rank and place , as in the commission foresaid , past under the great seal at length is contained ; and anent the charge given to lodovick duke of lennox , iohn marques of hamilton , george marques of huntly , patrick earl of orkney , george earl of caithnes , alexander earl of sutherland , iames earl of murray , francis earl of errol , george earl marishal , david earl of crawfurd , iames earl of athol , iohn earl of montrose , iames earl of pearth , earl of monteith , andrew earl of rothes , alexander earl of dumfermling , archibald earl of argyl , iames earl of glencairn , iohn earl of cassils , earl of eglington , william earl of angus , william earl of morton , iohn earl of marr , alexander earl of lithgow , earl of winton , alexander earl of home ; simond lord fraser , edward lord bruce of kinlosse , iohn lord forbes , patrick lord glames , iames lord ogilvy , alexander lord spynie , patrick lord gray , laurence lord oliphant , iohn lord murray of tillibairn , david lord scoon , iames lord lindsey , lord sinclar , iames lord balmerinoch , patrick lord lindors , iames lord colvil of culros , iohn lord fleyming , alexander lord elphingston , alexander lord stuart of ochiltry , thomas lord boyd , allan lord cathcart , hugh lord lowdoun , robert lord semple , lord pasley , iames lord abercorn , iohn lord maxwel , iohn lord harres , robert lord sanchar , lord ross , iames lord carlyl , robert lord roxburgh , iames lord hay of yeaster , lord newbottle , iames lord thirlstain , iames lord torphichen , iames lord borthwick , thomas lord dirlton , lord seaton ; and the tutors and curators of the saids dukes , marquesses , earles , lords , if they any have , to have compeard before the saids lords commissioned at an certain day by gaine , and to have brought and produced with them such writs , evidents , documents , and testimonies , as they have or can use for acclaiming that rank and place of precedency and priority challenged be them before others , to have been seen and considered be the saids lords , commissioners , and they to have heard and seen their ranks and place of precedency and priority appointed and set down be them , according to their antiquities of their productions , and that whilk should be verified in their presence , and they and every one of them directed to take that place , whilk should be appointed and prescrived unto them be the saids commissioners , as said is , certifying , all such persons as should not compear themselves , or their procutors in their names , that the saids lords , commissioners , will go on forward in setting down every mans rank , according to that which should be verified as said is , and should proceed according to the several instructions given be his majesty to the saids lords commissioners for this purpose , and the saids lords commissioners their determination should stand in full force and effect , aye and while an decreit before the ordinar judge be recovered and obtained in the contrar ; likeas at more length is contained in the saids lords executions and indorsations thereof , which being called , and divers times and dyets keeped to that effect ; and the said iohn earl of montrose , alexander earl of dumfermling , francis earl of errol , george earl marishal , and alexander earl of lithgow , compearand personally , and the said alexander earl of sutherland , compearand be mr. robert learmont their procutor , and the said earl of marr , compearand be mr. thomas hope his procutor , the said david earl of crawfurd compearand be laurence scot his procutor , the said andrew earl of rothes compearand be mr. david antoun his procutor , the said william earl of mortoun compearand be mr. thomas learmond his procutor , the said earl of monteith compearand be graham his procutor , the said heugh earl of eglington compearand be iohn bell his procutor , and the said iohn earl of cassils compearand be iohn hamilton , and gilbert ross , and the said andrew lord stuart of ochiltry , iames lord balmerinoch , iames lord abercorn compearand personally , the said lord lindsey of the byres compearand be the said mr. robert learmont his procutor , the said iohn lord forbes compearand be iames fogo his procutor , the said patrick lord glames compearand be mr. patrick sharp younger his procutor , the said patrick lord gray compearand be patrick whyllie his procutor , the said iohn lord seaton compearand be mr. william livingston his procutor , the said allan lord cathcart compearand be george angus his procutor , the said iames lord carlyl compearand be the said robert hamilton his procutor , the said robert lord sanchar compearand be creichton his procutor , the said james lord hay of yester compearand be mr. iames burchar his procutor , the said iohn lord harres compearand be corbal cunningham his procutor , the said iames lord torphichen compearand be mr. robert learmont his procutor , the said lord thirlstain compearand be thomas fleyming his procutor , the said alexander lord spynie compearand be the said mr. robert learmont his procutor ; and the hail remanent lords and earles particularly abovewritten , being oft-times called and not compearand ; divers terms and dyets assigned to them for this effect , the writs , evidents , documents , and testimonies produced be the saids persons compearand , and every an of them acclaiming the priority and precedency before others , being divers times and at divers dyets very diligently and exactly sighted , tryed , examined , and considered be the saids lords commissioners , and the saids lords therewith being , as also with the ranks and places of such earles and lords as were promoted and created in his majesties own time , well and throughly advised ; the saids lords commissioners has decerned , decreited , appointed ; and set down , and be these presents decerns , decreits , appoints , and sets down the ranks and places following , to the hail noblemen of the kingdom , to be keeped , bruiked , and possessed by them , in all parliaments , general councils , and publick meetings hereafter . in the first , the saids lords commissioners discerns , and ordains the duke of lennox to have the first place , the marques of hamilton the second , the marques of huntly the third , because be the custom inviolablie observed in all kingdoms the place of honor amongst nobility , is first in the persons of dukes , and next marquesses , and then in the persons of earles , and lords ; and next unto them the saids lords commissioners , discerns , and ordains the earles abovewritten , to have bruiked and possessed their ranks and places , according as they are here written , ranked , and set down , in order following , viz. angus ▪ argyl , crawfurd , errol , marishal , sutherland , mar , rothes , morton , monteith , eglington , montrose , cassils , caithnes , glencairn , buchan , murray , orkney , athol , linlithgow , home , pearth , dumfermling , and dumbar : and sicklike , the saids lords commissioners dicerns , and ordains , the lords particularly abovewritten , to have bruiked and possessed their ranks and places , according as they are here written , ranked , and set down in order following , viz. lindsey , forbes , glames , fleyming , salton , gray , ochiltrie , cathcart , carlyl , sanchar , yester , semple , sinclar , harres , elphingston , maxwel , oliphant , lovat , ogilvy , borthwick , rosse , boyd , torphichen , pasley , newbottle , thirlestain , spynie , roxburgh , lindors , lowdoun , dirleton , kinloss , abercorn , balmerinoch , murray of tillibairn , colvil , culrosse , and scoon . and decerns and ordains , all earles , and lords particularly abovewritten , to keep , bruik , and posses their ranks and places in all times coming , according to the orders and ranks abovewritten , now set down , appointed and prescrived to them , and to make no question , trouble , nor plea in this matter , to any appointed to have place and rank in the manner foresaid . but prejudice alwayes to such person or persons , as shall find themselves or their interests prejudged be their present ranking to have recourse to the ordinar remeed of law , be reduction before the lords of council and session of this present decreit recovered ; and of their due place and ranks , be production of more ancient and authentick writs , nor has been used in the contrary of this process , summonding all such persons thereto , as shall think themselves wrongously ranked , and placed before them : and in the mean time this present determination , to stand in full force , strength , and effect , ay and while the party interested and prejudged obtain lawfully an decreit before the saids lords of council and session , as said is ; and ordains these presents to be insert and registrat in the books of privy council , and an authentick extract thereof to be delivered to the clerk register , and another extract to be delivered to the lyon-herauld , to be kept be them for the better knowledge and information of every mans ranks and place , when the occasion of their ranking shall be presented . extract de libris actorum secreti consilii , act. . d. n. regis , per me jacobum primrose clericum ejusdem sub meo signo & subscriptione manualibus . it is fit to know , that the earl of dowglas was by act of parliament , declared to have the first vote in parliament , and the carrying of the crown , and leading of the vanguard ; but k. iames did in anno . prevail with that earl , to suffer the duke of lennox to carry the crown for that time , and in anno . there is a charter granted to the said earl in life-rent , and to his son in fee , cum omnibus privilegiis , &c. & specialiter cum privilegio aciem ducendi , coronam gerendi . &c. but in anno . the said earl being created a marquess , it is declared by act of council , that he did quite priviledge of having the the first vote in parliament , upon his promotion ; and yet the marques of dowglas still pretends , that any such renunciation could not have prejudged the family , since the granter of that renunciation was onely a life-renter , his son having been in fee. i find there are some titles of nobility in england annexed to places , so that whoever is in possession of that place , has right to the tittle : thus it was found in the case of the lord abergavenny , that he in possession of the castle , ought to have the title , albeit he be not heir of blood. their reason is , because it is a barony-marchiere , and it has been found , that baronies and castles situate upon the borders of scotland and wales , belong alwayes to the owners ; the words of the tenour being per servitium patriae custodiendae . it is alleadged , as one of the reasons in that caise , that the owners of lands , holding in capite & per baroniam , have precedency , albeit they be not next heirs . the next degree to the earles is that of viscount , in latin vicecomes ; as being of old lieutenant to an earl , vicecomites , olim dicibantur , quibus castri dominus vices suas committebat seu executionem iurisdictionis . but afterwards our king gave not the government of counties , or shires , to earles , but appointed sheriffs who depended upon their own nomination ; and were therefore called vicecomites . in bretagn barons take place from viscounts ; but there are no viscounts in germany , bourgrave being in their place , speculat . tit . de vicecometatu & la roque de nobilit . c. . we had no viscounts in scotland before . for by the aforesaid decreet the lord is declared next to the earl. barons according to spelman , sunt clientes feodales , & vassalli capitales , qui pagos , vrbes , castra , vel eximiam ruris portionem , cum iurisdictione acceperunt a rege ; and the word according to him comes from vir or vi , i. e. robur belli : but it is more probable that it comes from the greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , gravis , they being chosen wise , and discreet men . with us , all are called barons who hold their lands of the king in libera baronia , and who have power of pit and gallows ; and of old they were all heritable members of parliament , as all barons in england are , as is clear by act . parl. . ia. . whereby all barons are appointed to come to parliament ; and though this act may seem to be abrogated by the . act , parliament . iames the first , whereby the barons of each shire are allowed to choose two wise men to represent them , which is the custom at this day ; yet it is observable , that though by that act they may for their conveniency choose two , yet they are by no express law discharged to come in greater numbers : and by the . act par. . ia. . no baron that had below the rent of oo . merks , was to be compelled to come to parliament , unless the king particularly wrote for him . and when taxations were laid on by the council , i find by the old records , as particularly in october . that noblemen and burgesses are called , but no barons : the barons and noblemen having been then represented promiscuously , and that long after the act of parliament , allowing them to send commissioners . and this is the reason , why our old barons , who are not lords , and hold onely their lands in free barony , have supporters in their atchievement ; and that with some reluctancy they yeeld the precedency to knights-baronets , they being originally heritable counsellours to the king as members of parliament , and not debarred . the several degrees of nobility before treated of , did alwayes bear their respective coronets , as in england , excepting the lords , who had no coronet till the year . there being a warrand under his majesties hand , in iune . allowing to the barons or lords of parliament in scotland , a certain crimson velvet cape , with a golden circle , decored with six pearles on the top , equally distant one from another , which is the same with the barons coronet in england : but the figure of this coronet on the margine of the principal signator , is done far contrare to the words in the body ; the same having points like to that of the earles , which has certalnly been a mistake and ignorance in the painter , and ought to be adverted to be the lyon , and heraulds : this warrand is registrat in the books of council , and in the lyon books . i have here set down for the readers further satisfaction , a list of all the nobility at present in this nation , their sir-names and principal titles , and titles of their eldest sons ; with such officers as have precedency be vertue of their offices . the duke of albany , onely brother to his most sacred majesty . lord chancellour , lord thesaurer , lord president of the privy council , lord privy-seal , lord secretary , above all of his degree . ⁂ nota. stuart duke of lennox , was the premier duke , but this family is lately extinct . dukes . hamilton duke of hamilton , his eldest son. earl of arran , scot duke of buccleuch , his eldest son. earl of dalkeith , maitland duke of lauderdale , his eldest son. earl of lauderdail , lenos duke of lennox . his eldest son. earl of darnly . marquesses . gordon marquess of huntly , his eldest son. lord gordon , dowglas marquess of dowglas , his eldest son. lord angus , graham marquess of montrose , his eldest son. lord graham , murray marquess of athol . his eldest son. lord murray . earles . campbel earl of argyl , his eldest son. lord lorn , lindsay earl of crawsurd , his eldest son. lord lindsay , hay earl of errol , his eldest son. lord hay , keith earl marischal , his eldest son. lord keith , gordon earl of sutherland , his eldest son. lord strathnaver , areskin earl of marr , his eldest son. lord areskin , graham earl of airth , and monteith , his eldest son. lord kilpont and kilbryd ▪ lesly earl of rothes , his eldest son. lord lesly , dowglas earl of morton , his eldest son. lord aberdour , areskin earl of buchan , his eldest son. lord auchterhouse , cuningham earl of glencairn , his eldest son. lord kilmawrs , montgomery earl of eglington , his eldest son. lord montgomery , kennedy earl of cassils , his eldest son. lord kennedy , stuart earl of murray , his eldest son. lord down , maxwel earl of nithisdale , his eldest son. lord maxwell , seton earl of winton , his eldest son. lord seton , livingston earl of linlithgow , his eldest son. lord livingston , home earl of home , his eldest son. lord coldingham , drummond earl of pearth , his eldest son. lord drummond , seton earl of dumfermling , his eldest son. lord fyvie , fleeming earl of wigton , his eldest son. lord fleeming , lyon earl of strathmore , and kinghorn , his eldest son. lord glames , hamilton earl of abercorn , his eldest son. lord paslie , ker earl of roxburgh , his eldest son. lord ker , areskin earl of kelly , his eldest son. lord pettinweem , hamilton earl of haddington , his eldest son. lord binning , stuart earl of galloway , his eldest son. lord garlies , mackenzie earl of seaforth , his eldest son. lord mackinzie , ker earl of lothian , his eldest son. lord newbottle , hay earl of kinnoul , his eldest son. lord duplin , campbel earl of lowdown , his eldest son. lord mauchla● , crichton earl of dumfries , his eldest son. lord crichton , dowglas earl of queensberry , his eldest son. lord drumlanerick , alexander earl of striveling , his eldest son. lord alexander , bruce earl of elgin , his eldest son. lord kinlosse , carnagie earl of southesk , his eldest son. lord carnagie , stuart earl of traquair , his eldest son. lord linton , ker earl of ancram , his eldest son. lord nisbets , weems earl of weems , his eldest son. lord elcho , ramsay earl of dalhoussie , his eldest son. lord ramsay , ogilvy earl of airly , his eldest son. lord ogilvy , ogilvy earl of findlator , his eldest son. lord deskfoord , dalziel earl of cranwath , his eldest son. lord dalziel , livingston earl of callender , his eldest son. lord almond , lesly earl of leven , his eldest son. lord balgonie , ruthven earl of forth , his eldest son. lord ettrick , iohnston earl of anandale , his eldest son. lord iohnston , maule earl of panmure , his eldest son. lord maule , murray earl of dysert , his eldest son. lord huntingtour , hay earl of tweeddale , his eldest son. lord yester , carnagie earl of northesk , his eldest son. lord rosehill , bruce earl of kincardin , his eldest son. lord bruce , lindsay earl of balcarras , his eldest son. lord balne●l , dowglas earl of forfar , his eldest son. lord wendal , midleton earl of midleton , his eldest son. lord clearmont , scot earl of tarras , his eldest son. lord alemoor , gordon earl of aboyn , his eldest son. lord glenlivet , boyd earl of kilmarnoch , his eldest son. lord boyd , cochran earl of dundonald , his eldest son. lord cochran , dowglas earl of dumbritan , his eldest son. lord dowglas of attrick , keith earl of kintore , his eldest son. lord inverury , sinclar earl of caithnes . his eldest son. lord berrendule . viscounts . cary viscount of faulkland . constable viscount of dumbar , murray viscount of stormont , gordon viscount of kenmore , arbuthnet viscount of arbuthnet , crichton viscount of frendraught , seton viscount of kingston , macgil viscount of oxenford . livingston viscount of kilsyth , osburn viscount of dumblane , lords . forbes lord forbes . fraser lord salton , gray lord gray , cathcart lord cathcart , sinclar lord sinclar , dowglas lord mordington , semple lord semple , elphingston lord elphingston , oliphant lord oliphant , fraser lord lovat , borthwick lord borthwick , ross lord ross , sandilands lord torphichen , lesly lord lindors , elphingston lord balmerinoch , stuart lord blantyre , areskin lord cardross , balfour lord burleigh , drummond lord madderty , cranston lord cranston , melvil lord melvil , napier lord napier , fairfax lord cameron , richardson lord crawmond , macky lord rae , forrester lord forrester , forbes lord pitsligo , mackleland lord kircudbright , fraser lord fraser , hamilton lord bargeny , ogilvy lord bamff . murray lord elibank , galloway lord dunkel , falconer lord halkerton , hamilton lord bethaven , sandilands lord abercromby , carmichal lord carmichael , sutherland lord duffos , rollo lord rollo , ruthven lord ruthven , colvil lord colvil , mackdonald lord mackdonald , bellenden lord bellenden , lesly lord newwark , rutherfurd lord rutherfurd , ker lord iedburgh , weems lord bruntisland . ¶ it is to be observed , that the eldest sons of viscounts and lords are designed masters by their fathers titles . lord thesaurer-deput , lord register , lord advocat , lord iustice-clerk . this is the precedency stated by the present rolls of parliament , albeit it is not acquiesced in by all the nobility : for the earl of sutherland contends with all the earles who are ranked before him , and generally such as are dissatisfied with these rolls , do protest whilst the rolls are called , against such as they conceive are unjustly ranked before them . sometimes also the son has a different precedency , from what was possessed by his father ; as the earl of lothian , who now as succeeding to his great grand-father by the mother , comes to have his precedency next to the earl of wigton , though his father taking place by a new patent was ranked as in the above written rolls . the justice general pretends to the same precedency with the lord chief justice of the kings bench in england , by a report made by the lord thesaurer in the kings name , the . iune . but neither is the letter to which this report relates extant , nor has he been in possession since . and it is fit to observe , that notwithstanding of what is said before , page . ( by a servants mistake ) that the lord privy-seal takes place with us as in england . the order of baronet in scotland was erected for advancing the plantation of nova scotia in america , and for settling a colony there , to which the aid of these knights was designed . the order was onely intended be k. ia. . before his death , for in his first charter of nova scotia , in favours of sir william alexander , . septem . . and in another charter granted to sir robert gordon of lochinvar of a part of nova scotia , designed the barony of galloway , . novem. . there is no mention made of this order : so that the same was onely erected by k. charles . anno . in the several patents granted to baronents , his majesty did dispone to each of these knights a certain portion of land in nova scotia , erecting the same in a free barony with great and ample priviledges , unnecessary to be insert here . and moreover , for their encouragement , did erect , creat , make , constitute , and ordain that heritable state , degree , dignity , name , order , title , and stile of baronet , to be enjoyed be every of these gentlemen who did hazard for the good and increase of that plantation : and so preferred them to that order and title , creating them and their heirs male heritable baronets in all time coming , with the place , preeminency , priority , and precedency in all commissions , breeves , letters-patents , namings , and writes , and in all sessions , conventions , congregations and places , at all times and occasions whatsomever before all knights , called aequites aurati , all lesser barons commonly called lairds , and before all other gentlemen : excepting sir william alexander his majesties lieutenant of nova scotia , who ( with his heir , their wives and children conform ) is not onely excepted in each of these letters-patents granted to the knights , his consorts ; but likewise the charter granted to himself be king charles . . did bear expresly this exception and provision : as also , excepting knights-bannerets who should be created under the royal standard in his majesties army , and in open war , the king himself being present , and that during the bannerets lifetime onely : and with precedency before all of the same order whose patents are of a posteriour date . his majesty did moreover declare , and ordain , that the wives of these knights , and of their heirs male , should have the precedency aswell after as before the deaths of their husbands , if they should happen to survive , before the wives of all those of whom the knights , baronets , and their heirs male had the precedeny , and even before the wives of knights-bannerets before excepted ; ( the degree of baronet being heritable ) and also that the children male and female of the baronets , should take place before the bairns male and female respectively , of all persons of whom the baronets and their heirs male had the priority : and likewise before the children of the bannerets ; and that the wives of the sons of the baronets , and of their heirs male , should preceed the wives of all persons whom their husbands might preceed , and that aswell their husbands being dead as living . and further , his majesty did declare , and promise , that whensoever the eldest sons and appearand heirs male of the baronets should attain to the age of twenty one years , they should be by his majesty and his successours created , equites aurati , or knights batchelours , without payment of any fies or dues for the same , providing they should desire it . but here it is to be observed , that some of the eldest sons of baronets pretend to the title of knight at their majority , be vertue of this clause , without any previous desire or dubbing , which certainly is an errour , for if they will not be at the pains to desire it of his majesty , or his commissioner , they should not assume it . likeas his majesty did declare and ordain , that the baronets and their heirs male should as an additament of honour to their armorial ensigns , bear either on a canton or inescutcheon in their option , the ensign of nova scotia being argent , a cross of st. andrew azur , ( the badge of scotland counterchanged ) charged with an inescutcheon of the royal arms of scotland : supported on the dexter by the royal unicorn , and on the sinister , by a savage or wild-man proper : and for the crest a branch of laurel , and a thistle issuing from two hands conjoyned , the one being armed , the other naked , with this ditto , munit haec & altera vincit . and that they and their heirs male should in all time coming have place in all his majesties and his successours armies in the middle battel , near and about the royal standard for defence thereof . and that they and their heirs male may have two attenders of the body for bearing up the pale , one principal mourner , and four assistants , at their funerals ; and that they should be always called , intituled , and designed be the name and title of baronet , and that in all scottish speeches and writings , the addition of sir , and in all other discourses and writings , a word signifying the same should be preponed to their names and other titles , and that the stile and title of baronet should be postponed and subjoyned thereto in all letters-patents , and other writes whatsomever , as a necessar addition of dignity , and that each of them should be intituled , sir a. b. baronet , and his , and his sons wives , should enjoy the stile , title , and appellation of lady , madam , and dame , respectively , according to the usual phrase in speaking and writing . and also his majesty did thereby promise , that the number of the baronets aswell in scotland , as the new colony of nova scotia should never exceed the number of . ( albeit this number is at present somewhat augmented ) and did likewise declare , that he nor his successours should never create , nor erect in time coming any other dignity , degree , stile , name , order , title , or state , nor should give the priority or precedency to any person or persons , under the stile , degree , and dignity of a lord of parliament of scotland , which should be , or should be presumed to be higher , superiour , or equal to that of baronet : and that the baronet should have liberty to take place before any such who should happen to be created of any such degree or order ; and that their wives , sons , daughters , and sons wives should have their places accordingly : and that if any question or doubt should arise anent their places and prerogatives , the same should be decided and judged according to these laws and customs , by which other degrees of heritable dignities have their priviledges cognosced and determined . and finally , that none should be created baronet , either of scotland or nova scotia , till he had first fulfilled the conditions designed by his majesty for the good and increass of that plantation , and until he had certified the same to the king by his majesties lieutenant there . these patents were ratified in parliament , and were always of this form till the selling of nova scotia to the french , after which time they were made much shorter , and granted in general terms with all the priviledges , precedencies , &c. of the former baronets . and in the year . his majesty did allow these baronets a particular cognisance , which will be best known by the coppy of the following letter direct be his majesty , k. charles the first , to the privy council here . right trusty , and right well beloved cousin and counsellour , right trusty and well beloved cousins and counsellours , and right trusty and well beloved counsellours , we greet you well ; whereas upon good consideration , and for the better advancement of the plantation of new-scotland , which may much import the good of our service , and the honour and benefit of that our ancient kingdom , our royal father did intend , and we since have erected the order and title of baronet in our said ancient kingdom , which we have since established and conferred the same on diverse gentlemen of good quality . and seing our trusty and well beloved counsellor , sir william alexander knight , our principal secretary of that our ancient kingdom of scotland , and our lieutenant of new-scotland , who these many years bygon hath been at great charges for the discovery thereof , hath now in end a colony there , where his son sir william is now resident ; and we being most willing to afford all the possible means of encouragement that conveniently we can to the baronets of that our ancient kingdom , for the furtherance of so good a work : and to the effect they may be honoured and have place in all respects according to their patents from us , we have been pleased to authorize and allow , as by these presents , for us and our successours , we authorize and allow the said lieutenant and baronets , and every one of them , and their heirs male to wear and carry about their necks in all time coming , an orange tannie silk ribbon , whereon shall hang pendant in a scutcheon argent , a saltir azur , thereon an inscutcheon of the arms of scotland , with an imperial crown above the scutcheon , and incirled with this motto , fax mentis honestae gloria ; which cognisance our said present lieutenant shall deliver now to them from us , that they may be the better known and distinguished from other persons ; and that none pretend ignorance of the respect due unto them , our pleasure therefore is , that by open proclamation at the mercat-cross of edinburgh , and of all other head burghs of our kingdom , and such other places as you shall think necessar , you cause intimate our royal pleasure and intention herein to all our subjects . and if any person out of neglect or contempt shall presume to take place or precedency of the said baronets , their wives , or children , which is due unto them by their patents , or to wear their cognisance , we will that upon notice thereof given to you , you cause punish such offenders by fining , or imprisoning them as you shall think sitting , that others may be terrified from attempting the like . and we ordain , that from time to time , as occasion of granting or renewing their patents , or their heirs succeeding to the dignity shall offer , that the said power to them to carry the said ribbon and cognisance , shall be therein particularly granted and inserted . and we likewise ordain , thir presents to be insert and registrate in the books of our council and exchequer , and that you cause registrate the same in the books of the lyon king at arms , and heraulds , there to remain ad futuram rei memoriam ; and that all parties having intress , may have authentick copies and extracts thereof . and for your so doing , these our letters shall be unto you , and every one of you from time to time your sufficient warrand , and discharge in that behalf . given at our court at whitehall , the . of november , . years . the order of baronet in england was erected by king iames the sixth , for advancing the plantation of vlster in ireland , and these knights have priviledges and precedencie much like to those above set down ; and there being a contraversy for precedency betwixt them and the younger sons of viscounts , and barons , managed in presence of king iames , it was determined in favours of the younger sons of viscounts and barons ; but at the same time it was declared , that such bannerets as should be made by his majesty or prince of wales under the kings standard , displayed in an army royal , as also , the knights of the garter , privy counsellours , master of the court of wards and liveries , chancellour and under-thesaurer of the exehequer chancellour of the dutchy , chief justice of the kings bench , master of the rolls , chief justice of the common-pleas , chief barons of exchequer , and other judges , and barons of the degree of the coif , should have place and precedency both before the younger sons of viscounts , and barons , and before all baronets : by which some alterations may appear from the ranking appointed by henry the fourth . beside what has been formerly observed in the description of knights , baronets . i find that of old a banneret ( or a ban-rent ) has been with us a title higher than a baron , for by act . parl. . ia. . barons may choose their own commissioners , but bishops , dukes , earles , lords , and ban-rents are to be summonded to parliament by the kings special precept ; and it is probable that these ban-rents were knights of extraordinary reputation , who were allowed to raise a company of men under their own banner , but now it is commonly taken for such as are knighted by the king or prince under the royal standard in time of war. but i conceive that those could not now sit in parliament upon the kings precept , the former act of parliament being in desuetude : they have the precedency from baronets , though their wives have not , this being but a temporary dignity , and the other an heritable . barons in england are lords with us , but a baron with us is properly he who has power of pit and gallows ; and yet of old i conceive that lords and barons were the same , for the statutes of k. robert . bear to be made in his parliament holden at scoon , with bishops , abbots , priors , earles , barons , and others his noblemen of his realm : and in our old original acts of parliament , i find that the lords and barons are put in one column undistinguished and under the common name barons ; and in the first parliament of k. ia. the th . i find the master of glames , i. e. the lord glames , eldest son sitting inter barones . now the lords are called the great barons , and the rest are called small barons , in the . act. . parl. ia. . and ever since ; but yet i find by the . act. . parl. ia. . every earl or lord payes . pounds , for lawborrows , and every great baron . pounds ; but by great baron there is meant a baron of a considerable estate , because that act was to proportion the surety to be found to the estate of him who finds the surety . the old barons ( or lairds ) amongst us especially where they are chiefs of clans , or the representatives of old families that were earldoms , as pitcurr is of the earl of dirleton , and as chief of the name of halyburton , have never ceded the precedency to knights-baronets , much less to ordinar knights . though the other pretend that a baron is no name of dignity , and that knights-baronets have a special priviledge , that there shall be no degree betwixt them and lords , except the bannerets ; and though militia non est per se dignitas , chassan . fol. . yet generally it is believed , that next to knights-baronets succeed knights-batchelours , and next to them our lairds , or landed-gentlemen , though a laird in effect is but the corrupt word of a lord. amongst such as profess sciences , the ranking goes thus uncontravertedly , o. such as profess theology . o. such as profess the canon-law . o. the civil-law . o. philosophy . o. medicin . o. rhethorick . o. poescy . o. history . o. grammer . o. logick . o. arithmetick . o. geometry . o. musick . o. astronomy ; chassan . de gloria mundi pars decima . and amongst these , such as are doctors preceed these that are not , and amongst doctours , the priority goes by age. in towns , these who inhabit cities are preferred to such as inhabit burghs , and generally those in the metropolitan , or capital . city are preferred to all the rest : and those who have born magistracy , are even when their magistracy is over , preferred to all others . and so far is this precedency observed , that o. a younger alderman or bailie takes not precedency from his senior , because he is knighted , or as being the elder knight , as was found in the case of the alderman craven , who though all the rest of the alderman were knighted at the coronation of king iames , kept the precedency formerly due to him as senior alderman . but though this hold not onely amongst aldermen , but that even all knights of the countrey , being burgesses of a town , do cede to these who have been their magistrates in it , as to publick meetings relating to the town ; yet it is doubted whether such a knight will be oblieged to give place to an alderman , or baily in a neutral place . but it is determined in the heraulds office of england , that all such as have been mayors of london , that is to say , provosts with us , do take the place of all knights-batchelours every where , because they have been the kings lieutenants . it is there likewlse remarked , that sir iohn crook serjeant at law , was knighted before any other serjeant his ancient , and standing upon precedency by reason of his knighthood , it was adjudged against him by the judges , viz. that he should take place according to his serjeancy , and not after his knighthood , yet his wife took her place of a lady before other serjeants wives . the members of courts do take place amongst themselves according to the precedency of the courts , where they serve ; as the clerks of the privy council take place of the clerks of the session . in families likewise , the chief of the family takes place of any gentleman of the family : and though generally it be believed , that gentlemen have no precedency one from another , yet reason and discretion do allow that a gentlman of three generations , should cede to a gentleman of ten , if there be not a very great disparity betwixt their fortunes , and that for the same reason almost , that a gentleman of three generations claims precedency from any ordinary landed-man , who was newly acquired his lands . chap. ix . the precedency due to women . women before their marriage have precedency by their father , but there is this difference betwixt them and the male-children , that the same precedency is due to all the daughters that is due to the eldest , though it is not so amongst sons ; and the reason of the difference seems to be , that daughters would all succeed equally , whereas the eldest son excludes all the rest ; but if this be the adequat and true reason , then where the estate and honours are provided to the eldest daughter onely , excluding the rest , they ought not to have the same precedency that the eldest sister has . and therefore i ascribe this difference rather to the custome of nations meerly founded upon the respect due to that sex. during the marriage , the wife regularly participats of the condition of her husband by the civil law , and law of nations , l. . c. de dignitat . mulieres honore maritorum erigimus , genere nobilitamus , and since she was to be sharer in his misfortunes , the law thought it just that she should be sharer in his advantages ; and the wife by the canon law is called socia divinae & humanae domus , and l. foeminae , ff . de senat. it is said , that foeminis dignitatem clarissimam mariti tribuunt : but yet this rule has some exceptions , for though in france the wives of those who have their dignities by offices , enjoy the same precedency with their husband , together with a communication of his title , and thus they say there , madam la chanceliere , madam la praesidente : yet it is not so with us , who think , that offices are bestowed on husbands upon a personal account , which is not communicable to their wives ; and yet in some temporary dignities , such as that of a knight-batchelour , the wife participates of the husbands title and precedency : though i find by the heraulds records , that this proceeded originally , rather from courtesie than from law , and that of old a knights wife enjoyed onely his honours during the spousals , nor were they to be called in law dame alice , or dame catherine , &c. after the marriage was dissolved . by our law likewise , if a woman have precedency by her birth , or descent , she retains still the same , notwithstanding she marry a person of inferiour dignity , contrare to the rules of the ivil law ; and thus if the heiress of a dutchie , or earldom , marry a gentleman , she has still the precedency due to a duke , or earl , albeit by the civil law , l. . de senat. it be exprest that parentes donee plebeiis nuptiis fuerint copulatae , &c. the reason whereof is as faber observes upon that law , because it were most absurd that the wife should have more dignitie then her husband ; and thus livius observes , that virginia daughter to a patrician , or noble roman , was debarred from the honours due to her birth , because she had married a plebeian ; and it seems indeed that he being her head , it is most unnatural that any part should be more honourable then the head : nor can there be any thing more contrare to that superiority , given both by the law of god and man to husbands , nor any means fitter to make a wife despise her husband than this is . but i think this precedency has arisen from the feudal law , for the wife having once a noble fee , she cannot forfeit the same by her marriage , and therefore she must retain the dignity that is annexed to it , which is incommunicable to her husband , because he is not in fie . but it is observable , that if the daughter of a nobleman marry another nobleman , she will lose the precedency due to her by her birth , though she would not have losed it if she had married a gentleman , and the reason of this seems to be , because by marrying a nobleman she receives another feudal dignity , which suppresses the first . i find it observed in judge cook. lib. . fol. . that if a baron dies , having divers daughters , the king may conferr upon either of them the title ; and thus the lord cromwel having died without heirs male , burchier who married the youngest daughter was made lord cromwel , of which we have no example in scotland ; for by our law , if the title descend to females by the patent , the eldest onely can succeed to the title , but if it descend not by the patent to heirs female , then the king may admit neither to the title , or either as he pleases . after the husbands decease , the wife did by the civil law enjoy her husbands precedency during her widowity , but if she marry to a person of inferiour quality , she loses that precedency , l. . de senat. which holds with us and in england ; and yet sometimes the king allows her the same precedency , by a letter , as he does also to the daughters of dukes , and others who have lost their precedency by marriage , which letters , or warrands , are direct to the heraulds office , and registrated there . and the queen never loses her former dignity though she marry the meanest person after the kings death . and generally , all the priviledges due to the king , are communicated to the queen , per l. . ff . de leg : augusta , autem legibus soluta non est , principes tamen eadem illi privilegia tribunut quae ipsi habent . notwithstanding whereof , lawyers think that her bastards are not noble as the bastards of kings , nor does the womb ever nobilitate . the countrey of campaigne in france onely excepted , where it is sufficient that either the father or mother be noble , which was allowed to the ladies of that countrey , upon the killing of all the nobility at a great fight , papon . de nobles . num . . by the civil law also , a widow living leudly , loses her former dignity , arg. § fin. in authent . de restit . but this holds not with us , vide bon. de curt. de nobilitate , cap. . num . . it has been doubted , whether a mean woman marrying a nobleman , retains the priviledge due to her by her husband , who has been degraded by forfeiture , or otherwayes , and corbin cites a decision , . august . . whereby it was resolved , that she retains still her former priviledge , since crimes are personal , which is also our custom . it has been likeways doubted abroad , whether a noblewoman marrying a plebeian , and thereby losing the precedency due to her birth , if she marry a gentleman in the second marriage , she will thereby recurr to her first dignity , the person be whom she lost the first dignity being dead ; and it was found that she will not , for in law that which is once extinct does not revive ; and therefore women in such cases take letters of restitution , as they call them , or procure a warrand from the king , for that effect as the custom is with us , ut interveniet principis restitutio quae plebecitatis maculam abstergat , traitte de la noblesse , pag. . but there would be no place for this question here , since with us a noblewoman would not lose her precedency by marrying a plebeian , but the doubt behoov'd to be thus stated with us , viz. whether a noblewoman marrying a nobleman of an inferiour degree , would recover her first dignity , she marrying thereafter a gentleman : or , whether a knight-baronets lady marrying a plebeian , could thereafter recover her dignity if she marry a gentleman . for i conceive a knight-baronets lady , does not like a noblewoman , retain her precedency when she marries a person of inferiour quality , and i think neither of them would recover their former dignity without a special warrand . i find that the commissioners appointed to regulate queen anns funerals , did upon the . of may , . declare , that the ladies of the privy chamber should in time of mourning , take their places as if the queen were living , till the funerals were ended , and that the queens chamberers should for the present funeral go before countesses women , without prejudice to countesses women , at any time thereafter . it is fit to observe , that the wives and daughters of all dukes , marquesses , earles , &c. do take the same place that the husbands and sons do , conform to the precedency formerly exprest , pag. . and i find in the heraulds office of england , an establishment settled thus amongst women , by iasper duke of bedford , and other noblemen , by warrand from henry the fourth . the wives of dukes of the blood royall . the wives of other dukes . the wives of the eldest sons of dukes of the blood royal. the daughters of dukes of the blood royal. the wives of marquesses . the wives of the eldest sons of dukes . the daughters of dukes . countesses . the wives of the eldest sons of marquesses . the daughters of marquesses . the wives of the younger sons of dukes . the wives of the eldest sons of earles . the daughters of earles . the wives of viscounts . the wives of the younger sons of marquesses . the wives of barons , ( that is to say our lords . ) the wives of the eldest sons of viscounts . the daughters of viscounts . the wives of the younger sons of earles . the wives of the eldest sons of barons or lords . the daughters of barons . the wives of knight-bannerets . the wives of the younger sons of lords . the wives of knight-batchelours . the wives of the eldest sons of knights-bannerets . the daughters of bannerets . the wives of the eldest sons of knight-batchelours . the daughters of knight-batchelours . the queens maids of honour . the wives of the younger sons of banerets . the wives of the younger sons of knight-batchelours . the wives of esqueirs . the wives of gentlemen . the daughters of esquiers . the daughters of gentlemen . the wives of citizens . the wives of burgesses . from all which it is to be observed , that the wife of the eldest son of any degree , takes place before the daughter of that same degree , and both of them take place of the younger sons wife of the preceeding degree ; thus the lady of the eldest son of a marquess preceeds the daughter of a marquess , and both preceed the ladies of dukes younger sons : item , the wife of the next degree as a countess , preceeds the lady of the eldest son of the preceeding degree as of a marquess , and the daughter of a marquess . o. this holds not only in comparing degrees amongst themselves , but also in comparing families of the same degree amongst themselves , as for instance , though the marquess of dowglas lady would give place to the marquess of huntlys lady , yet the wife of the marquess of dowglas eldest son would take place from the marquess of huntlys daughter . o. though of old with us in scotland , the wives of lords did contend , that they had the precedency from the daughters of earles : yet since that letter written by king charles the first at his coronation , we follow the custome of england , in preferring the earles daughter , who takes place immediately after her eldest brothers wife . o. though the daughter of a marquess gives place to the wives of the eldest sons of all marquesses , yet if that daughter be an heiress , and the daughter of an elder marquess , then she takes place from the wives of the eldest sons of all younger marquesses , as segar . observes , pag. . it is likewise observable , that since this ranking under henry the fourth , there are several new additions ; for after the wives of lords eldest sons and lords daughters are ranked , the wives of privy counsellours and judges , wives of the younger sons of viscounts , and of lords or barons , the wives of baronets , the wives of bannerets , the wives of the knights of the bath , and the wives of knights-batchelours , &c. as in the former list. some considerable questions concerning precedency , resolved . qvestion i. whether in competitions betwixt kingdoms , states , and towns , is their present condition to be considered , or what they were formerly ? to which it is answered , with this distinction , viz. either the kingdom , or other places betwixt which competitions are stated , remain the same that they were in their substantials , and then the former precedency is still continued ; as for instance , though rome whilst it was a common-wealth did sometimes admit of a dictator , who had indeed the power of a king , yet they remained still the same common-wealth ; and therefore being the same in substantials , they ought to have the same degree of precedency continued : or when two or three kingdoms are without any alteration united in one , as the kingdoms of scotland and england were united into the kingdom of great britain , under kings in the same race , who succeeded to both , as is fully demonstrated by alb. gentil . pag. . and this is likewise clear from l. proponebatur ff . de iudiciis & l. . ff . de legat. . but where there is a substantial alteration called by aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vel 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there the former condition is not considered , but the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or present condition of the places in competition is that which ought to be considered : and thus when a kingdom comes to be conquer'd by a stranger , and by a strange and forreign nation , there the state of the kingdom is absolutely innovated , especially if the laws of the state be altered : and therefore the french lawyers are of opinion , that the precedency of england ought onely to be computed from william the conquerour , because , at that time a stranger and a strange nation did conquer the said kingdom , and the fundamental laws of it were much innovat ; and if this be not an alteration none can be : for the antiquity of land cannot give precedency , for all land was created together , and there are few nations so conquest , as that the former people do not remain , so that there can be no precedency upon that account , though some who are extravagant in their zeal for their countrey doe argue its precedency from the first ages of the world ; as vasquius does that of the spanish empire , in deryving it from tubal cain , praefatio in contravers . illust. qvestion ii. whether a kingdom becoming a common-wealth , or a common-wealth a kingdom , does their former precedency remain ? this question has two branches wherein the difficulties differ , the first is , whether that town or place which was a republick , having become a monarchy or principality , ought it to retain the precedency due to the former common-wealth ? and that it ought to retain the same precedency may be argued , because , when one thing is surrogat in the place of another , that which is surrogat ought to have the same priviledge with that in whose place it is surrogat , surrogatum subit naturam surrogati ; but so it is , that the subsequent principality is surrogat in place of the former common-wealth , and therefore ought to have the same precedency : this reason is likewise seconded by a decision of charles the fifth , who in the debate betwixt the duke of florence , and the duke of ferrara , did prefer the duke of florence , because the republick of florence was formerly preferred to ferrara . from this decision some would distinguish betwixt the case , where a citizen of the former common-wealth is preferred by common consent of his fellow citizens , in which case they who governed formerly still govern , because they choose the new duke , prince or king : and the case wherein a stranger comes in and conquers , in which case the former government is absolutely altered , and none of those who governed formerly continue to govern : nor does the argument of surrogation hold in this case , because that argument onely holds where one thing is surrogat to an other by common consent , and where the reason of the priviledge pleaded in the one case remains in the other , neither of which can be alleadged where there is a conquest ; because there , neither is there a consent , nor does the government , nor state remain the same , and consequently , ought not to have the same precedency , seing the sameness of precedency depends upon the sameness of the state , which ought to have the precedency . the same is likewise to be concluded , where one of the same city or republick usurpes the government ; for in that case the former arguments hold : and though aristotle libro quinto politicorum sayes , eundem statum reipublicae manere , ubi rem suam & summam resbublica● ante libera civi alicui suo regendam deinceps comittit , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . yet this requires two conditions , the one is , that one of the citizens govern ; and the other is , that the government be transmitted to him by the common consent of those his fellow citizens who governed formerly ; an eminent example therof we find in that famous lex regia , mentioned l. . ff . de const. princ. whereby the romans transmitted all the power they had to the emperour , quae de imperio lata est qua populus ei & in eum omne suum imperium & potestatem contulit , and upon this account it is , that the roman emperours pretend the same precedency that was due to the common-wealth of rome , since the common-wealth did surrender and transmit to them their power . the next branch of the question is , whether a kingdom being turned into a common-wealth , ought to have the same precedency that was due to the former kingdom ? and it would appear that it ought not , since in becoming a common-wealth , it is degraded from its former dignity , common-wealths being by the consent of all nations postponed to all kings , or crowned-heads ; nor does the argument of surrogation hold in the matter of precedency , where there is not onely a substantial alteration , but a degradation : the former argument of surrogation does not likewise take place , where there has an intermediate impediment interveened ▪ as for instance , though spain had been formerly a kingdom , and though england was really a kingdom of old , yet both these having become afterwards provinces to the roman empire , they cannot reassume the dignities and precedency due to them before they were subdued , and became tributaries ; since that degradation was a medium impedimentum , as lawyers call it , which hindred the present condition of their kingdom to be drawn back to its old state : a thousand instances of which may be given in other cases , and even in the matter of precedency , if a family be degraded , and continue so for a long time , if though they be thereafter restored ; or if an earl should resign his title in the kings hands , and so extinguish his title , though he were restored , yet he would not be restored to his former precedency , in prejudice of those who had acquired titles medio tempore . qvestion iii. whether he who is elected to a dignity , ought to have precedency thereby , as if he were actually admitted ? this question has been often agitated , and may be of great use amongst persons of all degrees : it was first debated in anno . betwixt the ambassadours of charles the fifth , who was then elected emperour , and the ambassadours of francis the first king of france , who alleadged , that though charles the fifth was elected emperour , yet not being crowned and anointed , the election being but an incompleat act , could not give him preference ; and that it could not was argued from these reasons . o. before the emperours admission and consecration , he is not called emperour , but onely king of the romans , and therefore he ought not to have the place as emperour , for the king of the romans is inferiour to the emperour , and the inferiour cannot have the superiours place . o. if election could give the precedency , there needed not any further solemnity ; for by the election , the person elected would be emperour , for none can have the emperours place but the emperour . o. that which is imperfect cannot operat as much as that which is perfect ▪ l. aedificia § perfectissime ff . de edil . edict . and that which is imperfect is judged in law to be no more , then if it were not , imperfectum , & nullum idem sunt : and therefore as he could not have precedency , if there were no election , so neither can he have it , where there is but an incompleat election . o. where there are two degrees subordinat one to another , the inferiour degree cannot aspire to that which is due to the superiour ; but so it is , that election is but subordinat to admission , ergo , it cannot operat as much as admission . notwithstanding of all which , i find that gothofred . and others decide for the emperour , and are of opinion that an election has in it the radical power and force of admission , and so gives as much precedency as admission does ; yet with us , we see that an elect bishop takes not the same place , that is due to him after he is admitted : and therefore the distinction would be made here betwixt such an election , as transfers all the power that admission can , as we see in the emperour , king of poland , and others , who can receive no more power after they are elected , and delay their coronation and other ceremonies for their own conveniencies ; and the case of bishops and inferiour magistrates , who are oft-times to receive some further power beyond their election ; and so , their election not being equivalent to an admission , it gives not the same precedency that the other can : and therefore i may conclude generally , that precedency followes power and administration . qvestion iv. whether ought one who has been twice or oftner elected to any dignity , be preferred to him who was onely once elected ? the roman emperours have differed in this , for the eldest and the latest emperours did think , that such repeated elections did augment the dignity to those who were elected , and thus valentinian novel . . and this was likewise hadrians opinion , as spartianus observes in his life : but theodosius the younger thought , that these repeated elections did shew the merit of him who was elected , but did not augment his dignity , repetiti enim fasces virtutem sepe meritam comprobant , non augent , quia nihil est altius dignitate , l. . c. de consul . vid. cujac . ad l. illam , and with this last agrees goth. thes. . with us if the precedency be determined by a voice , this holds not , as if one should be elected to be the first alderman , and another to be a second alderman , this second would not have the precedency , though he had been ofttimes formerly preferred ; but in dubious cases , certainly repeated elections do prefer : and though the imperial dyet has decided precedency upon this account amongst generals of an army , to him who had been twice formerly a general , though the other had been first a general , as goldast . observes ; yet i find it more reasonable , that he who was the eldest general , should have been preferred : for that is the mark of greatest experience , and the not being frequently elected might have proceeded from want of new occasions or of inclination ; and it were absurd to think , that if one had been an old general , and his commission had continued for many years , that thereafter another , though thrice elected in a shorter time , should be preferred to him . with us also , i find that one who was been twice or ofter preferred to be provost or mayor , is preferred to him who has been onely once mayor ; and it is reasonable that they both living in one place , and being preferred by those of the same city , should be preferred in meetings relating to the same city . qvestion v. what influence has the conjunction of moe dignities upon precedency ? there are some lawyers who think , that he who has most imployments ought to be preferred to him who was but one : and thus they say , that he who hath two or three dutchies , or earldoms , ought to be preferred to him who hath but one , even as two or three lights are greater then one , and two or three cords are stronger then one ; and for this they cite l. fin cod. de edict . d. adrian . and of this opinion was menochius , consil. . and for this cause , marz . consil. . thought that the duke of ferrara ought to be preferred to the duke of florence ; and navarrus consil. . thought that a cardinal who was a chancellour ought to be preferred to an elder cardinal who was not ; and that a doctor of the civil and canon law , ought to be preferred to a meer doctor of the civil law. but yet gothofred is of a contrary opinion , cap. . thes. . and in our practice the greater dignity is preferred to many lesser dignities , yea , and the elder in the same dignity is preferred to him who was last promoted to the same dignity , though he have many lesser dignities joyned to it ; but betwixt two dignities that are different , if it be not known to which of the two the precedency is due , the conjunction of the lesser dignities with the dignity contraverted ought to prefer ; even as if it were doubted , which of two bodies weighed most , or which of two lights shined most , the least addition to either would certainly cast the ballance and alter the proportion : but if these many be all inferiour to one imployment , they ought not to be preferred , no more then many little pearles ought to be preferred to a great one ; and yet if it be doubted which of two pearles are of greatest value , the addition of two or three little ones to either , will raise the value of that one to which they are thrown in . qvestion vi. how far do former dignities influence a present advancement , and determine the precedency depending thereupon ? and what rank is due to honorary and extraordinary offices ? lawyers give divers instances of this , as first , a judge is made a privy councellour , but thereafter the president of that court , where he is a member or judge , is admitted to be a privy councellour ; in that case though the other was first admitted to be a privy councellour , yet the president , though last admitted , will have the precedency , and vot first even in the privy council ; because it is indecent , that a member should have the precedency , or vot before his own president : and thus papon . tells us , it was decided by the parliament of paris , vid. lib. . tit . . art. . which is not unlike what vitellius sayes , in tacitus . annal. foedum si de honoris praerogativa dimicare cum ducibus audeant , sub quorum sig●is stipendia fecerant . a second case is , that though a honorary or extraordinary officer will not be preferred to an officer ordinary , yet if a person be a honorary or extraordinary officer , before another be admitted to be an ordinary officer , if that person who was but formerly an extraordinary officer , be thereafter admitted to be an ordinary officer , he will be preferred to him who was admitted before him , though to an equal degree ; because , though he was not the first officer in ordinary , yet he is now equal in dignity with him , and was an extraordinary officer before him : as for instance , if one be admitted to be an extraordinary physician to his majesty , and thereafter become an ordinary physician , he will have the precedency from them who were admitted in ordinary before him , if they were admitted to be ordinary physicians after he was admitted to be extraordinary ; precedency being to be taken in that case from the time of the first advancement , l. . cod. de consulibus : but though this be observed abroad , yet i doubt if it be observed in britain . a third case is this , there are two made counsellors , but he who is last admitted a counsellor , is first nobilitat , and therefore even as counsellor he will have the precedency , though the other was made the first counsellor ; and this was so decided by the emperour theodosius , l. unica cod. theodos. de consulibus : and is in observance with us , amongst whom the youngest counsellor , being made an earl , is preferred to elder counsellors , and though the elder counsellor be thereafter made an earl , yet the eldest earl will always be preferred ; though it would seem that upon the first counsellors being made an earl , he ought to be preferred , as in the former case where an extraordinary is preferred , when he becomes to be in equal dignity with the prior ordinary officer . but the reason of the disparity is , because earles are always to preceed according to their priority , but officers are not , an office being but a thing temporary , and there being no difference betwixt an ordinary and extraordinary officer , but that the ordinary has a sallary , and waits more immediatly upon the king , but yet the extraordinary officer was truely of equal dignity with the ordinary . these extraordinar officers were called honorarii seu codicillares , l. . c. de metatis quibus citra cingulum dignitas pro solo honore delata est , they had no advantage save the dignity , nov. . nihil aliud nisi purum honorem habent , l. . de decur . they are called inanes umbrae & cassae imagines dignitatum . i have heard this case also stated with relation to the same quaere , viz. by the erection of the town of brichen , in a burgh royal the bishop of brichen is first to elect , and then the town are to elect their bailies : from which the question arises , whether if the bishop choose one who was never a bailie formerly , and the town choose those who were formerly elected bailies , should the bishops bailie preceed ? it being pretended , that though he is to have the first nomination , and the choise of all , yet that should not give his bailie or alderman the precedency , in respect that by the constant custom observed by all the burrowes , when many are elected to be aldermen or bailies at once , he who has been formerly a bailie preceeds always him who was never . qvestion vii . whether amongst such as have equal dignity , the first in time ought to be preferred ? it is answered , that generally and regularly the first in time ought to be preferred , amongst such as are equal in dignity ; which is clear be the civil law , not onely in kingdoms , but in all the degrees of nobility and promotions : and this our reason may teach us without law , for if there were not some certain and stated rule whereby precedencies might be known , it were impossible to evite confusion , and all other rules except this are uncertain , but yet this rule has some exceptions . o. princes of the blood , viz. the sons , brothers , grand-sons , and nephews of kings are excepted from this rule : for though they be dukes or earles of a latter creation , they are preferred to all of that dignity . o. in germany , if the chief of a family come to a dignity , equal to one of his kinsmen who formerly enjoyed that dignity , he will be preferred to him , though his kinsman did first attain to the dignity ; an example whereof gothofred gives cap. . thes. . this exception seems to be founded upon the right of blood , to which those of the same family seem to give that respect as to an elder brother ; but though those of the family may give this respect out of favour , yet in law they are not thereto oblieged ; for the prince being the fountain of honour , he onely can give preference , and his patent may prefer one cousin to another , since he can bestow employments which can prefer a son to a father : and therefore in britain , the date of the patent is onely considered . qvestion viii . when many are promoted at once in the same write , or when many are nominate tn the same commission , whether is the order of nameing therein exprest to be observed ? it is answered , that ordinarly he who is first named ought to be preferred , l. . ff . de albo scrib . albericus ad l. inter claras c. de sum . trinit . but though this hold , where the write wherein many persons are named is drawn upon design to prefer those who are named , because , there promotion being the design , it is to be presumed that the order of the promotion was observed , glossa . ad § . ult . auth. de defens . civit. & clement . . de baptismo , yet where the write had any other design ▪ and the nomination did onely proceed by way of narration , there an argument from the order of nomination is not still concluding ; especially , considering that such as draw publick papers ▪ are not always versed in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and thus i have my self seen old charters wherein the chancellour is oft-times placed after the lord chamberlain , and both of them after some of the nobility ; and if any man will consider our statutes , wherein commissions are granted , they will find this order very ill observed : and lawyers conclude this argument very weak in such cases , everard . in topicis loco ab ordine num . . golstad . lib. . cap. . and there are very clear examples of this given , cap. . de iudiciis , cap. pastoralis de concess . prebend . but yet in dubious cases , where the person injured cannot otherwise prove his precedency , this ought to bear great weight , especially , if many such papers can be shewed of one tenour ; and if the office granted by that commission gives precedency , above what the persons therein named could otherwise pretend to , then the first nomination has the precedency : as when ordinar gentlemen are named in the commission of the privy council , &c. i find also by the old records of parliament and privy council , that the members of parliament and counsellours are in the sederunts named as they entered into that particular meetings , but now they are named according to their true precdency . qvestion ix . in what cases does age prefer , and what is its prerogative in the matters of precedency ? the concession of the prince being the rule of honour , he who has the first concession ought to be preferred in the matter of publick honour , except in three cases observed by gothofred . cap. . thes. . first , in cases dubious . secondly , where the pretences are absolutely equal ; and thus of the two roman consuls , the eldest always preceeded , as plutarch observes . thirdly , to take away contraversies amongst persons of the same family , but of different lines . it is observed in germany and other places , that the eldest has always the precedency , as golstad and other german authours observe ; and this last holds likewise with us , if the precedency be not clear , and was so decided by king iames the sixth , betwixt blair of that ilk , and blair of balthaiock . qvestion x. whether does appearancy of blood give precedency before actuall investiture and possession ? though it may seem , that since marquisats , earldoms , &c. being feudal honours , conferred oft-times by erecting lands in a marquisat or earldom , that therefore till the apparent heir be actually invested , or infeft as we call it , he ought to have no precedency ; yet that being expresly ▪ debated , in anno . in the case of frederick duke of wirtemberg , it was decided , that the very right of blood transmitted the precedency : but golstad . coment . de reg. bohem. lib. . cap. . is of opinion , that though this may hold where the apparent heir sought to be invested or infeft , and his not being entered nor infeft was not his fault ; yet if he did not seek to enter , he ought not to have the precedency : with us though an apparent heir never enter , yet he has still the precedency due to his predecessor . qvestion xi . whether does the apparent heir his assuming and vsing the title and precedency of his predecessor , make him lyable to his predecessors debts , and infer a passive title against him , as we speak ? to this it is answered , that it makes him not lyable , in payment according to the present curent of our decisions , because honour descends from the king , and is not any lucrative accession , out of which debt may be payed , and no man should be made lyable to debts for enjoying that which cannot pay debts : nor does the son possess this title by his father , but by his family ; and lawyers have resolved that filius retinet nobilitatem etiam repudiata haereditate , bart. in l. iurisjur . § . ff . de oper. lib. iac. & in l. si non sortem ff . de condict . in debit . but yet this decision may seem unsuteable to the analogy and principles of law , for o. since honour is by the first patent and erection granted to a man and his heirs , it seems just and legal that none can enjoy the same , but such as are heirs ; so that this seems to be a qualified right granted by the king , and consequently , can be enjoyed by none but such as purge and purifie the qualities and are heirs . o. we see that in other rights granted to a man and his heirs , no successor can have right without being heir , and since this holds in accessions of the meanest nature , why should it not much rather hold in titles and dignities which are things of great importance ? o. we have no way nor method to know who is heir , but by an inquest , after which he who is served heir is lyable to all debts , and if he who is to use the title , needs not be found heir by an inquest , any man may use the title of a deceist peer , and if two contended for it , this could not be tryed without an inquest and service . o. the making men lyable to their predecessors debts for using his title , would be very advantagious for the defuncts creditors , and it is the interest of the common-wealth that creditors should be payed ; nor could the apparent heir complain , since he may choose to use the title or not as he pleases . o. it were advantagious to the common-wealth that none had a title , but he who had the estate which was given out with it , and out of which it was to be mantained , a poor nobility being a great burden upon a common-wealth and a ruine to it : and i find that the parliament of england did degrade george nevil from being duke of bedford , for want of an estate suteable to his dignity , which statut. . ed. . expresses the inconveniencies here mentioned , which are greater in scotland than in england , because our peers have more interest in laying on taxes than lords in england have . o. the law considers not in other cases , whether the thing used by the apparent heir , may be advantagious to him , or whether he may pay debt with it , for the using of meer ornaments , which can yeeld no money , or things of the meanest advantage , do make him lyable , yea , and he would be lyable though he were a looser by the thing he used ; whereas not onely are honours and precedency things of great advantage , and which men would buy at any rate ; but if a man have liberty once to use the title of his predecessor , it gives him a great opportunity to inhance his predecessors estate by indirect means : and the former arguments prove onely that the blood interest as to honour is transmitted without a service , but not that the feudal title of earl can be so transmitted . qvestion xii . whether does the appearancy of blood give precedency , where the predecessor is not dead ? this is called by the doctours , spes & expectantia successionis 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and upon this account it is debated , whether the son of a king ought to be preferred to his brother and all the peers ? and generally , whether the nephew ought to be preferred to the uncle who was his fathers second brother ? and i find it recorded that lycurgus did decide for himself against his nephew , being the son of his eldest brother : but i would distinguish here thus , first in the families of kings and princes , all the kings children are preferred to the kings brothers , and all the kings brothers to the kings uncles , and thus it was decided in france by henry the third , rupanus pag. . but formerly the uncles were preferred by the constitution of philip the long anno . and though in the roman empire before alexius comnenius the emperours son was still preferred to his uncle ; yet that emperour desiring to put a mark of respect upon his own elder brother , preferred him to his son , and now the sons of princes are so farr preferred , that not onely they , but all the princes of the blood are preferred to all other peers , though they be last created , as was found by the parliament of paris , anno . betwixt the dukes of neveres and monpensier . o. if in other families the brother be of a dignity equal to his elder brother , then the brother will be preferred to the nephew ; as if the brother be an earl , and the nephew a lord as being an earles son , in this case expectation will not prefer the nephew , because there are other actual degrees of preferrence . o. if the uncle were a lord by creation , and the nephew a lord by birth , in which case , if the uncle was a lord before the nephew was born , the uncle ought to be preferred as first in time , but not if the nephew was first born , and thus baldus distinguishes , ad l. ut intestato c. de su . & leg. hered . o. if neither the nephew nor uncle have any special dignity , then the son of the elder brother is to be preferred to the uncle ; and this last case shews , that the immediate hope of succession , or jus expectantiae , is in it self a ground of precedency , and since a man and his apparent heir are una & eadem persona in the construction of law , and that in many things that are disadvantagious to the son , he is look'd upon as heir apparent , in the same way as if his father were dead ; it is therefore just , that as he has the disadvantages of an apparent heir , so he ought to have the advantages of an apparent heir : and thus we see that our statutes having declared comprisings bought in by the apparent heir to be redeemable by the defuncts creditors , it was found that a comprising bought in by the eldest son , even whilst his father lived , was redeemable from him and that he was an apparent heir , in the construction of law ; and therefore since the law puts him in the same case , as if the father were dead , he ought to have the same precedency , and consequently ought to be preferred to his uncle , to whom he would certainly be preferred , if his father were dead . it is remarkable that in scotland , the uncle was of old acknowledged to be king during not only the pupillarity of his pupil ; but during the uncles own natural life , which being an invasion upon the natural right of our kings , was abrogated under kenith the third . qvestion xiii . whether should an elder brother , who was born before the father was preferred to the dignity of a king , marquess , earl , &c. be preferred to a younger brother who was born after his father had attained to either of these dignities ? lawyers have varied very much in this point , for some have been of opinion , that those that are born before the dignity was attained , cannot pretend to the precedency due to the father , for he cannot be said ( say they ) to be the son of a king , or marquess , whom a king or marquess did not beget ; and since those who are born before a crime is committed , loose not their dignity by the fathers committing of the crime , so by the rule of contraries , he who was born before his father was advanced to a dignity , ought not to participat of that dignity : this they found likewise upon express laws , l. si senatus cod. de dignitat . l. imperalis cod. de nupt. and thus darius was preferred to be king of the persians to artabazanes . others do more justly conclude , that these are to be preferred though born before the dignity was obtained ; for , if he who was born in that condition can be called the kings son , he must be the kings eldest son ; and it were very absurd that the father should be noble , and the son not ; and if a king had but one son , he could not be king if this were allowed : and this is most clear l. senatoris filium ff . de senat. where it is said , that he is aswell to be called the son of a senator , who was begot before the father was a senator , as he who was begot after ; and though this be true as to succession , and as to the degree of nobility in general , yet many lawyers are of opinion , that they do not attain to so eminent a degree of nobility , as if they had been born after the father attained to his nobility ; for by the former law , si senator natus ex illustri ante dignitatem adeptam , est clarissimus ; solum natus postea , illustris : others there are who say , that these who were born before , may succeed to honours which descended from old predecessors , but those which were acquired in the fathers own time , should onely descend to such as were born after these honors were acquired . but now generally in europe , and particularly with us , even those who were born before the father attained to any dignity , do participat of his dignity , as if they had been born after the same was acquired in all cases . qvestion xiv . whether ought a son who is in publick imployment and dignified , to preceed a father who is not ? it is answered , that a son being in publick imployment ought to preceed a father who is not . and thus fabius maximus commanded his father , to light down from his horse , when he was to meet him ; and was praised for mantaining the dignity of the roman empire in this case : and the son in this case is not a private person , but represenrs the prince or common-wealth , who are to be preferred to any person ; and therefore laurentius celsi was justly taxed at venice , because he would not meet his son when he was newly made duke of venice , least by being discovered before him he should lessen the perogative of a father . but it may be doubted , whether though this hold in employments , it ought to hold in titles , since in these the son represents not the common-wealth ; and therefore in these cases the laws of nature ought to prevail above the laws of honour , especially , if there be none present but father and son ; but if there be a third person present who will take the place from the father , but not from the son , then the son must preceed the father ; because , though he yeeld to his father , yet he should not yeeld to a third party : and it is a general rule in matters of precedency , that i must preceed you , if i preceed him who preceeds you , which is not unlike that maxime used in other parts of law , qui vincit vincentem me , vincit me . qvestion xv. whether may he who has the survivance of imployment , challenge any precedency upon that account ? to this it is answered , that he cannot claim any precedency : for , though there be there the hope of succession , and that the person to succeed be in actu proximo , and that likewise it may seem that he is advanced to a dignity , and so ought to have a precedency suteable to it , and that it may likewise seem fit for the interest of the commonwealth , that these should be respected and preferred who are marked out for the service of the common-wealth ; yet law nor custom have given them no precedency , for since they have actually no dignity nor power , they ought to have no actual precedency : and thus it was found by the parliaments of paris , and tholows in anno . & . that these who had survivances were onely to be preferred , according to the dates of their actual admission ; and so these who were admitted to be councellours or judges , after they got their survivance , ought to have the precedency from them , if they did actually administrate before them , vid. maynerd notabil . quest . cap. . math. de afflict . deciss . neapolitan . . qvestion xvi . whether does the daughter of a lord , who would himself have been an earl if he had lived , take place from the daughter of a younger earl. it may be alleaged that the daughter of the lord should not preceed , because , an earles daughter should still preceed a lords daughter , and this ladies father was never an earl , nor are we to consider futur honours in the matter of precedency ; and as she would not take it in her fathers time , so neither ought she after his death : and as her father himself , being a lord though an earles son , would not have taken place from the younger earl , so neither should the lords daughter from the earles daughter , he being a younger earl then that lords father : and i find by the heraulds records in england , that sir thomas lees daughter got a warrand from the king , to take place as a lords daughter , her father having died before his father the lord lee , which proves that she could not have taken place otherwise , and this is commonly receiv'd in england . but yet it may be debated , that the daughter of that lord should have the precedency , since her father would have been an elder earl ; and though she could not take place during her grand-fathers time who was the elder earl , yet per jus accrescendi , and the right of representation , she comes after her grand-fathers death , to be the daughter of the elder earl , for honour is but a part of succession ; and therefore as she might have right to her fathers succession , if she have not brothers , she may by the same reason have right to the honours : and it were very ridiculous to argue so , as that her elder brother ( if she had any ) might take place as an earles grand-child , and that she could not take the same place as his sister ; and consequently , since he would take the place of that younger earl , so should she of that younger earles sister or daughter : and the reason why she comes to a higher degree of precedency by the death of her grand-father is , because by the right of representation her fathers family comes in the grand-fathers place . and to shew , that this argument , viz. your father had not the precedency of me , therefore you cannot have it of my daughter , is a weak argument in cases of representation , may appear from this , that if it were a good argument , the younger earl might aswell say to that lords son , your father never took the place of me , so neither can you ; and though it may be answered to this argument , that the disparity betwixt the brother and sister lieth in this , that the son represents the grand-father , but the daughter does not ; yet if we consider it nearly , even this answer is fallacious : for though the daughter represents not the grand-father , yet the fathers family represents the grand-fathers , and so participats all the honours of the grand-fathers family by that representation ; and as the elder brother becomes an earl , because , if his father had lived he had been an earl , so she ought to have the precedency as an earles daughter , because her father would have been an earl for the same reason . qvestion xvii . whether if the elder brother be mad or dumb , &c. does the second brother get the same precedency , as if his brother were dead ? i have heard this case much debated , some contending , that such as were incapable of succeeding , were to be reput as dead , & per cap. . an mutis surdis , it is expresly declared , that such as are born deaf or dumb , or are naturally idiots shall not succeed : but others thought that even these are to succeed , but have onely their nearest agnats given them for curatours , and so they are heirs ; and consequently , the precedency is not due to their nearest friends during their life , and they may have children who would exclude their nearest agnats . i find some lawyers distinguish betwixt such defects as are natural , and follow the havers from their birth , and these defects do exclude from the succession , so that the next heir has the same precedency , as if his elder were dead , if the succession be of kingdoms , or fews that have a dignity annexed to them : but in private rights , and where the defects are accidental , they assert that the right remains with the heir though defectuus , and consequently he retains also the precedency , tiraquel . quaest . . qvestion xviii . which of two or moe twins ought to preceed , when it is contraverted which of them was first born ? we have a remarkable instance of this , gen. . where the mother desired the scarlet threed to be bound about his wrest who should be first born , and as to this point lawyers have differed very much , for some think that the estate ought to be devided amongst the pretenders , if it be divisible of its own nature ; or if it be indivisible the superiour may prefer either he pleases , if the succession be of a few ; or the decision may be referred to lot in privat persons ; or to the vote of the representatives of the kingdom , if the succession be to a monarchy . some likewise are for the brothers possessing by turns and alternately : and though one witness be not sufficient generally to establish the right of succession , yet if any one woman was onely present , her testimony would certainly prefer either , necessity forming it self into a law here as in other cases , vid. tiraquel . de iur. primi gen. quaest . . qvestion xix . whether do natural children born before a lawful marriage preceed ? and should they be preferred to the children born in a lawful marriage , if they be legitimated thereafter ? this case did exist in a most illustruous instance in scotland : for king robert the second having begot a son upon elizabeth mure , he thereafter married eupham daughter to the earl of rosse , and had by her the earles of strathern , and athol ; after which having married the said elizabeth mure , that marriage did legitimate her children , and by act of parliament her children were , by a recognition and acknowledgement of parliament , preferred to the children born in the lawful marriage . the reasons pro and contra , urged in that debate at that time are now unknown ; but the arguments which might have been urged in the case , are , o. that a son so legitimated would seclude without all contraversie all uncles , and other agnats , therefore by the same he should seclude his other brothers , § si quis autem defunctis authent . quibus mod . nat . cap . qui filii sunt legit . o. legitimation is retrotracted and drawn back to the time of the nativity , cap. tanta qui fil . sunt legit . and legitimation puts the person so legitimated in the same condition as if he had never been a bastard , l. si quis filio § pen. ff . de injust . test. and this is bestowed as a particular respect upon marriage and its sacred character , and to invite men to make satisfaction for the wrong they have done . o. by the roman law those that were born in captivity were not capable of succession , but how soon they were ransomed and had returned , they were restored to the right of primo-genitor , and preferred therein to those who were thereafter born at rome : and therefore since such was the force even of a civil and unreasonable fiction , much more ought greater force to be allowed to legitimation , which is founded upon so just and pious principles . o. quo-ad the right of succession , the time of the defuncts death to whom he is to succeed , does regulat the quality of the succession : and therefore since the person legitimated was capable of succession the time the defunct died , and was then likewise the eldest , he ought to succeed as eldest , whatever his condition was the time of his birth , l. post consanguineos § proximam ff . de suis & legit. nec enim prius debet de cujusque conditione queri quam haereditas vel legatum ad eum pertineat , l. in opportet . ff . de legat. . o. the eldest son was always eldest , and was onely hindred from this right of primo-genitor and precedency , by the legal imperfection of his birth , and therefore this impediment being removed by the same law which put it , his birth-right continues intire . but whether this priviledge should be granted to such as are legitimated by the prince , and not by the subsequent marriage , may be doubted ? and i incline to think it should not , because the special reason of the former concession depends upon the favour and honour of marriage ; and this is likewise clear , cap. & quoniam auth. quib . mod . nat . vid. imolam . in cap. grand . de sup . negl . praelat . and my second argument is that the prince cannot by any deed of his prejudge third parties ; but here such a legitimation , would prejudge the children of the intermediate lawful marriage . qvestion xx. whether ought the order of the nomination to be observed in commissions , where the persons are ranked otherwayes then can be consistent with the kings former express grants ? an instance of this may be given in this case , viz. the mayor or provost of a city being patron of a colledge within their own town , his majesty grants a commission for visiting that colledge , wherein he names first the bishop , then the mayor , &c. the question may be moved whether the bishop ought to preceed , because he is first named ; or the mayor because he has most interest , being patron , who may likewise alledge , that the bishops nomination proceeded onely from the ordinary custom of naming ecclesiasticks first . as also , if in a commission of justiciary , three lords of the session being named , and the youngest of the three being first named in the commission , it may be doubted , whether the seniority formerly acquired in the session ought to be observed , and give precedency in sitting and voting ; or if they ought to sit and vote , according as they are named in the commission : and it may be alledged that the seniority in the session ought to be respected , there being a right of precedency thereby acquired , which cannot be prejudged by a nomination , which might have proceeded upon mistake ; since it is not to be presumed that his majesty would degrade any whom he continued otherwise in so eminent a dignity : and as if two brothers were named in a commission , the elder would sit and vote first , though the younger were first named , that inversion being presumed to proceed from errour ; so ought the same to be observed amongst judges who are in effect brothers . some likewise use to argue in such cases from the reiterated order of nomination , and think that if the persons commissionated be oft named after the same order , that the order of nomination in that case is presumed to have proceeded from an express design of giving preferrence , and this they call argumentum a geminatione actuum ; but in my judgement it is no infallible argument , for these repetitions proceed in course . qvestion xxi . in the competition betwixt two who are advanced at the same time , but in different writes , as if two patents were subscribed by his majesty to two several earles on the same day , which of the two were to be preferred ? in answer to this , it is generally concluded , that though both be granted on the same day , and in the same hour , the priority of his majesties subscription would prefer him in whose favours his majesty did first superscrib ; which may be cleared by his majesties own declaration , for he being the fountain of honour , he is the onely fit judge in all contraversies concerning it , or if his majesty do not remember , the declaration of his secretary is undoubtedly to be believed , nam in his quae attingunt off●ium , officium gerentibus est credendum ; but if both his majesty , and his secretary were dead , some think that there were place left for the succeeding king to gratifie either , since the compleating of rights depends absolutely upon him , who is the first granter : and by the feudal law , and ours , if resignation be made at the same time in the superiours hands , in favours of several persons at the same time , locus est gratificationi , as craig also tells us , and he may prefer either as he pleases . some contend that where several patents are granted in the same day , the king may prefer either , though it be known which of the two patents were first signed and superscribed : for in law , where the difference of time is so little , the law looks upon it as no difference at all , nam de minimis non curat praetor , and albericus who has write a treatise de minimis , is of this opinion , and we see that the law in other cases brings in equally such as approach so near one another in time , nor can the king be said to be functus officio , and to have denuded himself of the power of preference , where the right of preference is so small ; as when the king superscribes both the patents at the same time , as that he does not intermix any other business , nec divertit ad alium actum , there indeed it seems that neither can claim preference by the priority of signing , since it appears his majesty had no design of preferring the one to the other , and papers are ordinarly presented to him by accident , as they fall in course . it may then be alledged , that in such dubious cases , where preference cannot be known from the superscription of the patents , and where his majesty does not declare the preference by any posterior act , but leaves both parties to the common law , that there he who had the precedency before these patents ought to be continued in the preference , since in all dubious cases the law still prefers the possessor , & semper in casu dubio pro possessore respondendum ; nor can it be imagined that his majesty designed to degrade a person whom he hath actually preferred ; but so it is , that to postpone a man to him to whom he was formerly preferred , is somewhat to degrade him : and since accumulation and conjunction of titles has very many effects in the case of preference , the least effect it can have , is to prefer the haver in such a dubious case . i likewise conceive , that if two patents were given at the same time , one to a person who had served his majesty , and much more to an actual domestick , and the other to a person who had not served , nor were no domestick , that in these cases he who had served , or were a domestick would be preferred , because of the presumed affection of the prince , and the former service of the receiver . qvestion xxii . whether is precedency to be ruled according to the date of the provision , investiture , or actual possession ? there are three several times from which ordinarly precedency is computed , the first is the time when the honour is first granted , which is called by lawyers tempus provisionis , if the advancement be of one single person to a single dignity ; or tempus cooptationis , if the person advanced be associated into any society , as to be one of moe judges , &c. the second period of time , is the time of the investiture , as when a nobleman is brought in in his robs . the third is , the time when he apprehends actual possession . these who write upon this subject do conclude , that precedency is to be given not from the time of promotion or provision , but from the entry to possession , so that he who is last provided or dignified will have precedency , if he first actually apprehended possession , bald. in cap. cum olim . de consuetud . gothofred . de preced . cap. . num . . and thus he observes the courts of rome , paris and tholows to have decided , and for this he cites l. ult . ff . de excusat . tutor . l. . cod. theod. quis in grad . prefer . and since administration is the end of that advancement , the act is not compleat till then . though this hold in honours which require administration , such as the being in a judicatory , &c. yet it holds not in honours where no administration is requisit , and thus , if two be advanced to be earles , he whose patent is first past the kings hand will have the precedency , though the other serve in the first parliament , or be present there a day before the other , or have his patent first registrat ; for it is the king , and not his clerk , that makes noble , but yet this is debated by la rocque , cap. . lawyers likewise observe that the former rule , preferring him who has first served to him who was first provided or invested , holds good , though he who was first provided or invested was not in mora , and did not delay to take possession , but was hindred by some extrinsick impediment , such as sicknes ; and this they say was decided the of april , . in rota romana , and this is observed to be the common opinion by gonzales ad regulam . cancel . and this they prove by the analogy of other feudal rights , which being to be compleated by possession , the law considers not whether the party who should have possest was hindred from attaining to possession , but who first attained to possession . qvestion xxiii . whether does the dignity of him who bestows the honour , regulate the precedency that is bestowed among equals ? it is answered , that it does , all other things being equal ; and thus those who have the same dignity from a king , as for instance , those who are made knights by a king are preferred to those who are made knights by a common-wealth ; and amongst common-wealths , those who are made noble by the greater common-wealth are preferred , to those of the same degree made noble by a lesser common-wealth , gloss. ad l. . de alb. scribend . menoch . consil. . lauderus de dignitat . conclus . . and this holds so farr , that the youngest knight admitted by the one is preferred to the eldest admitted by the other : but knights admitted by a commissioner , are not upon this account to be postpon'd to those made by the king himself , since they are in the construction of law admitted by the same dignity , & qui facit per alium , facit per se. it is very observable , that the french king prefers the dukes made by the emperour , not onely to the dukes made by himself , but even to the ambassadours of forreign kings ; though i think this is allowed onely to these dukes , who are sovereign princes . by this rule likewise it is , that the clerks of a superiour court are preferred to these of an inferiour , since they derive their power from a higher jurisdiction . qvestion xxiv . whether can a prince nobilitat any of his own subjects in the territories of another prince ? it has been argued that he cannot ; because he cannot bestow honours , but where he is a prince , but so it is , that he is not a prince , at least hath no power in the territories of another prince : which opinion seems to be founded on l. ult . ff . de off. praefect . vrb. and therefore sigismund the emperour having designed at lions in france , to creat the earl of savoy , duke of savoy , he was resisted by the governour of lions , till the french king should be advertised ; and charles the fifth having whilst he was emperour , created some lords and knights in france , though at the desire of francis the first the french king , their creation being thereafter contraverted by their peers , it was found illegal : but yet i incline rather to noldus's opinion de nobilitate c. . who thinks that a prince may exercise any voluntar jurisdiction without his own dominions , especially in relation to his own subjects , l. . ff . de officio pro consul . bartol . in l. . col. . la rocque triact de la noblesse , c. . and if they should attempt against his life , they would be guilty of treason , though the attempt was made in a forreign nation . lawyers likewise have allowed to princes all manner of jurisdiction , even within the dominion of others : and therefore i much admire , how these honours that were bestowed by charles the fifth , could have been thereafter contraverted , if the persons to be dignified were the emperours own subjects ; but i believe they were not . qvestion xxv . whether when the president of any court or incorporation is absent , may the eldest member convocat the incorporation ? and who ought to perce●d in that case ? to the first of these questions it is answered by some lawyers , that the president being absent , the eldest member in dignity , may by his own authority call the meeting convocare collegium , as they call it , and of this opinion are hostiensis , panorm . bald. ad cap. . de maior & obed : but others are of opinion that the major part has only right to conveen the rest in that case innocent . ad cap. . de operi . nov . nunc . but a third sect of lawyers do , for agreeing the former opinions , assert that in ecclesiastick meetings , the eldest may by his own authority call the rest , but not so in laick meetings ; and the reason of this distinction seems to be , because church-men are bound to give more obedience to their seniors , and there is less fear of design amongst them , both because they are presumed to be more disinterested , and because in their meetings their posterity is not to gain : but without any distinction i should think , that the eldest may always convocat , for there may be hazard in delay , if the greater part were requisit , for the question still recurrs who should call the greater part , nor can there be great hazard in calling , for the onely hazard is the packing of a quorum , and this may be prevented , by imposing a necessity upon those who meet to advertise the rest . to the second question it is answered , that this is much to be determined by custom , and our courts in scotland suffer not the eldest to preceed , but choose alwayes one to preceed in the absence of their constant president ; and this seems to be most reasonable , because every member of a court is not ordinarly fit to be a president : and yet there are some lawyers who distinguish betwixt such courts , to whom the chief magistrat has chosen no constant president ; and in these they say the eldest cannot preceed , though they say he ought to preceed in these courts where the king has choos'd a president , for as in these the members cannot choose a constant president , so neither can they choose a vice-president , since surrogatum subit naturam surrogati , whereas the eldest is a president by the magistrates tacit election , since he has that seniority from the king , or supream magistrate , which does prefer him to be president : and we see that amongst souldiers , the eldest officer alwayes commands , when the superiour officer is absent . qvestion xxvi . whether may a peer be degraded , because he hath not an estate sufficient to entertain a person of his quality ? and by whom may he be degraded ? it would seem that a peer cannot be degraded , though he hath not a suteable estate , because the king may nobilitate a person that wants an estate , and nobility being a right derived from blood , it seems to have no dependance upon riches , and as the having of riches gives not nobility , so neither should the want of them take it away ; likewise this is very express by the roman law , lege humilem , cod. de incest . nupt . where it is said , humilem & abjectam foeminam non eam esse quae licet pauper sit ab ingenuis tamen parentibus nata est . and that this hath been very anciently the opinion of the world , is clear from that of euripides , apud stob. serm . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . but i find that cook . inst . folio . and the authour of ius imaginis , pag. . conclude that poverty is a good cause for the degrading of a peer , an instance whereof , they give in george nevil duke of bedford , who was degraded by act of parl. . edward the fourth , of which act this is the tenour , and forasmuch as it is openly known , that the said george hath not , nor by inheritance may have any livelyhood to support the said name , estate , and dignity , or any name of estate , as oftentimes it is seen , that when any lord is called to high estate , and have not livelyhood convenient to support the same dignity , it induceth great poverty , and indigence , and causeth oftentimes extortion , embracery , and maintenance to be had , to the great trouble of such countries , where such estate shall happen to be inhabited ; wherefore the king by advice of his lords spiritual and temporal , and the commons in this present parliament assembled , and by the authority of the same , ordaineth , establisheth , and enacteth , that from henceforth the same erection , and making of the same duke , and all the names of dignity to the said george , or to john nevil his father , be from henceforth void , and of none effect , &c. from which act three things may be well observed , first , that the said duke had not any possessions to support his dignity , yet his dignity could not be taken away from him without an act of parliament . secondly , the inconveniencies appear , where a great estate or dignity , is not accompanied with a livelyhood . thirdly , this is a good cause to take away the dignity by parliament . for reconciling which opinions , it seems indeed , that though a person who is noble by birth should fall into poverty , yet that poverty can no more degrade him from his nobility , then it can taint his blood ; but though it cannot root out that noble character from his blood , and make him no gentleman , yet it seems a good reason why he may be degraded from being a peer of the realm : for the being a peer , is no necessar effect of blood , but a mark of the royal bounty , bestowed for the better government and advantage of the kingdom , earles being by their original praepositi comitatus , or commanders of the county , and counties or shires are so called , because they are the governments of a count or earl : and therefore when the king and parliament find that they are not fit to bear this quality , they may justly take away that honour that was given , nor can there be any thing so inconvenient , as that these should represent the kingdom in its greatest concerns , and burden it with with taxes , who have no interest in the one , nor can bear any share in the other . and that these feudal dignities and markes of nobility may be taken off by the loss of the fews , is clear by bartolus in l. inam . cod. de dignitatibus , and that this is the custome of sicily is clear , afflictus . col. non . in . not . it may likewise seem reasonable , that as the king onely can bestow nobility , so that it should be onely proper for him to degrade ; and since he may create any nobleman though he be poor , so he may continue him so , notwithstanding of his poverty , specially seing the being a peer is but to be the princes counsellour , nor can any judge who are fit to be his counsellours , but himself ; nor is the parliament any thing but his great council : but since this degradation is a kind of forfeitur , it seems that the parliament onely can be judges therein , since the king does not use to forfeit by his own authority ; and though the former arguments may prove that a peer cannot be degraded for poverty , except the king pleases , which is certainly true , since no act of parliament can pass without his royal consent , yet they prove not that the king may degrade a nobleman by his own authority , except he may judge all cases immediately by himself . qvestion xxvii . whether is a patent never made use of by the father , valid after his death ? it is answered , that though the patent being granted to such a man therein designed seems to die with him , and that the father dying with this quality cannot transmit it to his son , yet it is certain , that the patent is valid to his posterity : for except where it was designed to be personal , it is conceived in favours of a man and his heirs ; and thus it was judged in the cause of quesnel advocat in rowan , . may . vid. la rocque cap. . qvestion xxviii . whether if the father use any low or base trade which derogates from nobility , will his children and descendents loose it thereby ? in answering to this case , we must distinguish betwixt such as derive their nobility from their fathers onely , and some think that in that case , the misbehaviour of the father does extinguish the nobility of the race , and that the descendants are no more noble , except they be restored by an express gift ; or otherwise the nobility of the race has descended from a long series of predecessours , and then the fathers deed does not prejudge them , since they do not owe their nobility to him , and the prince having nobilitat such a man and his posterity , they owe their nobility to the king , and derive it from him equally with the father , which distinction i find in the learned faber . cod. l. . t. . def. . but it seems that by this last reason , even that nobility which is begun in the father cannot be lost by his fault : and therefore some lawyers have been of opinion , that that nobility which descends by immemorial possession , and which flows not from a particular priviledge and concession , can never be taken away by the fathers baseness or crime , warnaesius tom . . responsorum de iure pontificio consil. . num . . and thus we find in the roman story , that marcus emilius scaurus was found not to have lost his nobility by his fathers becoming a bearer of coals , curt. conjectur . jur . civil . lib. . cap. . and others think that as it is sufficient for acquiring nobility , that the grand-father and father have been repute noble ; so by the rule of contraries , it is sufficient for extinguishing nobility , that the father and grand-father have been repute ignoble ; and though the rights of blood cannot be lost by prescription , yet nobility may be lost , as all other priviledges can , by not exersing or owning it time out of mind . it is fit to know , that in this isle not onely that nobility which comes by succession and immemorial possession , but even that which comes by priviledge and concession can be forfeited by the fathers crime ; and in this we differ from warnesius opinion , and therefore the children must be rehabilitat and restored by the king ; but the fathers unworthiness in exercising mean shifts and trades , does not amongst us derogate from the childrens nobility , as in other nations ; nor do i see any reason for the distinction used by warnesius , for all nobility must be acknowledged to have flowed originally from the king by concession , and even that nobility , which comes by priviledge , does descend upon the children by the kings grant to them aswell as the father , and so cannot be prejudged by any personal deed of his , except in the case of a crime against the king , for that is still implyed in the concession , and it is not just that the children of traitours should enjoy those titles , and that nobility which might be useful to them in revenging their unjust quarrels . qvestion xxix . one having resigned a dignity or imployment , and returning thereafter thereto , whether does he who has so resigned return to his former precedency ? to this it is answered , that he does not ; but having embraced again the employment he had formerly resigned , he is onely to have precedency according to his last reinstalment , langleus . semest . . where it is laid down as a rule that precedency once lost is never recovered , and an instance of this is given cap. ex insinuatione . in a chanon : who having once renunced his benefice , and having thereafter embraced it , is onely to be preferred according to the date of his last title . from this last rule , viz. that a precedency once lost cannot be recovered , gothofred . de preced . cap. . num . . observes these exceptions , first , if the person who renounced his dignity was preferred to a higher or more noble , in which case if he return to his first imployment , he looses not the precedency due to it , for a greater dignity never prejudges the lesser , l. . c. de dignitatibus rupanus , lib. . cap. . and contains in it the lesser , per eminentiam , as lawyers speak , superveniens major dignitas auget non minuit statum , except the two offices be incompatible in themselves , for then the lesser is extinguisht by the greater , l. si debitoris ff . de fidejussor . the second exception is , if the person in whose favours the resignation was made , will not accept , and upon his refusal the resigner does presently return to his precedency , l. si forte ff . de offic. presid . and the reason is , because the resignation being there made in favours of another has that tacit condition in it , that if the other in whose favours it was made accept not , the resignation shall be null , and this is the nature of all resignations in favorem with us as to all fews , as craig well observes . the third exception is , if he who made the resignation do presently repent , for in that case likewise he is in the condition , as if he resigned not ; and thus the law takes not advantage of our sudden and undigested thoughts , et uxor quae mox rediit divertisse non videtur . the fourth exception given by him is , if he who resigned reserved to himself his former precedency : for which though there be several roman decisions , yet it is very debateable , how far a man can by protestation or paction , distinguish and reserve a precedency , when he has resigned or disponed the imployment to which it was annexed ; for since the precedency is onely due upon the account of the imployment , it would seem that he who has resigned the imployment , cannot retain the precedency , and to do so , were to retain accidens sine subjecto : qvestion xxx . whether may a nobleman resign his honours in favours of a third party ? and if the kings confirmation thereupon will exclude the nearest agnats , who would else have succeeded by their right of blood ? this question seems of great importance and intricacy : for it may seem that he may transfer his title in prejudice of his nearest heirs , because the title is onely a fee , and all fews may be alienated ; nor is this a meer right of blood , but a priviledge bestowed by the king , and consequently may be transferred by his consent : nor can their be any thing more for the interest either of the kingdom or of noble families , than that when the nearest heir is unfit to succeed , wanting either means or wit suitable to such a dignity , it should be in the power of the king , and the noble person himself to choose a fit successor . like as this was so decided in the case of robert king of sicily , cl. pastoral . de re iud. and many lawyers have been of opinion , that even elder brothers might resign their right of succession and primo-genitur in favours of the third brother , passing by the second , vid. c. . § praeterea tit . quib . mod . feud . amit . & bald. consil. . but others conclude , that the nearest by blood are not prejudged by such resignations : because this is a right flowing from the favour of nature and law , naturae & legis donum quod non potest auferri , l. si arrogater , ff . § sed an ff . de adopt . nor is dignity exposable to sale or in commerce , l. iulianus ff . si quis omiss . whereas if such resignations or transmissions were sustainable , all titles might be sold , and the meanest fellow if rich , might by the favour of a minister , and the folly of the present possessor , exclude the noblest race : and by the feudal law , though a vassal may denude himself , yet he cannot transmit his fee in favours of remoter heirs to the prejudice of the nearer , cap. titius tit . si de feud . fuer . contravers . this case is not decided with us ; but the king upon a resignation from the late earl of caithnes in favours of glenurchy , confirmed the title in his favours , but by a new patent , and without the former precedency , and discharged by a letter the next heir to use the title , till the matter should be decided by the judge competent . but i find that in england ed. . granted to edmond de lincourt upon his petition a patent under the great seal , impowering him to assign his sirname , arms , and barony : but the lord hoe having assigned his name , arms , and dignity without the kings licence , the deed was adjudged void in parliament ; from which the authour of ius imaginis , pag. . concludes first , that the title of nobility may be assigned : secondly , that it cannot be assigned without the kings licence : and yet i find that in the viscount purbecks case , it was lately found by the parliament of england , that a nobleman could not levey a fine upon his honour in prejudice of his heir , that is to say , that a nobleman could not do any deed to the prejudice of his honour , by alienating or surrendring the same to the prejudice of his heir , though i am informed that there were very many instances adduced for clearing the contrare opinion . qvestion xxxi . whether does the former right of precedency remain with him who has resigned the office by which he enjoyed the precedency ? it seems that the honour being in that case due upon the account of the office , should cease with its cause : but yet such respect is given by the law to those who have once enjoyed an office , and used it well , that the former dignity and precedency is allowed them after they have resigned the office , l. eam legem ff . de excusat . illi in quos munera nostra redundarunt , beneficiis eorum non solum quamdiu militaverunt , sed etiam quamdiu vixerint , perfruentur , and guid. pap. relates decis . . that it was so decided : for the being esteemed worthy to possess such an office is a quality inherent to , and inseparable from the person so advanced , and in most cases even deprivation does not extinguish the precedency , because the order still remains , as if a bishop be deposed he is still a bishop , and therefore has precedency as such ; but in such cases as the deprivation destroys the order it self , it destroys also in that case the precedency , as if a knight were degraded for cowardliness , he is no more a knight , and so looses the precedency annext to the order , l. . de dignit . si iudices se furtis & sceleribus fuerint comaculasse convicti , ablatis codocillorum insignibus & honore exuti inter plebeios habeantur . qvestion xxxii . if a person do not of himself resign , but be called from his charge by the prince to another imployment , and one provided to his place , and returning thereafter to his first dignity by the princes command , whether does he get precedency according to his first or last instalment ? i find this to have been agitated in the parliament of savoy , anno . in the case of the bishop of alby , who being called from being a counsellour in that parliament to a bishoprick , and his place being filled by another , he thereafter was called back to be a counsellour : and this may fall out with us in many cases , as for instance , if one should be called from being a lord of the session to be justice general , and should thereafter be returned to be a lord of the session : and i find it was decided in savoy , that the person so recalled ought to preceed according to his first instalment ; but the reason there was that the prince had expresly declared at his demission , that if he returned he should return to his first precedency , and that it were indecent that he who was first formerly in that judicature , should therafter sit in the lowest place , meerly because he was once called away to a higher preferment : and in my opinion , if the prince had not so expresly declared at the first demission , the case might have been harder , but that declaration made that those who were thereafter preferred , could not think themselves prejudged by this new readmission , since their instalment was still burdened with this tacit quality . i likewise think , that if he had returned before any others had been advanced , the difficulty had been much less , since there no third party was prejudged of a right acquired medio tempore ; albeit it might be alleaged that by his translation , the other judges formerly below him succeeded to his right of precedency ; for against this i conceive the former protestation could have easily guarded , albeit that protestation does seem contraria facto , and the quality adjected to be inconsistent with the nature of the thing , where the place was filled by another , since regularly two cannot preserve the same rank or degree , arg. l. cum in testamento ff . de haered . instituend . it may be likewise argued , that though this quality and protestation was admistable , where the party so called away was called to a higher dignity of the same rank , that there the lesser was possest by possessing the greater , as if a justice general should be called back to be a lord ; yet this would not hold , notwithstanding of the former protestation and quality , where he is called away to a lesser imployment , or where he is called to an imployment of a different and incompatible nature , as from being a judge to be a collonel : and yet all these questions seem of less difficulty with us , where the prince may certainly admit a judge to be the first or last : and therefore amongst us these questions would onely take place , where the person formerly installed was called away or preferred without any such declaration of the king in his favours . qvestion xxxiii . whether does he who is suspended from the exercise of an office , return to the same precedency when the suspension is taken off ? to this it is answered , he does : for though a suspension may seem a degradation and a privation of the former honour , and all privations extinguish , nec datur regressus a privatione ad habitum , yet , suspension is in law declared to be onely a temporal interdiction from the exercise , but not an extinction or privation of the right : and this is clearly determined , l. . § ff . de decurion . and by langlaeus . semest . . qvestion xxxiv . two having offices , and changing one with another their imployments for a time , whether when they resume their former imployments , do they return to their former precedency ? it is answered , where two did exchange imployments , and thereafter returned to their old imployments , lawyers are of opinion , that in that case they return to their former precedency , and that their imployments are not looked upon as new imployments , because the one possest still by the other , and so the possession was still the same , as if it had been by themselves , l'oiseau lib. . cap. . rupan . lib. . cap. . but though this may hold where both of them changed but for a time , since there indeed the one possest by the other ; yet this seems harder , in the case where both of them exchanged absolutely and for ever : for there , their former right seems to have been extinguished , and the imployments to be new as to both . qvestion xxxv . whether is he who is restored by the prince to a dignity , from which he was degraded , to be restored to the same precedency which he had formerly ? to which it is answered by gothofred . cap. . thes. . that he is not by this restitution to recover his former precedency from which he was degraded , but he must preceed by vertue of his new title onely : but i should rather distinguish betwixt these who are restored by way of justice , in which case the precedency ought to be the same , because the restitution be way of justice takes away the impediment and degradation , as if it had never been ; but where the restitution is onely by way of grace , there the fault and sentence still remains , though the punishment be taken off ; and there the restitution ought not to restore the precedency , in prejudice of those who had acquired titles betwixt the forfeitour and restitution : a clear instance whereof we have in the earl of crawfurd , who being forfeit for rebelling against k. iames the . at the battel of brichen , and being thereafter restored , he was not restored so as to take place from the earl of huntly ? but yet it is observable , that the . act. p. . p. . i. . which appoints restitutions per modum gratiae , not to prejudge third paties ; speaks onely of lands , possessions , and such other parts of the estate forfeited , but speaks not of honours ; and therefore some conclude that persons forfeited may be restored to the honours of their family , notwithstanding the precedency by the rest of the nobility in the interim , which is the rather received amongst us , that the king may with us creat an earl with the precedency from all others , as he could have done in england before the statute of hen. . for i find by the herauld records , that edmond of hadham is created earl of richmond , & quod habeat sedem in parliamentis & alibi proximum ducibus : and henry beauchamp earl of warwick , is made primus comes angliae , whereas he was formerly almost last , and thereafter is created duke of warwick , with this addition ; that he shall go mate-like with the duke of northfolk , and above the duke of buckingham . and since our kings had this prerogative , and that they have not restricted themselves , they might have it still , though they should use it sparingly . qvestion xxxvi . whether have the ambassadours of monarchs the precedency from other monarchs or princes themselves , if personally present , even as the kings would do whom they represent ? and if in all cases an ambassadour ought to have the same precedency that is due to his constituent ? to this it is answered , that though an ambassadour represents the monarch from whom he derives his commission , and that some learned lawyers do upon that account assert , that they are to have the same precedency that is due to their master , and so to be preferred to all kings and princes though present , to whom their constituents would have been preferred , paschal . de legat. cap. . yet the custom of nations has run contrar to his opinion , in preferring even inferiour kings and princes : and it is decided amongst the princes of germany , tit. . aureae bullae , car. . and in anno . the ambassadours of charles the fifth emperour , were decerned to cede the precedency to ferdinand king of the romans , and the reasons are , o. because princes found it their interest to have no subject compete with them , or to have their own presence lessened by such marks of disrespect . o. in a prince who is present there resides true and original majesty ; whereas an ambassadour is onely dignified with a supposititious and representative honour , shining ( if i may so say ) with borrowed rayes : and of this opinion are brunus de legat. lib. . cap. . and costa consil. . though zouch . de iure inter gentes seems to favour paschals opinion . it may be likewise doubted , whether an ambassadour does retain the same precedency due to him as ambassadour , when the prince who sent him comes to the place himself : and this was debated by the earl marishal who was sent over ambassador to denmark , when k. ia. . went over in person thereafter , and brought over chancellour maitland with him , who challenged the precedency from the earl marishal , alleaging that an ambassadours power evanishes upon his princes appearance : which debate was decided by king iames in favours of the chancellour , albeit the earl contended , that as his ambassie ceased upon the kings coming thither , so did the others office as chancellour cease in a forreign kingdom , and therefore that he should have preceeded as being an earl. the former opinion preferring inferiour princes when personally present , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is so much the rather true , that ambassadours are not , when they come to visit the judicatures of the nations where they preceed allowed the same precedency ; and generally it is given as a rule by lawyers , that in locis & actibus iudicialibus legatis praecedentia solita non servatur , & non pro dignitate regis aut alterius a quo ablegati sunt , gothofred . de iure praecedentiae , cap. . num . . so that though kings themselves would sit above all these judicatures , yet their ambassadours sit but among them ; thus the venetian ambassadour was onely placed in the parliament of paris after the bishops , as rupan . observes , lib. . cap. . though ambassadours have the same precedency that is due to their constituents , yet agents and residents of princes have not , nor has the popes nuncio the precedency that is due to an ambassadour , gothofred ▪ ibid. for these in effect are sent oftentimes to prevent the debates that might-fall amongst ambassadours , and therefore the french king sends very rarely his ambassadours to the emperours court , because he knows that court would give the spanish ambassadours the precedency , which he thinks is due to his ambassadours . qvestion xxxvii . whether have such as have been ambassadours , or have been in such honourable imployments , any precedency thereby when their imployment is ended ? to which it is answered , that though after an honourable imployment is over , whether by dimission , or by the expyring of the commission , the precedency thereto annex'd ceases with it ; yet the prince sometimes gratifies the person with a continuance of some precedency and honour : and in the records of the herauld office in england , i find that in a court marishal , sir dudley diggs , and sir thomas smith , were adjudged to have the precedency from other knights-batchelours of their own degree , because they had been ambassadours , though their commission was expired . in the customs also of most nations , a judge retains still amongst those of his own bench the same precedency that he had formerly before his dimission , or his being laid aside , except he has been laid aside for a crime or fault . qvestion xxxviii . what place is due to the representatives of subjects , such as viccars , deputs , assistants , & c ? it would seem that as ambassadours have the same place that is due to him whom they represent , so those who represent subjects , as viccars who represent the bishop , deputs who represent judges , ought to have the same place that is due to those whom they represent : i find that l. . de bonorcodicil . c. theod. there are four dignities ranked , viz. praefectorum , proconsulum , vicariorum , & exconsularium . and certainly in those acts , wherein they represent their constituent , they have the same precedency that is due to him , felin . in cap. cum olim de offic. de legat. and thus by the canon law , the bishops viccar is preferred to the dean , and arch-dean , and not onely are these representative dignities preferred in the acts of their jurisdiction , but even in all other deeds , which necessarily preceed or follow them ; and some lawyers are of opinion , that they are to be preferred to the same dignity , in all promiscuous and indifferent acts which fall in during the time of the representation , and thus cautuccius decis . . is of opinion , that the bishops viccar sent by him to hold a synod , is to have precedency before all the chapter , not onely in the synod it self , but likwise in all other assemblies , visits , and intertainments , during his commission : but the contrare of this is mantained by menoch , consil. . and in my opinion , these doctors may be thus reconciled , viz. if the representation flow immediately from the law , as for instance , if the council should delegat any man to be sheriff , there the person substitut would have in all cases during his commission , the same place that is due to him in whose place he was surrogat , for there surrogatum sapit naturam surrogati ; but if the representation flow from the person himself whom he represents , in that case the representative has onely the precedency , whilst he is exercising the office , or in actions thereto relating ; and thus sheriff-deputs with us have onely the precedency due to their constituents , whilest they are exercising these acts which relate to their office : and yet i think , that those representatives of subjects have even in all extrinsick and indifferent acts the precedency due to their constituents , when they meet with others of the same degree , and thus amongst sheriff-deputes , &c. the precedency is to be given according to the precedency that is due to the principal sheriffs . qvestion xxxix . what precedency is due to assessors appointed for iudges , and to extraordinary iudges ? i conceive that assessors chosen by a judge get no precedency thereby , since subjects cannot bestow dignities ; but that where the prince names any man assessor to a judicature , the person so named has thereby the precedency next to the judge to whom he is named assessor , nam est ejus umbra , his shadow as the law speaks , and the shadow should follow the body : and with us when the council names assessors to the justices , the assessors vote onely after the justices ; and yet in france i find that assessors take place after the president , and before the other councellours , and so it was decided at paris , . it may be also doubted , whether our extraordinar lords of session who sit with and vote after the ordinar judges , should have place after them if they were not earles or noblemen , as by the institution they are oblieged to be ( but not either as that the king may not promote gentlemen hereafter ) quo casn , i think they would take place after the ordinar , as they vote after them : for these extraordinar lords are like to these adscriptiti● or allecti , l. . c. ut dignit . ord . servetur . of whom capitolinus in the life of pertinax , qu●m commodus allectionibus innumeris praetorios miscuisset , senatus consultum pertinax fecit jussitque eos qui praeturas non gessissent sed allectione accepissent post eos esse qui vere praetores fuissent . qvestion xl. whether can the king creat now an new earl , and ordain him to preceed all the former earles , or any such number of them as he pleases ? it would seem that the king cannot : for there being a precedency acquired to the former earles by their first gift , the king cannot by any new gift prejudge third parties , and this were in effect to forfeit them of their precedency ; likeas it would seem , that since most earldoms were granted by erecting lands in an earldom in favours of the receiver , that therefore the concessions of land and honours are of the same nature , and that no new grant can prejudge the one more then the other . but it may be urged on the kings part , that the king being the onely fountain of honour , he may do therein as he pleases , except in so far as he is limited by law ; and therefore since there is no law with us limiting the king in this point , he may do therein as he pleases . o. the king by act of parliament , henry the eight , is limited as to this point in england , so that he can grant no such preference ; and therefore it may be concluded that this was formerly in his power even there , and that since he is not limited here , his power is here intire as to this point , whereof many instances are given in answer to quest . . and since that statute , it is thought that his majesty may ordain the last knight to preceed all the rest formerly dubb'd and created , because knights are not exprest in that statute . o. we see the king in scotland does impower countesses to retain their former precedency , though they marry a husband of a rank inferiour to their first husband ; and dukes daughters even after their marriage to retain the precedency due to them as dukes daughters . o. his majesty does by new confirmations transfer the honours to hiers female , though the patents at first were onely granted to hiers male , and so by the not existing of the hiers male , those earles who have the next precedency might aswell alleadge , that the king could not by any new right in favours of the hiers female prejudge them . o. his majesty does sometimes appoint any of his officers of state to preceed other as he pleases , though these may likewise alleadge , that there is jus quaesitum to them by their prior gifts : o. his majesty restores the sons of persons forfeited to their fathers precedency , notwithstanding of the jus quaesitum , by others medio tempore . o. the king has oblieged himself not to prefer the knights of nova scotia , or knights-baronets , otherwise then according to their creation , which had been unnecssar , if the king could not have preferred them by his royal prerogative : sometimes also his majesty confirms to the nobility the entails of their estates , whereby they have power to name their successour with the precedency due to themselves , which right being ordinarly ratified in parliament , uses to establish and transfer the precedency upon the heir or successour so nominated ; but since ratifications pass without observation , and oftentimes without reading , it may be doubted whether such a ratification should prejudge even these who were members of parliament , but much more such as were not present , or such as were created thereafter , these ratifications not being properly publick and legistative statutes , and so can bind onely such as consented . qvestion xli . whether if the king should creat an earl with precedency to all other earles , during his life ? or if when an earl is forfeited , will his lady in either of these cases retain the precedency she formerly enjoyed during her husbands life ? to which it is answered , that as to the first it was expresly decided in england , in the case of the earl of notingham , that he upon the surrender of the admirals office , being by king iames allowed the same precedency that belonged to iohn lord moubray his predecessour , that therefore his lady should enjoy the same precedency if she survived him , because this was not a dignity of office , but a real dignity settled in his person ; and generally in all real dignities such as those of dukes , marquesses , earles , &c. the wives participat the husbands honour even after his death , for it is not the patent that confers the honour upon her , for else she could not enjoy the same except she were therein mentioned , but her right flows from the common-law which illustrates the wife with the husbands dignity , because marriage is individua vitae consuetudo ; and in the law , the husband and wife are one person , and for the same reason we see likewise that the wives of knights-batchelours , and knights of the bath , enjoy the same precedency that was due to their husbands , though they enjoyed the same for life : and whereas it may be objected that the husband having the honour but for life , it cannot be continued longer then for the time limited , or to be transferred to the wife after the death of her husband . it is answered by the same rule and proportion no wife whatsoever should enjoy the title of her husbands honour after his deceas , but then all the honour and place should surceas , for she challenges nothing but from her husband : the honour for perpetuity to the heirs , concerns onely the descendents and they are thereby enobled ; but to her a state for life , and a state to the heirs is all one . i find also that sir william heram having married the daughter and heir of the lord saye , and so being in her right a baron , and by reason of that marriage summoned to the parliament as a peer of the realm , having survived his wife , albeit he had no issue by her , he notwithstanding enjoyed that title and dignity during his life . to the second branch of this question it is answered , that the wife of a person forfeited enjoyes the same title and dignity that was due to her before the forfeiture ; for though it may seem that the dignity of the family is extinguished , and consequently she cannot enjoy it ; yet the crime punishes onely the person , and corrupts onely the blood quo-ad the descendents , but not quo-ad the wife : and though the honour be extinguished , yet being extinguished upon a personal account , the punishment ought not to reach further then the crime . qvestion xlii . whether amongst those of the royal line , does the next to the royal stock preceed ? or does the precedency belong to the eldest of that branch ? the reason of this doubt is , because as in other nobility the first who is dignified has still the precedency , as being farthest removed from the dreggs and lees of the vulgar ; so amongst those who are descended of kings , the last is still preferred as being nearer to the common-stock , by which all are enobled : and therefore the uncle , it seems , should preceed his nephew by the elder brother , as being a degree nearer to the stock , as was alleaged by the cardinal of bourbon uncle to henry the fourth ; but yet it was justly decided for henry the fourth , because though the younger branch be still preferred , yet amongst these of the same branch the eldest is still preferable , for by the right of representation he represented his father , which father would have been preferred , and here again the right of birth-right still returns : and this holds not only in france , as tillet observes , but with us in britain , and generally in all law , exod. . and . cron. . vid. dec. consil. . albeit of old in scotland the uncles did oftentimes usurp upon this account , l'oiseau chap : . and to this day the eldest cadets in private families do still take place with us , from the last descended beyond the brothers of the family , and those old cadets take place of the nephews , which is an errour . qvestion xliii . whether and when is the right or left hand the chief mark of precedency ? and whether is the place opposite to the seat of the chief person who sits betwixt the two preferable to either right or left hand ? to this it is answered , that amongst both the iews , greeks , and romans , where three were either sitting or walking , the midle-place was thought the chief place ; but where two were without a third , the right hand was concluded the more noble amongst the iews : and thus the scripture tells us , that such as are to be saved shal sit at the right hand of god ; and yet in iacobs blessing ephraim and manasseh , the left hand was preferred , genes . . vid. pansirol . lib. . pag. . but amongst the romans it was doubted which of the two was preferable , demsterus antique roman . pag. . and yet it is certain that amongst the turks the left side is acounted the more noble , because he commands his neighbours sword ; and though these be the chief seats , yet he who is set opposite to him who sits in the midle , is thereby preferred to him who either sits upon the right or left hand , since in effect he is made the correspondent of the chief person , as golstadus defends by many instances , pag. . qvestion xliv . whether in improbations raised to secure precedency , can certifications be granted , aswell , against patents of honour as against other writes ? this question having occurred in a debate ianuary . betwixt the earl of sutherland and the earl of errol , it was urged that in declaratours of precedency , and improbations raised for securing thereof , no certification could be granted , because o. such certifications were onely granted where the right and title to be improven was constitute by write ; but so it is , that the dignity and honour of dukes , marquesses , earles , &c. was not onely established by patents , or infeftments , but might be acquired by bringing them in to parliament in their robes , and such other formes of creation , as have been practised both amongst us and other nations , against which no certification could operat . o. certifications are onely allowed where the pursuer of the improbation has a direct title to that whereof the right is to be improven , exclusive of all others : but so it is that the earl of sutherland , nor no other has an express , and explicite right to be the first earl of scotland , and any right he has to the precedency ; arises onely consequentially . o. improbations being onely a remedy introduced by our law and the native designe thereof being to secure real rights , and private estates : it ought to be extended to no such case , as that of dignities and honours , to which it has never heen applyed , during these many years that improbations have been used here , and to which certainly our predecessours would have applyed them , if the nature of the action would have allowed it . to which it was answered , that certifications being introduced amongst us , to secure the pursuer against any evidents in the defenders hand , which might prejudge the pursuers right , they ought to be extended to honours established by patent , or infeftment , these being rights that are transmitted by write , and this being the nature of those certifications , they ought to take place every where except where express law or decisions have restricted them . and therefore , since there is no law nor decision , declaring that certificationss shall not be granted against patens , or infeftments which transmit honour : they ought to be granted against these , aswell as against other rights . nor is it craved , that these certifications should run against honours transmitted via facti , such as robing , and belting , and though the pursuer be not designed by his infeftments the first earl , yet that cannot hinder him from removing by this certification , all writes , or evidents , which may hinder him to be the first , upon which debate , the lords refused to grant certification against such patents , or infeftments . courses taken by princes and iudges , when they intend to shun the decyding of contraversies concerning precedency , and to preserve the rights of all the competitors . first , they ordain the competitors to preceed one another by turns , and alternatively : and thus the emperour lewis the fourth did in anno . decide betwixt the prince palatine , and the duke of bavaria , and so the parliament of paris decided in anno ; but lest the first turn should give the precedency that uses to be decided by lot . and i find this alternation very old , for the thebans did so decide betwixt the brother-kings , etheocles and polinix ; and plutarch observes the same betwixt thyestes and attreus . secondly , they use to assigne one of the competitors a place out of all rank ; as was done to the spanish ambassadour in the council of trent , and is frequently done in our parliaments ; but though this preserves the right , it insinuates a ceding : and therefore the juster way is to place both so without the benches , as that neither of their seats can shew any preference , as was done at the council of trent betwixt the emperours ambassadour and the cardinal of trent . thirdly , they use to cause them enter by several doors , as was observed betwixt the queen of france , and margaret sister to charles the fifth , as guicciardin observes . fourthly , they use round tables , or to write the names of the pretenders in a circle , an example whereof we have in gaius , lib. . institut . and pope vrbane having desired the franciscans to give him three of their number out of which he might chuse one to be cardinal , they wrote down their three names circular-ways ; but in this case , the names should be written down exactly in the midle of the table or paper ; for else as crantzius observes , he whose name is next to the top of the paper has thereby some precedency . fifthly , the eldest of the competitors is still ordained to preceed : of which livius gives an instance , lib. . and king iames the sixth decided so between several families in scotland , and particularly between the lairds of blair and balthaok . sixthly , sometimes he who was first promoted to a benefice or office is preferred , where the difference is betwixt the offices or benefices ; and thus it was decided betwixt the sees of rheims and treves . sevently , sometimes also the competitors are preferred according as they produce their commissions , as was done in the council of trent betwixt the ambassadours of portugal and hungary ; and the polonians do frequently in competitions between ambassadours , prefer him who first enters their territories , bodin . de repub. lib. . cap. . eightly , sometimes also the competitors are ordained to give their suffrage and preceed according to the respect due to the nations , and not to the persons : as was decided in the council of constans and basil. ninthly , it is observed that octavius farnesius prince of parma and placentia , to shun the difference of precedency betwixt his two towns of parma and placentia , did write himself duke of p. p. and king iames the sixth to shun any debate that could have been between scotland and england , assumed the title of king of great britain . tenthly , some use to secure themselves against such contests by protestations , which certainly do interrupt prescription , and preserve the protesters right , l. . § . ff . de relig. but in that case the protestation must be presently interposed , for protestations after the deeds contraverted are ended and past , are concluded to be of no value , carpzol . def . . for protestations cannot be drawn back : but it has been doubted whether the person against whom the protestation is taken , does prejudge himself , when he does not protest in the contrar , for this seems to infer an acquiescence that the protestation is just , since qui tacet consentire videtur , and this is the occasion , why in our judicatures when one protests , the other ordinarly protests in the contrare ; but yet it is generally concluded that silence in that case does not prejudge him against whom the protestation is taken , since he knows that in law the protestation secures his right , tusc. tom . . conclus . . finis . the tryal and process of high-treason and doom of forfaulture against mr. robert baillie of jerviswood traitor ... baillie, robert, d. . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing m estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the tryal and process of high-treason and doom of forfaulture against mr. robert baillie of jerviswood traitor ... baillie, robert, d. . mackenzie, george, sir, - . p. printed by the heir of andrew anderson ..., edinburgh : . reproduction of original in huntington library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng rye house plot, . trials (treason) -- great britain. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - emma (leeson) huber sampled and proofread - emma (leeson) huber text and markup reviewed and edited - pfs batch review (qc) and xml conversion the tryal and process of high-treason and doom of forfaulture against mr. robert baillie of jerviswood traitor . by his majesties special command , as a further proof of the late fanatical conspiracy . edinburgh , printed by the heir of andrew anderson , printer to his most sacred majesty , anno dom. . the tryal and process of high-treason , and doom of forefaulture against mr. robert baillie of jerviswood traitor . cvria justiciariae s. d. n. regis tenta in praetorio burgi de edinburgh viges●mo tertio die mensis decembris . per nobilem & potentem comitem georgium comitem de linlithgow , dominum livingstoun , &c. justiciarium generalem totius regni scotiae , & honorabiles viros , domines jacobum foulis de colintoun justiciariae clericum , joannem lockhart de castlehill , davidem balfour de forret , rogerum hoge de harcarss , alexandrum seaton de pitmedden , & patricium lyon de carss , commissionarios justiciariae dicti . s. d. n. regis . curia legitime affirmata . intran mr. robert baillie of jerviswood prisoner indited and accused , that where notwithstanding by the common law of this , and all other well governed nations , the conspiring to overturn the government of the monarchy , or of the established government of this kingdom , or the concealing , and not revealing of any treasonable design , project , or discourse tending thereto ; or the assisting , aiding , or abaiting such as have any such designs , does infer the pains and punishment of treason . and by the third act of the first parliament of king james the first , the rebelling openly against the kings person : and by the thretty seventh act of his second parliament , the resetting , maintaining , or doing favours to open , or not our rebellers against the kings majesty , is declared treason , and punishable by forefaulture . and by the hundred fourty and fourth ▪ act of the twelfth parliament of king james the sixth , it is declared treason to reset , supply , or intercommune with traitors . and by the first act of the first session of his majesties first parliament , it is declared , that it shall be high treason for the subjects of this realm , or any number of them , less or more , upon any ground , or pretext whatsomever , to rise , or continue in arms , to make peace or war , without his majesties special approbation . and by the second act of the second session of his majesties said first parliament , to plot , contrive , or intend death , or destruction , or to put any restraint upon his majesties royal person , or to deprive , depose , or suspend him from the exercise of his royal government , or to levy war , or take up arms against his majesty , or any commissionated by him , or to intice any strangers , or others , to invade any of his majesties dominions , or to write , print , or speak any thing that may express or declare such their treasonable intentions , is declared treason , and punishable as such . likeas , by the second act of his majesties third parliament ▪ it is declared high treason in any of the subjects of this realm , by writing , speaking , or any other manner of way to endeavour the alteration , suspension , or diversion of the right of succession , or debarring the next lawful successour . nevertheless , it is of verity that the said mr. robert baillie of jerviswood , shaking of all fear of god , respect and regard to his majesties authority and laws ; and having conceived most unjustly , a great and extraordinary malice and hatred against his majesties person and government , and having designed most traiterously to debar his royal highness , his majesties only brother , from his due right of succession , did amongst many other traiterous acts , tending ▪ to promove that wicked design , endeavour to get himself elected one of the commissioners for negotiating the settlement of a colony of this nation in carolina , in one or other of the dayes of the moneths of january , february , march , april , or may , one thousand six hundred and eighty three years ; and that he might thereby have the freer and better access to treat with the earls of shaftsbury and essex , the lord russel and others , who had entered into a conspiracy in england against his majesties person and government , and with colonel rumsay , walcot , west , and ferguson , and others who had likewise conspired the murder of his majesties sacred person , and of the person of his royal highness ; and finding that he could not get himself elected one of the said commissioners , he resolved to go to london upon his own expenses , and declared to severals ( whom he took great pains to draw in●o be his accomplices ) that his design was to push foreward the people of england , who did nothing but talk , that they might go on effectually ; and after he had settled a correspondency here , he did go up to london in one or other of the saids moneths , with sir john cochran and commissar monro , and did then , and there , transact with the saids conspirators , or one or other of them , to get a sum of money to the late earl of argile , a declaired traitor , for bringing home of men and arms , for raising a rebellion against his majesty , and invading this his native countrey ; and so earnest was he in the said design , that he did chide those english conspirators , for not sending the same timeously , and lamented the delayes used in it ; and perswaded the late earl of argile and others in his name to accept of any sum , rather than not to engage : and amongst the many meetings that he had at london , for carrying on the said traiterous design , there was one at his own chamber , where he did meet with the lord melvil , sir john cochran , and the cessnocks elder and younger , and amongst others , with mr. william veatch a declared traitor , and there he did treat of the carying on of the said rebellion , and of the money to be furnished by the english for argyle , for buying of armes . and that if the scots would attempt any thing for their own relief , they would get assistance of horse from england ; and from that meeting , he or ane , or other of them did send down mr. robert martin to prevent any rysing , till it should be seasonable for carying on of their designs , which mr. robert , after he came to scotland , did treat with polwart and others , for carying on of the said rebellion ; by securing his majesties officers of state , his castles and forces , and by putting his correspondents here , and there associats , in readiness , to assist the late earl of argyle , and after the said mr. baillie had engadged many of his countrey-men in england , and had assured his correspondantts here , that the english were resolved to seclud his royal-highness from his due right of succession , thereby to encourage them to concur in the said rebellion , and exclusion , he flew to that hight , that he did particularly and closly correspond with mr. robert ferguson , sir thomas armstrong , collonel rumsay , and walcot , who were accessory to that horrid part of the conspiracy , which was designed against the sacred life of his majesty , and the life of his royal-highness , and did sit up several nights with them , concerting that bloody massacer : at least the said mr. robert baillie of jerviswood was , and is guilty of having correspondence with the late earl of argyle , and mr. william veatch declared traitors , and of being art and part of an conspiracy , for assisting of these who were to rise in armes against his sacred majesty , and for exclusion of his royal brother , and of concealing and not revealing the accession and proposals of others for that effect . wherethrow he has committed , and is guilty of the crymes of high treason , rebellion , and others abovespecified , and is art and part of the samine , which being found by ane assize , he ought to be punished with forfaulture of life , land and goods , to the terror of others to commit the like hereafter . his majesties advocat produced an act , and warrand from the lords of his majesties most honourable privy council , for pursuing , and insisting against the said mr. robert baillie of jerviswood , whereof the tenor follows : edinburgh , the twenty two day of december , one thousand six hundred and eighty four years . the lords of his majesties privy council , do hereby give order and warrand to his majesties advocat , to pursue a process of treason and forfaulture , before the lords of his majesties justiciary , against mr. robert baillie of jerviswood , to morrow at two a clock in the afternoon preceisly , and the saids lords do hereby require and command , sr. george lockhart of carnwath , and sr. john lauder advocats , to concur , and assist in the said process with his majesties advocat , from the intenting untill the end thereof , as they will be answerable upon their alledgance . extract by me , sic subscribitur . colin mckenzie , cls. sti. concilij . pursuers . sir george mckenzie of roshaugh our soveraign lords advocat sir george lockhart sir john lauder . advocats . procurators in defence . sir patrick hume . mr. walter pringle . mr. james graham . mr. welliam fletcher . mr. william baillie . advocats . the pannals procurators produced ane act of his majesties privy council , in their favours , wherof the tenor follows : edinburgh , the twenty third of december , one thousand six hundred eighty four years , the lords of his majesties privy council having considered ane address made to them , by mr. robert baillie of jerviswood , now indited at the instance of his majesties advocat , before the lords commissioners of justiciary , of treason , do hereby require and command sir patrick hume , mr. walter pringle , mr. james graham , mr. william fletcher , mr. james falconer , mr. william baillie advocats , to consult , compear , and debate for the petitioner , in the process of treason , mentioned in his address , without any hazard , as they will be answerable at their peril ; extract by me , sic subscribitur . william paterson , cls. sti. concilij . after reading of the inditement , the lord justice general required the pannal to make answer thereto . the said mr. robert baillie pannal pleaded not guilty . mr. walter pringle advocat , as procurator for the said mr. robert baillie of jerviswood pannal , alleadges that he ought not to passe to the knowledge of an assize , because he had not got a citation upon fyfteen days , or at least on a competent time , which is usual , and absolutely necessar in all actions , and much more in criminal pursuits , especially , seing , if a competent time be not allowed to the pannal , he is precludit of the benefit of ane exculpation , without which he cannot prove his objections against witnesses , or assyzers , or any other legal , or competent defences ; and by the late act of parliament concerning the justice court , all pannalls are allowed to raise precepts of exculpation , and thereupon to cite witnesses , for proving the objections against witnesses , and assyzers , which necessarily pre-supposeth , that a competent time must be allowed to the pannal to execut his diligence , or otherwise , how is it possible he can prove an defence of alibi , or any other just defence : and as this is most consonant to that clear act of parliament , and to material justice , and to the rules of humanity , so this point has been already fully and often decided , and lately in the case of one robertson in july . the instance whereof , is given by his majesties advocat in his book of criminals , and title of libels , where the lords found , that albeit robertson got his inditement in prison , yet he behoved to get it upon fifteen dayes . his majesties advocat oppons the constant tract of decisions , whereby it is found , that a person incarcerated may be tryed upon twenty four houres ; and the late act of parliament is only in the case where a summons or libel is to be raised ; but here there is no libel or summons , but only an inditement ; nor was any exculpation sought in this case , before the tryal , which is the case provided for by the act of parliament . the lords , justice-general , justice-clerk , and commissioners of justiciary , repell the defence , in respect the pannal is a prisoner , and that it has been the constant custom of the court , and that the pannal made no former application for an exculpation . sir patrick hume for the pannal , alleadges ( alwayes denying the libel , and whole members , and qualifications thereof ) that in so far as the libel is founded upon harbouring , maintaining , and intercommuning with the persons mentioned in the dittay , the pannal ought to be assoylzied ; because it is res hactenus judicata , he having been formerly pursued before the lords of his majesties privy council for the same crimes , and fined in an considerable sum ; and therefore that crime cannot now be made use of as a ground of treason against the pannal . his majesties advocat answers , that he restricts his libel , to the pannals entering in a conspiracy ; for raising rebellion , and for procuring money to be sent to the late earl of argile , for carrying on the said rebellion ; and for concealing , and not revealing ; neither of which is referred to his oath ; and consequently was not res judicata , there being nothing referred to his oath ; but his converse and correspondence with some ministers , and others within the kingdom , and his own gardiner , and his writing letters to my lord argile ; and oppons the decreet of council it self , and restricts the libel to all the crimes not insisted on in the decreet . sir patrick hume replyes , that as to the corresponding with the late earl of argile , at any time since his forefaulture , was expresly proponed as an interrogator to the pannal in that pursuit , at his majesties advocat's instance against him , before the lords of his majesties privy council , and that not only his own correspondence by himself ; but also by major holms , mr. carstares , robert west , thomas shepherd , richard rumbold , and collonel rumsay , as the interrogator bears , as appears by a double of the act of council , written by the clerk of councils servant , and is offered to be proven by my lord advocats oath : and as to any correspondency with mr. veitch , it is not relevant , since he was not declared rebel . sir john lauder for his majesties interest , answers , that he oppons the decreet of privy council , where no such interrogator was put to the pannal , and the decreet must make more faith than any pretended scroll , and cannot be taken away by his majesties advocats oath , to his majesties prejudice ; and for mr. william veitch , he stands expresly forefault in anno . and the doom of forefaulture , is ratified in the parliament . sir patrick hume oppons the reply , that as to the corresponding with mr. veitch , it does not appear , that he is the person mentioned in the act of parliament ; and albeit he were , as he is not , he having thereafter come home to scoland , all the punishment inflicted upon him was banishment , not to return under the pain of death , which did take off any former punishment ; and it was no crime in any person to intercommune with him , especially in another kingdom ; and by the late act of council in anno . even the conversing , and intercommuning with declared traitors , is restricted to an arbitrary punishment . his majesties advocat oppons the standing doom of forefaulture against veitch , and the proclamation , or act of council it ●elf . the lords , justice-general , justice-clerk , and commissioners of justiciary , having considered the libel , pursued by his majesties advocat , against mr. robert baillie of jerviswood , with the lord advocats declaration , whereby he restricts the same to the crimes not insisted on in the decreet of council formerly pronunced against the pannal . they find the same relevant as it is restricted , to infer the pain of treason , and remits the same to the knowledge of the assize , and repells the remnant defences proponed for the pannal , in respect of the decreet of council produced , bearing no such thing as is alleadged , and of the answers made by his majesties advocat thereto . assisa . the earl of strathmore . the earl of belcarras . sir george skeen , provost of aberdene . sir james fleming , late provest of edinburgh . sir john ramsay of whitehill . adam hepburn of humby . andrew bru●e of earleshall . john stuart , tutor of alpin . alexander miln of carrin . mr. james elies of stenhopsmilns . sir william drummond of halthornden . major andrew white , lieutennent of edinburgh castle , mr. david grahame , sheriff of wigtoun . colin m ckenzie , collector of ross. david burnet merchant . the assise lawfully sworn , no objection of the law in the contrary . hiis majesties advocat for probation adduced the witnesses and writs aftermentioned ; and first , walter earl of tarras . sir patrick hume procurator for the pannal , objects against the earl of tarras , that he cannot be a witness , because he is socius & particeps criminis ; and it is clear by the . chap. stat . rob. . concerning these that are excluded from bearing of testimony that socij & participes ejusdem criminis , vel incarcerati & vinculati , cannot bear testimony : as also , the earl of tarras being presently under an inditement of high treason , and under the impressions of fear , and death , no person in his circumstances can be admitted a witness , as is not only clear from the foresaid statute , but from the common law. his majesties advocat answers , that it is an exception from that rule , both by the common law , and ours , that in the crime of lese majestie , and especially , that branch therof , which we call a conspiracy , socius criminis may be a witnes , and which is introduced very reasonably by lawyers , to secure the common interest of mankind , which is the chief of all interests ; and because conspiracies cannot be otherwayes proved , and not to allow this manner of probation , were to allow treason , since no man can prove a plot , but he that is upon it , and how can a man object against him as a witness , whom himself trusted with his life , his fortune , and their common plot , nor is the intenting of the lybel any stronger qualification , since every man that is socius criminis , is under the same impression , and it would rather seem the greater and nearer apprehensions a man has of death , he will be the more sincere and faithful ; nor has the earl of tarras , nor did he ever seek any security , in order to his deponing . and this has been constantly , and latlie , conform to the common law , as may be seen in the hundreds of citations set down by mascard , de probationibus , vol. . conclus . . num . . and the contrary citations prove only , that regularly socius criminis cannot be a witnes . sir patrick hume replyes , that the statutes of robert the first is opponed , and non est distinguendum ubi lex non distinguit , and not only was he socius criminis , which is acknowledged , but he is incarceratus , and lying under an indytment of high treason , and has thrown himself on the kings mercy , and it is not proper he should be a wintess , seing he is in the kings mercy , who may give him his life or not , and there was never a person in these circumstances , that ever was admitted a witness . mr. walter pringle adds , that the earl of tarras , is not only in the case of a person who stands indyted for high-treason ; but must be look'd upon , as a person condemned for the said cryme , seing he fully , and amply confest the cryme : & confessus habetur p●o convicto , and never any lawyer asserted , that damnatus criminis lesa majestatis could be admitted as a witnes , and there is nothing more clear , then that by the common law , and the law of all nations , this objection ought to be sustained , for the civil law is clear , leg . . cod ▪ de testibus , and matheus in his title de probationibus , cap. de testibus , doth assert positivlie , that the cryme of lese majestie , heresie , and generally all these crymes quae sine sociis non possuut facile admitti , are not excepted . and he asserts , that the lawyers , viz. gomesius , & decianus , who are of another opinion , do acknowledge , nominatum a reo damnandum non esse , and that they contravert only , an nominatio rei sit indicium sufficiens ad torquendum nominatum . sir george lockhart repeats , and oppons the answer , and the cryme lybelled , being a conspiration of treason , which of it's own nature is manadged , and caryed on by secrecie and contrivance ; and which is only known to the complices of the treason , and which cannot be commited sine sociis , the law of this kingdom , and of all nations , do allow socios criminis to be testes habiles , and not only are they admitted in the case of such conjurations , but generally in omnibus criminibus exceptis , amongst which the crime of perduellion , and lese majestie is the chief , and it is absolutly impossible , that plots , and conspirations of treason can be otherwayes proven , then per socios , and such as are participes criminis , and which is the common opinion of all lawyers , as may appear by farin . quest : . and the authorities cited by him , and which is the inviolable practique of this kingdom : and as to that pretence , that the earl of tarras is under a process of treason , and has submitted to his majesties mercy , and that confessus habetur pro convicto , it imports nothing , and infers no more then that he is socius criminis , and is still a habil witnes , as to conjuration of treason socius criminis hoc ipso , that it is acknowledged , or proven , being still under the hazard of process , or condemnation , which law regards not in regard of the secrecie involved in the nature of the crime , that either witnesses neque actu neque habitu , can be present , so that the objection amounts to no less then that conjurations of treason cannot at all be proven : and as to the law cited from the majestie , it imports no more then that the objection regulariter pro●edit in crimes , which of there own nature are not perdifficilis probationis , and are not inter crimina excepta such as the cryme of conspiracy and treason is ▪ mr. william fleteher oppons the objection , and reply , and further adds , that albeit crimen lesae majestatis be reckoned inter crimina excepta , and so have some priviledge , as to the qualification of witnesses , yet it cannot be denyed , but there are some objections competent against witness adduced for proving conspiracies , and treason , verbi causa , that a witnes is a capital enemy , or that he is sub potestate accusatoris , and the objection new pleaded , being taken complexlie , viz. that the earl of tarras is not only socius criminis , but also , that he is publico judicio reus , upon the same crime , and that as means to procure his majesties favour , he has submitted himself , and come in his majesties mercy , by an acknowledgment of the cryme , before the dyet of citation , he is obnoxious to a most just objection , viz. that he is sub potestate , and by the submissiou , and confession , his life and estate is now in his majesties hands , so that he is not only in the case of a reus confessus , but in the case of a witnes , who does absolutely depend upon his majesties advocat the pursuer ; and as a privat accuser , could not adduce his own servants to be witnesses , because they are testes domestici , and depend upon him , so far less ought a witnes to be adduced , who not only depends , as to his estate , but as to his life , and the law gives a very good reason , and which is mentioned by paulus , lib. . receptarum sententiarum , cap. . parag . ult . in these words ▪ de se confessus , non est au●●endus ut testis , ne alienam salutem in dubium deducat qui de sua desperavit ; and as to the pretence that a conjuration is a cryme so occult , that it must either be proven by such witnesses , or otherwayes the guilty person will escape . it is answered ▪ that in this case , his majesties advocat had an easie remedie , for he might have pursued the pannal , before he pursued the witnes , and the terror and apprehension of the event of a process for treason cannot be constructed otherwayes , then to have influence upon the deposition of the witnes ; and as to the citation out of farinacius , it is only in the case of socius criminis , but when he comes to treat de teste accusato vel carcerato . quest. . articulo to . he sayes , regula sit in accusato quod is pendente accusatione à testimonio repellitur ▪ and be the d . rule of the same article , he sayes , it is a principle quod carceratus testimonium ferre prohibetur , and he gives this reason , quia praesumitur , quod falsum testimonium diceret pro aliquo qui ei promiserit se liberare a vinculo , and limits this rule , that he must be carceratus propter crimen . sir patrick hume adds , that it is a certain principle , that any person that is guilty infamia juris , cannot be a witness , no more than a person that is convict , and condemned of treason ; and if he were convict , and condemned of treason , he could not be a witness , even in the case of treason : so neither can the earl of tarras in this case be received a vvitness , for he being adduced a vvitness after he received his inditement , and confessed the crime , is equivalent , as if he had been actually convict ; and whatever may be pretended , that testes infames may be admitted ; yet it was never asserted by any lawyer , that a person convict of treason can be admitted a vvitness . the lords repelled the objection against the earl of tarras , and ordains him to be received a witness . walter earl of tarras , aged fourty years , married , purged , and sworn ; being interrogat , if about the time that sir john cochran , and commissar monro got their commission from the carolina company for london , the pannal mr. robert baillie of jerviswood did not desire the deponent to speak to commissar monro , to try if he could get him the said pannal added to that commission , depones affirmative . being interrogat , if the said jerviswood , the pannal , did not tell the deponent , that he was resolved to go to london however upon his own expenses , and that his and their going about the carolina bussiness , was but a pretence , and a blind ; but that the true design was , to push foreward the people of england , who could do nothing but talk , to go more effectually about their bussiness , depones affirmative . depones that the pannal did settle a correspondence with the deponent , whereby he was to give an account to the deponent of what should pass betwixt the countrey party in england , and the scots men there : and on the other hand , the deponent was to vvrite to him what occurred here ; depones that the pannal did say to the deponent , if the king would suffer the parliament of england to sit , and pass the bill of seclusion , that that was the only way to secure the protestant religion . depons that the pannal said to him , that the king might be induced to do so , if the parliament would take sharp , or brisk measures with him , or the like . depones these words were spoke to him by the pannal , since the holding of the last session of this current parliament ; and before the pannal and commissar monro went for london . depons that after the pannal went to london , he did give the deponent an account by letters , that things were in great disorder there , and that he hoped there would be effectual courses taken to remeid them . depones that mr. robert martin did come to mr. pringle of torwoodlies house in may . or thereby , and brought a letter to the deponents lady unsubscribed , but the deponent knows it was jerviswoods hand-writing , who was then at london , and that mr. martin told the deponent , that things in england were in great disorder , and like to come to a hight , and that the countrey party were considering on methods for securing the protestant religion . and that archibald , sometime earl of argile , was to get ten thousand pounds sterling , whereas thirty thousand pounds sterling was sought by the scots-men at london , which was to be sent over to holland to provide arms ; and that the late earl of argile was to land with these armes in the west-highlands of scotland , and that the deponents friend jerviswood the pannal , was to be sent over with the money . depones that philiphaugh and he went to gallowshiels house , where they met with polwort and gallowshiels , and that it was talked amongst them there , that in case those in england should rise in arms , that it was necessary in that case , that so many as could be got on the borders should be in readiness to deal with straglers and seize upon horses , and that thereafter they should joyn with those that were in arms on the borders of england . depons , that in the case foresaid , it was said , it was convenient the castle of stirling , berwick , and some other strengths should be seiz'd upon ; and it was likewise spoke amongst them , that some persons should be employed to inquire what arms was in that countrey . depons , that it was spoke then , that the best time for argyle was to land in the west when there was a stur in england , or scotland , or words to that purpose . depons , that every one desired another to speak to such particular persons as they could trust , by letting a word fall indirectly upon supposition , in case of the rising in england concerning the affair for preparing of them : and that he was told by philiphaugh thereafter , that there was a word and sign to be used amongst them , viz. the sign was by loosing a button on the breast , and that the word was harmony . depons , the pannal spoke to the deponent to advertise torwoodlie , that he might acquaint mr. william veitch a forfault traitor , who was in northumberland , that he might keep himself close , and be on his guard , lest he should be catch'd ; which was since the pannal was prisoner in the tolbooth of edinburgh . and this is the truth , as he shall answer to god. sic subscribitur , tarras , linlithgow . i. p. d. alexander monro of bear-crofts , aged fourty five years , or thereby ; solutus , solemnly sworn and purg'd . depons , that the earl of tarras proposed to the deponent , that jerviswood might be made one of the commissioners for the affair of carolina , for that he could not safely stay at home ; and that the deponents answer was , that he had no interest in the affair , and so could not be a commissioner . depons , that the pannal did wait for the deponent at wooller , and did go alongst with him to london , and that by the way he heard him regrate his own hazard and others , because of blackwoods sentence ; and that he heard him regrate the hazard our laws , and liberties , and the protestant religion were in . depons , that the pannal spoke to the deponent and others , more then once at london for getting of money from the english to be sent to the late earl of argile , for bringing home arms for the said earls use , as he understood , for carrying on an insurrection , and rebellion in scotland . depons , that at the time libelled , in jerviswoods chamber in london , mr. william veitch a forfault traitor was present ; and that sir john cochran did at that meeting expressly speak of money to be sent to argile for bringing home arms for invading the kingdom of scotland ; and that at another occasion he heard some of them say , that there would be twenty thousand men in scotland who would assist the rebellion , and that he heard sir john cochran and jerviswood speaking of it , but cannot be positive which of the two said it . depons , that at that meeting he heard jerviswood speak , but did not hear him oppose that ●reasonable proposal ▪ or contradict the overture proposed by sir john cochran . depons , that mr. robert martin was sent down from that meeting which was at jerviswoods chamber , to scotland , to try what the people of scotland would do for their own safety : and that it was understood that the people of scotland should not rise till there should be a rising in england , and that the commission was granted to mr. robert martin by all the persons present , whereof jerviswood was one , and that there were present the lord melvill , sir john cochran , cessnocks elder and younger , mr. william carstares , mr. william veitch , jerviswood , and the deponent ; and depons they did contribute money for mr. martins journey : depons , that at his return he meeting with the deponent , told him , that matters were in that condition in scotland , and that the countrey was in such a condition as little would kindle the fire in order to the rebellion . and this is the truth , as he shall answer to god. sic subscribitur , alexander monro , linlithgow , i. p. d. james murray of philiphaugh , aged . years , married , purged and sworn , produces four leaves of depositions , emitted by him before the lords of the secret commitie , and all written and subscribed with his own hand , which being publickly read , in presence of the justices , and assize , he adheres thereto , in all points , whereof the tenot follows . upon the day of may , . upon a letter from mr. pringle of torwoodlie , i came to his house in the morning , and he presently led me to a chamber , where i found mr. robert martin , who was lately come from london , with whom we stayed a little , and discoursed of the news ▪ and about the present condition , and temper of england , and in particular of london , which mr. martin said , was much irritated through some attempts upon their priviledges , either as to the concern of the sheriffs , or their charter , but that all honest men were of good heart ▪ and very brisk , and after some general discourses to this purpose , torwoodlie , and i left him , and walked out a little , and he told me , he was expecting the e. of tarras presently , for he had sent to him ; and mr. martin had a letter to him from jerviswood , then he told me that there were great matters in agitation at london , and that mr. martin had come down with a commission from our friends there , ( i do not remember he named any ) but that i behoved not to expect , he would impart his instructions to me , for he was to communicat them only to polwart and himself , ( at least for these shyres ) and they were to pitch on such as they thought fit to intrust with the affair , whereupon he assured me , that he had great confidence in me , and his kindness to me oblidged him to send for me , to acquaint me , that matters were now come to a crisis , and that he had reason to think england would shortly draw to arms , and stand by them , till they were satisfied anent the bill of exclusion , and what other security they could propose for the protestant religion , and their liberties , and that it was no project of any inconsiderable party but a design through the kingdom , and that many of the finest men , and of the greatest interest and credit there , had adjusted almost every thing necessar for the purpose , and had concerted matters with our friends there , in order to concurrence from this , and had agreed to advance money for furnishing armes here , ( i do not remember he told me more particulars at this time ) but said , polwart would be at gallow-shiels that night , and it would be necessar that the e. of tarras and i should confer with him fully , on the business , about this time the e. of tarras lighted , and torwoodlie having left us for a little time , being gone to bring mr. martin , the e. of tarras asked me , what news , i told him of mr. martins being there , but that he had given me no account of the design of his down-coming , which perhaps he would acquaint him with , but by what i had heard from torwoodlie , i understood it to be , to engadge us to rise in arms shortly , whereat the e. of tarras hummed , and said , he would look ere he leapt , such a leap , or some such expressions , presently mr. martin came , and the e. of tarras and he retired a little , after the reading an letter , he gave him , the contents whereof was ( as the e. of tarras informed me ) only an order from jerviswood , to deliver some money to the bearer , which he had left with him , and the e. of tarras called for his servant , and bad him bring up the money ; in the mean time , torwoodlie asked me , if i had acquainted the e. of tarras with what he spoke to me , and i told him , i had let something of it fall to him , but it was not to be thought , that persons of sense & quality would engadge in such designs at random ; so torwoodlie said , that ( though mr. martin would not commune with us upon his commission directly ) yet he thought it would be fit , we conferred , and without taking notice of his commission , discoursed of things upon suppositions , and as our own privat notions , abstract from any prospect of a present design , so after dinner , we four went to a chamber , and after some general discourses , of the discontents of both kingdoms , these suppositions following were discoursed ( and as i remember ) mr. martin started them all , or the most part ) viz. what if the countrey party in england should have thoughts of going to arms ( whereof he knew nothing but only supposed such a thing , for discoursing a little freely , and to know our sentiments , what we thought could be expected here in such a case ) would it not be expedient to have a settled correspondence betwixt that party there and here , and might not matters be so adjusted , that both kingdoms should draw out in one day , and might not as many be expected to undertake in these shires , and about edinburgh , as would serve to surprize , and seize our rulers ( i do not remember any named , but the then chancellour and thesaurer ) and some to joyn with these on the english borders , to assist them to surprize berwick ; and if for that effect , any horse , or dragoons , that should be in the bounds might not be surprized , that their horse and arms might be gotten to furnish the countrey people , and stirling castle ; and if argile should at the same time land in the west , and raise that countrey , would not these measures contribute much to the advancement and security of the interest of that party here , since thereby the government would be disordered , and such steps would encourage all that had an inclination to the countrey party , to draw to them frankly , and scar many of the other side to act against them , and so they might have leasure to joyn from all places ; and might it not be expected , there would be as many in this kingdom , as would be able to deal with the forces here , at least divert them from troubling england . this is the sum , as i remember , of what was proposed , and discourst of , though i cannot distinctly say , it was in this method , and expression , nor was all moved at once , but droped now and then , as the discourse seem'd to give rise to it ; and though i cannot fully re-count all that was spoke on these heads , and tell distinctly , what this and that man said ; yet i remember these following answers were giving , and ( as i judged ) acquiesced to by the whole company ; and they were certainly the e. of tarras , his sentiments and mine , and every one that spoke , used this or some such precaution , that if they were concerned , or to give counsel in any such case , as they were not , &c. ) . as to the settling a correspondence , it was confest to be very convenient for those of a common interest ; but the present circumstances of affairs were such ( as was thought , ) that none could be found here who was sit to mannage it , and would undertake it . . as to the trysting at the same time , it could not be done without the devulging the design to all ranks of people , which none would undertake , except these already in desperat circumstances , and they could not have generally much influence . . the thing was not at all adviseable for this kingdom , since if any of englands own measures miscarried , they would not stur for any such trust ; and the spring of their motions being always at london , there might happen an interruption near the appointment , whereof these here could have no timous notice , and so might keep tryst , whereby they would be exposed a prey ; and if they should subsist any time , or prevail ( which was hardly possible ) the multitude that must be imployed , are tainted with such wild and unruly principles , that if once they got the sword in their hands , they would never be brought to order without a greater force to over-awe them ; neither would any expectation of argiles landing , be a just ground for such a tryst , considering the uncertainty of sea-voyages ; and if argile were to be the head , undoubtedly many people would conclude that he were to be suspected of private designs , and that restoring him , might lay him aside : as also , that dispair might blind his usual prudence , and prompt him to unsolid , and undigested methods ; and so it was to be expected , that few of the gentry ( except such as he had special influence on , or such as were under hard circumstances ) could embarque with him . . as to the surprising rulers , &c. it was inveigh'd against , as an action not to be thought of amongst protestants ( especially when the very design of it was pretended , to secure that religion , which taught its professors to abhor and detest such principles as popish , yea un-christian ) since it could not be effectuat without blood-shed of people , secure in peace , which being by all approven , divines and casuists condemned as unlawful , and meer assassination ; it was not to be doubted , that as such a practice would cast a blot upon the whole affair , and quite take off any pretence of defensive arms , so it would scar many from joyning . these things were reasoned again and again : but i do not remember there was any formal conclusion made , but the discourse was let fall ; and mr. martin told us , if any of us had a mind for a suit of armour , he could provide as many as we pleased , from one who had made a great many lately , to honest men at london , of a new fashion , very light , and at an easie rate ; so torwoodlie and i gave him our measures , e. of tarras told he had a suit already ; then torwoodlie said to the e. of tarras and me , we would meet polwort at gallowsheils , and desired we might commun with him , anent what we had been discoursing , so we hasted away , that if possible , we might both get home that night , it being saturnday , and we unfurnished , for staying abroad , and torwoodlie whispered me just as i was mounting ( as i think ) that he was not clear we should commun before gallowshiels , for he was sometimes too much good-fellow , or the like ; so the e. of tarras and i rod away together , and upon the way we were both of opinion , that the suppositions we had discoursed of , were in effect propositions , and resolv'd , if they were insisted on by polwort , as we suspected , we would adhere to the former answer , and would undertake nothing in these methods ; when we came to gallowsheils , the laird was abroad , and polwort was not come , so we had thoughts to go away , being both damped with what had passed , and inclining to be free of farder medling ; but the lady would by no means hear of our going till her husband came ; who , she assured us , was about the doors , and she having sent to call him , he would be in presently ; yet it was so late ere he came , that the e. of tarras could hardly have day enough to go home with ; so gallowsheils would not let him go , and he would not stay , unless i stay'd , so we both stayed ; and not being resolv'd to discourse with gallowsheils on what passed , we went to the tavern , on pretence i might call the baillie , and seek horses for lime , and stay'd there till polwort came ( which seemed unknown to gallowsheils ) then we returned to gallowsheils house , and after supper polwort whispered the e. of tarras and me , and enquired if we had seen mr. martin ; and we having told him we had , he enquired , if we were free to commun on the affair before gallowsheils , we told , as he thought fit , for we could trust him ; then he whispered gallowsheils , and ( as i understood afterwards ) asked if he was free to commune on matters of great secrecy and importance with that company , to which he assented , then we sat down closs together , and as i remember , polwort began the discourse ; but since i am not able to follow exactly the method of our conference , or keep the very expressions used , or repeat all that was spoke , or to tell distinctly what was every mans part of the discourse ; i shall set down the heads , and most remarkable passages thereof , that i remember in some articles following ; . polwort signified that he was credibly informed ( but i do not remember he named his informer ) that the countrey party in england would draw to the fields shortly , as he heard before lambass , wherewith gallowsheils seem'd visibly surprized ; and being asked , if his heart fail'd him already , he said he did love it better truly to be walking in his own parks in peace , and quiet , than to be medling in such matters ; however he assured the company , that if there came any troublesome world , he would joyn with them firmly ; and the f. of tarras said , he wondred to hear of any such resolution in england , for he took it for a principle amongst that party there , that they should make no stir in the kings life ( which the whole company owned to be their opinion and desire ) because that might strengthen the dukes interest ; and he suspected it was the project of the common-wealths men , with whom he believed , few scots gentlemen would joyn ; and he was almost perswaded the d. of monmouth would not concur in any rising during the kings life , to which it was answered by polwort , that he had indeed heard that principle had been generally agreed to , but it seem'd they found , they behoved either to do their business now , or lay aside hopes of doing it hereafter , which might be , that if the charter of london were let fall , they would not only lose all safe opportunity of digesting matters ; but a great part of their strength , and he heard all things were concerted mutually , betwixt monmouths friends and the heads of the commonwealth party ; and tho he heard monmouth was shy on that account , yet it was hop'd he would engage , for otherways he would be deserted by that party . . polwart told us the suppositions above-written as overtures concerted betwixt our friends at london , and the principal men of that party there ; so the e. of tarras and i renewed our former answers also above-written , and maintained them with all our vigour , wherein gallowshiels joyned forwardly with us ; and polwart asserted , we went on very good grounds , and he was fully of our opinion , if things were entire , but referr'd it to be considered , whether it were better to comply with some of these methods , tho not so proper and justifiable as were to be wish'd , then to disappoint the business totally , which might be of the best consequence to all the party , yet we did not condescend as i remember to undertake any of these methods . and there was a further argument adduced against the trysting above-written , viz. that is was talked there was a day appointed in england lately in shaftsherry's time , which did not hold , so they were not to be relyed upon . . it was proposed to be considered what methods were most proper in the companies opinion for scotland to follow in case of englands rising , whereanent it was said , that all that could be expected or desired from scotland , was , that upon the certain news of englands being in the fields , those in the southern shires who would own that party , should presently rise , and ( how soon they could get as many conveen'd as would be able to deal with stragling parties , or any sudden rising in the countrey ) march to joyn them , and that it would be fit these in the northern shires of england waited near the borders for such , and that they had officers trysted there to command , and that then it would be seasonable for argile to land in the west , and these parties on the borders might divert the forces til he had time to put himself in a posture . these things seem'd to be the sentiments of the whole company , but were not finally determined till the opinion of others who were to be communed with by polwart were knowen : and it was represented , there behoved not to be any wilful and obstinate adhering to our own thoughts of things , ( but an mutual condescendance to others concerned , ) otherwise it were not possible to bring a publick design to any good issue . . all the company seem'd to agree , that they should undertake nothing or move in that affair , till they had a full and certain account what england proposed , what methods they resolved to follow there , who were to be their heads , and that if they design'd any attempt on the kings person , or overturning monarchy , they would not be forward or clear to joyn : and it being here insinuated , that the most they could do ( at least for which there could be any plausible pretence to justifie ) was to draw together , and without any act of hostility , send addresses to his majesty for redress of the present abuses of the government , and for obtaining sufficient security against the hazard they apprehended to their religion and liberties . it was said by polwart that he was apt to think , that was their very design , for he had heard it was generally believed by that party in england , that if once they were in a body , the king would be prevailed with to quite the duke , to be tryed for popery , correspondence with france , and accession to the popish plot , and then if the king were once free from the influence of the dukes counsels , they were confident he might be moved to reform their abuses , and secure their religion and liberties for the future to their contentment . . it was resolved , that till we got the foresaid account from england , and were satisfied thereanent , and knew others here ( who were to be communed with ) their sentiments of what methods were most proper for us , in case we should undertake , we should not meddle further ; only it was left to the earl of tarras and me , if we thought fit to acquaint sir william scot younger with some of the matter of this conference overly , without taking notice of our informers ▪ or such an conference ; and it was recommended to all to be enquiring ( at such as they had some trust in ) indirectly about the affection of our neighbours , and what arms there was amongst them ; that if we should get an satisfying account , and resolve to joyn , we might know where to seek men and arms suddenly ; here it was said by polwart , as i think , that if the e. of tarras , torwoodlie , gallow-shiels , and i once took horse , he thought the most part of the west end of of tiviotdale and selkirk shire would soon come to us , especially , when they heard england was risen , then we trysted to meet there against mid-summer fair , betwixt and which the forsaid account was expected , but in case it came to any of our hands sooner , we promised to advertise the rest , that we might meet presently , if the case required ; this is the substance and sum of what passed at the forsaid conference , that i can now rememeber ; but i remember , i was likewise told these following particulars in privat ▪ by polwart , or torwoodlie , ( which of them , i cannot distinctly tell ) the day of the forsaid conference , or within a short time after . . that polwart keeped the correspondence with our friends at london , i remember not positively of any of them that was named , to be on the entrigue there , except my lord melvil , sir john cochran , jerviswood , and commissar monro ( for i hardly knew any of the rest ) and as i think , commissar monro was call'd his correspondent there . . that the money to be advanced by the english partie to scotland was ready , when mr. martin came from london , and it was expected , that within few days after , it would be dispatched with some confident to holland , ( whither by bills , or in cash , i cannot say ) it was call'd ten thousand pound sterlin , and was to be imployed ( as i was told ) by that confident , at argyles sight , for buying arms , providing ships to transport them with argyle , to the west here , and such other charges . . that how soon our friends at london got notice of the safe arrival , of the confident forsaid , and all other things were finally concluded there ( which was expected would be about the midle of june , as i remember ) they would come home , and as they passed , would give them , or one of them , an particular account of all resolutions taken , to be communicat to the rest , that it was not to be expected by letters , that behoved to be under figures , and dark expressions , and as i remember , they were written as it were about the carolina business , or some houshold furniture , as i was told , for i never remember , i saw any letter , either direct to london , or sent from it on that head . . i was told there was a sign , and a word agreed on by that party , so that men might know with whom they might use freedom , the word , as i remember was harmony , and the sign , the opening two buttons in the breast coat and shutting them presently ; this i communicate to the earl of tarras , but does not mind i ever saw it used , except when i visited park-hay here in town , about the end of june ; we discoursing a little freely , he asked if i had the word and sign of the carolina men , and i having given them , he said something to this purpose , that he was afraid that the carolina business did not go well , for there had been some of the managers expected here ( as i think he named jerviswood or commissar monro ) these eight days past , but there was none come , nor could he learn that any of their friends had heard from them for several posts . polwart , torwoodlie , and i met at gallowshiels , on midsummer fair , but i mind nothing passed but private whisperings . dated september . . and subscrived thus , james murray . edinburgh , december . . the deposition above-written being read to the said james murray of philiphaugh , in presence of the justices and assizers , he adheres thereto in all points upon oath . sic subscribitur , james murray . linlithgow , i. p. d. the said james murray further depons , that at their meeting at gallowshiels , it was resolved , that they should keep up their cess unpayed till their next meeting at midsummer , which was to be at gallowshiels , and should deal with all these they had influence upon to do the like , and that upon the supposition mentioned in his oath given in . it was spoke amongst them that the troupers horses should be seized upon , when they were grasing . and this is the truth , as he shall answer to god. sic subscribitur , james murray . linlithgow , i. p. d. hvgh scot of gallowshiels , aged . years , married , purged , &c. and sworn . depons , that the earl of tarras and philiphaugh did come to the deponents house , in may , . and polwart came likewise there , where there were discourses and proposals , that if the english would rise in arms , their friends in the south shires should rise with them ; and that they should seize the horses belonging to the kings troops where they grased , and the town of berwick , and the castle of stirling : and likewise it was there discoursed anent the late earl of argiles coming to invade scotland , but because of the uncertainty of sea voyages , there was not much stress laid upon it . depons , it was also proposed , that some of the south countrey whom they trusted in should be acquainted with it , and that endeavours should be used to learn what arms was in the countrey . depons , there was some such discourse there , as that the earl of tarras , philiphaugh , torwoodlie , polwart , and some others should draw to horse with the first when the rising should be in readiness , that it might be expected that the south parts of teviotdale and selkirk shire would joyn with them . and this is the truth , as he shall answer to god. sic subscribitur , hugh scot. linlithgow , i. p. d. his majesties advocat produc'd other depositions , emitted by gallowshiels before the lords of the secret committee , whereof the tenor follows . edinburgh , the of september . gallowsheils depons , that the e. of tarras and philiphaugh , being in his house in may . discoursed of an intended rising in england , and of proposals made to scots men , to rise with them , and of london in particular , and that polwort was present at that meeting , and told he was sure the englishmen intended so , and that it was discoursed at that meeting amongst them , that it were fit to seize berwick and stirling ; and that it was talked amongst them of bringing the duke of york to tryal , and that the king would abandon him . sic subscribitur , hugh scot. perth , cancel . queensberry george mckenzie . jo. drummond . george mckenzie . edinburgh , october . . sederunt . lord chancellour . lord president . lord secretary . lord advocat . the laird of gallowsheils , prisoner in the tolbuith of edinburgh , being call'd and examin'd upon oath , depons , that in the moneth of may . the e. of tarras , hume of polwert elder , and laird of philiphaugh , came to the deponents house , himself being absent , at his coming home , they were speaking of the security of the protestant religion ; and of a party in england , who would secure , or seize the king or duke , and that if any should rise in arms to defend them , or to rescue the king and duke : there was another party who would rise in arms against them , it was proposed , that some countrey men should be spoken to , to try their resolutions , and that the resolutions of england should be told them , to see if they would concur . but the deponent does not remember that this proposition was approven , or undertaken to be done by any present ; nor does he remember who mannag'd the discourse . it was likewise propos'd , to seize the officers of state , especially the chancellour and thesaurer , and they said , sir john cochran was to come to the west from england , for advancement of the design ; and that the earl of argile was to land in the west-highlands , and to raise that countrey . of these matters , all these who were present discoursed , as of an affair that they were agitating , and wherein themselves were particularly concerned , though at that time they did not conclude what their carriage should be ; the reason why the deponent cannot be more particulars is , because he was sometimes going out , and sometimes walking up and down the room ; and though the deponent cannot be positive of the very words ; yet he is positive they were either these words , or words to that purpose . sic subscribitur , hugh scot. perth cancellarius . edinburgh , december . . hvgh scot of gallowsheils being solemnly sworn in presence of the justices and assize , adheres to the depositions within , and above-written in all points , sic subscribitur . hugh scot. linlithgow , i. p. d. his majesties advocat in fortification of the former probation , adduces the printed copy of mr. william carstares depositions , emitted before the officers of state , and other lords of privy council , and leaves the same to the assise , and uses it as an adminicle of probation ; for though it was capitulat , that he should not be made use of as a witness ; yet it was agreed , that the deposition should be published : and likewise produces the principal deposition signed by himself , and the saids lords . the lords , justice-general , justice-clerk , and commissioners of justiciary , admit the paper produced as an adminicle , and refers the import thereof to the inquest , and ordains the printed paper as it is collationed , to be taken in , and considered by the inquest . sir william paterson , and mr. colin mckenzie , clerks of his majesties privy council being interrogat , if they heard mr. william carstares own the depositions read , depons they saw and heard him swear , and own the same upon oath , and they collationed the printed copie with the original formerly ; and now they heard it collationed , sic subscribitur , will. paterson . colin mckenzie . the deposition of mr. william carstares , when he was examined before the lords of secret committee , given in by him , and renewed upon oath ; upon the . of december . in presence of the lords of his majesties privy council . edinburgh castle , september . . mr. william carstares being examined upon oath , conform to the condescention given in by him , and on the terms therein-mentioned ; depons , that about november , or december . james stuart , brother to the laird of cultness , wrot a letter to him from holland , importing , that if any considerable sum of money could be procur'd from england , that something of importance might be done in scotland : the which letter , the deponent had an inclination to inform shepherd in abb-church-lane , merchant in london of ; but before he could do it , he wrot to mr. stuart above-nam'd to know from him , if he might do it ; and mr. stuart having consented , he communicat the said letter to mr. shepherd , who told the deponent that he would communicat the contents of it to some persons in england ; but did at that time name no body , as the deponent thinks : sometime thereafter , mr. shepherd told the deponent , that he had communicat the contents of the letter above-named , to colonel sidney , and that colonel dunvers was present , and told the deponent , that colonel sidney was averse from imploying the late earl of argile , or medling with him , judging him a man too much affected to the royal family , and inclin'd to the present church-government ; yet mr. shepherd being put upon it by the deponent , still urg'd , that one might be sent to the earl of argile ; but as mr. shepherd told him , he was suspected upon the account of his urging so much ; yet afterwards he press'd , without the deponents knowledge , that the deponent being to go to holland however , might have some commission to the earl of argile , which he having inform'd the deponent of , the deponent told him , that he himself would not be concern'd , but if they would send another , he would introduce him ; but nothing of this was done : upon which the deponent went over , without any commission from any body , to holland , never meeting with james stuart above-nam'd : he was introduc'd to the earl of argile , with whom he had never before convers'd ; and did there discourse what had past betwixt mr. shepherd and him ; and particularly , about remitting of money to the said earl from england ; of which the said mr. stuart had written to the deponent , namely of pounds sterling ; and of the raising of horse and dragoons ; and the securing the castle of edinburgh , as a matter of the greatest importance : the method of doing this was propos'd by the deponent , to be one hour , or thereby , after the relieving of the guards : but the earl did not relish this proposition , as dangerous ; and that the castles would fall of consequence , after the work abroad was done . james stuart was of the deponents opinion for seizing the castle ; because it would secure edinburgh ; the magazins and arms , as to the horse and dragoons . my lord argile was of opinion , that without them nothing was to be done ; and that if that number were rais'd in england to the said earl , he would come into scotland with them ; and that there being so few horse and dragoons to meet them , he judg'd he might get the countrey without trouble , having such a standing body for their friends to rendezvous to ; and the said earl said he could show the deponent the conventient places for landing , if he understood ; and as the deponent remembers , where the ships could attend . the deponent remembers not the names of the places . the deponent spoke to the lord stairs ; but cannot be positive that he nam'd the affair to him , but found him shy : but the earl of argile told him , he thought stairs might be gain'd to them : and that the earl of lowdoun being a man of good reason , and disobliged , would have great influence upon the countrey , and recommended the deponent to major holms with whom the deponent had some acquaintance before , and had brought over a letter from him to the earl of argyle ; but the deponent had not then communicate any thing to the said holms . james steuart laid down a way of correspondence by cyphers and false names , and sent them over to holms , and the deponent , for their use ( which cyphers and names , are now in the hands of his majesties officers , as the deponent supposes , ) and did desire the deponent earnestly to propose the . pound sterling above-named to the party in england , and did not propose any less ; for as the earl told the deponent , he had particularly calculate the expence for arms , ammunition , &c. but james steuart said , that if some less could be had , the earl would content himself , if better might not be ; but the earl always said , that there was nothing to be done without the body of horse and dragoons above-mentioned . during the time of the deponent his abode in holland , tho he had several letters from shepard , yet there was no satisfactory account , till some time after the deponent parted from the earl of argyle , and was making for a ship at rotterdam to transport himself to england . james steuart wrot to him that there was hopes of the money . the next day after the deponent came to england , he met with sir john cochran , who , with commissar monro , and jerviswood , was at london before he came over ; and depons , that he knows not the account of their coming , more then for the perfecting the transaction about carolina : and having acquainted sir john cochran with the earls demands of the pound sterling and the . horse and dragoons , sir john carried him to the lord russel , to whom the deponent proposed the affair , but being an absolute stranger to the deponent , had no return from him at that time ; but afterwards having met him accidently at mr. shepards house , where he the lord bussel had come to speak to shepard about the money abovenamed , as mr. shepard told the deponent . the deponent ( when they were done speaking ) desired to speak to the lord russel , which the lord russel did , and having reiterate the former proposition for the . pound sterling , and the . horse and dragoons , he the lord russel told the deponent , they could not get so much raised at the time , but if they had . pound to begin , that would draw people in , and when they were once in , they would soon be brought to more ; but as for the . horse and dragoons , he could say nothing at the present , for that behoved to be concerted upon the borders . the deponent made the same proposal to mr. ferguson , who was much concerned in the affair , and zealous for the promoving of it . this mr. ferguson had in october or november before , as the deponent remembers in a conversation with the deponent in cheap-fide , or the street somewhere thereabout , said , that for the saving of innocent blood , it would be necessary to cut off a few , insinuating the king and duke , but cannot be positive whether he named them or not , to which the deponent said , that 's work for our wild people in scotland , my conscience does not serve me for such things ; after which the deponent had never any particular discourse with ferguson , as to that matter ; but as to the other affair , ferguson told the deponent that he was doing what he could to get it effectuate , as particularly that he spoke to one major wildman who is not of the deponent his acquaintance . ferguson blamed always sidney , as driving designs of his own . the deponent met twice or thrice with the lord melvil , sir john cochran , jerviswood , commissar monro , the two cessnocks , mongomery of langshaw , and one mr. veitch , where they discoursed of money to be sent to argyle , in order to the carrying on the affair , and tho he cannot be positive the affair was named , yet it was understood by himself , and as he conceives by all present , to be for rising in arms , for rectifying the government . commissary monro , lord melvil , and the two cessnocks were against medling with the english , because they judged them men that would talk , and would not do , but were more inclined to do something by themselves , if it could be done . the lord melvil thought every thing hazardous , and therefore the deponent cannot say he was positive in any thing , but was most inclined to have the duke of monmouth to head them in scotland , of which no particular method was laid down . jerviswood , the deponent , and mr. veitch , were for taking money at one of these meetings . it was resolved , that mr. martin , late clerk to the justice court should be sent to scotland , to desire their friends to hinder the countrey from rising , or taking rash resolutions upon the account of the council , till they should see how matters went in england . the said martin did go at the charges of the gentlemen of the meeting , and was directed to the laird of polwart and torwoodlie , who sent back word that it would not be found so easie a matter to get the gentrie of scotland to concur : but afterwards in a letter to commissar monro , polwart wrot that the countrey was readier to concur than they had imagined , or something to that purpose . the deponent , as above-said , having brought over a key from holland , to serve himself and major holms : he remembers not that ever he had an exact copy of it , but that sometimes the one , sometimes the other keeped it , and so it chanced to be in his custody when a letter from the earl of argyle came to major holms , intimating , that he would joyn with the duke of monmouth , and follow his measures , or obey his directions . this mr. veitch thought fit to communicate to the duke of monmouth , and for the understanding of it was brought to the deponent , and he gave the key to mr. veitch , who as the deponent was informed , was to give it and the letter to mr. ferguson , and he to shew it to the duke of monmouth ; but what was done in it , the deponent knows not . the deponent heard the design of killing the king and duke , from mr. shepard , who told the deponent some were full upon it . the deponent heard that aron smith was sent by those in england to call sir john cochran , on the account of carolina , but that he does not know aron smith , or any more of that matter , not being concerned in it . shepard named young hamden frequently as concerned in these matters . signed at edinburgh castle , the . of september , . and renewed the of the same moneth . william carstares . perth cancell . i. p. d. edinburgh castle september . mr. william carstares being again examined , adheres to his former deposition , in all the parts of it , and depones he knows of no correspondence betwixt scotland and england , except by martin before named ; for those gentlemen to whom he was sent , were left to follow their own methods . veitch sometimes , as the deponent remembers , stayed sometimes at nicolson , stabler●s house , at london-wall ; sometimes with one widow hardcastle in more-fields . the deponent did communicate the design on foot to doctor owen , mr. griffil , and mr. meed , at stepney , who all concurred in the promoting of it , and were desirous it should take effect ; and to one mr. freth in the temple , councellor at law , who said that he would see what he could do in reference to the money , but there having gone a report , that there was no money to be raised , he did nothing in it ; nor does the deponent think him any more concerned in the affair . nelthrop frequently spoke to the deponent of the money to be sent to argyle , whether it was got or not , but the deponent used no freedom with him in the affair . goodenough did insinuate once , that the lords were not inclined to the thing , and that before , they would see what they could do in the city . the deponent saw mr. ferguson , and mr. rumsay , lurking after the plot broke out , before the proclamation , having gone to ferguson , in the back of bishopsgate-street , at some new building , whether he was directed by jerviswood , who was desirous to know how things went. rumsay was not of the deponent his acquaintance before , but they knew as little of the matter as the deponent . this is what the deponent remembers , and if any thing come to his memory , he is to deliver it in betwixt ▪ and the first of october . and this is the truth , as he shall answer to god. william carstares perth , cancell . i. p. d. at edinburgh , the . of december , . these foregoing depositions , subscribed by mr. william carstares deponent , and by the lord chancellor , were acknowledged on oath by the said mr. william carstares , to be his true depositions ; and that the subscriptions were his , in presence of us undersubscribers . william carstares . perth cancell . david falconer . george mckenzie , queensberry . athol . his majesties advocat for further probation , adduces the examinations of mr. shepard , taken before sir leolin jenkins secretary of state for england , with the information or deposition of mr. zachary bourn , relating to the plot , sign'd by him and secretary jenkins , of which depositions the tenors follow . the examination of thomas shepard of london merchant , taken upon oath before the right honourable sir leolin jenkins knight , his majesties principal secretary of state , the . day of december . . the deponent saith , that ferguson told him on , or about the moneth of april last , that an insurrection was intended both in england and in scotland , and that for the settling that affair betwixt the two nations , mr. baillie , mr. monro , sir john cochran , sir hugh and sir george campbels , with some others ( whose names this deponent heard not ) were come to london . that the deponent had some acquaintance with mr. baillie , mr. monro , and sir john cochran , and none at all with sir hugh and sir george campbels ; that mr. baillie told the deponent , that the earl of argile demanded thirty thousand pounds of the english to capacitat him to begin the business effectually in scotland , and that he the said baillie likewise told the deponent , that having concerted things with the lord russel and others , he the said baillie found an impossibility of raising that sum ; after which the said baillie had acquainted the deponent , that they were certainly promised ten thousand pounds , which sum was agreed to be payed into the deponents hands , in order to be remitted into holland , for the providing of arms ; and that the said baillie told the deponent at divers times , that the said sum , or at least one half of it would be payed such a day , and such a day ; and sometimes asked the deponent , if he had received any part of the said money , to which the deponent replyed that he had not , and that he the deponent scarce thought any would be payed . and the deponent also saith , that having had some little conversation with sir john cochran , he remembers well , that both of them did sometimes lament the delays in not paying in the money , and said , that although the said ten thousand pounds were pay'd in , they , the said sir john cochran and mr. monro , fear'd it would be too little ; and this deponent further sayeth not , as to any new matter . but the deponent being asked , to explain what he thought was meant by the words above written , vi●s , to capacitat him ( the earl of argile ) to begin the business , he , this deponent sayeth , that he did understand by the word business , an insurrection in scotland . sic. subscribitur , thomas shepard . jurat coram . l. jenkins . the information of zachary bourn of london , brewer ▪ taken upon oath , the tenth day of december . before the right honourable mr. secretary jenkins . the informant deposeth , and sayeth , that mr. baillie sat up one night , if not two , with mr. ferguson , and went several times in the evening with him to the duke of monmouth , and the chief mannagers of the conspiracy ; that ferguson told the deponent , that he the said baillie was the chief man for the scots , next to the lord argile ; that the said , baillie did sit up the greatest part of one night , with the said ferguson ; at which time this deponent believeth they were busie in preparing the intended declaration , which the deponent has the more reason to believe , in as much as the said ferguson did go about to show him the deponent , such a paper , wherein the said ferguson was hindered by the coming up stairs of some person , to speak with the said ferguson , that the said ferguson told the deponent , that the main business of the said baillie , in meeting the saids conspirators , was in order to get from them the ten thousand pounds , promised for the buying of arms ; for the insurrection intended in scotland . that the deponent saw mr. william carstares come often to the lodgings of the said ferguson ; but that the said ferguson never told the deponent of any discourse held by him with the said carstares : and further this deponent saith not . sic subscribitur , zac. bourn . jurat coram . l. jenkins . his majesties advocat likewise produced several warrands , and papers to prove , that those depositions are sign'd by sir leolin jenkins . his majesties advocat also produced the books of adjournal , bearing mr. william veitch to be a forefault traitor , and the act of parliament whereby the forefaulture is ratified . his majesties advocat's speech to the inquest . my lords and gentlemen , you have now a conspiracy against his majesties sacred person , and royal government , so fully discover'd , that they must want reason as well as loyalty , who do not believe the discovery ; and they must be enemies to sincerity , as well as to the king , who do not acknowledge it . beside , that the councils of all the three nations , thought the proof sufficient , for indicting a general thanksgiving through all these nations ; and that the judges of england thought the same strong enough to infer forefaulture of life and estate , against some of all ranks there ; you have a discovery made here from the late e. of argiles own letters , and the confession of his own emissaries , the two surest proofs that law ever invented , or the nature of humane affairs can allow ; and i am this day to add to all this , a new sett of proofs in the process that i now lead against this pannal , from the confessions of noblemen and gentlemen , who have been engaged in this wicked conspiracy ; and who from a sense of their guilt , are content freely to depose against their nearest relation , and their most intimate friend , in which having thus cleared to you , that there was really such a conspiracy , i shall , in the next place , proceed to prove this pannals accession to it . it cannot be imagined , that we would willingly involve our countrey men in it , without a conviction stronger then our kindness to scotland ; nor did his majesties servants accuse this pannal , without the opinion of the ablest lawyers of the kingdom , who did ▪ with them concur , to think that there was not the least occasision of doubting left , to the most indifferent inqueist of his guilt , after they had seriously , and with reflection , read over , and pondered the probation now laid before you : the person accused of accession to this cryme is the ring-leader of all those , who in this kingdom concurr'd with the english conspirators , as you may see by the testimonies of all who have deposed ; and it was indeed sit and just to begin with the most guilty , so that if he be not convicted , there should no man be punished for this conspiracie ; all the noise we have heard of it , is but a cheat , the kings judges have been murderers , all the witnesses have been knaves , and such as dyed for it have been martyrs . the accession charged on this pannal , is not an accidental escape , nor is it proved by witnesses , who can be suspected of unkindnes to his person , or his cause , for it is a long tract of a continued design , gone about with the greatest deliberation and concern imaginable , and proved by his nearest relations , and persons so deeply engadged in that cause , ( for which he suffers , ) that they were content with him to venture their lives and fortunes in that quarrel . he is not accused of a crime that can amount only to a single murder , though that be a dreadful cryme , but a rebellion , which was to draw upon us a civil war , that murder of murders , in which hundreths of thousands were to fall ; and to crown all , he was to begin , and to be the chief promoter of a rebellion , in which one of the first steps was to kill his sacred majestie , and his royal brother ; and one of the chief witnesses which i have led against him , is bourn , which bourn confessed that he was to kill the king , and who confesses the pannal sat up several nights with ferguson , the other contriver of the kings murder , and so familiar was he with him , that bourn depons , that the said pannal had been with ferguson ▪ at the drawing of the manifesto , whereby he was not only to be an actor , but to be the justifier of that horrid villanie : and therefore bourns depons , that ferguson , ( the best judge in that case ) looked upon him as the chief man , next to argyle ; but because no man is presumed to go to such a hight , without previous inclination and motives , i shall to convince you , that this gentleman was very capable of all that was lybelled against him , remember you , that he is nephew , and son in law to the late war●stoun , bred up in his family and under his tutory ; about the time of this plot it was undenyably known , and is now sufficiently proved , by two present witnesses , the earl of tarras and commissar monro , that he thought himself desperat , knowing himself to be guilty of treason by blackwoods case ; and as it 's presumable , that a man that 's guilty of one point of treason , will commit another ; so when a man is desperat as to his life and fortune , he is capable of any thing ; he was likewise animated to commit this cryme , by the intelligence he had that there was a plot in england , carryed on by men of so great parts , fortune and influence , and by the too probable hopes , that they would get all the western shires to joyn with them here , because of the common guilt , in which they had engadged themselves , by their late extravagances , they made and account of an assistance of twenty thousand men ; and by philiphaughs deposition , that these gentlemen expected the concurse of the southern-shires ; and thus , i am to prove to you a cryme , which is in it self , so probable and liklie , that it should need little probation , tho i have adduced for your conviction sufficient evidences , albeit the cryme were in it self very unliklie . the crymes which i hope i have proved , are , that jerviswood the pannal transacted for money to the late earl of argyl , a declared traitor . . that he designed to raise a rebellion . . that he intercommuned with the earl of argyle and mr. veitch declared traitors . . that he was present , where it was treated , either that argyle should have money from the english and assistance from scotland , or that a rebellion should be raised , and that he did not reveal the samine ; and all these being found relevant separatim , it is sufficient for me to have proved any one of them . and if a gentleman was lately found guilty of high-treason , by the opinion of all the lords of session , for not revealing , that sir john cochran sought fifty pound sterling from him , though he refused the same , and tho he believed , it was sought for a charitable subsistance to preserve him from starving ; what deserves this pannal , who sought thirty thousand pound sterling , to buy him arms , to invade his native countrey ? that jerviswood was designing to carry on a rebellion , or at least was accessory , or ( as our law terms it ) was art and part thereof , is clearly prov'd ; but that in this occult and hidden crime , which uses not to be prov'd by clear witnesses ; i may lead you thorow all the steps of the probation , which like the links of a chain , hang upon one another . you will be pleased to consider , that . it is proved that he desired a blind commission to go to england , not to manage the affairs of the carolina company , as he confess'd , but to push the people of england to do something for themselves , because they did only talk and not do ; and what he would have them to do , appears too clearly , because he tells the earl of tarras it was probable , that if the king were briskly put to it by the parliament of england , he would consent to exclude the duke from the succession : here is not only a treasonable design , ( though a design be sufficient in treason ) but here are express acts of treason proved , viz. the treating with the earl of tarras upon this design , the settling a correspondence with him for the prosecution of it , and the writing letters from london to him concerning it , and the sending down mr. martin to compleat it by a general rising : as he design'd to push on the english , so he prosecutes closely this design upon all occasions . on the road he complains cunningly and bitterly , that our lives , laws and liberties , and the protestant religion were in danger , the stile and method of all such as design to rebel ; after he arrives at london , he engages the conspirators there to assist the late earl of argile ▪ a declar'd traitor , with money to buy arms ; this was indeed to push the english to do the most dangerous things by the most dangerous man ▪ and in the most dangerous methods . he enters also in a strict correspondence with ferguson the contriver ▪ with shepard the thesaurer , and carstares the chaplain of the conspiracy . alexander monro another present witness , proves that he argued with him , that it was necessary to give argile money expressly for carrying on the rebellion , and that they did meet at jerviswoods chamber where this was spoke of , and from which mr. robert martin was sent to their friends in scotland to know what they would do ; and though the silly caution was , that they sent him to prevent their rising , yet a man must renounce common sense , not to see that the design was to incite them to rebellion , and to prevent only their doing any thing in this rebellious design , by which they might lose themselves in a too early and abortive insurrection here , till things were ready in england . for , . this comission was given him in a place , and by a company who had been themselves treating immediatly before of sending money to the late e. of argile to buy arms , and certainly those arms were to be bought for men , and not for a magazine . . they were treating how many men could be raised in scotland . . carstares deposition bears , that martin was sent to hinder rash resolutions , till they saw how matters went in england , and the return to their embassy bore , that it would not be an easie matter to get the gentry of scotland to concur ; but afterwards better hopes of their rising was given , which could not have been , if the true commission had not been to raise scotland . . that sir john cochran made a speech to that purpose , is expressly prov'd , and that jerviswood spoke to the same purpose , is prov'd by a necessary consequence ; for since it 's prov'd that he spoke , and that he did not speak against it , it must necessarily follow that he spoke for it , though the witness is so cautious , that he cannot condescend upon the words now after so long a time ; and it is against sense to think , that jerviswood who in privat press'd the same so much upon commissar monro , and who was the deacon-conveener here , and who , as mr. martin their envoy declared , was the person who was to be sent for the arms , should not himself have been the most forward man in that design , but above all exitus acta probat , this commissioner , ( who being a meer servant , durst not have proposed any thing from himself , being a mean person , and being one , who , as the earl of tarras deposes , would say nothing , but what was in his paper : ) does expresly declare , that he came from jerviswood and others ; and in the meeting with him , a rebellion is actually formed , and it is resolved , they should seize the king's officers of state , garisons , and forces , and that they should joyn with the late e. of argyle , and put their own forces in a condition to joyn with these forces that were to come from england , and they gave a sign , and a word , which uses only to be done in actual war ; so here is treason clearly prov'd , by two present witnesses , from the first design to it's last perfection . nor can it be objected , that they are not concurring witnesses , but testes singulares upon separat acts , for in reiterable crimes , witnesses deposing upon different acts ; do prove if the deeds tend to the same end ; as for instance , if one witnes should depose , that they saw a traitor sit in a council of war , in one place , and in another place , they saw him in arms , or that one saw him assist at a proclamation in one place , and saw him in arms in another ; or that one saw him writ a treasonable paper , and another saw him use it ; these witnesses are still considered as contestes , or concurring witnesses , and ten or twelve inqueists have so found , and upon their verdict , rebells have been lately hang'd . the learn'd judges of england being all met together did expresly find , that one witnes proving , that a. b. said , that he was going to buy a knife to kill the king , and another deposing , that he saw him buy a knife , without telling for what , that these two witnesses were contestes , and prov'd sufficiently the cryme of treason , yet there the one witnes , prov'd only a remote design , and the other an act , which was indifferent of it's own nature , and became only treasonable by the connexion ; but no vvitnesses ever deposed upon things so coherent , and so connected together , as these do , for they depose still upon the same person , carrying on the same design of a rebellion ; as to which , in one place , he is exciting his own nephew , and telling him his resolutions , and settling a correspondence with him , at another time , he presses commissar monro to the same rebellion . at a third , he holds a meeting at his own chamber , and speaks concerning it , and from that meeting , he sends a trusty , who formes the rebellion . besides all this , tho two vvitnesses be sufficient , i have adduced mr. william carstares chief conspirator , and who choos'd rather to suffer violent torture , than to disclose it , he likewise deposes upon all these steps , and connects them together , and this his deposition is twice reiterated , upon oath , after much premeditation . and i likewise adduce two depositions taken upon oath , by sir leolin jenkins , who was impower'd by the law of england , and at the command of the king , and the council of england , upon a letter from his majesties officers of state here , in which deposition , shepard , one of the vvitnesses , deposes , that baillie came frequently to him , and desired him to advance the money , and lamented the delays , and that there was so little to be advanced ; and who should be better believed then one who was his own trustie , and a person who was able to advance so great a sum ; bourn , another of the vvitnesses , deposes , that ferguson told him , that the pannal spoke frequently to him concerning the same money , and that he sat up several nights with ferguson upon the said conspiracy ; and who should be better believed then fergusons confident , and one who was so far trusted in the whole affair , that he was to take away that sacred life , which heaven has preserv'd by so many miracls . against these three depositions , you have heard it objected , that non testimonia sed testes probant , especially by our law , in which , by an express act of parliament , no probation is to be led , but in presence of the assise and pannal . to which it is answered , that these depositions are not meer testimonies ; for i call a testimony , a voluntar declaration , emitted without an oath , and a judge ; but these depositions are taken under the awe of an oath , and by the direction of a judge . ● shepard was confronted with the pannal himself , and he had nothing to say against him ; whereas the great thing that can be objected against testimonies ( and by our statute especially ) is , that if the party who emits the testimony had been confronted with the pannal ; the impression of seeing a person that was to die , by his deposition , would have made him afraid to depose laxly ; and the pannal likewise might , by proposing interrogators and questions , have cleared himself , and satisfi'd the judges in many things depos'd against him : but so it is that mr. shepard having been confronted with the pannal , before the king himself , who is as far above other judges , in his reason and justice , as he is in his power and authority ; he deposes that the pannal was the chief mannager of this conspiracy , next to argile , and that he was so passionat to have this money to buy arms , that he lamented the delays ; and can it be imagined that mr. shepard whom he trusted with his life and his fortune , and whom all their party trusted with their cash , would have depos'd any thing against him that was not true , especially when he knew that what he was to depose , was to take away his life and his fortune ; or that if the pannal had been innocent , he would not when he was confronted with mr. shepard , before the king himself , have roar'd against mr. shepard , if he had not been conscious to his own guilt . there is a surprise in innocence , which makes the innocent exclaim , and it inspires men with a courage , which enables them to confound those who depose falsly against them ; and in what occasion could either of these have appear'd , more than in this , wherein this gentleman was charg'd to have conspir'd with the greatest of rascals , against the best of princes ; and that too in presence of the prince himself , against whom he had conspir'd , but guilt stupifies indeed , and it did never more than in this gentlemans case , whose silence was a more convincing witness than mr. shepard could be mr. carstares likewise knew when he was to depone , that his deposition was to be used against jerviswood , and he stood more in awe of his love to his friend , than of the fear of the torture , and hazarded rather to die for jerviswood , than that jerviswood should die by him : how can it then be imagin'd , that if this man had seen jerviswood in his tryal , it would have altered his deposition ; or that this kindness , which we all admir'd in him , would have suffer'd him to forget any thing in his deposition , which might have been advantageous in the least to his friend : and they understand ill this hight of friendship , who think that it would not have been more nice and careful , than any advocat could have been : and if carstares had forgot at one time , would he not have supplyed it at another ; but especially at this last time , when he knew his friend was already brought upon his tryal : and that this renew'd testimony was yet a further confirmation of what was said against him ; and albeit the kings servants were forced to engage , that carstares himself should not be made use of as a witness against jerviswood ; yet i think this kind scrupulosity in carstares for jerviswood , should convince you more than twenty suspect , nay than even indifferent witnesses ; nor can it be imagined , that the one of these witnesses would not have been as much afraid of god , and his oath at london , as at edinburgh ; and the other in the council-chamber in the forenoon , as in the justice-court in the afternoon . . the statute founded on , does not discharge the producing of testimonies otherways than after the jury is inclos'd ; for then indeed they might be dangerous , because the party could not object against them : but since the statute only discharges to produce writ , or witnesses , after the jury is inclos'd ; it seems clearly to insinuat , that they ought to prove when they are produc'd in presence of the party himself , as now they are . and though the civil law did not allow their judges to believe testimonies , because they were confin'd to observe strict law ; yet it does not from that follow , that our juries , whom the law allows to be a law to themselves , and to be confin'd by no rule , but their conscience , may not trust intirely to the depositions of witnesses , though not taken before themselves , when they know that the witnesses , by whom , and the judges , before whom these depositions were emited , are persons beyond all suspition , as in our case . but yet for all this , i produce these testimonies , as adminicles here only to connect the depositions of the present witnesses , and not to be equivalent to witnesses in this legal process ; albeit , as to the conviction of mankind , they are stronger than any ordinary witnesses . when you , my lords and gentlemen , remember that it is not the revenge of a privat party , that accuses in this case ; and that even in privat crimes , such as forgery , or the murder of children , &c. many juries here have proceeded upon meer presumptions , and that even solomon himself , founded his illustrious decision , approv'd by god almighty , upon the presum'd assertion of a mother ; i hope ye will think two friends deposing , as present witnesses , adminiculated and connected by the depositions of others , though absent ; should beget in you an intire belief , especially against a pannal , who has been alwayes known to incline this way , and who , though he was desired in the tolbooth to vindicat himself from those crimes , would not say any thing in his own defence , and though he offers to clear himself of his accession to the kings murder , yet sayes nothing to clear himself from the conspiracy entered into with the late earl of argile , for invading his native countrey , which is all that i here charge upon him , and which he inclines to justifie , as a necessary mean for redressing grievances ; i must therefore remember you , that an inquest of very worthy genlemen did find rathillet guilty , tho there was but one witness led against him , because when he was put to it , he did not deny his accession : and two rogues were found guilty in the late circuit at glasgow , for having murdered a gentleman of the guard , though no man saw them kill him ; but the murderers having been pursued , they run to the place out of which the pannals then accused were taken , none having seen the face of the run-aways ; and the pannals being accus'd , and press'd to deny the accession , shun'd to disown the guilt , but desired it might he proved against them . this may convince you that there are proofs which are stronger then witnesses ; and i am sure that there were never more proving witnesses then in this case , nor were the depositions of witnesses ever more strongly adminiculated . remember the danger likewise of emboldening conspiracies against the kings sacred life , and of encouraging a civil war , wherein your selves and your posterity may bleed , by making the least difficulty to find a man guilty by the strongest proofs that ever were adduced in so latent a crime as a conspiracy is . and i do justly conclude , that whoever denys that a conspiracy can be thus prov'd , does let all the world see that he inclines that conspiracies should be encouraged and allow'd . our age is so far from needing such encouragements , that on the other hand ▪ in this , as in all other crimes , because the guilt grows frequent and dangerous , the probation should therefore be made the more easie , tho in this case the king needs as little desire your favour , as fear your justice . and i have insisted so much upon this probation , rather to convince the world of the conspiracy , than you that this conspirator is guilty . thereafter the lords ordained the assize to inclose , and return their verdict to morrow by nine a clock in the morning . edinburgh , december . the said day , the persons who past upon the assize of mr. robert baillie of jerviswood , return'd their verdict in presence of the saids lords ; whereof the tenor follows . the assize , all in one voice , finds the crimes of art and part in the conspiracy , and plot libelled ; and of concealing , and not revealing the same , clearly proven against mr. robert baillie the pannal , in respect of the depositions of witnesses and adminicles adduced . sic subscribitur , strathmore chancellor . after opening and reading of the which verdict of assyze , the lords , justice general , justice clerk , and commissioners of justiciary , therefore , by the mouth of james johnstoun dempster of court , decerned and adjudged the said mr. robert baillie of jerviswood to be taken to the mercat cross of edinburgh , this twentie fourth day of december instant , betwixt two and four a clock in the afternoon , and there to be hanged on a gibbet till he be dead , and his head to be cut off , and his body to be quartered in four , and his head to be affixt on the nether-bow of edinburgh , and one of his quarters to be affixt on the tolbooth of jedburgh , another on the tolbooth of lanerk , a third on the tolbooth of air , and a fourth on the tolbooth of glasgow ; and ordains his name , fame , memory , and honours to be extinct , his blood to be tainted , and his arms to be riven forth , and delate out of the books of arms , so that his posterity may never have place , nor be able hereafter to bruik , or joyse any honours , offices , titles or dignities , within this realm in time coming ; and to have forfaulted , ammitted and tint all and sundry his lands , heritages , tacks , steadings , rooms , possessions , goods and gear whatsoever , pertaining to him , to our soveraign lords use , to remain perpetually with his highness , in property , which was pronunced for doom . sic subscribitur . linlithgow . james foulis , i. lockhart , david balfour , roger hog , al. seton , p. lyon. extracted forth of the books of adjournal , by me mr. thomas gordon , clerk to the justice court , sic subscribitur : tho. gordon in pursuance of which sentence , his majesties heraulds , and pursevants , with their coats display'd ( after sound of trumpets , ) did publickly , in face of the court ( conform to the custom , in the sentences of treason ) in his majesties name and authority , cancel , tear and destroy the said mr. robert baillie his arms , threw them in his face , trampl'd them under foot ; and ordain'd his arms to be expunged out of the books of herauldry , his posterity to be ignoble , and never to injoy honour and dignity in time coming : and thereafter went to the mercat-cross of edinburgh , and solemnly tore and cancelled the said mr. robert baillie his arms , and affixed the samine on the said mercat-cross reversed , with this inscription ; the arms of mr. robert baillie late of jerviswood traitor . finis . notes, typically marginal, from the original text notes for div a -e nota , that the ●arl of tarras de●on'd nothing a●ainst jerviswood ●ut what the other ●wo witnesses de●on'd against him●elf before the try●l , and upon which ●hereafter they be●ng renew'd , the earl was forfault●d ; so that there ●ould be no ground ●f suspicion from ●is circumstances . the science of herauldry, treated as a part of the civil law, and law of nations wherein reasons are given for its principles, and etymologies for its harder terms. mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing m estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : or : ) the science of herauldry, treated as a part of the civil law, and law of nations wherein reasons are given for its principles, and etymologies for its harder terms. mackenzie, george, sir, - . [ ], [i.e. ], [ ] p., leaves of plates : coat of arms. printed by the heir of andrew anderson ..., edinburgh : . attributed to george mackenzie. cf. nuc pre- . errata: prelim. p. [ ]. added t.p., engraved: scotland's herauldrie / by sr. george mackenzie ... "an alphabetical table ..." [i.e. index]: p. [ ]-[ ] at end. imperfect: reel : lacks engraved t.p. and plate facing p. . reproduction of original in cambridge university library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project 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the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng heraldry -- scotland. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - judith siefring sampled and proofread - judith siefring text and markup reviewed and edited - pfs batch review (qc) and xml conversion scotland's herauldrie . by s r. george mackenzie of rose-haugh knight . the science of herauldry , treated as a part of the civil law , and law of nations : wherein reasons are given for its principles , and etymologies for its harder terms . virgil . — antiquam exquirite matrem . edinbvrgh , printed by the heir of andrew anderson , printer to his most sacred majesty , anno domini , m. dc . lxxx . to my countrey-men . hearing , when i was beyond seas , herauldry look'd upon as the science of gentlemen , and finding it taught as such in the academies , i resolved to know somewhat of it , upon design , rather to serve my countrey , then to satisfie my curiosity : for it was justly admir'd , that we only of all nations had never publish'd any thing , to let the world know what marks of honour our predecessors had gain'd . and having had great intimacy with a most learned advocat at bourge in france , who was admir'd over all europe for his skill in this art , it was easie for me to find that there was one book yet wanting upon this subject ; for some had treated this science as meer law , without understanding the practice of blazoning , as bartolus , chassaneus , &c ▪ whilst others handled it as a part of the civil law , as guilim , menestrier , colombier , and others , without being bred to the law , which requires a whole man , and his whole age. to reconcile which two , i was induced to write some observations , whilst i was young , to joyn the theory with the practice , and to examine and polish the principles and terms of that excellent art : and if these serve to please or instruct you my country-men , i have satisfied my ambition , and got my reward . having also design'd to learn from our old rights and evidents , the origin and progress of our stiles , and by what steps they arrived at their present perfection , ( in which work i have made considerable progress ) i did from the original papers i saw , and from the old chartularies of our abbacies , draw an account of our families ; but because i want time to fit them for the press , i resolve to leave the manuscript , as a new testimony of my kindess , to my native countrey . the heads of the chapters . chap. i. the origin and use of arms , where of seals . chap. ii. who can give or bear arms. chap. iii. of the shield . chap. iv. of colours and metals . chap. v. of furs . chap. vi. of the principal points of the shield . chap. vii . of lines used in herauldry . chap. viii . of the partitions of the shield . chap. ix . of the honourable ordinary's in general . chap. x. of the chef . chap. xi . of the pale . chap. xii . of the bend. chap. xiii . of the face , or fess. chap. xiv . of the cheveron . chap. xv. of the bordur and orle. chap. xvi . of the cross. chap. xvii . of the saltyr . chap. xviii . of such figures , square and round , as are only us'd in herauldry . chap. xix . of living creatures , trees , flowers , &c. and the general laws of herauldry , relating to them . where , . of planets , &c. . of the parts of a man ; . of four-footed beasts ; . of beasts , and their several parts ; . of fowls ; . of fishes ; . of trees , and plants , &c. . of castles , and instruments of war ; . of vtensils , crowns , and others , used in armory . chap. xx. why arms are changed . chap. xxi . marks of cadency , and differences . chap. xxii . of bastards . chap. xxiii . of abatements . chap. xxiv . of marshalling . chap. xxv . of atchievements in general . chap. xxvi . of the helmet . chap. xxvii . of mantlings . chap. xxviii . of wreaths . chap. xxix . of crests . chap. xxx . of crowns . chap. xxxi . of supporters , where likewise of compartments . chap. xxxii . of motto's , or devises . chap. xxxiii . of slughorns , or the cry of war. chap. xxxiv . of devises . the blazon of the atchievement of the king of scotland , and the reasons of that bearing . the blazon of the atchievement of his majesty of great-britain . errata . though the sheets were carefully revised , yet some escapes have been committed : the most material mistakes are to be corrected as followeth ; the rest are obvious to the considerat reader . page . l. . for and fife , r. in fife . p. . l. . r. in pale for . p. . l. . r. for their arms. p. . l. . dilatione , r. delatione . p. . add chap. . p. . l. . j'escu , r. l'escu . p. . l. . r. topaz . l. . for taoyth , r. iacynth . l. . r. metellorum . l. . cartwright , r. carter . l. ult . for pointeo , r. pointed . p. . l. . r. caeruleis . p. . ch. . l. . for e , r. f. p. . fig. . l. . r. counterchanged . p. . ch. . l. . dele or . p. . l. . r. diminutive . p. . l. . the r. an . p. . fig. . marg . r. straloch . ibid. dele aliter . p , . l. , , & . for argent , r. or. ch. . l. . for obsturcir , r. obscurcir . l. . for ce , r. je . p. . l. . r. besantée , l. . for bestanted , r. besanted . p. . marg . for lochcow , r. lochnaw ▪ fig. . l. . parting , r. pearcing . p. . fig. . l. . for hearts , r. an harts . p. . fig. . l. . for with , r. within . p. . fig. . l. . for oars , r. raes . p. . fig. . l. . bears , r. boars . p. . l. . heir , r. heirs . l. . tailye , r. entail . p. . l. pen. it s , r. ils . p. . l. . their , r. these . p. . l. . r. convenire . p. . l. . kings , r. king. p. . l. . r. arms of . p. . l. . r. nam . p. . l. . caur , r. caeur . l. pen. for of two sex , r. two of sex . p. . l. . cressets , r. croslets . p. . fig. . l. r. oars , r. raes , p. . l. . for shields , r. helmets . p. . l. . west , r. waist . p. . l. . r. dolphins . l. . farme , r. favin . p. . l. . for baronet , r. banneret . p. . l. . r. cry it out . p. . l. . r. verberantem , and r. significantem . l. . r. thus , the standard bearing the st. andrew 's cross , &c. nota , these three ordinary's chef , band , face , are ( in complyance with the received customs ) indifferently written and termed throughout this treatise chef , chief , or chief ; face , fasce , or fesse ; band , or bend. nota , the arms of straiton of lowriston , and also the arms of stirling of keir , are blasoned in several parts of this book by divers ways , and that conform to the old records of arms , where they are to be seen in all these differing forms . errours in the plates . in the royal atchievement of scotland , the lyon in the banner ought to look to the staff. in the plate of the partitions , third coat , the parting of the chef , is contrary . in the plate of the quartered atchievments , the first and last coat of the earl of kelly , should be gules . the field of the coat of bruce , in the same plate , should be or. the science of heraldry . book . chap. . the origin and use of arms . heraldry is that science , which teacheth us to give or know arms ; suteable to the worth or intention of the bearer . arms may be defin'd to be marks of hereditary honour , given or authorized by some supream power , to gratify the bearer , or distinguish families . the first name given to such bearings , was , imagines , scutis qualibus apud troiam pugnatum est , continebantur imagines , plin. lib. . c. . the grecians called them , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . conan . l. . com . jur . civil . c. . n. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as cujac . observes , ad l. . f. ad l. cor. de fals . the civilians call them , insignia ; l. . in princip . f. de his qui not . infam . l. eos . sect . f. defalsis . but bart. is tax'd for , insigniis & insigniorum ; whereas the true latine is , insignibus & insignium , us'd in the former texts . some call them , insignia armorum , the latine of which is also doubted by tiraquel . cap. num . . others call them , tesserae gentilitiae ; and in the civil law they are called , tituli , arg . rub. & l. un . c. de his qui potent . nom . & ibi bart. the germans call them wappen , or clenodia : the italians , carmas : the french , armoiries : the scots and english , arms ; from the latine , arma , which was us'd in this sense even amongst the romans , virgil , et genti nomen dedit , armáque fixit troiae . these arms are distinguished from hieroglyphicks , symbols , emblems and devices , in that , these require no fixt colours , as arms do . the emblem represents some moral lesson , but arms are the testimony of some noble action : arms are hereditary , but these are assum'd , and altered at pleasure . some think , that the giving of arms arose from the example of iacob blessing his children ; in which he gave them marks of distinction ; as iudah , a lyon , &c. and certain it is , that the tribes did bear these upon their ensigns . others ascribe their invention to the germans , and some to the romans . some think , the goths and vandals gave the first arms , to excite their souldiers to noble actions , upon their invading italie . others ascribe the exactness of this invention to charles the great ; aldrovan . l. . others to henry i. in anno . hop . cap. . but by comparing all these opinions , it is clear , that the wearing thir marks of distinction , is a iure gentium , and a part of the law of nations : for even the barbarous nations , such as the cimbri , teutones , &c. were observed by plutarch in vita marii , gessisse in armis pictas ferarum imagines : and hopping asserts , that he hath seen a shield from china , charg'd with a panther in a field , orr : yet certainly , the digesting these customs into an art , and the subjecting them to rules , must be ascribed to charlemaign and fredrick barbarossa ; for they did begin and grow with the feudal law , paul , iov . & mart. crus . lib. . part . . cap ult . and i cannot here forget , that some learned men have ascrib'd the first wearing of colored shields , to the scots and picts : and that the wearing of clothes of diverse colours , rose from their conforming their clothes to the variety of their shields , limneus lib. . de jur . pub . cap. . num . . speidel in not . jurid . histor . verb. wappen . the reasons of inventing this art , and giving such marks of distinction , and the advantages arising from the knowledge of heraldry and arms , are , . the great design that men had to perpetuate their own great actions . . the desire that governours had , to encourage others to do great things by rewarding with a cheap kind of immortality what their deserving subjects did . thus marshals predecessors got three pales gules , on a chief , orr , by the kings dipping his finger in camus the danes blood , and drawing three pales gules upon his shield , after that camus was defeat in a battel , in which the first keith fought most generously , anno . . the advantage of distinguishing friends from enemies , who could not be better known , then by their several bearings , and thus vegel lib. . de re milit . tells us , that the roman legions were thus distinguished , virgil. lib. . mutemus clypeos , danaumque insignia nobis aptemus . . to show a respect to religion . thus the christians bore the cross , at their expeditions into the holy-land , which were therefore called , croissads : and the pringles and others , bear escalops , to show their devote pilgrimages : of which these shells were the badges , and for which pilgrimage , the pringles were first called pilgrims , and thereafter by corruption pringle . for the same reason doth the dowglass carry a heart , in remembrance of the pilgrimage to the holy-land , with king robert the bruce's heart ; which was to be , and is buried there , at the special command of that pious prince , about the year , . . to show from what country the bearers came : thus the maxwels and ramsays bear the eagle , to show their descent from germany . the ruthvens the arms of portugal ; from which king they are said to be descended : and the name of marjoribanks bear the cushion , to show that they were iohnstouns originally . . to show their alliances . thus we quarter arms ; and by this means , the memory of great families , and even of clans and sirnames , are only preserved . thus scotland , by bearing a double tressour flori , and contre flori , is remembred of their league betwixt france and them in the reigns of achaius and charlemaign . thus there is no monument of the randolphs , but by quartering their cushions with the arms of the dumbars ; nor of the pepdies , but by the pepingoes , born by the earle of hume : nor of the giffords , but by the three bars ermine , born by the earle of tweddail , as their arms : nor would have any known that there had been a lord brechin of the name of wishart , if the marquess of dowglass had not quartered his arms , as having married the heretrix . . to remember princes of their obligations to some families . thus king robert the bruce gave the house of winton a falling crown supported by a sword ; to show , that the seatons had supported the crown when it was in a distrest condition : which seaton of barns yet bears , because he got the land which was dispon'd , with the arms : and to veitch , a bullocks head , to remember posterity , that the bearer had assisted that king with aliment , in bringing some bullocks in his great distress . . to instruct descent by blood ; and therefore arms are called tesserae gentilitiae . thus the weems and fyfe , are known to be cadets of macduff , and the colquhouns and m cfarlans cadets of the family of lennox , by their arms ; and these are surer marks of consanguinity than the sirname , as may be known by many instances ; and among others the shaws in the north , are known to be m cintoshes by their arms. . to show , that the bearers possest once great imployments . thus the earle of southesks predecessours did bear a cup in an escotcheon , upon the eagles breast , to show , that his predecessours were cup-bearers , regi olim à pateris , ut praelibaret & auro , ista notis certis perhibent insignia gentis . and wood of largo two ships , to show , that his predecessours were admirals . thus burnet carries a hunting-horn in his shield , and a high-lander in a hunting garb , and grew-hounds for his supporters ; to show , that he was his majesties forrester in that northern forrest , as forrester of that ilk is in the south : for which he also carries three hunting horns . the earle of holdernesse , ramsay , carried a sword pale-wayes , to show , that he and his successours had right to carry the sword of state , the day of gowries conspiracy , as a reward for killing gowrie . . these shew ofttimes to the bearers , to whom they have been oblidged . thus the dundasses bear for their supporters , the lyon , which was the arms of the earls of march , to show , their support they got from that nobleman ; and they show the intimacy and friendship of the giver . thus king robert the bruce having carried as a privat badge three lawrel leaves , with this word , sub sole , sub vmbra virens : he gave to irvin , drum's predecessour , who had been constantly his armour-bearer , the three hollen leaves , which is a kind of lawrell . . these shew the bearers antiquity , and thus macdowal ( for though macdougal may be macdonald , yet macdowal is not ) is known to be amongst the ancientest sirnames of scotland , because he bears a lyon collard , with a broken crown about his neck , in remembrance of dovallus , his predecessours ( as is alledg'd ) killing nothatus , who was a tyrant , and who liv'd many years before christ : which ( if true ) are the ancientest arms i ever saw , belonging to any private family in europe . . these let us know , if the bearers be noblemen or gentlemen , and what their dignity is ; as will appear by several casques and crowns . . the shield , and ofttimes the signet , made the bearers , who were kill'd in the crowd , to be known , that they might be honourably buried . . they being appended , inform us of the true sirnames of the granters , which are become illegible ; and thus by the seals i have found some charters to be granted by menzies of weems , when we could hardly read the name : and i have been in processes , wherein charters were alledg'd to be false and forg'd , because the granters true arms and seal were not appended . . by these arms , we are instructed of the right originations , and writings of sirnames : and thus we know the name of tarbet to be wrong writ ; and that it should be writ , turbett , seing they have three turbetts , fretted proper , for their arms. and thus we find that buchannan erred , calling the winrams , viniramus ; which gave occasion to some of that name lately , to take a vine branch for their arms ; for the old arms is a ram passant , and were given the first of that name , for being incomparable at a game wherein men were to wind and turn a strong ram from the sheep with one hand : whereupon he was also called winramme . thus the trumbles are turnbulls to their names ; and boëtius sayes , that they were so called , because the first of that name , did turn and divert a mad bull from killing king robert the bruce . of which antiquities and games there is no record but heraldry . . these arms show who have been founders of towns , castles or churches . thus the church of durham is known to be built by the kings of scotland , and the town of erfort is known to be built by the french king , because it bears their arms , dresser pag. . . these inferr a presumptive right of superiority , quando arma in portis vel curiis pinguntur , bart. tract . de insig . and thus when the millaners did ingage to be vassals to the emperor fredrick the first , they undertook to carry the arms of the empire upon the steeple of their chief church , limn . dejure publ . cap. . num . . and when orknay and zetland were fully resign'd to the kings of scotland , it was agreed , that the arms of scotland should be affixt in their publick courts : and thus the dukes of venice are known not to have an absolute jurisdiction , because they are not allowed to represent the arms of their family upon the coin of the publick , alberi . ad l. si qui c. de oper . publ . and one of their dukes was severely censur'd by the state , for having contraveened this rule in heraldry , tessaur . decis . . arms do presume propriety in moveables especially , to which men have only right by possession , and not by writ , hopping , cap. . and this is an ordinary presumption in all judicatures , nam sicut ex signis signatum , ita ex insigniis domini rerum cognoscuntur , tusk . tom . . conclus . . . these arms are also most necessar for signing articles of peace amongst princes , and contracts and other writs amongst private persons ; and by them also knights and warriours did find out one another in battels and tiltings : an example whereof our history gives , in the lairds of drum and m clean at the battel of harlaw . . by these the ships of enemies are known , and are accordingly confiscated , if taken at sea ; which lawyers extend so far , that if a ship carry the flagg of an enemy , it will be declared prize , though it belong to a kingdom in amity with the taker , iason . consit . . h. . many likewise took a part of their superiour or over-lords arms , as is observ'd in camdens remains , pag. . and thus most of the sirnames in annandale carry the arms of the bruce ; in murray , some part of the murrays arms ; and in tevidale , the dowglass arms , or some part thereof . . i confess that arms are sometimes derived from the names of the bearer , as peacock bears a peacock , cockburn a cock , &c. and these are called , arma cantantia , by the latine ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , by the grecians ; des armoiries parlants , by the french ; rebus or canting arms , by the english : and are never presum'd to be noble arms , because , it is presumed that if the bearer had done any generous actions , which deserved arms , they had never recurred to their names ; yet this rule holds not still true : for of old , some men got their lands as rewards of great acts , and sirnames came not in the mode with us , till the reign of king malcolm canmor , who gave sirnames to all his nobles , and then many took their sirnames from their lands they possest , as the cockburns and others , and suited their arms to their names to the end it might be known that they were heritors of such places : for which cause likewise we find , that chiefs of families are ordinarly of that ilk , that is to say with us , that their names and lands are the same . some also derive their names as well as their arms from some considerable action : and thus a second son of struan robertson , for killing of a wolf in stocket forrest by a durk in the kings presence , got the name of skein , which signifies a durk in irish , and three durk-points in for pale for his arms. some likewise got names from their arms , for being strangers , the people amongst whom they came , not knowing their arms , gave them names from their symbols or arms they did bear . thus , the fowllis were called , from the leaves they carried : monsieur des feules , and the herrises or herrisons , with us got their names from the porcupine , or herrison in french , which was their arms , as brothers of the house of vendosm : and historians observe , that the french were called galli , ex eo quod gallos in conis galeae , seu pro cristis gerebant : and therefore , limneus , cap. . num . . concludes , that omnia arma quae cantant , non sunt insignia illiberalia , sive vilium hominum . arms are ordinarily assum'd by kingdoms , and towns , either to represent what they glory most in : thus the kingdom of granada , take a pome-granate . thus the earle of buchan , took three garbs , or sheaves of corn , because buchan was more fertil in corn than other places of scotland ; which though very fertile now in grain , yet were then full of woods : or else kingdoms , and towns take something which resemble the situations of their countrey . thus holland takes a lyon , and paris a ship , because the ground upon which it was built , represented the figure of a ship : and ordinarily with us , towns took for their arms the most remarkable thing belonging to their towns ; as , edinburgh and dumbarton , their castles : or else the saint , which was their patron , as pittinweem , st. adrian ; and tayn , st. duthacus ; or else the badge of that saint , as st. iohnstoun , the holy lamb , which is the badge of st. iohn : and dundee , the pot and the lillies , which is the badge of the virgin mary . which invention was borrowed from the ancients , for we find that diana was represented upon the coyn of massilium , now marsels , because that city was founded by phocea . alexandria , napoli , ( now naples ) and other towns built by the romans had , in memory of romulus and remus , a wolf sucking two young ones upon the reverse of their coyn . in imitation of which custom , i find , that not only the roman medals did thereafter bear reverses , but some of even our towns do bear them till now . thus aberdeen gives their for arms three towers , triple towr'd ; and for their reverse , st. michael , standing in the porch of a church . i have seen the books of arms of most nations , and i have in general observed , that every nation hath shewed their humour , as much in heraldry , as in their other characters : for the arms of almost all the families in spain , are given , to signifie some undertaking for the christian religion , against its enemies , the moors , turks , or other hereticks . and their shields of late are fill'd with ave maria's , i. h. s. and such other devote characters . the arms of the italians are ordinarily emblems and witty hieroglyphicks . the german atchievements consist of multitudes of coats , marshall'd in one , to gratifie the humour of their countrey ; who are vain of nothing so much , as of their pedegrees . those of poland and denmark , are as wilde and monstrous as the people are who bear them . but the french , who are great artists , wherever they study , do suffer their natural volagenesse to be consin'd and fixt by rules of art. and the scots , to expresse their friendship to the french , have of old , imitated them in their heraldry , asmuch , as we do the english , since we were happily united with them under one monarchy . the turks take oftentimes letters of the alphabet , as a cognizance ; because their religion discharges them to use images . and it is observed , that the spaniards use oftentimes letters , in imitation of the turkish moors their neighbours : or else , these have been left with them since the moors possest their countrey . of seals . by the civil law , testaments and all writs of importance were to be sealed . and by our law , quilibet baro , vel alius tenens de rege habere debet sigillum proprium , ad serviendum regi , ut de jure tenetur . stat. rob. . cap. . num . . and by the . act. . parl. i. . every freeholder should compear at the head-court with their seals ; and if he cannot come , he should send his attorney with the seals of his arms : and these who want such seals , are to be amerciat by the foresaid statute : rob. . and therefore till of late , every gentleman sent his seal to the clerk in lead , which the clerk kept by him ; many of which are yet in their hands . examples whereof , i have set down , chap. supporters , fig. . & . of old , the appending of the seal was sufficient in charters , without the subscription of the party . reg. maj. lib. . cap. . si recognoscit sigillum suum in curia , debet illum warrantizare , suae autem malae custodiae imputetur , si damnum inde incurrat , per sigillum suum ex insolentia , aut negligentia custodum : whether the seal affixt be the granters seal , that then the truth shall be searcht ; for by comparing many sealings together , per comparationem plurium sigillorum , & alias chartas eodem sigillo signatas . it was lawful amongst the romans , for such as wanted seals , to append the seals of others , § . possunt inst. de test . and this was very ordinar with us ; but then the nottar behooved to expresse , that this was so done . thus i have seen an charter granted by the lord of the isles to the abbacy of aberbrothock , which sayes , et quia meum sigillum est minus notum in scotia , ideo apposui sigillum episcopi rossensis . commissions from shires , to their respective commissioners in parl. were also to be sealed , act. . parl. . i. . and this custom of sealing papers without subscriptions , continued in vigour till march , . at which time , king iames the . by the . act. . parl. did ordain , that because men might lose their seals , or their seals might be counterfeited ; that therefore all evidents should for the future be subscrib'd , as well as sealed . and yet queen mary did thereafter , parl. . act. . appoint that all reversions , bands , and discharges of reversions should be sealed : and thereafter , i. . by the . act. parl. . appointed all papers importing heretable title , to be both sealed and subscrib'd . and though by the . act . parl. . iames . papers which are to be registrated , need not be sealed , because the seal was supply'd by the registration . yet , i see no posterior law dispensing ( without registration ) in other cases : and it would be a further check upon forgers of papers , that the granters seal were to be appended . for many can forge a subscription , who cannot forge a seal . so that each forger , behoov'd to associat at least another with himself ; which would discourage them before the cheat , or help to discover the forgers after the cheat were perpetrat : but retours must yet be seal'd with the seals of the inquest , satut : rob. . cap. . . and decreets of apprisings , with the seals of the assizers and verdicts of the justice-courts , are also to be seal'd by the regulations , . i cannot here forget to inform , that of old , our acts of parl. had oftentimes the kings great seal appended to them : upon the right hand were appended all the seals of the ecclesiasticks , and upon the left , all the seals of the nobility ; with which the whole act was surrounded . of these i have seen many , and particularly , a ratification , granted by king iames . to hepburn , earl of bothwel , upon the forfeiture of the ramsay , anno . which bears , in quorum omnium fidem , ac corroborationem , & laudationem earundem praefatus supremus dominus noster rex , & regni status per se singulariter requisiti sua sigilla , quorum nomina sigilla representant , praesentibus appendi jusserunt . i conceive that seals , may very well represent , not only the bearing it self , but the colours ; which i first order'd to be practised : for the seal may be varried in its cut as the other figures of this book are , which may be very useful , seing many mens arms differ only in the colours . chap. ii. who can give , or bear arms . of old , emperours , or senats only gave arms , laz. lib. . cap. . but thereafter they did choose an old expert warriour , on whom they bestowed the power of rewarding , with coats of arms , such as had deserved well : and these were called foeciales by the romans : but now are called heraldi , or herawldi . for heer , signifies an army , and alt , an elder , senes in armis : or from heer , an army , and alda , which in the hungarian tongue , signifies a common servant , hopping . cap. . part . . the ehief of that society is called lyon , king of , or , at arms , with us : rex armorum in latine . which name he bears from the lyon , which is the royal charge with us : and konning , van wappen by the germans . ibid. garter in england ; and montjoy , st. denis in france : and his patent in scotland runs thus . carolus , dei gratia , &c. tenoreque praesentium facimus , creamus , constituimus & ordinamus memoratum carolum aereskin , leonem , & nostrum foecialem , regem armorum , &c. dedimus & imposuimus , tenoreque praesentium damus , & imponimus ei , nomen leonis nostri foecialis , regis armorum . una cum stilo , titulo , &c. ac per praesentes ordinamus eum in dicto officio actualiter investiri , & secundum praxin coronari , &c. & similiter , munimus pranominatum cae . tanquam leonem , regem armorum , plenâ potestate , libertate , licentiâ & authoritate , personis , virtute praeditis , & de nobis benè meritis , diplomata armorum , secundum ordinem , & constitutiones eatenus praescriptas , concedendi . but though this power be bestowed upon heralds , yet princes have not so denuded themselves of it , but that they may and do ordinarily grant coats of arms : and thus , when noble-men get their honours by patent with us , there is either a command given therein , to the lyon , king at arms , to grant arms , crest , crown and supporters , or else , they are specified in the patent . and it is a rule in the heraldry of all nations , and in use with us , that no part of the royal bearing can be bestowed by the lyon , without a special order from the prince , colomb . cap. des brisurs , pag. . and this may reprehend the error of some of our heralds , who have given the tressure-flori , conter-flori to private persons , without a warrand . the lyon in scotland did formerly direct his patents thus . to all and singular , to whose knowledge these presents shall come : iames balfour of kinnaird , knight , lyon , king of arms , through the whole kingdom of scotland , and islands thereto adjacent : sendeth his due commendations and greeting : know you , that sir iames galloway , knight , master of requests to our dread soveraign , charles , king of scotland , england , france and ireland , defender of the faith , &c. one of his majesties most honourable privy council in this kingdom , hath requested me , by vertue of my office , to give and assign unto this his ancient coat-armour , being arg . a lyon rampant , azure , langued , and arm'd gules ; a crest , with escrol and motto ; which he may bear without wrong doing to others . to whose reasonable request i have condescended , and for crest , does assign him to bear above his helmet , upon an wreath arg . and azure , a mound bespread , with the rayes of the sun proper , embrac'd betwixt two corn ears , saltoir wayes or ; and above all , in an escrol this motto , higher , as here in the margent adjected is to be seen . all which arms , crest , escrol and motto , i the said lyon , king of arms , doth by these presents ratifie , confirm , give , grant and assign , unto the said sir iames galloway , knight , and to his posterity for ever , to use , bear and show forth the famine , in signet , shield , coat-armour , ensign , or otherwise , at all times , and in all places , at his and their free liberty and pleasure . in witnesse whereof , i have to thir presents , affixt my hand and seal of office at holy-rood-house , the nineteenth day of december , in the sixth year of the reign , of our soveraign lord , king charles , and of our redemption , . iames balfour , lyon. the concessions by the lyon do now run thus . to all and sundry whom it effeirs . i sir charles areskine of cambo , knight and baronet , lyon , king of arms ; considering , that by several acts of parliament , as well of our dread soveraign lord , charles the second , by the grace of god , king of scotland , england , france and ireland , defender of the faith ; as of his majesties royal predecessors : especially , by the twenty one act of the third session of this current parliament , i am impowered to visit the whole arms and bearings within this kingdom , and to distinguish them , and matriculate the same in my books and registers , and to give extracts of all arms , expressing the blazoning thereof , under my hand and seal of office : and which register , is by the fore-cited act , ordained to be respected , as the true and unrepealable rule of all arms and bearings in scotland , to remain with the lyons office , as a publick register of the kingdom . therefore , conform to the power given to me by his sacred majesty , and according to the tenors of the said acts of parliament ; i testifie and make known , that the arms of old , belonging to the royal burgh of aberdeen , and now confirm'd by me , are matriculate in my said publick rigister , upon the day and date of thir presents : and are thus blazoned , viz. the said royal burgh of aberdeen , gives for ensigns armorial , gules , three towers triple towered , within a double tressure counterflowred argent : supported by two leopards propper : the motto in an escrol above , bon-accord , ( the word bon-accord was given them by king robert bruce , for killing all the english in one night in their town , their word being that night bon-accord . ) and upon the reverse of the seal of the said burgh is insculped , in a field azure , a temple argent , saint michael standing in the porch mitered and vested propper , with his dexter hand lifted up to heaven , praying over three children in a boyling caldron of the first , and holding in the sinister a crosier , or. which arms above-blazoned , i hereby declare to have been , and to be , the true and unrepealable signs armorial of the burgh royal above-named . in testimony whereof , i have subscrib'd this extract with my hand ; and have caus'd append my seal of office thereto . given at edinburgh , the twenty fifth day of february , and of our said soveraign lords reign , the twenty sixth year , . charles areskine , lyon. the concessions of arms , granted by the emperor , called wappen-brief , run thus . rudolphus secundus , &c. fideli , nobis dilecto , hieronymo megiserio , liberalium àrtium , & philosophiae magistro , gratiam nostram caesaream & omne bonum . cum constet , ex liberalium artium & bonarum literarum cognitione , tanquam fonte quodam perenni pulcherrimarum virtutum scaturientes rivulos in animos hominum diffundi , quibus alioquin rudes naturae humanae sensus irrigati , ad producendos utiles humanorum fructus feraciores efficiuntur . nos sanè caesareae benignitati nostrae omninò convenire arbitramur , ut musis & bonis literis deditos atque addictos clementer suscipiamus fovendos atque ornandos , tùm ne ipsi frustra in arena virtutis desudasse videantur , tùm & alii honoris & premii spe illecti , eundem vitae cursum alacrius ingrediantur . edocti itaque , te suprà dictum hieronymum megiserum , adjecto ad literarum studia animo , quod gnavi & strenui milites facere solent , omnibus nervis eo incubuisse , ut reliquis commilitonibus neutiquam inferior , sed superior potius videri , optatosque laborum tuorum fructus consequi posses , ac hâc quidem spe , te neutiquam frustratum , sed meritis tuis exigentibus juvenili etiamnum aetate florentem magisterii gradu atque dignitate insignitum esse , nobisque persuasum habentes , te deinceps etiam tui neutiquam dissimilem futurum , sed expectationi concitatae undiquaque satisfacturum . his equidem rationibus adducti pretermittere non potuimus , quin benignam nostri erga musarum alumnos animi propensionem insigni aliquo argumento , quod aliquando posteris etiam tuis honori atque ornamento esse possit , testatam redderemus . motu itaque proprio ex certa nostra scientia animo benè deliberato , ac de caesareae potestatis nostrae plenitudine , tibi supra dicto hieronymo megisero legitimisque liberis , haeredibus , posteris & descendentibus tuis , utriusque sexus ex te perpetua deinceps serie nascituris infrà scripta armorum insignia clementer dedimus , donavimus atque elargiti sumus , sicuti vigore presentium damus , concedimus , donamus atque elargimur . scutum sc. nigrum , à bas● surgentem habens colliculum tricipitem lutei coloris , quorum intermedio , reliquis duobus collateralibus , aliquantulum eminentiori insistat cygnus croceus sive aureus ad dextram conversus , rostro hiante , collo sinuoso ●●exu sursum porrecto , alisque latè explicatis ad plausum quasi compositus , ex utroque autem colliculorum collateralium prodire videatur surculus , lauri foliis undiquaque virescentibus insignis . scuto imposita sit galea clausa , ornata serto laureo , phalerisque seu laciniis nigris & croceis sive aureis ab utroque latere mixtum circumfusis ac molliter defluentibus . ex cujus vertice promineat alius cygnus itidem crocei sive aurei coloris , ac per omnia similis illi , qui in clypeo descriptus habetur , quemadmodum haec omnia in medio praesentis nostri diplomatis suis coloribus rectiùs elaborata & ob oculos posita conspiciuntur . volentes & caesareo edicto nostro firmiter decernentes , quòd tu suprà dicte hieronyme megisere , omnesque liberi , haeredes , posteri & descendentes tui , utriusque sexus , legitimo conjugii foedere , perpetuis deinceps temporibus orituri , jam descriptis armorum insigniis , eoque ut in superioribus habetur modo , in omnibus & singulis honestis & decentibus & actibus tam serio quàm joco , in scutis , sepulchris , sigillis , monumentis , annulis , & supellectilibus , tam in rebus spiritualibus , quàm temporalibus & mixtis , in locis omnibus pro rei necessitate & voluntatis arbitrio , liberè uti possitis & valeatis . aptique sitis & idonei ad ineundem & recipiendum omnes gratias , libertates , feuda & privilegia , quibus caeteri armigeri & feudorum capaces atque participes utuntur , fruuntur , potiuntur & gaudent , quomodolibet consuetudine vel de jure . quocirca mandamus universis & singulis principibus , tam ecclesiasticis , quàm secularibus , archiepiscopis , episcopis , ducibus , marchionibus , comitibus , baronibus , militibus , nobilibus , clientibus , capitaneis , vice-dominis , advocatis , praefectis , heroaldis , officialibus , questoribus , civium magistris , iudicibus , consulibus , civibus , communitatibus , & denique omnibus nostris & sacri romani imperii subditis atque fidelibus dilectis , cujuscunque status , gradus & conditionis exstiterint , ut te saepé nominatum hieronymum megiserum , omnesque liberos , haeredes , posteros & descendentes tuos legitimos , utriusque sexus , suprà scriptis armorum insigniis perpetuis deinceps temporibus , pacificè , quiete & sine impedimento aliqu● , uti , frui , potiri & gaudere sinant , idemque etiam ab aliis fieri curent . si quis autem praesens diploma nostrum transgredi & temerario ausu violare conatus fuerit , praeter gravissimam nostram & sacri imperii indignationem , viginti quinque marchas auri puri mulctam se noverit ipso facto incursum . harum testimonio literarum , manu nostrâ subscriptarum , & caesarei sigilli nostri appensione munitarum . datum in civitate nostra vienna , die . mensis januarii , anno domini , . regnorum nostrorum , romani tertio , hungarici septimo , & bohemici itidem tertio . rudolphus . some lawyers ( though vers'd in herauldry ) have been of opinion , that every man can assume arms to himself at his pleasure , without authority , providing he assume them not , in emulationem alterius , to the prejudice of another : and if this judgement were , bartol . tract . de arm . num . . and panorm . c. delectis , de exces . prelat . because ( said they ) every man may choose a name for himself , seing this is not forbidden in any written law. but tiraquel and others , have very justly maintain'd , that none can assume arms , but that all must owe them to authority : for as magistrates of old only bestowed , jus imaginum , ita hodie tantum illi jus insignium vel armorum conferre possunt : anno. rob. lib. . sunt enim arma tesserae , & symbola dignitatis , & nemo potest dignitatem sibi arrogare sine principis licentia , l. nemo f. de dignit . & licet hoc jure scripto , non sit interdictum , est tamen rationabili consuetudine , & communi gentium consensu interdictum ; & ideo observandum , per. l. quod non ratione f. de legibus . but to quiet all debate in this controversie , most of nations have discharg'd the carrying of arms to any , save gentlemen , or such who have a special warrand . which is also done in scotland , by the . act. parl. iacob . . the words whereof are , ovr soveraign lord , and the estates of this present parliament , considedering the great abuse that has been amongst the leidges of this realm , in their bearing of arms , usurpand to themselves such arms as belong not unto them ; so that it cannot be distinguished by their arms , who are gentlemen of blood by their antecessors , nor yet may be discern'd what gentlemen are descended of noble stock and lineage : for remeid whereof , his highness , with advice of the saids estates , has given and granted , and by this present act , gives and grants full power and commission to lyon king of arms , and brethren heralds , to visit the whole arms of noblemen , barons and gentlemen , born and used within this realm ; and to distinguish and discern them with congruent differences , and thereafter to matriculat them in their books and registers , and put inhibition to all common sort of people , nought worthy by the law of arms to bear any signs armorial ; that none of them presume to take upon hand , to bear or use any arms in time coming , upon any their insight and houshold-gear ; under the pain of escheating their goods and gear , so oft as the samine shall be found , graven or painted , to our soveraign lords use : and likewise , under the pain of one hundred pounds , to the use of the said lyon , and his brethren heraulds ; and failying of payment thereof , that they may be incarcerat in the nearest prison-house : therein to remain upon their own charges , during the pleasure of the said lyon. from which act , we may draw these conclusions , . that only such as are gentlemen by blood can carry arms ; which opinion is also received now into the law of nations , hopping , cap. . par. . but it was first enacted by frederick the emperour , lib. . feud . tit . . de pace tenenda . . it is observable , that the lyon cannot give arms to such as are not noble by descent : for the reason inductive of this statute , is , that there may be a difference betwixt such as are noble , and such as are not ; but there would be none , if it were lawful to the lyon to give arms even to such as are not gentlemen by birth : for as he cannot nobilitate , so neither can he bestow the marks of nobility . likeas , by that act , he is commanded to inhibit all such as are not noble to carry arms. but yet the prince may still bestow arms , without any restriction , though he cannot properly make a gentleman : for that comes by blood , and not by patent . and camden informs us , that of old there was a distinction betwixt gentlemen of blood , and gentlemen of coat-armour ; and that the third from him , who first had coat-armour , was to all effects and purposes a gentleman of blood , pag. . . albeit the letter of that law doth only forbid , to wear , and use arms without authority , as said is , upon in-sight , or houshold-gear ; yet , per paritatem rationis , they cannot use them upon tombs , seats in the church , or else-where : & de praxi the lyon with us , doth raze and deface all such arms : but whether the users of false arms , do incur the penalties in such cases , may be doubted ; seing penae sunt restringendae , and are not to be extended beyond the letter of the law. . by that act , the lyon is to distinguish , and discern arms with congruent differences ; from which words it may be inferr'd , that not only arms must be originally given by the lyon , but that marks and differences amongst the cadets , and descendants of the same family , should be given by the lyon ; and that these cadets cannot assume them : and this is suitable to the opinion of the doctors , who teach , that non solum potestas conferendi nova insignia , sed potestas augendi , mutandi , diminuendi , & confirmandi insignia vetera , est penes principem & ejus heraldos , hopping , cap. . membro . but it may be doubted , if prescription of arms by predecessors , be not sufficient to infer a right to the bearing of arms , and to defend against the penalties of this act : as to which points , the doctors deliver these conclusions . . that no man can prescrive the right of using arms belonging to another noble family without immemorial possession , but that they may prescrive a right to bear indefinitely , or to bear the arms of any other private person , per spatium decem annorum inter praesentes , & viginti annorum inter absentes , vult . consil . . volum . . but by our law , where prescription is not allowed , except in the cases wherein it is introduced by a special and express statute , it is probable , that prescription might well have defended before that act , iacob . . but since that time it should not , seing that act ordains all arms to be matriculate in the lyon's books , and registers . the penalty appointed by that act , to be inflicted upon such as carry false arms , is , that the moveables and furniture whereupon these arms are graven , and painted , shall be confiscated : which words must be taken disjunctively , and not copulatively , notwitstanding of the particle ( and ; ) for if the arms be either graven or painted , they are to be escheated : as also , the contraveeners are to pay one hundred pounds to the lyon , and his brethen heralds : but by the civil law , he who bears and uses another another mans arms , to his prejudice , vel in ejus scandalum & ignominiam , is to be punished arbitrarily at the discretion of the judge , l. eorum f. de falso ; but he who usurps his princes arms , loses his head , and his goods are confiscated , l. sacri asflatus , c. de divers . rescript . suitable to which law , the duke of norfolk was forfeited , and execute by hen. . for no other cryme , but because he did bear the arms of enland , though his predecessors had born them . years . hovv sacred the lyons office is with us , appears among many other instances from this , that the lord drummond was in anno , . ( as leslie observes in his storie ) forfeited , for striking the lyon , vita ac dignitate aegrè concessis . but seeing the patent given to the lyon gives him power , to give arms to such a● are virtuous , and worthy persons ; and since , by the foresaid statute , the lyon is only discharg'd to suffer any to bear arms , who are not worthy by the law of arms , to bear any signs armorial : it is therefore worthy of our enquiry , to know who are such persons , as may by the laws of heraldry have arms given them by the lyon , without a special commission from the prince . and first , it is uncontraverted , that a gentleman may bear without a warrand the arms of his predecessors , and such as are descended by three generations from him , to whom arms were given are gentlemen . but this holds only in the eldest , for cadets must have marks of cadency , and differences assign'd them by the lyon , and cannot assume them as was formerly observed . . though the patent allows the lyon to give arms , personis virtute praeditis , and philosophers , poets , and orators say , that vertue is the truest nobility , which is allowed by the cannon law , cap. nos . qui , & cap. pen. ext . de praeben . yet lawyers distinguish betwixt nobility politick or civil , which they assert ; is not bestowed by vertue only , and moral nobility which vertue doth destow . bald. in l. nobiliores , c. de commerciis : from which text , they prove clearly this distinction . and therefore ▪ the patent joyns these two persons , virtute praeditis , & de nobis meritis ; for certainly , such as have deserved well of the prince , may have arms given them by the lyon : for the first institution of that office was ( as i formerly proved from laz. ) design'd to reward such as had done great service to the prince : and the lyon is judge competent to the bearers merit , in order to this effect ; nor can the law presume , that the lyon will transgresse so grosly , as to assert that he has served the state , who never did : for that were in him , crimen falsi . . riches do not nobilitate , nor do they warrand the lyon to bestow arms upon the possessors . tiraqueil de nobilitat . cap. . though , as ierom observes , nobility is nothing oftimes but ancient riches . . the being an heritor of land doth not nobilitate in all cases , even though the heritage be very considerable ; for else a rich man might ennoble himself : but these feuda only render the possessors noble , which are bestowed by the prince , or confirmed by him . for a few in either of these cases make the receivers noble , seeing the prince is the fountain of honour . and a few in those cases is a sufficient warrand to bear arms , tiraqu . cap. . and this remembers me of a custom in scotland , which is but gone lately in dissuetude , and that is , that such as did hold their lands of the prince , were called lairds ; but such as held their lands of a subject , though they were large , and their superiour very noble , were only called good-men , from the old french word , bonne homme , which was the title of the master of the family ; and therefore such fews as had a jurisdiction annext to them , a barrony , as we call it , do ennoble : for barronies are establisht only by the princes erection or confirmation . and thus it was found by the parl. of grenoble , that qui possident castrum cum territorio , & omnimoda jurisdictione sunt exempti à contributione subsidiorum , ut nobiles , licet non sunt à nobili progenie , guid. pap . decis . . . the employment of a souldier doth enoble , if it be honoured with any considerable command , l. . c. de primicier , calls it , praeclarem nobilioremque militiam ; & l. . c. ut nemo prim . aliter miles , aliter plebeius punitur . . church-employments do nobilitate , bart. concil . . pertext . in l. . c. ut nemo privat . and generally , it is a law in heraldry , that doctors , orators , and lawreat poets may be honoured with coats of arms. the rule runs thus , doctores , oratores & poetas ( laureatas ) togatam militiam profitentes , à dilatione insignium , galea aperta fenestratorum , & cristis , vexillis , laciniis , condecoratorum , citra laesae majestatis crimen arcendos non esse . hopping . pag. . and vaschal . pag. . warrands this by a decision of the courts of france . nobility and the right of bearing coat-armours , being thus acquired , is lost many wayes ; as first , by leading a vitious and profligat life , l. si qua c. de secund . nupt . where it is ordain'd , that ob scelera & vitae turpitudinem , honestae nobilisque decore privetur . and the reason given for this is , quia nulla sine honestate est nobilitas : and nobility thus is not re-assumable by their children : but this , with many other vertuous laws , is gone in dissuetude : for only crimes and a sentence , doe now take off the sacred character of honour . and with us , upon reading the sentence of forfeiture , the arms are torn , and the decreet of forefeiture bears an order for this , but no other sentence for other crimes discharges the bearing of arms with us : albeit by the civil law it seems , that all crimes discharges the bearlng of arms , statuas detrahendas scire debemus , l. . f. de pen. cap. . c. decis . . nor can such as are condemned for capital crimes get arms , tresser . de existim . l. . c. . and whatever renders the bearer infamous , doth likewise render him incapable of getting arms , though every infamy forfeits them not . . this right is not lost by poverty , even in the longest course of time , tiraquel , cap. . . this right is lost by exercising mean trades , viles & mechanicas artes , l. nobiliores , c. de comer . but when they leave off these , they return to their former dignities , pap . decis . . but the being an advocat is accounted no such trade : for an advocat is noble by his profession , l. providendum , c. de postulat . & l. advocat . c. de advocat . div . iuà. and spartian speaking of iulian the emperor , saith , that he was descended of salinus iulianus , who was twice consul , and twice governour of rome , but was much more noble by being a learned advocat : and therefore in france , they , as all other gentlemen , are exempted from paying taxes , pap. decis . . physicians likewise , and their posterity have a right to bear coat-armours , tiraquel . cap. . though merchants be most worthy members of the common-wealths , yet they are not noble nor gentlemen by their profession , l. nobiliores , c. de commer . nor should they have coat-armours ; but the laws of heraldry , and the general custom of the world allowes them a merchants mark , call'd by the doctors , marcha mercatoria : and as no man may bear another mans arms , so no merchand may put his mark upon another mans goods , nam balla mercatorum ex signo cognoscuntur , feret . lib. . de re naval : and he who puts another mans mark upon his own goods , or balls , loses his own , mascard , v. l. . conclus . . because that he would occasion a confusion in trade , and because the law presumes that to be done to conciliat to the users goods , the priviledges or advantages due to anothers ; and for the same reasons , one tradesman cannot hang up another tradesmans sign , whereby his customers may be withdrawn , or strangers may be cheated to give their sale to one who deserv'd it not : it being ordinare for people to go to such signs , where they have heard others to have bought excellent commodities : and therefore monar . observes a decision , whereby the parl. of paris found , . that a merchand , who had assumed lately the marke of a red crosse , which his next neighbour , who was a rich merchand had long used , should desist in all time coming from using that sign . from this rule are excepted the merchands of paris , whom charles . anno . ennobl'd , and allowed to bear coat-armours , and by their examples the chief burgesses of capital towns pretend to the same priviledge , l' osean . pag. . of the shield . arms were ordinarily painted or engraven upon the bearers shield , which shield was called by the ancients , scutum , which was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , sculpere : quod imaginibus illustrium virorum , ipsorumque insignibus sculptus esset , plin. l. . c. . vel scutum , à graeco , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , corium , because their targets were covered with skins , or parma . the scutum was long , and four square , the other two round : and our shield is made up of the figure of both ▪ of old , the souldiers did bear their cognizances upon their shields , that they might be known . veget. de re milit . l. . c. . and thence it is , that we bear now our cognizances upon cuts , like to their shields : the shield was made of wood , covered with leather , but the buckler was of brasse : this shield now is called by the french ; escu , by the italian scudo , by the english a shield : and what space is within the shield , is called a field , by the english , and campo by the italian , spanish , and by the latins , area , fundus , campus : the ancientest form of a shield , was ovall , which shape the italians still retain , after that they were worn in heraldry in the shape , fig , . and all our charters have such seals appended : but the latest form used both here , and in france , is fig. . the lynes whereof are straight till they come very near the bottom . the italians , and germans carry them ordinarily , as fig. . because they alledge that this form of a shield did give most ease to the bearer in giving a thrust , but surely it agrees not so well with the charge which is put upon the shield . some families carry their arms in a banner represented by a shield , that is quadrangular : as the family of perez in spain , for having recall'd the army , by putting up his handkerchife as a standard , and the sieur de coucy in france , for recalling the army , by raising the banner , hopping , cap. . sub-divis . . the shield uses ordinarily to be plac'd upright , yet sometimes it is hung by the right , or left corner : this is ordinarily in scotland , and i have seen the prestons arms so hung in a shield above the gate of craigmiller . this the french call , i'escu pendu ; the italians , scudo pendente : and the reason given for it , is , that when tiltings ( torneamenta ) were proclaimed , there were two shields hung upon an oak , or other tree , at the place where the tiltings were to be : and he , who offered to fight a foot , did touch the shield that hung by the right corner , and he who was to fight on horse-back , touched that which was hung by the left corner : for in these dayes , it was judg'd more honourable to fight on foot then on horse-back , columbier , cap. . the shield is also called by the english , an escutcheon , from the word escusson , for so the french call a little shield . that which is born upon the shield is called the charge , and the shield is said to be charg'd with it : and the field and charge together are called the coat of arms , the french call it , un cott'd arms : and the reason why arms are called coats of arms , is , because of old , men wore those symbols upon coats above their arms , as heralds do at this day : so great desire had men in those dayes to have their personal valour and courage known in battels , and combats , by the ensignes armo●ial which they bore . i have here set down several forms of shields , to show how various figures were imploy'd for that use by the ancients ; but that fig. . is the ordinary form now in use for mens arms , as the lozenge fig. is for women , which ( as loyseau observes ) is allow'd only to the wives of considerable persons , who had no power to raise their own banner . i finde that mur●el , countesse of strathern , carried hers in a lozeng , anno . which shews how long we have been versant in heraldry . if there be but one shield , or coat of arms to be descriv'd , that is called to blazon : but if there be moe coats joyned in one , that is call'd , marshalling : the french or italian have no such distinction . to blazon a coat , is to descrive what the things born are , and what their colour is : in which these rules are to be observed . . it is fit to use the ordinar termes , and not to be too inventive and curious ; for else every one out of vanity should invent a peculiar way , and new terms : and not any two heralds should understand one another . . there must be no reiteration of words in blazoning the same coat ; and therefore the english say not , he bears argent ▪ a lyon gules , collard , argent , but they say , collard of the first , because argent was the first colour ; yet the french repeat the colours after , and observe not this rule , and it is the better way for eviting confusion : for when there are many pieces in the shield , it is most difficult and tedious to remember alwayes what is first , and second , third , and fourth ; and all this trouble serves to no purpose , and it is not at all natural . the third rule is , to evit as much as is possible , the words , of , or , and with . . in blazoning a coat , you must begin with the field , and then proceed to the charge ; and if the field be charg'd with moe things , you must name first , that which lyes nearest the shield . the english say in blazoning , he beareth ●zur , but the french never say , he beareth a-zur , and the word , beareth , is superfluous : the english sometimes say , the field is argent , vid. guilims , pag. . but that is likewise superfluous : and it is better , with the french , and latine , to expresse , . the bearers name , and then to expresse the colour of the field , v g. winram , gules , a ram passant , argent , whereas guilims would have blazon'd these arms thus , he beareth gules , a ram paussant , argent , by the name of winram : which way of blazoning sounds not so well as the first , nor is so short and proper . naked shields were sometimes born without any charge , upon many accounts : thus alphonsus king of portugal , did take five shields plac'd ●altier-wise , in remembrance of . sarasen kings , whom he kill'd chassan , concil . . part . . and the first of the name of hay , got three shields in a field argent , because he and his two sons did gallantly defeat the danes at the battel of loncart , . after which battel , they were brought to the king with their shields all coloured with blood , as buchanan observes : and baliol gave for his arms g. an escutcheon or. chap. iv. of colours and mettals . heralds do not expresse all colours by our ordinar terms , nor do they admit all colours in blazoning but they use ordinarily two mettalls , to expresse two of the ordinary colours , viz. white by argent , and yellow by or ; and that because silver is white , and gold is yellow . the spaniards call such fields as are all mettal , campo de plata . the use of thir mettals and colours , and the difference betwixt them , did in coat-armours arise , from the several colours us'd by souldiers , and others in their habits whilst they were in armies , as pet. sanct. proves by many citations . and because it was the custom , to embroider gold or silver upon silk , or silk upon cloath of gold , or silver ; therefore the heralds did thereafter appoint , that in imitation of the cloaths so embroyder'd colour should not be us'd upon colour , nor mettal upon mettal . the colours us'd by them are only blew , which they call azur ; red , which they call gules , from the hebrew word gulude , a piece of red cloath , or from the arabick word , gule , which signifies a rose , which are ordinarily red , as menestier observes . black , which they call sable , because the best sable furrs are black ; and green which they call vert : which is the french word of green , or sinople ; for so the french term green , never using the word vert : and the reason why it is called sinople , is from a town in the levant , called sinople , where the best materials for dying green are found , and not from the greek words , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , because it being contraverted at constantinople , whether green was a proper colour to be us'd in heraldry , it was determined , that it suted with heraldry , cum armis . menestier derives sinople from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , green arms , by suppressing the first syllable as the greek often do . the french admit purple in heraldry , though favin and some heralds in that nation , think that purple is but argent worne , which by occular inspection turns purple : they likewise allow carnation or flesh colour colomb . the french observe , that the english use taunie , which heralds call tenne ; and is composed of gueuls and sable : and the english observe , that the french use it , guilims , pag. . but guilims is here in a mistake ; for the french use it not , but the english do . colombeir likewise observes , that the english use sanguin ; which is made up of pure lacque and orange , which is compos'd of leed and tin : but colombeir is mistaken here , for the english use not orange , but the germans do sometimes . the ordinar colours and mettals in use , are , or , argent , gules , sable , azur , vert and purpure . why heralds choosed these five colours only , i can give no surer reason , then that they thereby resolved to fix the uncertainty of vagrant and capritious artists ; even as lawyers have fixt prescription to forty years , and minority to twenty one ; but yet there are some original colours . aristotle reduced them to four , white , black , yellow and red . cardan makes them seven . albus , croceus , purpureus , puniceus , viridis , caeruleus , niger . scaliger chooses , album , flavum , rubrum , purpureum , viridem , caeruleum , & nigrum , exercit. . but the chimists observe , that white , blew , red , green and yellow , are the original colours , and from them heralds have choosed thir . these colours have their own mystical representations in heraldry . for or is us'd to expresse the bearers faith , justice , temperance , riches , generosity , or prosperity : argent , his humility , innocency , beauty : and a white shield was given to novices , when they went to the war , and before they had done any glorious action , virgil. parma . inglorius , alba azur : his charity , victory : gules , his magnanimity , courage , love and charity : sable , his grief , prudence , honesty . sinople or vert , his courtesie , civility , youth and abundance . yet sometimes these colours are us'd to disguise and conceal the bearers origin . thus , some were originally murrays , but being forc'd to change their name , and leave their countrey , they retain'd their arms , but chang'd their colours . for whereas the murrays bore azure , three stars argent , they bear now arg . three stars azur : and yet colours have been chang'd upon very honourable occasions : and thus ker of cesfoord did bear g. till their chief was kill'd at gambspath , upon the border fighting valiantly for his countrey : whereupon king iames the fourth appointed , that for the future , the house of cesfoord should carrie vert , in remembrance of that green field whereupon he was kill'd . sometimes also colours were chosen by knights to their arms , because at tiltings , they us'd to appear in that colour ; and for that reason , the first crichtoun chois'd his lyon that he bears to be azure . sometimes also the things born are allow'd in their natural colours , if they be of many colours , and then the things born are said to be born proper . as the peacocks in scotland , bear three peacocks proper , that is to say , in all their ordinar colours . but though this be allow'd in the charge , yet it is not allow'd in the field ; for that must be of either the ordinar mettals , or colours . yet this suffers some exceptions , as in the arms of the count de prado in spain , who bears a meadow proper , that is to say , a green field charg'd with flowrs of several colours . or is writ , o ; argent , ar gules . g. azur , az ; sable , s. vert . &c. sin ; purpur , p. some fantastick heralds have blazon'd not only be the ordinar colours and mettals , but by flowrs , dayes of the weeks , parts of a mans body , as le feron and bara , and have been condemned for it by the heralds of all nations : yet the english have so far own'd this fancy , that they give it for a rule , that the coats of soveraigns should be blazon'd by planets , those of noblemen by precious stones , and have suited them in the manner here set down . or. topax sol arg. pearl luna sab. diamond saturn gul. ruby mars azur . saphir iupiter vert. emerald venus purpur . amatbist mercurii tenne taoyth dragons head sanguin sardonix dragons tail . but i crave leave to say , that thir are but meer fancies , and are likewise unfit for the art in which they are imploy'd : which is clear from these reasons , . the french , from whom the english derive their heraldry , and to whom they conform themselves , not only in principles and terms of art ; but even in extrinsick words of the french language , do not only not use thir different wayes of blazoning , but constantly treat them en ridicule . . the italian , spanish , and latine haralds , use no such different forms : but blazon by the ordinary colours ▪ and mettalls , non variari nomina debent mettallroum , vel colorum in magnatum , aut in regum insigniis pro hac re provoco ad scriptores caeteros , qui gallice , germanice , aut latine hac de re disseruerunt , pet. sanct . pag. . and one of the great designs in heraldry , is to have the art universal , and to have the arms they describe generally understood in all nations ▪ yea , and even mr. cartwright , their countrey man , do's condemn this way as fantastick . . art should imitate nature , and as it were an unnatural thing in common discourse , not to call red●punc ; red , because a prince wea●s it : so it is unnatural to use these terms in heraldry : and it may fall out to be very ridiculus and unnatural in some arms. as for instance , if a prince had for his arms an asse couchant under his burden , gules : it were very ridiculus to say , that he had an asse couchant mars , for the word mars will agree very ill with asses , sheep , lambs , and many other things which are to be painted red in heraldry . and a hundred other examples may be given , but it is enough to say , that this is to confound colours with charges , and the things that are born with colours . . as this is unnecessar , so it confounds the reader , and makes the art unpleasant , and deters gentlemen , and others from studying it , and strangers from understanding what our heraldry is : nor could the arms of our princes , and nobility be translated in this disguise unto the latine , or any other language . but that which convinces me most , that this is an error , is , because it makes that great rule unnecessar , whereby colour cannot be put upon colour , or mettall upon mettall ; for this cannot hold , but where mettalls and colours are imploy'd . it was of old impossible to know the colours of arms , except they had been blazon'd , or illuminated ; and yet arms differ only by their colours : as we see in our lyon , which scotland carries red ; kinghorn , blew ; rosse of balnagoun , white ; and therefore , the french have found out this device , for discovering even in taliduce , or carving what the colours are . for they make or pointe o , arg . plain , azur is represented by lyns in fasse , gules by lyns in pale , vert , by lyns in band , purple by lyns in barr , sable by lyns in pale , and face ●punc ; i have thought fit , to represent tenne , by lyns in band and barr , and sanguine by lyns in face and barr ; as will more clearly appear by the figures : and i could wish that gentlemen would cause cut seals in this fashion , so that not only the bearing , but the colours of the bearing might be known by the seal . it is an uncontraverted rule in heraldry , that colour cannot be put immediatly upon colour , nor mettal upon mettal : that is to say , that if the field be argent , the immediat charge must not be either , or , or argent ; but must be of some colour , as azur , gules , &c. and if the field be of any colour , as azur , sable , &c. then the immediate charge must be either , or , or arg . the reason why i add the word immediat here , is , because , though the field be or , yet the immediat charge may be a lyon , or any thing else : if that lyon be charg'd with another charge ( which heralds call super-charge ) then , that super-charge may be or : this rule was not observ'd amongst the romans , as pier. observes , cap . nam herculeani seniores gerebant ceruleam aquilam alis utrimque expansis in parma rubra . but this law was first authorized by charles the great , and thereafter improv'd by henry sirnamed aucuper velser , lib. . and it is now stated in this forme by heralds . in legibus heraldicis , non convenit metallam supra metallam ponere , ita quoque non decet colorem supra colorem pingere , hoppin . cap. reg . . vid. anton . thessaur . decis . . and thereafter , trissin italia liberata sayes . ond ' essi non poneano in alcum secundo , metal supra metal , ne mai colore sopra eolor , ma vi poneano sempre eli ' uni , eli ' altri mescolati insieme talche sél campoerad ' argento od'oro , vandava il color sopra , é sel colore teneva il campo , era●l metal sorr'esso . where he shows us , that the origin of differencing mettals , from colours , was from the differences which fell out in the trojan wars , betwixt the followers of achilles , and ulisses : whereupon achilles friends blazon'd only mettals , and vlisses his friends colours . and in commemoration of that difference , heralds appointed that ▪ mettalls , and colours , should thereafter be no more divided , lest heraldry should become , or be made a badge of discord , in courts or armies : but i prefer petr. sanct. his conjecture above related . albeit this rule be very universal in heraldry , yet it suffers its own exceptions , as . heralds gave to godfrey of b●lloigne , king of ierusalem , crucem auream majorem , cum quatuor cruciculis aureis , in scuto argenteo , chass . de glor . mundi . consil . . conclus . . to the end that men seeing his arms should enquire after them , and so learn the fame of the bearer . and the french call , to this day , such irregular bearings , des armes , a enquerir , arms to be enquired into . the . exception is , of the extremities of beasts , such as their horns , tongues , nails , and their crowns upon their heads , which may be mettal upon mettal , or colour upon colour . the . exception is of marks of cadencie in royal families : thus the house of bourbon , carry battons gules , on a field azur : the like is in our privat marks to younger brothers , of cadencie , such as our mollets , cressents &c. given . the . exception is , of the colour purpure ; for purple , is accounted mettal , when it is upon colour ; and colour , when it it is upon mettal : the reason of which exception seems to be , either because is a royal colour , and therefore to be priviledg'd , or more probably , because purple is thought by some heralds ( as was formerly observ'd ) to be oftentimes , argent worn off by use , and time . so that it is hard to know when it was at first design'd to be a mettal , and when a colour . sometimes also a chief will appear to be so contriv'd , as to be mettal , upon mettal or colour , upon colour : but then the french call it cousu , a chief sew'd to the shield . and thus they evite that objection , the french also claim the priviledge to their flowerdeluce , as desvarennes observes , because it being given frequently by the prince , to such as had formerly fields of colour , or mettal : the rule could not be observ'd . but in this i differ from them ; for it may still be plac'd upon some other figure , so as to salve the rule ; and if they plead this priviledge to their flowerdeluce , the scots may to their lyon , and the germans to their eagle : but in my opinion , it is better to shun the breaking of rules , then to be vext making apologies . some heralds debate what colours are noblest in heraldry , and bart. de insig . num . . gives it for a rule , aureum esse nobiliorem , posteumque purpureum , & tunc rubeum , sequi hunc azorem , hunc album . caeteros vero esse nobiliores , aut ignobiliores , quo , de albedine , vel , nigredine plus participant . but i humbly conceive , that this debate is impertinent to many cases : for colours are chois'd to expresse the humour of the bearer , or the nature of the bearing . and therefore , there can be no precedencie . for that colour is best , which is fittest ; but otherwise it seems , that those colours which have most resemblance to light , are the best colours ; seing light is the author and cause of all colours : and therefore white is preferable to all colours , but in heraldry or is preferred to it , seing white is not a colour in heraldry , but an mettals and mettalls are by the principles of this art still preferred to colours , and gold is preferable to silver . though ordinarily colours are not only preferrable , as they suit best with what is represented ; as for instance , in the keiths arms , three pales , gules : being to represent three bloody draughts drawn by the king , and a hand gules in the mcfersons arms for killing the cumming , could not have been so honourably represented by any other colour ; yet if the bearing require no special colour , it is given as a rule , that the shield should be of a nobler colour than the bearing : and if the shield be compos'd only of different colours , as will be seen hereafter , in shields , parted per pale , or per fesse , that the nobler should be in the upper part , or upon the right side : quoties arma fiunt ex diversis coloribus , semper nobilior color nobiliori in loco ponendus , hopping , cap. . lex . . the old scots us'd still to expresse colour by the word tincture . chap. v. of furrs . shields were anciently either painted , or covered with skins , as the targets , or shields of our hig-hlanders , yet are : the painting gave occasion to the colours formerly treated of , and the covering to the furrs , or skins mentioned in this chapter . and this i take to be a better ryse for their being in shields , then to say , that they were used in mantles and garments ; and that therefore heralds use them as guilims observes : for this may be a good reason why they are us'd in mantlings , but not in the shields . pet. sanct. calls these furrs vellera . there are two furrs allow'd by heralds , viz. ermin , and vair . ermine is a little beast , lesse then a squirrell ; so call'd , because it lives ordinarily in the woods of armenia ; the colour of its body is a pure white , and its tail is black : and therefore our heralds make ermines to be a furr , whereof the ground is white , distinguish'd with black spots ; but it is not naturally of the form represented in this figure , the disposal of these black spots being only invented by furriers , who mix for beautie the blacknesse of the tail with the whitenesse of the body . but because the black spot of the tail , was not sufficient , to spot the whole skin ; therefore furriers do take the wool of italian lambs shorn out of the bellies of their dames , by which they beautifie the skin with various spots , as varennes observes , pag. . it is hotly debated by menestier , and his namelesse adversare , whether these be whole skins of ermins , or only the tails of ermines , that are ; represented in blazoning : but i think both erre , for it cannot be the intire skin , with its own natural spots only , for some are very frequently spotted : nor can it be the tails of ermines only , as menestier asserts ; for these tails are so little , that they would make ill furring : but i think that these spots are added by heralds , not only in imitation of the spotted furrs used by ladies , for these are regularly spotted , and in heraldry they are not , but to diversifie the many coats of arms : and thus some bear one spot in the middle , some two , some three , some one in chief ; some dispose them as a crosse , &c. they are call'd by the italians , armelini , and the latine expresse them per maculas nigras muris pontici . where the ground or field is black , and the pouldring white , we call it contre-ermine , colomb . pag. . though guilims call it more improperly ermins : making no difference , betwixt the names , but the addition of the letter s. but the french write still hermins , guilims sayes , that where the field is or , and the pouldring black , it is call'd erminois , and cites for this bara , pag. . but there is no such thing to be found in bara . and where the field is black pouldered with or , he calls it pean : but i find no such term us'd in the french ; for they call furres , or doublings , des pannes or pennes , which possibly gave occasion to this mistake , and many others , in such as understand not the french tongue ; for the french say only hermine , if it be proper , viz. white pouldered with black ; but if the colours alter , they expresse the same as sable pouldred with ermins , or ; as also they say , or pouldred , with ermins sable , semé d. or. hermins de sable , bara . pag. . and colombier , pag. . if there be but one hair of red in each side , guilims calls it ermenits ; but these are but fancies , for erminits signifies properly little ermins . the other furr is call'd vair , vellus petasite , where all the several pieces are made in form of little glasses , and , as some think , are call'd vair , from the french verre , a glasse ; or as some say , from the variation of the colours ; and therefore , the latine say , arma variata ex pellibus albis & cerulis . the field of it is arg . and az . and if so , it is simply call'd vair ; but if the colours alter , or be moe , the alterations must be exprest : and therefore our heralds have ill blazon'd straiton of lauristons arms , verri arg . and az . for here the naming the colours was superfluous . this furr must be still of mettal and colour , and in blazoning , you must begin at the mettal as he carries verry or , and sinople : nor is there any difference betwixt these words , vair , verry , and verrey , though sir iohn fern , pag . assignes to every word its particular difference ; but guil. pag. . condemns this justly as a meer fancie , and founded upon no authority ; and i wish he had adverted to this himself in other places . vair is ordinarily of six ranks ▪ if they be moe or fewer they must be exprest : this rule the french still observe . the french likewise observe , that if the pieces be of mettal , and made not in form of a glasse , but of a bell , then they are to be call'd beffroy colomb . pag. . et on dit a la band de beffroy de vair : d , une seul tire , that is , of one rank . the origin of vair in armorie is from the furr of a beast , called varus , whose back is a blew-gray , its bellie being white : and therefore heralds have exprest it in blew and white colours , and when the head and feet of that beast is taken from its skin , it resembles much the figure of vair , us'd by the heralds , vid , aldrovand de quadruped . lib. . cap. . and the reason why they are never used in heraldry , in the natural colour of blew-gray , is , because heraldry admits no mix'd colours ; and therefore it has chosen blew , because that is the nearest colour to blew-gray : and the reason why it is never used all blew , or all white , is , because the whole skin is parted into these different colours : the first use of them in heraldry is said to be from le segneur de coucies , fighting in hungarie , and seeing his army flee , did pull out the doubling or lyning of his cloak , which was of those colours , and hung it up as an ensign : whereupon the souldiers knowing his courage , and confiding in it , did return to the battel , and did overcome their enemy . colomb . pag. . leigh , fol. . is of opinion that ermine is not a colour , but may be lookt upon , and should serve in heraldry as a mettal : but guilims , pag. . taxes him in this of an error , ( saith he ) it is us'd as the doubling or lining of mantles , and mettal is not fit for that employment : and therefore he concludes that it must be a colour : but in this i think they err both , for seing it is a compound of mettal and colour , i think it should be lookt upon , as neither the one nor the other , and so may be put indifferently upon mettal or colour without offending the rules ; for seing it is mettal and colour , it can no more be put upon colour then upon mettal , and so it must be us'd indifferently as both , or not put in a coat with either mettal or colour , which were impossible : but in the practice of heraldry , they are indifferently us'd , as may be seen by the tresor armorique de france , and in scotland ermin is born sometimes with colour , as in the arms of the mccullochs . chap. vi. of the principal points of the shield . before i descrive the charge , that is to say , the things born in the shield , i must advertise my reader , what the several points of the shield are ; for the same things make different arms , according as they are plac'd , and therefore , by the doctors call'd , alveoli , seu cellulasoli . the reason of the names , and designations of the several points , is from the several parts of a man , who is in heraldry , architecture , and painting , the true measure of all simetrie , and perfection : imagine then a man standing in the field , his highest point is his head , which in french is chef , and so chief point is not so call'd in heraldry , because it is the most excellent , but because it is the head of the shield ; and the english writ it wrong , for it should be writ chef : it is allow'd three points a , b , c. the second point , is call'd honour point , because a man wears all the badges of his honour , about his neck : as is to be seen in the knights of the holy ghost , saint esprit , and even in the knights of the garter , who wear their coller about their neck , on st. georges day ; though for conveniencie they wear it otherwise , at ordinary occasions . the third point e is call'd caeur , or centre point , the heart point ; but by guilims , and other english heralds , is erroneusly call'd fesse point : and yet in this they follow bara , as i conceive : but he calls it fesse , or face : which last is more proper , because face , which is one of the ordinaries , as shall be said hereafter , passes through this point : for fesse signifies the flank , or the buttocks , and these are not the middle part of a man : and the italians call ceur point , il centro , and the latine , centrum parmae . the use of these points , is , to difference coats exactly : for arms having a lyon in chief , differ from these who have a lyon in nombrill point and all the points have their different significations : for bearings which argues precedencie , or wit , are plac'd in chief point : these which are given as additions of honour , are plac'd in honour point : these which are given to reward courage , are given in caeur point , or centre point : these that are given in reward of supplie , or support , are given in one of the flank points ; because a mans thighs or flanks are his great supporters , &c. the learned spelman divides the shield in three regions , the highest , he calls cephalica , the middle he calls centrica ; and the lower perigaei . . but these ( not being followed by other writers and differing only from others in the way of expression ) are not to be used . menestrier the iesuite divides the shield in points , distinguisht in five threes , and a single base point . the first three , he calls the three points of the chiefe , the second three , he calls the three points of honour , the third threes , he calls the heart points , the fourth threes , he calls the nombril or navel-points , the fifth threes , he calls simplie the points . and the single and lowest point he calls the base point . and thus he designs the several situations of any bearing exprest in the shield , by saying it is placed in such a point , or in the canton dextre or sinistre of such a point : if it possess all the three , he terms them couch'd , or laid alongst the cheife , or nombril , &c. sometimes also they are said to be placed in pale or pale-wise , or saltire-wise , &c. when arms are described without relation to , or expressing the point where they are to be plac'd , they are then understood to possess ▪ the center of the shield called by plutarch , homer , and others 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the seat of the arms. chap. vii . of lyns used in heraldry . the charge or bearing is compos'd of several and different forms of lyns , of which , though the french do not treat separately ; yet seeing they are common to all bearings , i thought fit to premise to the knowledge of them an explication of different lyns ; of which they are compos'd , following guilims , cartwright , and the english heralds . the figure explains it self . the chief reason why the lyns are thus used in heraldry , is to difference bearings , which would be otherwise the same ; for a chief wavé differs from a chief simple , as much as if the one bore a chief , and the other a lyon rampant : but though this be the general reason , yet there are particular reasons for these differences , as shall be observed hereafter . the difference betwixt invecked and engraild , is , that they are opposite , the one being the other turned out , indented and daunsette , differ , in that the one is the other inverted ; but i think them all one : and so the french and latine calls them promiscuously dentatus , vid. skinner . but for difference , because the one is large and the other small , therefore indented is term'd dentata absolutely , and daunset dentes decumani in latine , and di non ordinaria grandezza by the italian , pet. sanct. pag. . invecked , is so called by the english from the latine invehor ; because it carries in its corners upon the thing whereupon it borders ; but i finde no such word used by the french : yet i think it is useful , seeing ingraild which they make use of , to signifie both , is of a contrary figure . the word ingraild , is said by upton and guilims , to come from ingredior , quia ingreditur rem circumscriptam : but this is a mistake , for then invecked and ingraild should not differ , though they be contrair in their figure ; but the true origination of it , is from the french word graile , which signifies hail , and engraile in ordinary french , signifies struck , and cut by hail : which hail , being round , pinches and cuts the leaves of trees , or any thing else in the form represented by that lyne , which is called , linea striata , in latine , and skanellata , by the italians . waved is so call'd , from the waves of the sea , which it represents , and is therefore called undê ; and is used for signifying that the bearer got his arms for service done at sea : thus the drumonds bear three faces undé , or wavé , because the first of that name came with queen margaret , as master of the ship , and having suffered great storm , through which he by his skill conducted them ; he did thereafter get three faces wavé , representing those great waves : the latine call it , vndiformis or vndulata , pet. sanct. pag. . neb●lé is so called , because that lyne represents a cloud ; for which cause , french heralds call it , nuancé , colomb . page . linea nubilosa , and is given to such as have been eminent for their skill in navigation and pilotry : for that employment oblidges them to understand clouds , storms , and winds : crenelae is a french word , signifying the battelement of houses , as the figure of this lyne signifies , which is called , linea pinnata , and it is used on the arms of such as have defended castles for their prince or countrey , or of such as are skilful in architecture . chap. viii . of the partitions of the shield . after battels were ended , the shields of the souldiers were considered ; and he was accounted the most deserving , whose shield was either most , or deepliest cut ; and to recompence the dangers wherein they were known to have been by these cutts , heralds did represent those cutts upon their shields . and those bearings in general , are called the partitions of the shield . the ordinar cuts did give names to the ordinar partitions , of which the others are made by several conjunctions : if the shield was cut from the chief to the base , it is called by the french , parti ; if all over , coupé ; if from the right high angle , to the lowest left angle , tranché ; if from the left high angle , to the right low angle , taillé : but the english observe not these terms , nor have they followed the french in this ; but they name the partitions by the honourable ordinaries , and what the french call parti , they call parted per pale ; for coupe , they say parti per fesse ; for taillé they say parti per bend sinistre ; for tranché they say , parti per bend : for a be●d dextre , needs not be called otherwise then a bend simplie , as in the figure herewith annext will appear , and in this i prefer the english to the french , because they in this use not many superfluous terms , and hereby avoid much confusion ; likeas they in this agree better with the latine and italian heraldry . but where the lynes cannot describe the several cuttings of the shield , there must be new terms , and there only they should have place ; and therefore gyrons , quarters and cantons were first invented . a gyron is the french word of bosom , and these partitions are called gyrons , because they meet in the bosom : they were of old called , contrarie-conid , because they did meet in in cono ; portat arma contra conata ex octo partibus , vid. fern. . they are in the latine called , pinnulae octonae , and merli octango-laxi , by the italians : and therefore if they be eight , they need not be exprest , but the number must be exprest if there be moe , or fewer : and berengarius was so called , quia ejus arma erant benè gyronata . but the earl of argil's coat should not be blazon'd gyroné , for it may be blazon'd by the ordinary lyns : and therefore i chuse rather to blazon it thus parted by pale , face , bend dextre , and sinistre , or , and sable ; and as this is suitable to reason , so i desire any person to consider if the earl of argyl's coat does not differ from that of grolle in colomb . page . why then should they not differ in the termes of art : and for authorizing me in this , i recommend the reader to colomb . fig. . & . pag. . a quarter is the fourth part of the shield , and is called canton from the french word canton , which signifies a corner . it represents the banner that has been given to the bearer , as a reward of his service , or at least is equivalent , as if a baner had been given him . a pyle in heraldry represents that ingine whereby souldiers and others secured the foundations of their buildings ; and have been given since to such as had been very useful in founding common-wealths , colonies , or families : but three piles are oft-times mistaken ( as i conceive ) both in england , and with us for the passion nailes ; which where ordinarie simbols , assum'd by such as went to the holy-land· and thus i blazon the wisharts arms , arg . three passion nails , gules meeting in point , for they resemble exactly the jesuites cognizance , which are three passion nails . and generallie in france and spaine , where these pyles are gules , and meet in point , they are called passion nails : and i rather believe this because spelman pag. . relates , that the wisharts got this name out of malice from the sarazens , whom robert the first of that name , did much persecute , about the time of the norman conquest . we express still the place from which the pyle takes its beginning , by the word ; issuing as issuing out of the chief , issuing out of the corner dextre . a flasque is the segment of a circle stretched alongst the straight side of the shield . it is given as a reward for learning , as guilims alleadges , and has its name , as skinner observes , à similitudine uterum antiquorum : animicandorem notat , herodian . in severo , pag. . but spelman asserts , that they are the facings of gowns , which were of old so shapt . others also there are wno think these flasques to be the proper rewards given by princes , to such as have served them as domestick servants : for the voyder which is the diminution of the flasque , is acknowledged by guilims , to be the reward for domestick service , & eadem est ratio totius , & partis . the flanch is yet as much larger than the flasque , as the flasque is than the voyder . it is a general rule in blazoning all these partitions , that we must begin with that colour or mettal which possesses the highest part or corner dexter , descriptio harum partitionum ( sayes pet. sanct. pag. . ) inchoari debet ab eo fulgore , seu coloris , seu metalli , qui primus obversatur oculis in superiore loco , vel in angulo dextro . sometimes one colour is said to be cut upon another , which bearing has been invented in imitation of cloaths , wherein stuffs of one colour were ordinarily cut out after that fashion of old , in sumptuous varieties : but i likewise imagine , that this way of blazoning has been fallen upon to save some of the received rules of heraldry ; for we then only say , that one colour is cut upon another , when there is a border , and any honourable ordinary of one colour ; which ordinary does not reach the extremities of the shield , as it ought to do : an example whereof , upton gives , pag. . where he calls such coats , arma duplicia & jaggata , gules voided , or by the three barrs , portat de rubeo ablato , sive evacuato super aurum , ad modum trium barrarum . the discription of the plate belonging to the eight chapter i. this kind of bearing is blazoned by the french , party coupé , tranché , taillé . ii. with us , parted per pale , face ( or fesse ) bend and barr : or parted per pale , fesse , bend dexter , and sinister . iii. ermine on a chief parted per pale gules and or , a lyon passant counterchanged : quartered in the second place with the coat of ker. iv. parted per fesse , or , and gules , a lyon rampant within a double tressur , counterflowred , and countercharged . per fesse , argent , and azure , a lyon rampant , counterchanged . v. parted per fesse , argent , and sable , a cheveron counterchanged , and in base , a cinquifoil of the first . perfesse , waved , argent and gules . vi. parted per bend argent and azure , a crescent counterchanged . per bend , indented , argent and gules , a crescent in chief of the second , and a mollet in base or . per bend indented argent and sable , in chief a spur-revell of the second . per bend gules and or , a flower de-lis tending towards the sinister chief counterchanged . vii . parted per pale , fesse , bend , dexter and sinister , or and sable ; but i shall let it pass in the terms generally used in this kingdom , viz. gyronie of eight pieces , or and sable : quartered with the coat of lorn . the same quarterea with the coats of stewart and lorn . some cadets of argyle , give the lyns of the gyrony , engrailed , others waved , for a difference . gyrony of eight ermine and gules . the same , and in each of the last pieces , a bee volant en arriere argent . viii . parted pe-pale , argent and sable , a cheveron , and in base a crescent counterchanged . per pale argent and sable , a chief indented counterchanged . ix . or , a saltire and chief gules , a canton of the first charged with a lyon rampant as the second , or , three barrs waved gules , on a canton of the first , a lyons head erased within a double tressure counterflowr●d as the second , langued az●r . the same , and over all a simiter in pale argent , hilted and pomelled of the field . x. argent two flasques azure ; this sayes guil , is given for vertue and learning , and especially for service in an ambassage . xi . or , three pyles gules ( or rather passion nails ) in point . sable , three pyles conjoined in the nombrill argent , on a chef gules a lyon passant guardant or , if these issue from any other part than the chef it is necessar to express it . xii . argent on three pyles sable al 's many annulets or , but the paternal coat of this name , belongs to . argent three pyles sable , on a chef of the second , al 's many annulets or. argent three pyles sable . or three pyles within a double tressure counterflowred sable , on a chef of the second , al 's many e●salaps as the first . argent three pyles engratled gules : this is quartered in the second place by hume of polwart with his paternal coat , being vert , a lyon rampant argent , within a border roses gules , by the name of hume , argent three pyles sable , surmounted of a fesse waved gules . chap. ix . of the honourable ordinaries in general . the bearing which is charg'd upon the field , is either an fowl or other creature , tree , flower , or some such thing , which depends not upon heraldry , but has its name , and being independent from that art , and these are call'd common charges : or else it is one of these pieces which is properly invented , and has its name , and beeing from heraldry , and those are call'd the proper charge . and such pieces are call'd the honourable ordinaries , because heralds do ordinarily bestow them upon deserving persons . but leich and guilims do erre in calling them the most worthy partitions , for partitions , and ordinaries are different , as shall be shown hereafter . thir honourable ordinaries ( or piec●s honorables , as the french call them ) are numbred by the french to be ten , chief , pale , band , fasce , barre , crosse , saultoir , cheveron , bordre , and o●le ; and express all the several parts of a mans intire armour . as the chef , the helmet ; the pale , his lance ; the band and bar , his sword and belt ; the fasce , his scarfe ; &c. but this is but a conjecture , or fancy : and i rather think that these have been invented to be different marks of different qualities in the bearer . as for example ▪ the chief reward those actions which are the product of wit , the cross religious exploits , &c. the english make the border , nor orle , no honourable ordinaries , and so make them nine , viz. . cross. . chief . . pale . . bend. . fesse . . an inescucheon . . a cheveron . . a saltyr . . a bar. each of these do in the french heraldry fill a third part of the shield ; but the english give them more or less , or as shall be hereafter observed . in this the french agree with the italians and spaniards , as pet. sanct. observes , and seeing all the honourable ordinaries are of the same quality , i see not why they should not have equal room in the field . chap. x. of the chief . when there is a partition in it , if the partition be in the upper part , it is call'd a chief surmounted of another , but if it be divided in its lower part , it is call'd a fillet , as guilims observes , who derives that word fillet , from the fillet that is put about the hair ; but it is indeed a french word , signifying a small threed . a chief cover'd by any thing which hangs over it , is call'd by the french un chef couvert , and sometimes the covering is like an episcopal chapperon : this mr. guilims not understanding the french , calls shapournet , or shapernet , as cartwright writes ; and by this , and many other errours it appears how different languages have occ●sion'd many mistakes in the term●s . sometimes it is blazon'd a chief crenelé , sometimes wavé , &c. according to the lyns which compose it . there is much notice to be taken to the several wayes of blazoning this ordinarie , as will appear by the examples hereeo subjoyned . the description of the plate belonging to the tenth chapter . i. argent , a chief gules . gules a chief or. or , a chief azure . argent , a chief sable . ii. gules , a chief or , surmounted of another argent : such a chief , says guil. denotes a double reward given by the soveraign . iii. or , on a chief sable , three escallops of the first : this is quartered with , argent , three roses gules , by the title of montrose . argent , on a chief vert , three crescents of the first . or , on a chief sable , two mollets argent . iv. azur , in chief three spur-revells argent . v. argent , three hollin leaves in chief vert , and a hunting horn in base sable garnished gules . vi. argent , on a chief gules , three pallets ( or pales ) or : some painters have of late done this chief , pallie of ; but that is an errour . azur , three moll●ts argent , on a chief or al 's many pallets gules : thus he bears the keiths chief counterchanged , as deriving his origin from that noble familie , the dicksons having been keiths . vii . this is a french coat , and by them blazoned , de vert , au chef d'argent , couvert d'azur . couvert , i. e. shadowed by the foot of hangings or tapestry , for that is the reason of that bearing . viii . the french blazon this , de sable , au chef d'hermines chapperonné d'or : in our language , sable , a chief ●rmine hooded or . ix . according to the french , d'argent au-chef mantellé de sable ; but according to us , parted per chief cheveron wayes sable and argent . x. d'azur au chef cousu de gueules , bordé d'or , i. e. azur , a chief gules embordured or . xi . d'or au chef d'azur chappé a dixtre d'argent : or a chief azur parted per bend sinister in the dexter canton argent . xii . d'azur au chef d'or à dextre de gueules : azur , a chief or , and dexter canton gules . chap. xi· of the pale . the pale is that ordinary , which stands perpendicular in the shield : and it comprehendeth in the opinion of all , the third part of the shield . a pallet is , as says guilims , the half of the pale , and an endorse is the fourth part of the pallet . the french say . that souldiers of old carry'd pales of wood to encamp them , which they fixt in the earth , and as varenus observes , they are bestow'd on him who empai'd a city for its defence . for palus signifies these pales with which cities or camps were guarded l. . f. de verb signifi . pali & perticae in numerum mat●eriae re●igendae sunt , & ideo lignorum appellatione non continentur and , aul. gell. lib. . c. ▪ observes , that castra & fossarum supercilia palis precinger● moris fuit . betwixt these they fixt or ty'd small rods , and therefore the french express no diminutive of a pale , but a verget , which is their ordinary word for a small rod ; and we should call it a rod , and what the english call an endorse , they call a pale charg'd with another little pale or verget . but i believe endorse is also an old french terme , and signifies to put upon the back of any thing , in dorso ; and therefore executions of summonds are call'd indorsations in scotland , because they are writ upon the backs of the summonds . if there be more pales , they are numbred as pales , four or eight ; but if there be only six pales , then the french say simplie palé arg . and azur , &c. the description of the plate belonging to the . and . chapters i. argent a pale sable ; this is quartered in the second place with the coat of mar , being , azure a bend betwixt six cross crosslets fitched or . argent a pale gules quartered in the second place with his paternal coat by the name of carnegie , or , an eagle displayed azure armed and membred sable . ii. or , a pale engrailed sable . parted per fess gules and ermine , a pale counterchanged , and three mascles , two in chief and one in base or. iii. argent three pallets ( or pales ) gules : some will have it pallé of six , or , three pallets gules , over all on a cheveron engrailed azure , al 's many buckells of the first , iv. azure a pallet argent . v. or , an endorse gules . vi. argent a shak-fork sable . this is called a shak-fork with us , and should not touch the corners of the escutcheon . it relates to some office about his majesties stables , this being an instrument whereby hay is thrown up to horses : and some think that it was given to the family of glencairn as master of horses to one of our kings ; but the french call it , une pairle from the latine parilis , though a late author makes it to be pallium archiepiscopale , albeit it differs from that in somethings , as it is described by innocent c. de pallo . sometimes also the letter y is taken for it , as in the arms of the town of yssodun , who took this for their arms , as the first letter of the name of their town , menest . art . du blazon . paege . vii . pallé of six ( or simplie according to the french pallé ) gules and argent , on a bend azure three cusheons or. pallé of six sable and or : guarterly quartered with the coat of stewart : or a fess checkie azur and argent , and with the coat of murray , azure , three starrs within a double tressure counterflowred , or. pallé of six argent and sable , on a fesse of the first , three mollets as the second . viii . gules two flanches ermine . ix . by the french , d'azur au pal d' or bordé de gueules : by us , azur , a pale or imbordured gules . x. argent a face ( or fesse ) gules : now quartered in the atchievement of the lord melvill , who gives gules three crescents argent , within a bordur of the second , charged with eight roses as the first , likewise by the name of melvill . argent a fesse azure . argent a fesse azure , within a tressure counterflowred gules . gules a fesse checkie argent and azur , as his paternal coat , quartered with the coat of abernethie . or a fesse checkie azure and argent . argent a fesse azure , betwixt two crosse crosslets in chief , and a mollet in base sable , within a bordur gules . xi . argent a fesse wreathed azure and gules . the same within a bordur of eight crescents . xii . or three barrs waved gules argent three barrs sable . ermine three bars gules chap xii . bend . the bend ( or bande as the french write ) is that honorable ordinarie , which passes from the right angle of the shield , to the lower left angle . the bar is just contrare , for it passes from the highest left corner , to the lowest right corner ; and is therefore call'd by the english a bend sinister . both comprehend a third part , according to the french ; but according to the english , it comprehends the fifth part only of the shield , when i● is uncharg'd , but the third part when charg'd , but i see no reason why this should hold in the cross , saltyr and bend , and not in the other ordinaries , nam ubi eadem ratio , idem jus est statuendum . this bend represents the belt of a knight , and is call'd baltheus in latine , and in italian , benda or cingulo , and is born of different colours , and in different forms by sundrie nations : for the french wear their sword belt , as a bend ; the germans as a face about their middle . the french wear their bend white , the spaniard red , the english scots and danes blew , the barbarians black· such french as wear a bend in their arms with us , wear it white , to show their origine . according to some amorists it represents a ladder , and is given to such as scal'd first the walls of castles or towns. guilims marks its divisions thus , the half of the bend is call'd a gartier , from the french word gartier ; a cost is the fourth part of the bend , and half of the gartier ; a ribband is half the coast. cartwright differs in this from guilims , but the french use no such fancies , but call all diminutives of the bend , cotisé , from coste the side , because these cotices are margin'd upon the side of the bend. and if there be moe or less than six bends in one shield , they express the number . guilims observes that the bendlet differs from bend ; in that it is still limited to the sixt part of the shield , and in that it still begins at the corner , where the bend is in the middle corner betwixt the lyns . the french have no such word as scarpe , but what the english call scarp , they call counter cottice , and if any thing should be call'd a scarpe , it should be the bend , for it looks likest to a scarfe ; and a bend in english , is un escarpe , in the french , or a scarfe . i finde bend sinister us'd but very seldom with us in scotland , so much we have hated every thing which lookt like bastardry . the desription of the plate , belonging to the . chapter . or , a bend gules : or according to some , argent a bend gules . azure , a bend argent . argent , a bend azure . gules , a bend engrailed argent . argent , a bend waved sable . or , a bend checkie , sable and argent . ii. argent on a bend azur , three buckels or : quartered with the coat of abernethy . argent , on a bend sable , three buckels or. i●i . or , on a bend azur , a star betwixt two crescents of the field . the same , and in the sinister canton , a rose gules , stalked and barbed proper , for difference . the same , within a bordur ingrailed gules , for difference . the same , with an oak tree vert , suppressed of the bend , for difference . the same with a broken lance in chief gules , for difference . iv. argent , on a bend azur , three mollets of the first . gules , on a bend argent , three mollets sable . argent , on a bend sable , three escalops of the first . sable on a bend or , three cannarie birds vert . argent , on a bend sable , three boar heads couped or. argent , on a bend ingrailed sable , a waggon of the first . or , on a bend waved azur , three lozenges of the first . his second brother gives the bend waved on the upper , and engrailed on the nether side . v. argent , three bendlets sable . argent three bendlets coticed , and engrailed on the outter side gules . or , a bendlet twixt a staggs head , erased in chief , and an hunting horn in base sable , garnished gules . vi. argent , a broken spear in bend , betwixt two spur revells azur . gules a sword in bend argent , hilted and pomelled or , surmounted of a fess as the third : this is quartered with the coat of abernethy . vii . argent , a bend coticed sable , betwixt two garbs gules . argent , a bend engrailed betwixt three crescents sable . viii . azur , a bend or , issuing out of two lyons mouths or throats of the second : in french , d'azur a la bande d'or mouvante de deux testes & gueules de lyon de mesme ; some terme this bend in french , la bande engoulee : it 's called by syl. pet. sta. balteus fluens ex hiante rictu leonum , and is a spanish bearing . ix . argent , a bend sable , betwixt two other demi-bends , couped or broken off , the upper issuing from the sinister flank , and moving towards the dexter chief , the nether from the dexter side to the sinister base , and two martlets , one in the chief , the other in base , all of the second : this is a french coat , and by them blazoned , d'argent à la bande de sable accompagneé de deux autres demy bandes retraites , celle qui tend vers le chef mouuante du flanc senextre , & celle , qui tend verse la pointe , mouuante , du flanc dextre , & de deux merletes de mesme l'vne enchef & l' autre en pointe . x. or , on a bend azur betwixt three boar-heads erased sable , al 's many lozenges of the first . argent , on a bend sable , three mascles of the first , a chief of the second , charged with al 's many spur-revells or. xi . gules , on a bend sinister argent , three crescents sable . argent , a bend sinister sable , twixt an annulet in chief gules , and a gryphon-head , erased in base sable , in his mouth a key azur . xii . argent , a bend sable charged with another waved of the first . gules , on a bend engrailed or , a batton , or ( according to some ) a flute azur . gules , on a bend or , a flute of the field . chap. xiii . of the face . the face is that honorable ordinary , which by two lyns traverses the face of the shield , keeping the centre equally distant from both the lyns , and comprehends a thrid part of the shield . the italians and latins call it fascia , or benda . the english writ it fesse , and derive it from the loyns of a man ; but fesse is a french word , signifying the buttocks , which are much lower then the center , and therefore the french ( bara excepted ) writ it still face , and it represents the scarfe of a warriour , un esharp , colomb . pag. . and from bearing arg . a face azur , the first of the sharps who came from france with king david , was call'd monsieur de l' esharp , and by coruption sharpe . the face hes no diminitive in the english heraldry , which i admire , seeing they assigne so many diminitives to other ordinaries : but the french call little faces , trangls , if they be equal in number ; but burels , if they be unequal in number , as five or seaven : in our scotish the face is call'd a bar , as in the earl of perths arms , who is said to bear o. three barrs wavé g. ; those should be call'd faces according to the french , and fesses according to the english ; and yet it appears that a face of old was truly call'd a bar , and it represents in its shape one of those barrs which are us'd all over some doors ; and therefore the latine authors call it verris , skinner verb. bar. as also the name of dempster carry a sword arg . surmounted of a bar or , to show that they were heritable dempters , who are criminal officers ; and therefore carry a sword for power in criminals , and it is call'd ius gladii : and because the dempster us'd to stand at the bar , and pronounce the verdict ; therefore they got the bar ; and this ordinarie does in effect represent in its shape the bars , which ly alongs in judicatures . the house of austria carry g a face arg . because leopold duke of austria in the first battel of the holy war had his coat , which was cloath of silver , so covered with blood , that it was all red , except that part which his scarfe covered , which remain'd still of its native colour : this showes that this ordinar represents the scarfe , and shows why it is given by heralds . when the bar is above any charge , so that the charge in so far is not seen , we say he carries v. g. a sword surmounted of a bar , as dempster does . chap. xiv . of the cheveron . a cheveron is an ordinar french word , signifying a couple , by vitruvius capreolus , and therefore this ordinar represents a couple in its shape , fig. . by the latine now it is call'd tignum or cantherius ; by the italian , capriolo or caviletto , and is given by heralds to such as have supply'd their prince , countrey , or family : and thus the hepburns carry g on a cheveron arg . two lyons pulling at a rose : the reason of which was that when the scots were near beat at the battel of two brothers of that name came in with a fresh supply and recovered the battel ; ( as holins-bead also confesses ) for which they got the cheveron , to signifie the supply they brought , the two lyons to represent the two brothers , and that they were scots pulling at a rose , which is the arms of england . as also robertsone of struan got a cheveron added to his shield , for taking graham , who kill'd king iames the first ; but he has not us'd it of late , because he thought it a mark of cadency . leigh sayes , that a cheveron represents a womans attire for her head ; but the conjecture is very groundless , and proceeds from wa●● of french , and for the same want of french some use to say , a cheveron rompé , for a broken cheveron , which is in french , un cheveron rompu , or brisé . spelman well observes , that it is given to men for ●ompleating , and having brought any great design to perfection , since the putting on of the couple shews the work to be compleated : and therefore the greeks us'd to say , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . it comprehends also the third of the shield , and the reason why a cheveron is taken broken in its top , is because the principle house was ruin'd and sold , and therefore the cadets , to show that they are fallen from the original height of the familie , take the cognizance bruis'd in its top . if there be more cheverons , they are call'd cheveronells , of which leigh and all the english write , that there can be three in a field ; but the french say three cheverons , and why not three cheverons as well as three bends , bars , &c. the french mark . . . or . cheverons at pleasure , and in this , as in many other things we follow the french : for the mclellans bear , or , two cheverons sable . a couple close contains the fourth part of a cheveron , and are not born but by pairs , except there be a cheveron betwixt them . if the cheveron be turn'd down with the point to the base , it is call'd a cheveron inverted . if two cheverons be joyn'd together , the english call them brazed from the french word bras , as i conceive , which signifies arms , because they are interlac'd as arms ; the french , accrochete . the description of the plate belonging to the . chapter . i. argent a cheveron sable . ermine a cheveron gules . argent a cheveron gules , and chief azur . azur a cheveron ermine . ii. gules on a cheveron argent , three mollets of the first . argent on a cheveron gules , three mollets of the first . gules on a cheveron argent , a rose betwixt two lyons ( or lyon cells as some wil have it ) combatant of the first . iii. argent a cheveron sable , betwixt three mollets gules . gules a cheveron argent , betwixt three mollets or. iv. argent a cheveron sable , betwixt three boar heads erased gules armed of the first . argent a cheveron gules , betwixt three boar-heads erazed azur , armed and langued of the first . argent a cheveron gules , betwixt three boar-heads erased sable . v. argent a cheveron checkie gules and of the first , betwixt three bugles sable , garnished as the second . or , a cheveron checkie sable and argent betwixt three martlets ( or kaes ) of the second . vi. argent a cheveron betwixt three roses gules . gules , a cheveron betwixt three flowers de lis or. vii . or , two cheverons sable . or , two cheverons sable , and three mollets in pale gules . gules two cheverons engrailed , betwixt three flowers de lis or. viii . ermine two cheverons gules . gules , a cheveron voided betwixt three cinquefoils or. argent a cheveron voided gules betwixt three pheons in chief , and an unicorns head erased in base sable . argent a cheveron gules surmounted of another ermine , betwixt three laurel slips vert . ix . argent two swords cheveron-wayes azur pearcing a mans heart in chief proper , and in base a cinquifoil of the second . argent , two daggers azur , the pomells divided in chief , and the points conjoined , piercing a mans heart in base proper , in the honor point a cinquifoil sable . x. in french , de sable aù cheuron d'argent brisé où eclatté par le haut . i. e. sable a cheveron argent , burst or split on the top : by syl. pet. sta. capreolus fractus , diminutus capite , mutilus , &c. xi . gules , a cheveron reversed argent . xii . argent , three cheverons brased ( or rather interlac'd one with the other ) in base , a sun in chief azur . chap. xv. of the bordur and orle . shields had bordurs for their ornament , and sometimes for their difference , as vestiments had fringes , and thence did the bordur grow an honourable ordinarie amongst heralds : it possesses the fifth part of the shield amongst the english , but the third amongst the french. an orle is a little bordur , from the latine word orula , which signifies a little bordur ; but both the one and the other are given to recompense such , as have given protection and defence : for the bordur defends what is within it , and therefore scotland got the orle flower deluc'd from the french , to recompense the assistance , the french got from the scots in all the wars : at which time , and for the same reason , the scots got the guarding of the french king's body , which honour they retain to this day . it is now us'd as a mark of distinction by cadets , because they ought to defend their elder brothers family , as the bordur defends the shield . all nations use few terms in describing borders , except the english , who use very many , and such as are unnecessar , and have proceeded from affecting french words for terms of art : for if the bordur be charg'd with dead things , it is call'd a bordur entoire , as of annulets , besants , &c. which word is from the french word entoure ( about ) corrupted ; this word is also improper ; for all bordurs go about the shield . if the bordur be charg'd with fowles , it is call'd by them enalauron ; if it be charg'd with other beasts , it is term'd enurny ; if with flowers , fruits , or leaves , verdoi ; and then the particulars , and their numbers are exprest , as verdoy of eight 〈…〉 if with furre , it is call'd purflew generally , and then the furr is specified , as he bears g. a bordur purflew ermine . the french say only , g. a bordur ermine , as also they say , he bears or , a bordur of pigeons . if the bordur be of moe colours , it is said to be componed of such and such colours , when there is but one range of them : but if there be moe ranges , and these be counterly plac'd chequer wise , the bordur is said to be compon'd , and counter-compounded . skinner in his dictionary thinks , that enalauron is a corruption of inorulatus ; but i think it comes from the french , who say , un bordure en alerions , to describe a bordure of martlets , so that enalauron is the corrupti - of en alerion . the fiblier is the french diminitive of a bordur ; but the english have no diminitive of it . he translates likewise a bordur purflew , fimbria acu puta nam pourfiler is profilare , id est , aureo filo intexere , so that purflew is rather a bordur embroder'd , than furr'd . the description of the plate , belonging to the . chapter . i. gules , a lyon rampant argent within a bordur componed ( according to the english gobbonated ) azur and of the first . or , a lyon rampant within a double tressure counterflowred gules , a bordur componed azur and argent : quartered with the coats of stewart and randolph . argent , a lyons head erased gules , within a bordur componed azur and of the first . ii. gules , a lyon rampant within a bordur engrailed argent . argent , on a fesse azur , three mollets of the first within a bordur engrailed as the second . iii. azur , a bordur with these words , ave maria gratia plena . iv. azur , on an orle or , eight decrescents of the first , all within a bordur argent , charged with four lyons rampant gules . or according to others , azur , within two bordurs , the outmost argent charged with four lyons rampant gules , the inmost or , of decrescents as the first . v. or , a bordur gules . or , a bordur azur . gyronie of eight , or and sable , a bordur imbatled vert . vi. per pale sable and argent , on a chaplet , four quarterfoiles counterchanged . per pale sable and argent , on a chaplet four cinquefoils all counterchanged . per pale sable and argent , on a chaplet four mollets counterchanged . this by the french is termed un orle rond . vii . argent , an orle gules , and in chief . martlets sable . viii . or , a lyon rampant within a double tressure counterflowred ( with flowers de lis ) gules , armed and lingued azur . ix . argent , a cheveron gules , betwixt three cross crosslets fitched sable , within a double tressure counterflowred of the second . gules , a cheveron within a double tressure counterflowred argent : quartered with the coat of frazer , being , azur three frazes argent . x. argent , a lyon rampant within a double tressure counterflowred azur , armed and lingued gules . or , a lyon rampant sable , armed and lingued gules within a double tressure counterflowred of the second . xi . or , three cusheons within a double tressure counterflowered gules : now born by some of the name of dumbar , and by stewart earl of murray . or , three crescents within a double tressure counterflowred gules : quartered with the coat of cumming , azur three garbs or. azur , three starrs within a double tressure counterflowered argent , quartered with the coats of athol and stewart . xii . or , an orle azur now born in the atchievement of the earl of hume . or , an orle indented upon the inner-side azur . chap. xvi . of the cross . the cross has been in great esteem , since our saviours death did make it so venerable amongst christians : for the egyptians did ingrave it upon the breast of their god serapis : and caelius rod teaches us , that the ancient , philosophers and mathematicians did highly esteem that figure . but that which made this ordinare so considerable in heraldry , was the expeditions unto the holy lands , and the holy war ; for both the pilgrims after their pilgrimage took the cross for their cognizance , and the ensigne of that war was the cross ; and therefore these expeditions were call'd croissads : and in these wars , the scots carry'd st. andrews cross argent , the french a cross arg . the english a cross or , the germans sable , the italians azur , the spaniards gules , as colomb . observes . thus montmorancy carry the cross , because they were the eldest christians amongst the gaules ; and the dukes of savoy , because they did assist the rhodes against the turks : and the sibald , who are come from sabaudia , carry the cross , because savoy or sabaudia , from whence they came , carry'd the cross ; for sibandas or sibaldus is but the corrupted name of sabaudus . before the holy war , the cross was blazon'd four cantons or quarters . it has several denominations , according to the several persons , who did originally bear it : thus the cross of calvary is long in the pale , and short in the arms , fig. . a patriarchal cross ( or a cross of lorraine , bacause lorraine wears it ) as in the fig. . a cross of maltha , is that which is born by he knights of maltha for defending the christian religion , fig. . a cross crosslet , is that which has all corners of it crossed as is the fig . a cross patee , is that which has large extremities , though they be not fimbriated or doubled , as guilims alleadges , pag. . a cross fitched , is that , whose lowest point is sharpn'd , and fit to be fixed in the earth , as in the figures . and . fitched comes from fichée , which signifies fixed in the french language ; but the writing it fitchee with a t is the errour : but such words though unnecessar , vex the reader to purpose : and therefore it were better to say , a cross fixable ; and for the same reason it were better to say , a cross crouch-wise , than to say , a cross potent , or potence : for a potence signifies a crouch in the french , but potent and potence are the same terms : nor could the french understand their own terms in those books . i cannot here pass by a ridiculous remark made by upton an english writer , otherwise learned , the reading of whom might have possibly occasion'd some mistakes . nota , quod istae cruces non sunt propriè signa , sed differentiae signorum . quare dic quod rex haraldorum videns aliquem cupientem portare arma , ignorans aliquam bonam , vel malam conditionem in eo , vel proprietatem , debet asignaere sibi de crucibus supradictis , quam crucem portare , signat portantem non habere aliquam causam , vel conditionem secundum quam possent sibi arma assignari , sed signant hominem brutalem . the reason of crosses fitched ( or fixable , as i term them ) was that the primitive christians did alwayes carry crosses with them as marks of devotion ; and when they setled themselves in their journey at any place for devotion , they fixt these portable crosses in the ground . chap. xvii . of the saltyr . the saltyr crux transversalis seu decussis , is a saint andrews cross , and is very ordinary in scotland , because st. andrew was our patron saint ; for st. andrew appeared to achaius our king upon that cross , when he fought against the picts . it was of old one of those instruments which were us'd as ladders , to scale the walls of towns ; and therefore it is call'd sautoir by the french , from sauter to leap , because it did help the souldiers to leap over walls : the english write saltyr , but i know no reason for that word : the former reason has in my judgement occasion'd that the saltyr is with us , and all other nations born ordinarly engrail'd , or ragg'd , as we call it , because the souldiers us'd to cut so those trees , for helping them to climb , and to support their feet or hands , upon its nicks . upon the account , that the saltyr is a st. andrew cross , therefore the andersons carry ar . a saltyr engrail'd sable betwixt four stars gules . when five of any thing , as leaves , beasts , &c. are born like a cinque , they are said to be born in saltyr , because of its shape , from the aggreement of a cinque and saltyr in their shapes : and by the italians it is call'd figura , a forma della lettera , x. and what we call saltyr-wise , they call incrotiato a foggia della lettera x. and we in scotland use the word saltyr , or st. andrews equally oft ; because the saint andrews cross is one of the badges of our nation . the description of the plate belonging to the . and . chapters . the latine terms of most of the crosses following , are set down as syl. pet. sta. vpton , and others have them . i. a plain cross ; this is call'd , crux simplex & plana . or , a cross gules . argent a cross betwixt four mollets azur . ermine , on a cross gules , a crosslet fitched or , and in the sinister quarter argent two mollets azur . argent , a plain cross sable quartered with the coat of cumming . ii. a cross engrailed . crux striata , cannaliculata , seu crispata , by some ingradata . by dion in macrino , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . or , a cross engrailed sable . argent , a cross ingrailed sable . sinclair earl of caithness bears this cross over all dividing his other coats . sinclair lord sinclair bears the same in an inescutcheon , others of that name gives , this cross azur . argent , a cross engrailed betwixt four roses gules . iii. a cross waved . crux undosa . argent , a crosse engrailed on the outter , and waved on the inner side sable . quarterly argent and sable , a cross parted per cross indented , counterchanged of the second and first . iv. a cross raguled . crux arbori similis quae decussis ramalibus undique asperatur , vel crux truncata , seu undique asperata . v. a crosse voided . crux secta introrsim , seu perforata . it is said to be voided , when the field appears throughout ; but if it be of another colour or mettall , it is said to be charged with another of such a colour . vi. a crosse potent . crux patibulata . the french call this , la croix potancée . argent , a cross potent azur , betwixt four mens hearts proper . argent , a cross potent sable , betwixt four mens hearts proper . argent , a plain crosse sable , twixt hearts . vii . a cross patriarchal . crux patriarchalis , or as some call it , the cross of lorrain . viii . a cross calvary . this cross by morgan pag. . is set upon three degrees or steps . ix . crosslet . crux recruciata , seu cruciata . or , on a cross azur , five cross-crosslets of the first . argent , a cross-crosslet gules , on a chief azur , a mollet in the dexter canton of the first . x. cross crosslet fitched . recruciata cuspidata , vexillaris , or according to vpton , cruciata , figitiva . azur , a bend , betwixt six cross-crosslets fitched or. this is quartered with the coat of areskine by the earl of mar. argent , a cross-crosslet fitched sable : quartered in the second place with gules , a closs helmet argent . xi . patée , crux patula ad scapos , seu crux pateus . gules , a cross patée or , betwixt three mollets argent . gules , three crosses patée argent . azur , three crosses patée argent . xii . patée fitched . crux patula desinens in cuspidem oblongam , seu cu●pidata . gules , a bend twixt six crosses patée fitched or. azur , a bend ar●ent twixt six cross patée fitched or. gules , a crosse patée fitched argent , issuing out of the base undie or. xiii . patée fimbriated , patula fimbriata . xiv . tau , or cross of st. antony , crux sancti antonii . xv. a crosse florie , florida . or , a crosse florie gules . sable , a crosse florie betwixt four escallops argent . xvi . a crosse patonce . this is called by the english , a cross patonce , and by colomb . pag. . croix enhendée . argent , a crosse patonce gules , betwixt three mollets sable . xvii . a crosse flurrie , according to morgan , and by some , patens florida , but colomb . pag. . calls it , croix flowerdelisée . xviii . a crosse avelane , avellana , the ends thereof resembling the husk of a filbert-nut . xix . a crosse anchored , anchorata , but colomb . calls this , the crosse of maltha , or a crosse patée of eight points : and that crosse which the french call a crosse anchored , is much like to that figure . called by morgan , molin . xx. a crosse patonce voided , florida , perfossa seu introrfim secta . xxi . a crosse sarcel● or resarcile by morgan ; by vpton pag. . termed dupla partita flo●ida : but that which the french call croix ressercellée colomb . pag. . differs much from this . xxii . a cross moline , according to morgan ; by upt. mollendinaris : but by the french as is already said , croix ancrée . argent , a cross moline sable . argent , a crosse moline within a bordur azur . xxiii . a cross mil●ine by the english. xxiv . a crosse crennelle or imbatled on both sides , undique pinnulata , by the french crenellée & bastillée . argent , a cross counter-imbatled sable . xxv . a crosse furchie , furcata . there be many other kinds of crosses little differing in forme from some of these before mentioned , but none of them are in use in scotland . xxvi . a cross of st. andrew , the patron of scotland , by some termed a saltir crux sancti andreae , decussis , seu crux decussata . argent , a st. andrews crosse sable . sable , a st. andrews crosse argent . argent , a saltir ingrailed sable . arg●nt , as s●ltir ingrailed gules , surmounted of another or , betwixt four bugles sable . or , a saltir verrey . xxvii . or , on a st andrews cross azur , nine lozenges of the first ; this ought to be an plain crosse , and not ingrailed as in the plate . argent , on a saltir vert , betwixt four crosse-crosslets fitched gules , five crescents of the field . xxviii . gules , a saltir betwixt four crescents or ; quartered with the coat of kirkaldy of inshture being , gules , three stars argent : the saltir should also be plain in this gentle mans bearing . argent , a saltir waved betwixt four roses gules . argent , a saltir ingrailed betwixt four roses gules . argent , a saltir betwixt four roses gules . argent , a saltir azur , betwixt two crescents in chief and base gules , and al 's many garbs in fesse of the second banded or. xxix . argent , a saltir , and chief gules . argent , a saltir gules , and chief waved of the second . argent , a saltir gules and chief imbatled of the second . argent , a st. andrews cross azur , on a chief of the second , three cusheons or. argent , a saltir sable , on a chief gules , three cusheons or. xxx . argent , a saltir couped gules . argent , a sword in pale azur , hilted and pomelled or , surmounted on the point of a mollergules , overall a saltir couped sable . or , on a fesse azur , betwixt a bulls head couped in chief , and a gally her oars erected saltir-wayes in base sable , a st. andrews cross argent . chap. xviii . of such figvres square and round as are only us'd in heraldry there are b●sides the ordinaries many other figures , which are proper to heraldry : and therefore i have insert them here next these ; and before i begin to treat of the common charge . these are either round or square . the round get from the english various names , according to their various forms , which i have here set down from guilims . if they be or , then we call them besants , if they be argent , then we call them plates , if they be vert , then we call them pomeis , the french word for aples if they be light blew , then we call them hurts , if they be sable , then we call them pellets or ogresses if they be purpure , then we call them golpes , if they be tenne , then we call them oreges , if they be sanguine , then we call them guzes , if they be gules , then we call them torteauxes . but the french allow no such multiplicity , nor confusion of terms ; and colomb , sayes , c ' est plustost obsturcir la science que l' éclaircir , c ' est pourquoy ce ne scaurois approuuer ces terms begearres d' angleterre . the ordinar round figures approved by all nations , are , the besants , which were the money of constantinople , and had their name from that town , which was called bizantium , and have been generally born of old by such as were at the holy war ; of late they are born by such as have been rais'd , by being thesaurers or customers : for these besants are still of mettal . if these roundlets be of colour they are term'd , torteauxes , generally by the scots and french. if they be half mettal , half colour , they are call'd besant torteaux , if the mettal be in the highest place , or in the dexter side ; if otherwise , they are called torteaux besants : this word torteaux is in latine called limba torta & rotunda ( round cakes ) and thence sprung the term torteaux leigh : calls them wastals . it is given by chassaneus conclus . . as a rule , that besantae numerantur usque ad octo , si excedant dicentur besanteae & tortellae numerantur sicut besantae : that is to say , if the besants exceed six , you should say , bestanted , and need not specifie their number . if these roundlets be shadow'd , they are call'd bowles ; and the first who bore these , was the family of medicis now duke of florence , because the first of that name , edward de medicis , who serv'd under charles the great , kill'd mugel a giant , who wasted all about florence , and murdered passengers by a mace of iron , at which were hung five iron bowles , and did thereupon take five bowles for his arms. the four corner'd figures , are either lozanges , which are exactly four squar'd para-lello grammata , and are born by mathematicians , and ofttimes are the symbols of exact honesty , and constancy ; that being a figure whose right side is alwayes highest , homus quadratus , chas lib. . conclu . tells us , that lozangiae factae sunt ad modum lozangiorum in vitriis . the fusill is longer , and has its highest and lowest angles sharper than the lozanges : it was the form wherein women carry'd their arms of old , and by the old shape of it , and the present name , it represents a spindle : if there be many of these , then we say , lozan'd or fusill'd . the macle is also four square , but it is voided as in the fig. . some think they resemble the mashes of a net , and if so , they must still be voided , as guilims well observes , pag . and they signifie the bearer to have been pollitick , and fit to take others in his net , as sir iohn fern observes ▪ but if the macle represents a mash , why was it cut as a macle ? and therefore i do rather believe colomb . pag. . who asserts , that these macles were first used in the arms of the house of rohan , who chused them , because all the carps , and flints also of their lands in the dutchie of rohan , are all markt with this figure , which being a thing very extraordinary , and singular , gave occasion to them to use these in their arms , and these spots are called macles in that countrey from the latine macula : whereupon the dukes of rohan have for their motto , sine maculâ , macla . in my opinion they look like mirrours , and seeing the name of purves carries three macles , and that their name in france is purvoir , i think these macles represents mirrours in their arms. the english call thir figures macles , without distinguishing whether they be voided or pierc'd ; but if they be pierc'd round , the french call them rustres . i have also set down the form of a fret , which should consist of six pieces , if of moe , we say fretted . billets are also four corner'd , but are longer in the sides , than at the ends ; they represent a brick , and therefore are call'd laterculus by the latine heralds : some ancient families bear these , to show the antiquity of their families , as varreus observes , for of old all houses were built of brick . some families with us use them , to show their original was from england , where brick tyles are much us'd . i have added the earle of errols coat as an example of inescutheons . the description of the plate , belonging to the . chapter . i. azur , a fesse betwixt three lozenges or. the same quartered with the coat of balfour , argent on a cheveron sable , an otters head crazed of the first . argent , a cheveron ensigned on the top , with a crosse pateé betwixt three lozanges sable . argent , three lozanges sable , on a chief of the second , al 's many lyons passant guardant as the first . ii. argent , a fesse fusiliesable ( or five fusils in fesse ) or , a cheveron betwixt three fusils azur . or , a cross crosslet fitched sable betwixt three crescents in chief , and al 's many fusils in base gules . iii. azur , on a cheveron betwixt three mascles argent , al 's many cinquefoiles gules . azur , on a fesse betwixt three mascles argent , al 's many cinquefoiles of the first . gules , six mascles or , , , and . quartered in the second place , in the atchievement of cockburn of langtoun , with his paternal coat argent , three cocks gules . azur , three mascles , or. iv. or , on a fesse , betwixt three crosses , pateé gules , al 's many bezants . or , on a fesse , betwixt three crosses , pateé in chief gules , and an star in baze azur , al 's many bezants . argent , on a fesse azur , three bezants . azur , a cheveron , betwixt three bezants . v. ermin , a frett gules . ermine , fretté gules . ermin , a frett ingrailed gules . gules , a frett argent . sable , fretted or. vi. sable , a bend betwixt six billets or : this is quartered in the atchievements of the earles of linlithgow and callender . vii . argent , three shields ( or inescutcheons ) gules . gules , an inescutcheon or , sable , an inescutcheon , chekie argent and azur , betwixt three lyons heads erased of the second . argent , four barrs imbatled azur , over all an inescutcheon , gules . viii . argent , a cheveron sable , betwixt three torteauxes , ( or three roundles ) gules . argent , a cheveron , betwixt three pellets , ( or three roundles ) sable ) this may serve for roundless of other colours ; of each of which , there want not instances amongst the bearings of this kingdom . ix . or three annulets gules . gules , three annulets or stoned saphire : quartered in the second place in the atchievement of montgomery earl of eglingtoun . chap. xix . of living creatures , trees , flowrs , &c. and the general laws of heraldry relating to them . there are some things proper to heraldry , as the honorable ordinars , and of these i have treated particularly : but there are other things , which have only relation to heraldry , as they are exprest as bearings in the shields of particular persons ; as planets , meteors , animals , trees , flowers : and thus , all things may be here comprehended , and heralds to swell their books , treat of those , either to show why such things are born : ( but since that depends upon the actions done by the bearers , that is rather the part of an historian , then a herald : but however in the second part of this work , wherein i have given an account of our families and arms , i have set down the reason of every coat , as far as my enquirie can reach ) or else others make long discourses of the nature of the things born ; but that belongs rather to a natural philosopher , then to a herald . i am then resolv'd only to trouble my self with the general laws to be observ'd in bearing these things , which i have reduc'd to these rules . . the first is , that every thing be plac'd in its natural form , if there be no special reason for doing otherwise . for nature is the chief model , and pattern of art in all things , and art only imitates nature . . that if a rapacious creature is to be set down , it is to be exprest in the posture that is most devouring ; because then it is presum'd to shew most strength : and thus a lyon is to be exprest , rampant , &c. bart. de insig . num . . animalia fera debent exprimi in act● ferociori . . other creatures that are not wild and ravenous , ought to be exprest in their noblest position , as a horse salient , a grey-hound running , &c. . creatures , that are remarkable for any posture , ought to be born in that posture , as a lamb passant , because it is naturally simple ; a serpent noué , or circling in a knot , because it is remarkable for that forme . . all creatures must be looking to the right side of the shield , and must have their right foot first ; which things bartol founds upon , l. qui clavum § item sciendum f. de aedilit . edict . yet i found it rather upon the general opinion that men have , that the heart is in the right side , and that therefore the right side in man is strongest , and so he has made it the noblest side in all other things . . as the right side is nobler then the left , so the upper part is nobler then the lower : and therefore things that must look either up , or down , ought rather to be design'd looking upward . . but if two creatures or things be looking to one onother , then these rules are not to be respected , bartol . num . . . when beasts are to be painted upon banners , the noblest position is to look to the staff ; because that is the support of the banner : if upon houses that have chimneys , the noblest position is to look to the fire , because generally the worthiest persons are plac'd next to the fire : if there be no chimney , the noblest posture is to be plac'd , looking from the door : if upon caparasons , they ought to look to the head of the horse , or beast that bears them . ix . if they be born to expresse a historie , they are to be painted in the posture that best expresses the historie . x. in some things custom has allow'd a peculiar position in heraldry ; which ought to be observ'd : as two keys are to be born like a saint andrews cross , because the keys born by the pope , are so painted : a sword is to be born in pale , because the sword of honour is so carry'd before kings and magistrats . but these postures , and the special terms are to be found in guilims , carter , morgan , and others ; and many of them may be known by the explication of the coats here set down . of planets , &c. i. azur , the sun in his glory . this is quartered with per fesse gules and vert , on a cheveron argent betwixt three mascles in chief or , and an unicorns head erased in base of the third , as many mollets as the first , be the name of ker. azur , the sun in his splendor , betwixt two crosses pateé fitched in chief , and a mollet in base argent . azur , the sun in his glory , betwixt three flowers de lis argent . ii. argent , three stars azur . argent , a fesse , betwixt three stars azur . azur , three stars within a double tressure , counterflowred argent ; now quartered in the atchievement of the marques of athol . argent , an bugle sable , garnished gules , on a chief azur , three stars of the first . gules , three stars or , quartered in the atchievement of gordon , earl of satherland . iii. azur , a crescent , between three stars argent . azur , a frasier , issuing out of a crescent , betwixt three stars argent . iv. argent , on a bend azur a mollet betwixt two accornes , or. argent , a fesse waved azur , betwixt three mollets gules . ermine , on a chief gules , three mollets argent . argent , on a cross azur , a crescent betwixt four mollets of the first . v. gules , an increscent or , azur , a moon decrescent proper . or , on a fesse azur , betwixt two crescents : the upper inverted gules , three mollets argent . vi. gules , three crescents argent . gules , three crescents argent within a bordur of the second , charged with eighth roses , as the first : quartered with argent , a fesse gules , be the name of melvil of raith . or , three crescents gules . vii . azur , three cross crosselets fitched , issuing out of al 's many crescents argent . gules , three cross-crosselets fitched , issuing out of ( or within ) al 's many crescents argent . viii . azur , nine stars or , , , , and . sable , the sun in his glory , betwixt nine stars argent , three , two , three and one . ix . argent , a rainbow proper . x. azur , iupiters thunder-bolt in pale or , inflamed at both ends proper , shafted saltir-wayes , and winged in fesse argent . iupiters thunder-bolt winged as the former , but of old he gave ane and throwing the thunder-bolt . xi . azur , a star of eighth rayes , within a double tressure counterflowred or : this he gave over all on an shield of pretence ; but has lately laid it aside . xii . azur , a comet or blazing star in the dexter corner , and straming in bend or. of the parts of a man. sable , an naked man his arms expanded proper . the same , within a bordour argent : ii. argent , a savadge head couped distilling drops of bloud , and thereupon a bonnet composed of bay and hollin-leaves all proper , within an orle of eigth martlets sable . argent , a savadge head full fac'd , distilling drops of bloud within an orle of eighth martlets sable , a bordur invecked gules . azur , three savadge heads couped argent . iii. argent , three negroes heads couped proper with a ribban about the brow knit behind of the first . iv. azur , three sarazen heads conjoyned in one neck proper , the faces looking to the chief , dexter and sinister sides . the same , with this difference , that the uppermost head was affixt by a wreath to the other two . v. sable , a chevalier armed at all points , brandishing a simiter aloft , and mounted on horse-back argent . the same , within a bordur gules . vi. argent , a dexter arm issuing from the sinister-side , holding an oak-tree eradicat and broken asunder near to the branches proper , betwixt a crescent in the sinister chief , and a mollet in the dexter base gules . argent , a sinister hand holding an oaken-battone palewayes proper , surmounted of an bend ingraised gules . argent , three sinister hands couped and erected in pale . and . gules . vii . two coats quarterly , first sable , a catharin-wheel argent . second argent , three gut de sang . ( or drops of blood ) proper . third as the second , the fourth as the first· viii . gules , a dexter hand couped fesse-wayes , and thereon a hooded falcon pearched or , on a chief argent three mollets of the first . argent , three sinister hands tending to the sinister chief-point gules . and . or , an dexter hand holding an dagger betwixt three hearts gules . ix . gules , a dexter hand couped fesse-wayes proper , holding a sword in pale argent betwixt two broken hammers or. quarters the same with the coat of baird . gules , a dexter hand couped , holding a dagger-point downward argent , and in chief two spur-revells or : others give it a dexter-hand issuing out of the sinister-flank , holding a simiter in pale . x. sable , two leg-bones in cross argent . xi . or , three mans hearts within a bordur ingrailed gules . gules , on a chief argent , three mens hearts of the first . argent , three nails ( according to some arrows ) fastned in , or parting a heart gules . xii . gules , on a fess betwixt a bow and arrow in full draught in chief , and three legs couped at the thigh in base argent ; a lyons head crased sable . argent , an naked savadge proper , shooting an arrow out of an bow gules . of four footed beasts . i. argent , a lyon passant guardant gules crowned or : but now , argent , a lyon passant guardant gules , crowned with an imperial crown , and collared with an other open crown or. argent , a lyon passant guardant gules , crowned with an imperial crown or : quartered with , argent a cross engrailed sable by the name of sinclair . argent , a lyon passant guardant gules ; quartered with edmistoun , or three crescents gules : and over all dividing the coats a cross engrailed sable , by the name of sinclair . argent , a lyon passant guardant gules crowned or , within a bordur indented of the second . ii. or , a lyon rampant sable degoutte . azur , a lyon rampant argent crowned or ; quartered in the atchievement of the marquess of dowglas . or , a lyon rampant gules , couped in all joynts of the first . iii. argent , a lyon rampant azur armed and langued gules : quartered with azur , three water-budgets or , by the name of vallange . argent , a lyon rampant gules . sable , a lyon rampant argent . argent , a lyon rampant gules crowned , and chained or. iv. argent , a demi-lyon rampant sable , issuing out of a fesse with a flower de lis in base gules , all within a bordour of the second . v. argent , three lyons heads erased gules , langued azure . or , three lyons heads erased gules : quartered in the atchievement of the marquess of huntly . vi. gules , three lyons rampant argent , now born by the laird of baluagowan . sable , two lyons counterpassant argent , collared gules . gules , on a cheveron argent , a rose betwixt two lyoncells combatand of the first . vii . or , a lyon rampant reguardant gules ; quartered with the coat of cuming . gules , a lyon rampant or , armed and langued azur with a sword in his dexter paw proper hilted , and pomelled of the s●cond . viii . argent , three unicorn-heads couped sable . argent , three unicorn-heads erased sable . vert , on a cheveron betwixt three unicorn-heads erased argent ; alse many stars sable . ix gules , a boar passant or. the same , and on a canton ermine , a sword in pale proper . x. azur , three boars heads couped or. the same within a bordur of the charge . the same with a saint-andrews cross in the center . azur , a bend betwixt three boars-heads couped or. argent , three boars-heads erased azur , armed or. xi . azur , three bears-heads couped argent , muzled gules . the same quartered with the coat of frazer . the same quartered with the coat of preston . azur , on a cheveron , betwixt three bear-heads couped argent , muzled gules , a mans heart proper . azur , three bear-heads couped argent , muzled sable ; above the shield a viscounts crown , and over the same , on an helmet befitting his quality , mantled gules , doubled argent , and wreath of his colours is set for his crest , a boar passant argent , overspread with drops of blood ; supported on the dexter by an vnicorn or , powldered with ermine sable ; and on the sinister by a dragon ermine : with this symbol , fax mentis incendium gloriae . xii . gules , a ram passant argent . of four-footed beasts , and their several parts . i. argent , a fesse betwixt . otters-heads erased gules : but. argent , . otters-heads erased gules . argent , on a cheveron sable , an otters-head erased of the first . ii. argent , a bend ingrailed gules , betwixt two otters heads couped sable : but other books , especially the latest , gives the coat of livingtoun ( which it seems is all one with lethingtoun ) of saltcoats , argent , an b●nd ingrailed gules , and in chief a bears-head erazed azur , muzled of the second . iii. azur , an hare salient argent , with an hunting-horn about his neck ve●t garnished gules . argent , a ratch hound current , betwixt three hunting-horns sable . parted per bend sanguine and vert , two grey-hounds current bend wayes argent . iv. azur , the holy lamb carrying a staff and flag argent , and thereon a saint-andrews cross gules . gules , an holy lamb passant reguardant staff and cross argent , with the banner of saint-andrew proper ; all within a double tressure counterfloured of the second : the escutcheon being surmounted on the breast of an eagle with two necks displayed or. v. or , a stags-head couped , attired with sex-tynes on every horn sable . vi. azur , a dears-head cabossed or. the same within two lawrel-branches disposed orle-wayes . azur , three dears heads cabossed or. or , hearts head cabossed sable , attired gules . vii . gules , a bucks head couped or. gules , an hearts head couped and attyred with ten tynes , betwixt three cross-crosselets fitched , all within a double tressure counterflowred or. viii . sable , three leopard heads erased argent . azur , a leopards head erased or. ix . argent , three roe-bucks in full course gules . vert , three bucks passant argent , attyred and ungul●d or. argent , a horse passant proper furnished gules . x. gules , three woolf heads erased argent , armed and langued azur . some of the old books give the field azur . the same within a bordur ingrailed of the second . xi . argent , a bulls ●ead erased sable . argent , three bulls heads erased sable , armed vert. argent , three cows heads erased sable . xii . sable , three cats a mountain passant in pale argent . of fowls , &c. i. argent , an eagle displayed sable . or , an eagle displayed azur , armed and membred gules . argent , an eagle displayed gules . or , an eagle displayed sable . ii. argent , an eagle displayed with two heads sable : but now , he gives the eagle surmounted on the breast of an inescutcheon argent , charged with a saltire sable . and most of the name gives only the saltire . argent , an eagle displayed with two heads sable , on a chief vert , two spur-revells or. azur , an eagle with . heads displayed argent over all on a fesse sable , two mollets of the second argent , a double eagle displayed gules . iii. or , an eagle pearching on a helmet gules . the same within a bordur embatled of the second . gules , an hand issuing out of the sinister flank , and thereon an ho●ded falcon pe●r●hed or , a chief argent charged with three mollets azur . iv. argent , a gryphon saliant sable winged , be●ked and armed gules . gules , a gryphon saliant within a tressure counterflowred argent . argent , a cheveron engrailed gules , betwixt three gryphones saliant vert , armed and membred of the second . v. gules , three martlets argent . argent , three martlets gules within a bordur or. argent , three bounten birds proper on a chief azur a sword fesse-wayes of the first hilted and pomelled or. sable , on a bend or , three cannarie birds vert. argent , a cheveron betwixt three turtle-doves azur . vi. gules , three crans argent . gules , three crans within a bordur invecked argent . azur , a cran argent . gules , a cran without head argent . vii . or , a falcons head issuing out of a mans heart proper , betwixt . mollets azur . but the lord halkertoun has changed this bearing lately . or , a falcons head issuing out of a mans heart proper , betwixt . mollets azur , on a chief of the second alse many bezants . viii . argent , . cocks gules : quartered with the coat of weapont , gules , . mascles or , , , and . argent , a fesse chekie azur , and of the first , betwixt . cocks gules . argent , on a fesse gules , . cocks passant or. ix . argent , in nests vert , . pelicans feeding their young or. azur , a bend betwixt two pelicans in their nests feeding their young argent : in some old books azur , on a bend , or , . pelicans vulned proper . argent , three pelicans vulned gules . gules , a phenix argent in flames proper . x. parted per cheveron embatled vert and gules , . craws argent , aliter argent , a craw feeding on a garb both proper . gules , on a fesse argent , three cornwall ( or cornish ) kaes sable becked and membred of the first , betwixt alse many mollets or. argent , a raven ( or corbie ) proper . xi . sable , on a bend argent , betwixt two cottises or , three cornish crawes of the first . some call these fowls martlers , and give them azur , as in the explication of the plate of the bends . xii . argent , a dragon with wings displayed within a bordur inwardly circular sable , charged with . crescents of the first . or , a fesse ermine , betwixt three dragon heads erased gules . argent , a dragon vert spouting fire : quartered in the second place with the coat of seaton . of fishes . i. a sea argent waved sable in french vnémer d' argent ondoyée ou agitée de sable , and is the coat of sadoc de vencon chevali●r de la table ronde . argent , a rock sable betwixt three fountains proper . ii. argent , an otter issuing out of a bar waved sable ; but , argent , an otter issuing out of a bar waved sable , crowned or , as the coat of meldrum : quartered with the coat of seaton which is or , three crescents within a double tressure counterflowred gules . argent , three otters issuing forth of a bar wave sable : quartered with the coat of preston . argent , three otters heads couped sable . iii. azur , a saltir ingrailed betwixt three swans najant in a loch proper , . in fesse , and . in base argent . or , a saltir ingrailed sable , betwixt two swans najant in fess undié ( or in a loch ) proper . iv. argent , an dolphine najant azur : quartered with the coat of cathcart , viz. azur , three crescents with as many crosse-crosselets fitched , issuing out of the same argent : or azur , . cross-crosselets fitched with alse many crescents argent . v. azur , three salmond najant fesse-wayes in pale argent . azur , three fishes called garvine-fishes najant fesse-wayes in pale argent . the midlemost looking to the sinister , and the other two to the dexter . as the fourth in their atchievements , parted per fesse waved argent . and vert in the center a salmond naiant proper . vi. sable , a cheveron or , betwixt . trouts hauriant argent . azur , three trouts fretted in triangle : one looking to the base , and two to the dexter and sinister chief argent : quartered with argent , an horse head couped sable furnished gules . vii . azur , an imperial crown , and under it two herring in form of a st. andrews cross or. viii . argent , three turbets fretted proper , one fesse-wayes looking to the sinister , and two to the dexter chief and flank . ix . gules , an inescutcheon argent , betwixt . pyke or geds heads couped or. azur , . geds or pyks hauriant argent . x. argent , on a st. andrews cross ingrailed sable , five escalops or. this pringle of whitebank , as his representer bears . argent , on a saltir engrailed azur , five escallops as the first . azur , three escallops or. xi . per pale argent and gules , a bordur of eighth escallops counterchanged . per pale waved argent and gules , a bordur of eighth escallops counterchanged . azur , a cheveron argent , betwixt two flowers de lis in chief , and a crab in base or. xii . gules , a salmond head couped fesse-wayes argent , with an annullet through the nose proper , betwixt . cinquefoilles of the second . gules , three salmonds ( some say trouts ) hauriant palewayes in fesse with a ring through each of their noses argent . of trees and plants , &c. i. azur , an oak-tree accorned or , growing out of a mount in base proper , betwixt two cross-crosselets fitched of the second . the oak with two keyes hanging on the dexter side azur , being fastened to one of the branches with strings gules . a bugle sable , hanging on the branches of the oak stringed gules , within a bordur engrailed argent . the oak tree , betwixt two ships under sail ; and some of the woods give the tree eradicated . argent , three oak trees vert. argent , a pine-tree eradicated proper with a bugle pendent upon one of the branches or. argent , a vine-tree growing out of the base leaved and fructed , betwixt two papingoes endorsed standing at the foot , and feeding upon the clusters all proper . argent , a fir-tree growing out of the middle base vert , surmounted of a sword in bend , bearing upon the point an imperial crown proper . argent , a palm-tree growing out of a mount in base proper , surmounted of s. andrews-cross gules , on a chief azur three mollets of the field . ii. argent , on a cheveron gules , betwixt three oak-trees vert , a boars head couped of the field . azur , a cheveron betwixt three oak-trees or. argent , an oak-tree growing out of a mount in base proper , surmounted of a fesse azur . argent , upon a mount in base , a grove of trees proper . iii. azur , a cheveron or , betwixt two scrogs or starved branches in chief , and a mans heart in base argent . argent , three trunks or stocks of trees couped under and above . and . sable . argent , a tree eradicated and lying fesse-wayes vert , betwixt three pheons azur . iv. argent , three edock-leaves slipped . and . vert . argent , three lawrel-leaves slipped vert . v. argent , three hollin-branches , each consisting of alse many leaves proper , banded together gules . argent , three hollin-leaves slipped vert. vi. argent , on a bend azur three accornes in the seed or . argent , three accorns slipped vert . vii . argent , a flower de lis azur . gules , a cheveron betwixt three flowers de lis or . azur , a pot of growing lillies argent . gules , an fesse or , betwixt two lillies slipped in chief argent , and an annulet in base of the second . viii . argent , on a fesse azur , three primroses of the field . or , a lyon rampant vert armed and langued gules , over all on a fesse purpure , three primroses of the field . argent , ●hree gellie-flowers gules within a double tressure counterflower delised vert : quartered with the coat of calender being sable , a bend betwixt six billets or , and over all on an shield of pretence , he gives the coat of linlithgow , viz. azur , an oak-trre or , within a bordur argent , charged with eighth gellie-flowers . livingston , earl of callender gives the gellie-flowers eradicated , and livingston , viscount of kilsyth gives them slipped . ix . argent , a cheveron betwixt three roses gules barbed vert . argent , a cross engrailed betwixt four roses gules . x. azur , three garbs or. argent , a cheveron gules betwixt three ears of rye slipped and bladed vert . argent , three ears of wheat slipped in fesse vert . xi . gules , three cinquefoilles ermine : quartered with the coat of arran . azur , three frasiers ( or frases ) argent ; these are strawberrie-leaves , but the painters have of a long time done them like to cinquefoils , making no difference , which certainly is an error : they are the paternal bearing of the lords salton , lovat and fraser ; and are quartered in the atchievements of the marquess of huntly , earles of wigton , and tweddal , and lord pitsligo . xii . argent , an hand issuing out of the dexter side holding an garland ensigned with an imperial crown proper , on a chief gules two thistles of the first . azur , a garb or banded of the first betwixt three thistles as the second . the thistle is the badge of the king of scotland . of castles and instruments of war. azur , a castle argent gates and windowes gules : but , or , a mountain azur inflamed proper , quartered now by sir george mckenzie of tarbet with the mckenzies armes . sable , two barrulets engrailed betwixt alse many towers treeple towered in chief argent , and three crescents in base or. azur , on a rock proper a castle argent . gules , three towers triple towered within a double tressure counterflowred argent . several names of this kingdom bear churches , bridges , pillars , and such like for their ensignes armorial which i omit . ii ▪ azur , on a cheveron betwixt three bear-heads argent , muzled gules , a bucks head betwixt two hands couped , each grasping a dagger proper . argent , on a cheveron betwixt three roses gules , two swords points downward , and conjoyned at the pomells of the first hilted and pomelled or. iii. gules , a sword in bend argent , hilted and pomelled or , surmounted of a fesse as the third : quartered with the coat of abernethie . gules , two swords points downward crossing other saltirewayes argent , hilted and pomelled or , and a sinister hand couped in base pointing upward of the second . gules , three swords in fesse pale-wayes with their points downward argent , hilted and pomelled or. iv. argent , a fesse azur surmounted of three arrows , the midlemost in pale , and the other two in bend with the points downward , and meeting in the base counterchanged of the first and second ; in chief a boars head erased sable . vert , a fess engrailed betwixt four mollets argent , over all in pale , an arrow point downward gules , feathered and headed of the second . the arrow is given here as a difference from cuthbert of castlehil chief of the name . v. argent , on a bend cottised and engrailed vert , three buckels or ; but of late they have given the bend engrailed azur , and sometimes engrailed sable . argent , on a bend azur three buckels or , quartered with the coat of abernethy . argent , on a fesse azur three buckels or. argent , on a bend azur betwixt two lawrel leaves slipped vert , three buckells or. vi. gules , three daggers ( or skeins ) pale-wayes in fesse argent pomelled or , surmounted of alse many woolf-heads couped of the third . gules , a cheveron betwixt three skeins argent , hefted and pomelled or , surmounted of alse many woolf-heads couped of the third . vii . gules , three pole-axes in fess pale-wayes argent , surmounted of a fess checkie of the first and second . argent , two halberts crossing other in saltire azur . viii . per bend sinister argent and gules , a hand couped and grasping a lance bend-wayes , bearing on the top thereof an helmet proper in the sinister chief angle , a spur-revel of the first , and in the dexter base a horse-head couped sable . or , three helmets bavers open proper . gules , three boars-heads erased argent , betwixt a lance issuing out of the dexter base , and an lochaber-axe issuing out of the sinister , both erected in pale of the second . gules , a closs helmet argent . ix . or , a sword erected in pale , surmounted on the top with an imperial crown proper , betwixt three crescents within a double tressure counterflowred gules . azur , a sword in pale argent , hilted and pomelled or , betwixt three crescents of the second . or , a two handed sword in pale azur . x. azur , three broad axes argent . and . xi . azur , a ship under sail argent : and the same earle for the first coat , as representing spar , sometime duke of orkney , bears azur , a ship at anchor , her oars in saltire within a double tressure counterflowred or. azur , in the sea vert , a ship in full course or , masts , sails , and taiklings proper flagged gules . argent , a ship with her sails trussed up sable : quartered in the atchievement of the duke of hamilton . xii . or , a lumfad her oars erected in saltire sable , in chief a dexter hand couped fesse-wayes , holding a mans heart palewayese ( according to some a flower de lis , gules . but mckintosh has altred this , and gives now four coats quarterly first or , a lyon rampant gules , as being come of mcduff . second argent , a dexter hand couped fesse-wayes , grasping a mans heart pale-wayes gules , third , azur , a boars head couped or. fourth or , a lumfad her oars erected in saltire sable . argent , a lumfad with her oars in action sable : now quartered in the atchievements of the earle of argyle and glenurqhie . argent , an ark in the waters proper surmounted of a dove azur , bearing in her beck an olive-branch vert . of vtensils , crowns and others used in armory . i. argent , a saltire sable , on a chief of the second , three cusheons or. argent , a saint andrews cross and chief azur . the second charged with three cusheons or. argent , a mollet ( or rather a spur-revel ) gules , on a chief sable a cusheon or. or , three cusheons gules , each charged with a crescent argent or , three cusheons within a double tressure countefloured gules . ii. or , a cheveron betwixt three purses gules . some give the cheveron checki● azur and argent . others give a fess checkie . iii. gules , on a fess or , a mollet azur , betwixt three quadrangular locks argent . gules , a sword in pale proper , hilted and pomelled or , betwixt three padlocks argent . iv. azur , a fetterlock argent , on a chief of the second , three , sanglier heads as the first . but others give it argent , a mans heart proper within a fetter-lock sable , on a chief azur , three boars heads erased of the first . and there are lately some other alterations made in this coat . argent , on a bend sable , three-fetterlocks . or. v. gules , three keyes barr-wayes or ; or as the english blazon fesse-wayes in pale . the same within a bordur verry . vi. or , a cheveron checkie sable and argent , betwixt three water budgets of the second : quartered with the coat of melvil . azur , three water budgets or : quartered in the second place in the achievement of the earle of drumfreis . or , a bears head couped gules , betwixt three water budgets sable . the same within a bordur . vii . azur , three covered cups or . and . azur , three mollets in fess betwixt alse many covered cups argent . gules , two cups covered or , and in the midle chief a star argent . sable , a cup argent with a garland betwixt two lawrel-branches , all issuing out of the same vert. viii . sable , a catharine-wheel argent : quartered in the atchievement of sir iames turner with argent , three gut . de sang . proper . ix . azur , theee bells or. azur , a fesse betwixt three bells or. x. or , three candlesticks sable . and . xi . argent , a cheveron gules betwixt three chess rooks sable ; but now he gives sable , on a cheveron or , betwixt three mollets argent , alse many chess rooks of the field . azur , a burning cup betwixt two chess rooks in fess or. xii . gules , three antique crowns or. gules , a boars head couped betwixt three antique crowns or. with his paternal coat by the name of fraser gives , second and third argent , three antique or open crowns gules . or , a fesse chekie azur and argent ▪ betwixt three open crowns gules . chap. xx. why arms are chang'd . arms once taken ought not to be chang'd without a sufficient cause . the ordinary causes of changing arms are six . first , when the bearer becomes subject to another , and thus william the conqueror chang'd the arms of england . . the succeeding to a greater fortune , and thus the familie of stewarts arms were chang'd by our kings , when they succeeded to the crown . adoption , as by tailies with us . . some considerable new exploit , and thus a savoyard having preserv'd francis . at the battle of pavie crav'd liberty to change his arms , and take a sword arg . accompany'd with a flower de luce . . some new devote enterprise , as those who went to the holy war. . marks of cadency , and defamation , and marriage : of which three last , i shall treat in separate chapters . what was meant by a gentleman of name and arms in ancient records is doubted : for some interpret this of those , who made profession of arms : others do more justly interpret this of these , who came to the honour of having sirnames , and coat-armour ; for till william the conqueror's time in england , and king malcome , canmor's reign in scotland , there were no sirnames ; but men were call'd by their fathers name , as gulielmus , filius iacobi : but thereafter they got sirnames from the lands they possest : and therefore it was a mark of nobility in those dayes , to have a few , or lands . but now a gentleman of name and arms , is he , whose name and arms are registrated by heraulds , as menestier observes . chap. xxi . marks of cadencie and differences . arms are sometimes given upon a personal account by a prince ; thus kings give sometimes to such strangers , who have mediat happily as ambassadors , betwixt them , and their own masters , the arms of their kingdom in a canton ; and generally in these cases , arms are personal , and descend not to his successors : and such arms are called insignia personalia , noal . de transmis . casu . and cartwright , pag. . gives an instance of this in the person of s. henry , st. george , who got the arms of swede in a canton , when he was ambassadour there : and the italians give many instances of this rule , in arms given by princes to cardinals : but if successors be not secluded ; then arms descends to his heirs , though they be not exprest , bart. ad l. . c. de dignit . hoping . c. . § . . and these succeed to their arms , though the arms were bestow'd upon the father after their birth , even as they would succeed to a crown falling to their father after their birth , tiraquel . c. . hot. quaest . illust . . but when they are given by the prince to a man , or to his posterity , then his successors , who are descended of him , do carry the arms , and have right thereto , and that though they renounce to be heirs , noal . ibid. because these are marks of their princes favour , and no lucrative parts of succession : and therefore , possiblie it is that our nobility bear the titles , and enjoy the honours of their predecessors , though they renounce to be heirs , and though these honours and titles were given at first to their predecessors and their heir . but it is here questioned by the doctors , whether daughters have right to bear arms of the family : as iason observes , consil . . virile officium est arma & insignia deferre , the carrying arms belongs only to men ; yet it is generally concluded , that women who were never marry'd , may carry their predecessors arms , tiraquel . de nobil . cap. ult . & tacit. lib. . annual . de funere juniae ait , viginti clarissimarum familiarum imagines antilatae sunt , sed praefulge●ant cassius atque brutus , eo ipso quod effigies eorum non visebantur : idem probatur per l. mulieres , c. de dignitat . and the custom both in france and scotland is , that they bear the paternal coat in a lozenge , limneus : de jure reipublicae , cap. . but they should be born in a fusil , which is a figure longer then a lozen , and signifies a spindle in french , which is a womanly instrument : yet when women have been once marry'd , they can no more carry their paternal coat or arms , because , by marriage , transeunt ex familia patris , in familiam mariti , bart. ad l. quoties c. de privil . schol. menoch consil . . and yet to show whence they sprung , they carry their paternal coat marshall'd with their husbands , as shall be hereafter observ'd : but the children born by them cannot carry their grand-fathers arms , noal : ibid. no man can bear his mothers arms ; for children follow the condition of their father , not of their mother ; and yet the mother may by paction or testament provide , that they shall not succced , except they bear her arms , in which case they may be forc'd to carry them if the prince consent : for he only can bestow arms ; and without this the son cannot bear them , peleus act forens : c. . whither agnati transversales , such as nephews , uncles , &c. have right to carry the arms that are given by the prince to their uncles , and those of his family may be doubted : and that they may is concluded by the doctors ; nam agnati intelliguntur esse de familia , l. pronunciatio , f. de verb. signif . but if the arms be granted to a man and these descending of his body , they will thereby , or by any such expresse concession be secluded . it is most ordinar in scotland to tailye estates to the eldest heir fernal , she marrying one who shall bear the name and arms of the disponers family : but whether the person who marries that heretrix or heiresse , as the english speak , may lawfully carry the disponners arms , according to the laws of heraldry , wants not its scruple ; seeing arma gentilitia , which are presumed still to be granted to a man and his heirs , non transeunt ad extraneos ; else any man might give arms , as well as the prince or heralds : yet lawyers are very positive that their pactions are lawful , & qui liber●s non habet , potest in alium transferre suum feudum ea conditione , ut adoptatus nomen & arma & insignia ferat . former . tract . feud tit . de his qui feudum accipere possunt ; and that because arms are given , not only to reward the receivers vertue , but to distinguish families , & quia adoptatus transit in familiam & agnationem adoptant● . some lawyers do here distinguish betwixt him , who is so assum'd or adopted by one of his own predecessors , or family ; for these surely may bear the arms of the adopter ; and these who were strangers before the adoption ; and they conclude that these cannot have right to the arms : and this is asserted by hopping . de jur . insig . cap. . . num . . to be the common opinion of the best lawyers . but i think it may be more justly distinguisht ▪ whether the disposition be made to a daughter , she marrying one who shall bear the name and arms ; for in that case certainly , the children may bear the arms , for she was heiresse her self : but if lands were disponed to a meer stranger , not upon condition that he should marry a daughter , but that he should bear the name and arms ; it may be in that case asserted , that the receiver of the disposition cannot bear the arms : for that was not in the disponners power to bestow , except the prince consent . and suitable to this it is observed by co. . inst . . that edmond de eincourt obtain'd from e. . a liberty under the great seal to assign his name and arms : but that the parliament of england did finde that such an assignation without the kings consent , was voyd . and with us , if the king either confirm a right made of name and arms , or accept a resignation upon that condition , this is thought equivalent to an original right . though the descendent of him , to whom the arms were first granted , may bear them ; yet the eldest son who represents the receiver of the arms , properly can only bear them intire by the laws of spain , molim . l. . de hisp . primog . the same is observed in france , colomb . tit . de brisurs : and expilly relates à decis . of the parliament of grenoble , anno . wherein they found that the cadets of the family , could not bear the arms of it simply , and without distinction : the like was found by the parliament of tholouse , anno . in scotland and england the same is observ'd . in piemount all the sons of counts bear the same arms , without any other distinction , save that the eldest carrys the crown of a count , but the cadets do not tessaur decis . . nu . in germany , the several branches of great families distinguish themselves only by different crests , without inserting any addition in the arms themselves : as menestrier observes , pag. . the eldest also of the three secular electors , use in each of their coats , the badge of their office as a mark of their office , rather then as a distinction , hop . c. . and gaspar . bombaci observes , that there are few or no differences us'd in italy : che vuole essempi frequenti di arme di un medisimo liguaggio ln varie guise non sostantialmente maaccidentalmente diversificate ; bisogna que esca fuori d' italia . and i think that the reason , why the germans use none is , because all succeed equally there to the honours and estate . likeas , it seems that in italy the reason of frequent omitting them is , because there , the cadets are ordinarily church-men ; and these use , nor need no marks of difference or cadency ; because they are to have no succession , and because ofttimes the cadet by his office , is greater , and more honourable then the eldest is by his birth , menestrier , pag. . but our church-men being allowed succession ought to use these differences . these marks , whereby the cadets or younger sons do distinguish their arms from those of the principal house , or the chief house , as we say in scotland , are called brisurs by the french : because its brisent , they break the principle bearing of the family . by the english , they are called differences , and of late are call'd marks of cadency by both when their differences were first instituted , is not easie to be determined ; but that they are very old , may be conjectur'd from this , that paradin makes robert count of anjou who liv'd , anno . to bear the arms of france within a bordur gules , for a difference . by fern , pag. . arms were divided into perfect , and abated arms. perfect were call'd abstract : but arms fixal , and terminal were these of cadets : this guilims , and others have not noticed , and here he makes embording , as he calls it to be the difference of the second son· colombier relates , that in the bibliotheck of the count of brien , he found those differences set down for cadets , which are now received by the english , and ascriv'd to vpton : to the eldest ▪ unlambeaux à trois pendans , a file of three lambeaux : which is not only a corruption , but a mistake of the french ; for the beam is the lambeau : but guilims and others call the pendants lambeaux . bartol . call them candela , and upton lingulae sive labellae : this is given to the eldest son whilst his father lives , to signifie that he is but the third person , his father being one , his mother another , and himself being the third . i finde amongst our arms , some bear this constantly ; though they never were the eldest sons of their families : as the earl of abercorn , who was at first but a second son of the house of hamilton : and findaury , who was a second son of the family of arbuthnet . i finde also , that at an indentor betwixt david prince of scotland , and david earle of cranford , anno . the princes coat is hung upon an oak tree , having no other supporters , and the coat is the ordinary coat of scotland , with a file of three labells ; and i conceive that these files of three pendants , should be expunged out of these coats : for though they be born sometimes as ordinary charges , and not as marks of difference ; yet here they were originally given as marks of difference , as is clear from their blazone . the second son has a crescent , to show that he should encrease the family , by adding to the estate and repute of the family . the third an mullet or spur ryal , to show that he should follow chevalry . the fourth , a martlet , because expecting no patrimony , he should become a souldier , and defend castles , which were the only old fortifications , in which castles martlets use to make their nests . the fifth , an annulet d' or , to remember him to atchieve great actions : the badge whereof was in old times , jus aureorum annulorum . the sixth , a flower de iuce , to remember him of his countrey and prince . the seventh , a double rose , to remember him to endeavour to flourish like that excellent flower . the eighth , an cross moulin , or the anchoring crosse , to remember to grip when he can fasten ▪ seing he has nothing else , to which he may trust . the ninth , a double quater foil , or a flower of eighth leaves , to expresse that he is remov'd from his eldest brother , and the succession by eight degrees . the modern french , and generally all nations do now reprobat these affected forms ; and allow every privat person to take what mark of distinction , can sute best with the coat , which his chief bears . against the former differences these arguments may be brought . first , that the french , from whom these were borrow'd , have rejected them . . no other nation uses them : and uniformity should be very much studied in heraldry , to avoid confusion ; and that our arms may be the more universally understood . . these , nor no constant differences can suit with all arms ; for if the bearer had three crescents proper , two , and one ; it were very irregular to adject a fourth , which would wronge both the beauty and regularity of the former bearing . sometimes also the whole shield is semé de fleuer de lis , all covered with flower de luces : in which case it were impossible that a flower deluce could be a distinction . . it is appointed by that rule , that the mark of cadency shall be still placed in the centre of the shield ; as colombier relates of that old forme , pag. . whereas in many coats paternal , or in coats armours of chief families , the centre point is naturally charg'd with some of those same marks , as crescents , flower deluces , annulets ; &c. . the only reason why it is prest , that the differences should be known is , to the end that the degrees of consanguinity may be clearly instructed ; whereas if the degrees be not remote , then they are easily known without such cognizances ; but if they be remote , then thir cognizances are ineffectual : for no ●emoter degree than the grand child of the first sons can be thus known : for though the second son ( for example ) who is descended of a former second son , may take a crescent upon a crescent ; yet it is not conceiveable how this second son , or his second son can be thus distinguished by his arms. . this confounds all the ancient coats , and has absurdly fill'd ours with moe crescents and mullets then are in the arms of all europe besides . . these differences do respect france in some things , which are not communicable to britain : for the flower deluce was given at first to remember the bearer of his countrey ; that flower being the ordinary cognizance of france : but seing the flower deluce is not the cognizance of scotland or england ; therefore that ground ceases with us . . colomber does very well observe , that the old forms were contrare to the rules alow'd in heraldry , by the consent of all nations ; for no subject can take that for his arms , much lesse for a distinction or diminution , which is a part of the soveraigns coat ; and therefore the flower deluce being a royal bearing with us , no subject ought to bear it as a mark of difference . and lastly though these may show that they were once second brothers , yet they are not perfect marks of difference : because many cadets wear the same difference , and thus many families do bear crescents , as second sons of huntly : and there have been twenty second sons of that familie , which no crescent could distinguish : whereas if they had taken another difference at pleasure , they might have shun'd that confusion ; and the registrating the mark given cadets in the lyons register , with the reasons why they are given to that son , and at what time , will clear much better the degrees of consanguinity , then these differences can : and yet that was the only reason , why these differences were invented . and therefore colomb . concludes thus , mais quant à m●y ie tiens toutes ces contra in tes inutiles , pource quelles ne peuent pas conveniru à toute sorte d' armes ▪ the french have constantly , and the scots frequently taken such differences , or brisurs as might expresse at once some considerable alliance , or action , and might likewise distinguish their families from that of their chief ; for so we call the representative of the family , from the french word chef , a head : and in the irish with us the chief of the family , is call'd the head of the clane . thus the lord balmerrinoch cha●ges the cheveron , which the elphinston carryes , with three buckles ; because his mother was monteeth , and daughter to the laird of carse , whose charge these are : and the lord couper , brother to balmerrinoch did charge the cheveron , with three hearts , because his mother was daughter to maxwel of newark . sometimes also they chang'd only the colour of any one part of their chiefs bearing , and sometimes they alter'd the ordinaries , taking on a bend these cognizances , which the chief carry'd in chief , or upon a saltire what he carry'd on a crosse , &c. as is to be seen in the families descended of the craufoords , rutherfoords , purvesses , &c. our predecessors also took marks of difference from their employments : and thus forbes of corse , a cross fitché , because they were learned-church-men for many generations : bruce of earls-hall a flower deluce , given him as a reward by the french king ; which the patent yet showes : and there are no better differences ▪ than any one of the ordinaries , or to alter the ordinary lines : thus sir william bruce of balcaskie got the lowest line of the chief in the bruces arms wav'd , to show his kindnesse to , and his skill in the art of navigation . sometimes also cadets add to the number of what is born by their predecessors ; as if he carry two stars , they add a third : and sometimes they diminish the number , otherwise alter the position , so that if the eldest have five crescents saltirewayes , the cadet will dispose them on a bend , &c. albiet every person may take any cognizance he pleases to difference his own arms , from these of the chief , and all others of the name ; yet there are some rules here to be observed : as first , that they take no part of their princes arms , without his majesties licence : such as lyons , nor the double tressure flower deluc'd , and contre flower-deluc'd , nor the flower deluce simple : for though his majestie bears not these , as kings of scotland , yet they are still a royal bearing : and the doctors assert that this rule holds in spain , as to all the kingdoms under that kings subjection . the bearing , or charge of the chiefs house should not be alter'd , as many families in scotland have done : thus auchinleck of balmanno gives arg . a cross embatled sable ; whereas auchinleck of that ilk gives arg . three bars sable : and scot of balwyrie bears different arms from these of balcleuch . but this was occasion'd by cadets , their marrying heretrixes , whose arms they assum'd without using their own , seing they got no patrimony from their predecessors . . it is irregular to alter the chiefs colours , as campbel of lundy does , who bears gyronie of eight pieces er. and sa. whereas the earl of argyle bears gyrone of eight peeces ( as we erroneously blazen ) o. and sa : yet this was allow'd of old by our custome , which may defend what was done , though it should be no precedent for the future , seing all nations do now endeavourvery justly , not to differ , that so all arms may be universally understood . . it was thought irregular to diminish any part of the chiefs bearing , as campbel of cesnock has done , who fill'd the room of one of the gyrons with a cheveron : for how can he be said to bear the chiefs arms with a difference , who diminishes them , and how can it be known that he is descended of that family when he bears not the arms of it : for either of the alterations makes the bearings very different , and there are original families who differ only so ; and yet such differences are ordinar abroad . . these cadets , who have their arms quarter'd with other arms , need no difference : for the quartering , or empaling is a sufficient difference : as is clear in the example of campbel of glenarchie , hoom of r●nton , and others : and therefore it was unnecessar for the earle of kellie to have born a crescent for a mark of difference , as second son of the earl of mar , seing he bears quarterly with the arms aerskine . and . an imperial crown within a double tressure or : bestowed upon him for his assistance given to king james in gauri's conspiracy . . it is observable , that though a cadet be descended of a cadet , yet i think , he needs not express the difference of that family , out of which he is immediatly come ; for else the coat should be fill'd with differences , and the use of differences , is only to distinguish from the chiefs family . albeit there be no stated , and constant differences in france , yet the cadets of the royal family have their certain and constant differencies : orleans carrys the label , aniou a bordur gules , alencon a bordure g , charg'd with eight besants , &c. for by these they are known to the people in coaches . it is also observable , that the heralds of all nations aggree , that sisters should carry no mark of difference ; the reason of which is by guilims said to be , that when they are marry'd , they losse their sirname , and receive that of their husbands . but i crave pardon to think this reason not sufficient ; for it would only prove that they should not at all bear their paternal coats , and yet i have formerly demonstrated , that they may in some cases ; nor does the reason prove , that daughters before their marriage , should not bear their paternal coats with difference , seing till then they loose not their own sirnames . but the true reason of this rule is , that albeit amongst sons , the eldest excludes all the younger from the succession , and therefore differences are given for clearing the right of succession amongst brothers ; yet sisters succeed equally , and are heirs portioners , and so there is no use for thir differences amongst them , seing seniority infers no priviledge . it is generally believed , that thir differences are excepted from that general rule , whereby it is declared false haraldry to place colour upon colour , or mettal upon mettal ( though guilims nor carter have not observed it ) but yet seing the instances of this exception , are only given in royal bearings , i conceive it is safer to avoid the exception in coat-armours of private persons : sunt enim principes legibus soluti . in what part of the shield these differences should be born , is not certain : but the point of honour is the most proper place , in my opinion , to receive diminutions or additions of honour ; and yet guilims , morgan , and others give us many different examples as to the place : for wingfield bears for a difference a flower deluce in the sinister point of the chief , ienne a crescent for a difference in the midle point of the chief , pag. . and in scotland it is generally receiv'd , that the differences should be plac'd upon the point of honour ; but to place them at liberty , may lessen much the easiness of knowing , when the things design'd for difference are not so ; and yet it is impossible to place them in one fixt place in all shields , because that place may be charg'd with some figure in the paternal coat , which cannot well admit the difference to be supercharg'd . but to evite all thir difficulties , it were to be wish'd , that the differences should still be appended to the base without the shield ; for by that means neither should the shield be confounded , nor should we mistake the original charge for a difference , nec è contra : or at least that exact registers were kept of thir distinctions , which would much better clear the degree of consanguinity . chap. xxii . of bastards . such as are not born in lawful marriage , are divided by lawyers in naturales , spurios , & ex damnatis complexibus procreatos : but by our ordinar stile , all of these go now under the general name of bastards , bartol . in l. pronounciatio f. de verb. signif . it is a received rule amongst heralds , that bastards should not bear their paternal coat , nam de jure patrem demonstrare nequeunt : and therefore seing the common law determines not who is their father , it were absurd that the laws of heraldry should allow them to bear any mans arms , as their paternal coat : this rule is allow'd by hopping . de jure insign . cap. § . . colomb . cap. . guilims , pag. . farin . lib. . tit . . quaest . . menoch . concil . . lib. . boer decis . . but though this hold in germany , where bastards are not at all allow'd to bear the arms of their supposed fathers ; yet it is otherwise in some countreys , as in france , britain and italy ; in which their heralds have allow'd , that they may bear the arms of him who is alledged to be their father with the difference of a battoun . some lawyers call this battoun barra , sive baculum , sintag . jur . cap. . num . . lib. . som tinea lutea , hopping , some linea tepat . cap. . some call it divisè mar : quest , . the germans call it strich , and bachovius most improperly calls it tignum ; for tignum is a cheveron . this battoun is the fourth part of the bend sinister according to guilims , and should extend to the corners of the shield : but it should be cupé , or cut short of both , it represents a cudgel , and is given to bastards to show that they were not free men , but lyable as slaves of old were , and servants yet are , to be beat and cudgell'd : and though in france the brisurs , or differences of princes of the blood differ from these of private persons , yet bastards have in both the same cognizance as the french g : in england the brisur of royal bastards is still of mettal ; but i think it may be varied in its colour , according to the colours or mettals of the coat , lest there be colour upon colour , or mettal upon mettal : for , albeit some say that brisurs should be excepted from that rule ; yet i think that the note of bastardy deserves no such priviledge . i cannot be so partial here , as not to reprove an error of my own countrey-men , who make the mark of bastardy to be a ribban sable , and make it to extend from the dexter corner of the shield to the sinister : for the mark of bastardy should still be sinister , nor is it call'd a ribband in any nation , and though we have received an opinion , that the bastards distinction may be after three generations born dextre , or omitted ; yet i conceive the opinion is most unwarrantable : for jura sanguinis nunquam praescribuntur , and in the bastards of great families this were very dangerous , for the bastards might pretend to the succession by this means , albeit that mark was invented to exclude them . yet , it is certain , that such as were once bastards , but are legittimated by subsequent marriage , may bear the fathers arms without any such diminution : menoch , concil . . whether such as are legittimated by letters of legittimation , per rescriptum principis , may cary their paternal coat , is much debated : some think that they cannot : because the prince cannot bestow the right of bloud , as he cannot make a stranger an agnat , and the bearing of arms is only competent to such , nor can such as are legittimated , per rescriptum principis succed in the feudal rights belonging to the defunct , lib. . feud . cap. . nor do such legittimations as these , enoble the children of noblemen , who were formerly bastards : tiraquel . de nobilitat . cap. . num . . others conclude that any legittimation , empowers the person legittimated to bear his fathers arms ; nam pro legittimis habentur & jus sui●atis obtinent , nov. . cap. . & nov. . cap. . but a third sort unwilling to extend favours done to bastards , beyond what is necessar , and yet unwilling to bound the power of princes too narrowly , in the matter of honour , which flow'd originally from them , have concluded , that legittimations by the prince does not empower the person , who is legittimated to bear his fathers coat , except that power were expresly contain'd in his legittimation , nisi legittimatio expresse ad delationem armorum facta fuerit , hopping de jur . insignium , cap. . albeit , bastards be absolutely excluded from bearing the arms of their suppos'd father plain , and without a diminution ; yet it is doubted if they may not bear their mothers arms : gothofred ad l. . de muncip . thinks they may because ( sayes he ) the law must allow them some original , and the marks of it : but so it is , they are not allow'd to bear their fathers arms. dly bastards are admitted by the succession of the mother equally with her lawful children , l. pen. c. ad s. c. orf. but so it is that insignia inter bona reputantur : but tiraquel conclud's very justly that they cannot , cap. . nam respectu matris agnationis nominisque gentilitii nulla est consideratio , l. . f. de grad . chap. xxiii . of abatments . as the law was ready to honour such as deserv'd well , so it had not been just , if it had not punish'd such as transgress'd by removing not only them from their imployments they possest , but by removing their honour from them . this was done either by deposition , i. aut damnum f. de panis : or exauctoration , l. . f. dere milit . or by degradation , l. . de offic . mag . schol . deposition , was a verbal laying them aside ; degradation and exauctor●ation was real , taking from them the marks of honour : but degradation wa● the throwing them down from an higher to a lower degree , l. . c. theo. de curs . publ . and this was by the graecians called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . and that which was called amongst souldiers exauctoration , is as to others called degradation . when souldiers were exauctorated , their arms were taken from them , and in imitation of that , the coat of arms is taken from others , or it is dishonoured with some mark of infamy ; which by the english , and us , is called an abatment ▪ and by the latine , and french diminution of arms. some think , that this diminution of arms took it's origine , from throwing down of images used among the romans : for most of them had their statues standing in the mercat-place , and when they were convict of crimes , these statues were thrown down , l. eorum f. de paenis : but i think that this is more immediately founded upon , l. iudices , & l. quoties c. de dignitat . these who writ as lawyers upon this subject , do remark , that arms are diminished , or lost , for murder , falshood , oppression , false witness , and a profligat life ; and that they are many several wayes defac'd , or diminshed , such as abrasion , perforation ; but the most ordinary way is by reversing and ryving : which far. observes to be ordinary in the case of treason , de crim . les . maj . cap. . which punishment is in observance by the laws , and customs of scotland ; for when any person is forfeited in parliament , the lyon , and his brethren heralds come in with their coats , and formalities , and the lyon does publickly tear the arms of the person forfeited , and if he be a cadet of a family , he sayes openly that the tearing of these arms shall be without prejudice to the nobleman or chief , whose arms these are ; after which he and his brethren go to the cross , and there he hangs up the shield revers'd , turning the base , or lowest point upwards : which decian tract . crim . lib. . c. . asserts to be us'd in imitation of the old form of hanging traitors by the feer . it is debated amongst lawyers , whether the children of forfeited traitors loose thus the arms of their predecessors , and the ordinar resolution is , that either the father who was forfeited , was the first who got arms , and then he being forfeited , his arms are not transmitted : but if his arms pertained formerly to his family ; then his crymes does not debare his posterity from using them : for cryms should only infer punishment against the committers , vid. ant . fabr. l. . tit . . & tiraquel de nobil . c. . but they advise them to crave restitution as the safer way . with us the children of forfeited parents do use their predecessors arms without being restored . not only in treason , but in other cryms this is allowed , as in the cryme of barratrie , or perverting of justice , gigas quest . . n. i. and in the cryme of ambitus , or unjust acquiring of an office , tiraquel . de nobilit . c. . and of murder , laur. per. pag. . and in the cryme of falshood , where any man does falsly assume other mens arms , l. ●os . f. de falso , or committs falshood otherwise , rochenga . cons , crim . . with us , only treason forfeits arms once given , except the sentence provide otherwise . in these abatments , the french differ from the english , both in the form , and colour of their abatments : for the english assign a delf - tenne to him who revocketh a challenge . an inescutcheon revers'd sanguin , for deflouring a maid . a point dexter for too much boasting in martial acts. a point in point sanguine , due to a coward . a point champion tenne , to him that killeth his prisoner . two gussets sanguine , for adultery . a gore sinister tenne , for him that flyeth from his colours . a point plain sanguine , for telling lyes to a soveraign , or general . the whole coat of arms revers'd is proper only to a traitor . menestier calls these english fancies : for who would bear such abatements , nor have i ever seen such abatements born by any : and therefore i rather think , that lesse remarkable figures are to be us'd , and possibly beasts looking to the left hand , or broken cheverons , have at first been diminutions : and i find that the family of tiepoli were for a conspiracy in venice , by the senate forc'd to quite the tour arg ▪ they carried , and take a vipers tail , anno . and one of the family of fastrzenbeir in pole for being accessory to the murder of st. stinslaus , anno . was forc'd to bear the horse shoes he bore pointing downward , whereas they pointed upward formerly . the french call these abatements , des marques d'infamie , and call the arms wherein these are born , des armes deschargees & rompues , and to a rodomontado or hector , who boasts injustly of his pretended courage , they do gild the dextre point of the chief of his shield . to him who kill'd his prisoner , the blunted point of his shield . to him who broke his paroll , they gave a delph ( which they call un-tablet ) gules in caur point . to him who lyed betwixt the prince , and his subjects they coloured the point of his shield gules . to him who was a coward they gave a gore sinister . sometimes princes do for an abatment , diminish a part of the principle bearing : thus st. lewes king of france ordain'd , that iean a'vesnes should bear no more a lyon arm'd , and langu'd ; because he had abus'd his mother in his discourse before the king : and edward the third of enland ordain'd of two sex stars , which a gentleman had in his arms to be effac'd ; because he had sold a sea-port , of which he was made governour . chap. xxiv . marshaling . till now , i have only treated of distinct coats armours , and other abatments : in the next , my method obliges me to consider mo coats armours joyn'd together , the disposing of which is call'd to marshal . the french allow moe coats to be marshall'd , to the number of . and the english , and germans to the number of . as colomb observes , cap. . but i find not the number exprest by any english heraulds in their own books . in scotland we exceed not six ; only the viscount of falkland ( who was an english man ) did bear . coat-armours are marshall'd together either to signifie an additione by marriage , by estate , by office , or by dignitie . the learndest antiquaries , and lawyers ( who call quartring cumulatio armorum ) do observe that the quartring of coats , did proceed at first from the vanity of kings and princes , who added the arms of the conquired , or acquired kingdoms to these which they bore formerly , bart. tract , de insign . num . . the first instance whereof is given , in the arms of castill , and arragon , and they conclude , that when a person leaves his estate to another , upon condition that he shall bear the disponers name , and arms ; he who is to succeed , is not by condition oblidged to lay aside his own name and arms : but may quarter his own arms , with these of the disponer , except the disponer do , in the institution , prohibite the bearing of any arms , beside his own , fachin . lib. . concil . . num . . and the heir in marshalling his own , and the disponers arms , may use what order he pleases , by giving the first quarter either to his own , or to the disponers ; except the contrair be exprest in the institution , thessaur . decis . pedemont . . upon which condition percey got the estate of the lucies in england , cambd. brit. page . when a man joyns in the arms of his wife , with his own in one shield , he does it by dividing the shield per pale , in two parts ; on the right side the mans , and on the left the wifes are plac'd ; and therefore this form of bearing is call'd impaling , from the pale that divides the arms , and barron and femme from the different arms that are born ; barron signifies a man , and femme is the only french word for a woman : so that barron , and femme is a mixt expression ; and man and wife would do much better : for now neither french nor english understand it . sometimes also there are four , or moe coats marshall'd together upon this account , according to the number of the heretrices , whom the bearers predecessors have married , and then all the coats are not twice born . sometimes also ( sayes guilims ) he who marries an heretrix , may carry her arms in an inescutcheon upon his own ; because the husband pretends , that his heirs shall one day inherit an estate by her ; it is therefore called an escutcheon of pretence : but this way of bearing is not known abroad upon that occasion . with us in scotland , and in france also it is ordinar , where many coats must be marshal'd , that the bearers own arms are born in an inescutcheon , as the english and we terme it improperly ; for an inescutcheon is properly that which is born within the shield ; but the french doe better terme it sur-tout , a shield over all , because it covers some piece of all the other shields which are plac'd about it : thus the marquess of dowglass beareth coats , . azur , a lyon rampant arg . crown'd or , for the name of mcdowald . . or , a lyon rampant gules , surmounted of a ribband bend-wise sable , by the name of abernethy . . azur , pyles in point gules , for the name of wishart ; i call them rather passion-nails ; born by the iesuits also , and an ordinar bearing among such as went to the holy-war . . or , a fesse checkie azur and arg . surmounted of a bend sable , charg'd with three buckles , above all his paternal coat , which is arg . a crown'd heart in the point of honour on a chief azur , three mollets of the first . i must here take notice of an errour in some of our heraulds , who call , a shield above all , a shield of pretence : for it is absurd to say , that a man carries his paternal coat , as a shield of pretence ; and therefore i say only above all ; this of old was call'd , a fesse target , fern. . sometimes the arms of one of the heretrices are born in a sur-toutes , or above all : thus the earl of sutherland bear huntlies four coats ; and above all gules , three mollets or , for the name of sutherland ; this our heraulds terme erroneously , a shield of pretence also , for a shield of pretence is only born by him who marries the heretrix ; but not by the heirs procreat of the marriage , who should quarter the arms. here there seem'd a necessity to place the sutherlands in a sur-tout , or above all , because there were four coats born by him , as a son of the earl of huntly ; but this is lately alter'd , and that of sutherland is placed first and fourth , and the coats of huntly in the second and third place . i finde this bearing us'd , where the shield above all might have been in one of the quarters : thus the earl of hume bears quarterly . and . vert , a lyon rampant arg . by the name of humes . and . three pepingoes , by the name of pepdie , above all or , an orle azur , by the name of landells ; but these coats might have been better marshall'd thus , . and . pepdies , . and . landells , and the humes arms in a sur-tout , or above all ; or . and . hume , . pepdies , and . landells , either of which had been more proper . when the arms which are quartered , are the arms of private families , we say not , that he bears the arms of that family in general , but we blazon the particular bearing ; but when the quarters are the arms of great , and well known families , then it is good heraldry to say in general , he bears the arms of such a family in general , without blazoning them : as in blazoning the earl of sutherland's arms , we say , he bears the arms of huntly , without blazoning the particulars of huntlys coats . that the terms of marshalling may be know in latine , i have blazon'd the earl of wintons coat thus , in solo quadrifido gestatur primo setonius , nempe in auro tres lunae crescentes ambiente teniâ gemellâ exlil●is utrinque florente rubicundâ , in secundo buchania , umboni superinducitur vintoniae cerulius insignitus cometa ignescente tenia gemella florida aurea concepta . if the shield above all had been an escutcheon of pretence , the latine had said , pretenditur clypeus . it was very ordinar in scotland not to quarter the heretrix's coat , but to take a part of it into the husbands paternal shield ; and thus hamiltoun of innerveik did take the face checkie , when he married stewart heretrix of bancreef : and this seems very proper , when the husband is not tyed to bear the father in law 's arms by tailzie or express paction . sometimes the husband did of old assume only the wifes arms who was an heretrix , as scot of balcleuch the arms of murdiston , and naper the arms of lennox , and did not bear their own native arms. coat-armours are marshall'd sometimes for honour , and signifie not alliances , nor an estate come by heretrices ; but when earls are created , they get honourable additions , which are quarter'd or impal'd with their paternal coat , of impaling i formerly gave an example in the earl of holderness coat . as to quartering we have many instances ; thus the marquess of montrose bears two coats quarterly , first and fourth arg . on a chief sable , . escalops or , by the name of grahame , second and third arg . three roses as montrose . sometimes the coats of augmentation are plac'd first , and fourth , and sometimes the paternal coat is first plac'd ; as to which these rules should be observed , . if the person whose coat is to be augmented be a person of an old family , and its representative , he ought to keep his own coat . and . as montrose doth ; but a cadet may place his coat of augmentation . and . because his honour is above his birth : but if his majesty bestow any part of his own arms , even upon an ancient family in their coat of augmentation , then the coat of augmentation is to be first . some when they are advanc'd to dignities , if they be not obliged to quarter the coat of some heretrix , they do for a difference take crest or supporters of the family out of which they are descended , and quarter with their paternal coat : as the viscount of kingston bears . and . the arms of seatoun , in the . and . arg . a wing'd dragon vert . vomiting fire , which dragon is the crest of his eldest brother the earl of winton : but i approve not this way of marshalling , and i would rather allow a second brother , or any cadet , when nobilitated , to bear the arms of the house with a difference , except he were oblig'd by his marrying an heretrix , to quarter her arms , or had got some symbole of his majesties favour to reward some great service done him . some get cognizances and rewards of honour from their prince , not by way of impaling , or quartering , but in a canton ; thus the earl of annandale got from king iames the sixth in a canton , arg . a thistle vert . crown'd or ; and the earl of elgin got in a canton , a lyon rampant gules , arm'd azur . sometimes also a shield over all is given , as a reward of honour : thus the earl of stirling did bear two coats quarterly , and over all , an inescutcheon of nova scotia , because he was the first planter of it . when any nobleman at his creation , takes or gets a new additional symbole , as earl , ( as montrose carries the roses , not as grahame , but as earl ) i think that these coats , or symbols , should not be transmitted to their cadets ; but are incommunicable , as the honours are , to signifie which they were granted . and such as are descended from the dukes of lennox , may as well take the symbole , which he bears as admiral , as such as are descended from the earl of montrose , may take these roses , which he bears as earl : and yet custome has prevailed against this rule . follows the blazon of the coats in the plate of the quarterings . i. quarterly , first and last , azur , three flowers de lis within a bordure ingrailed or , by the title of obignie in france ; . and . or , a fess checkie azure and argent within a bordur gules , charged with buckles as the first , by the name of stewart ; on a shield over all argent , a saltire ingrailed ( some give it plain ) betwixt roses gules , by the name of lennox . ii. four coats quarterlie , first azure , boar heads couped or , by the name of gordone ; second or , lyons heads erased gules lingued azure , by the name , or title of badzenoch ; . or , crescents within a double tressure counterflowered gules , by the name of seaton ; fourth azure , frazes argent , by the name of frazer . iii. quarterly , viz. first azur , a lyon rampant argent , crowned or , by the name of mcdoual ; second or , a lyon rampant gules , surmounted of a ribbon ( by some a cost ) sable , by the name of abernethie ; third argent , three pyles conjoyning at the point gules , by the name of wishart ; fourth , or , a fess checkie azur and argent , surmounted of a bend sable charged with buckles of the first , by the name of stewart ; over all , his paternal coat being argent , a mans heart crowned gules on a chief azur , stars of the first , by the name of dowglas . iv. two coats quarterly , first or , on a chief sable , three escallops of the field by the name of grahame ; second argent , three roses gules , by the title of montrose ; third as the second , the fourth as the first . v. gave the coats of huntly , and over all , that of sutherland ; but it is now changed thus , quarterly quartered first , gules , three starrs or , by the name of sutherland ; second and third , the arms of huntly , viz. gordone , badzenoch , seaton , and frazer ( as may be seen before in huntlies atchievement ) the last as the first . vi. two coats quarterly , first argent , on a bend azur ; three buckles or , by the name of lesly ; second or , a lyon rampant gules , surmounted of a ribbon sable , be the name of abernethie ; third as the second , the fourth as the first . vii . two coats quarterly , first and last azur , three flowers de lis or , by the name of montgomery ; second and third , gules , three annulets or stoned azur , by the name of eglinton ; third as the second , the fourth as the first ; all within a bordure or , charged with a double tressure counterflowred gules . viii . quarterly , first azur a ship at anchor , her oars erected in saltire within a double tressure counterflowred or , by the name of spar ; second and third or , a lyon rampant gules , by the name of fourth azur , a ship under sail or , ( by some argent ) by the title of caithness ; over all dividing the coats , a crosse ingrailed sable , by the name of stclair . ix . quarterly , first and last , vert . a lyon rampant argent , by the name of home ; second and third argent , pepingo's vert becked and membred gules , by the name pepdie ; over all on a shield or , ane orle azur , by the name of landel . x. two coats quarterly , first gules an imperial crown within a double tressure counterflowred or , as a coat of augmentation for his good service against the earl of gowrie ; second argent a pale sable by the name of areskine ; third as the second ; the fourth as the first . xi . two coats quarterly , first or , a lyon rampant gules , by the name of weem , or mcduff ; second argent , a lyon rampant sable , by the name of glen ; third as the second , fourth as the first . xii . two coats quarterly , first and fourth argent , a lyon rampant azur armed and langued gules , as the old arms of the bruces when they were earls of carrick , second and third or , a saltire and chief gules , by the name of bruce . the reason why bishops , and other officers have their own coats impal'd with those of their office , is because they are in law , in place of husbands to their office : and therefore the canon law calls a bishop , or other benefic●d person , maritus ecclesiae : but if so , it may be askt , why the bishops proper coat , is not impal'd on the right syde , as the husbands is , when his wifes coat is impal'd with his own : to which the proper answer is , that the churches arms take place as the more noble● and the bishop is husband by a figurative speech only . the guarter of england , who is the principle king at arms , bears the arms pertaining to the office , which is argent , a crosse gules on a chief azur ; a crown environ'd with a guarter , buckled and now'd betwixt a lyon passant gardant , and a flowr de lis impal'd with his own coat . sir charles areskin lyon king of arms , gives the coat of the office , being argent , a lyon sejant full-faced gules , holding in his dexter paw a thistle slipped vert , and in the sinister , an escutcheon of the second , on a chief azur , a st andrews crosse as the first , likewise impaled with that belonging to himself , as the second brother of the earl of kellie . but sometimes the office has no known shield , but ane other symbol which is plac'd without the shield : thus the admiral carries an anchor , the chancellor a purse , the theasaurer a whyt rod , the lord chamberlain a key , the constable two swords , and the marshal battons . chap. xxv . of atchievements in general . an atchievement is , the whole arms adorn'd with their exterior parts and ornaments ; which are the helmet , wreath , crest , mantlings , supporters , and motto's , or words : and because these are but accidental parts of the arms , and of late institution , as ferme observes : therefore we are not ty'd superstitiously , to all the nice rules of art ; but may speak of , and express one colour twice , and use , and , within , or such relative particles , as oft as we please . i shall first treat of such of these exterior parts separatly , and then i shall show how they are marshall'd together , in blazoning a compleat atchievement . chap. xxvi . of the helmet . one of the chief parts of armour is a helmet : because it covers the chief part of man , which is his head ; and therefore it is made by heraulds , one of the chief ornaments of their coat armours . it was of old called galea , from the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a cats skin whereof it was made ; cassis by the romans : it is now call'd helm , by the germans , from the dutch word helm , which signifies the head ; hence comes the french word heaume , the english word helmet , and the italian , elmo . who should bear helmets , and in what manner they should be born , is much controverted ; and whole nations , rather than private authors , do here disagree amongst themselves : and yet most of them agree in this , that it is nobler to bear an open helmet , than a closs one ; because the open helm is given to , and is only fit for , such as have command , and so must see what others do , and must speak to them , and tell them what they ought to do ; whereas , such as are obliged to thrust themselves into all dangers , and need little to see others , and speak none , should bear a helmet closse : nostri mores ( sayes besold thesaur . pract. duplicem faciunt stech-vnd ▪ thermer helm ) illam plebeiorum , & clausam ; hanc nobilium , & opertam : and yet this rule is not without all exception , for hopping . cap. . & aldrovand . tom- . pag. . observe , that in spain and italie , some great families bear no helmets upon their coat armours ; and others bear their helmets closs ; and gives an instance in the dukes of brunswick : but generally all nations use helmets in their heraldrie , and distinguish betwixt open and closs helmets . because the english and french do differ so much in their rules here , i resolve to give an account of both their principles , and to begin with the english. the english allow a gentleman to bear , a side-standing helmet with the baver closs : which was the roman custom , as appears by iuvenal . et statua meditatur praelia lusca . to a knight , a helmet standing direct forward , with a baver open without guards . to all persons above the dignity of a knight , and below that of a duke , a side-helmet with an open-fac'd guard visure . to dukes , and all above them , a helmet which is full forward open-fac'd with guard visures . to a knight they allow , a side-standing helmet , with barrs in his guard vizur : fenestras distinctas clathris seu cancellis . to a barron , they allow , to carry his helm half side-wise , half in front , en tiers , as the french call it , with griles or barrs . to counts , vidames , and viscounts , a direct standing helmet , with barrs . to marquesses , a direct standing helmet , with barrs . to kings and emperours , a direct helmet , altogether open . though scotland agrees with england , in the bearing of their helmets , yet i must confess , that both by the consent of all other nations , and in reason also , it were fitter to give kings helmets fully open , without garde visurs ( as the french do ) than to knights , as we do ; for knights are in more danger , and have less need to command ; and seing all nations agree that a direct standing , is more noble than a side-wise standing , i see not why the helmet of a knight should stand direct , and a dukes only side-wise : sculptura , sive ornament●m quod in fronte est , plus prae se fert , quam illud quod a latere est ; nam oculum habet ubique . limneus , lib. . cap. . there is likewise this difference betwixt them , that the english make no difference , betwixt the bearers , from the metall of which the helmets is made ; whereas the french allow only the knights , a helmet adorn'd with silver ; to counts , and all above them , they allow helmets adorn'd with gold ; and to kings , all the helmet damasquin'd : but limneus , lib. . cap. . sayes thus , altora est differentia , quod duces uti possunt aureis , comites argenteis , reliqui verò ferreis , ovid. scuta sed & galeae gemmis radientur & auro . timbre is ordinarily us'd amongst the french and italians , for a helmet , and was frequently us'd by the english of old . it is a general word which comprehends all sorts of ornaments of the head , and comes from la forme d'un timbre de cloche , the shape of a bell , which it resembles somewhat : and as l'oseau observes , des ordres des gentils-hommes , cap. . gentlemen did not adorn their atchievements with helmets , till they found that the burgesses of paris , did by warrand from charles v. bear coat-armours : whereupon , to distinguish themselves from those , gentlemen did assume helmets ; and by the article of the statutes of orleance , all who were not gentlemen by birth , were discharg'd to bear helmets on their arms. helmets being a part of the souldiers arms , it is only us'd by sword-men , or gentle-men . bishops use mitres , cardinals a hat , and therefore l'oseau , cap. . remarks justly , that gown-men should not bear a helmet , but a corner'd cap ; and my reason allowes rather his judgement , than our custom , which is contrary . chap. xxvii . of mantlings . of old , knights , and such as did wear helmets , took great pains to keep them very neat , and clear ; and therefore they did cover them with linning , or stuff doubled with silk , which served also to distinguish them in the battel : and when they went to battel , these coverings being very much cut , and torn , they did thereafter paint them with their casques in their atchievement , or arms ; and these we call mantlings in english , which hang down cut now with art and curiosity : the french call them , lambreqains , from the latine , lamberare , ( it may be ) which , as festus observes , signifies to cut or tear , because these were torn ; the germans , helm-de●ken , and helmzter ; the latine , fascae , seu lacinlae utrinque dependentes ; & paul. iov . oiim hae nihil a●iud quam galearum teg●ina , crus . pag. . and that their institution was very old , appears from diod. sieul . iib. . cap. . and that such were us'd by knights , appears from all the old seals , menest . cap. . sometimes skins of beasts , as lyons , bears , &c. were thus born , to make the bearer more terrible ; and that gave occasion to the doubling our mantlings with furrs . in scotland , all the mantlings of noblemen , are g. doubl'd with ermine ; because the robes of our earls and above , are scarlet doubled with ermins : and therefore oftentimes in blazoning we only say , with crown , helmet , and mantling befitting his degree , without expressing the colours : but since mantlings represent only the coverts of shields , and must be represented all torn , i see no reason why they should with us represent the robes of our noblemen : and of old with us , our mantlings were of the colour of the coats , lin'd or doubl'd with the metalls , which was more proper than that we now use . sometimes the atchievement stands within a pavilion , as that of the emperour , and king of france ; this petra sancta calls , tentorium , and is , as he observes , competent only to princes , though all use them not . but i admire , why the kings of england did not assume as well the pavilion , as arms of france ; seing that is one of the special honours of that kingdom . but yet subjects use mantlings in form of a pavilion , as is to be seen in the atchievement of belchier of gilsborough , represented by guilims , pag. . and these pet. sanct. calls chlamys , vmbella , or palliolum , pag. . where he also informs us , that the general of the pope's armies , carries , ratione officii , his arms within a pavilion or tent. chap. xxviii . of wreaths . above the helmet , immediately did stand the wreath , which the french call , burlet ; and in our ancient scots herauldry , it was call'd the roll , or row , because of its shape : sometimes the english , and we in imitation of them , do terme it , a torse , à torquendo . it was a corde of their mistresses colours , as favin relates , pag. . cap. . fol. . and did hang and dangle to the very cruppers of their horses , the extremities being tassl'd , and enrich'd . the use of it was , to fasten their mantlings to their helmet . now these wreaths should be of the colours of the field , and charge ; and the rule is , that the first should be that of the field , and then that of the immediate charge , and after that , the next mediate , and so forth , if there be moe charges than one ; yet some old wreaths with us , differ from these , and possibly these have been at first mistresses colours . though the earl marshal bear , arg . on a chief or , three pales gules ; yet his wreath is , or , and gules , whereas it should have been , arg. or , and gules . the earl of nithisdale , arg . a double eagle sable , membred gules , yet his wreath arg . and sable , yet this may be ascribed as an errour of the painter , but it should be reform'd . when moe coats are quarter'd , the colours of the paternal coat are only to be twisted in the wreath , and this rule is observ'd in all our atchievements , two or three excepted , which may be reform'd , without naming the bearers . if the field be charg'd with a furr , and colour , then some make the wreath to be of that same furr and colour ; thus the earl of low●on bears , gyron●e of pieces ermine and gules , and his wreath is , ermine and gules ; but i think , that the wreath should never consist of any furr ; for furr is not fit to be twisted in a wreath , nor to bind the helmet , which was the use of a wreath , nor did i ever see any such wreath in approven authors , and we say constantly , on a wreath of his colours , but never of his furrs ; so that these who carry only furrs in their shield , should carry a wreath of these colours ; as if ermine , then white and black , &c. chap. xxix . of crests . the ancients did wear the shapes of several creatures , or some such things above their helmets , call'd crista , to make them appear terrible , virg. lib. . aen. terribilem cristis galeam , flamasque vomentem . or to distinguish them in battell ; sed cum centuriones galeas haberent ferreas , transversis tamen & argentatis eristis , quo facilius agnoscerentur à suis , veget. lib. . cap. . or to adorn their helmet , stat. lib. . interdum cristas hilaris jactare comantes . that these are iuris gentium , in use amongst , and approven by all nations , is clear from , limn . lib. cap. ▪ num . . and now all such as are allowed to wear helmets , are allowed to adorn them with crests ; and for crests , men choose what they fancy ; only it is not proper to choose such things , as could not stand , or be carry'd by warriours upon their helmets , such as ballances , or such other things , which cannot either stand fixt , or wave with beauty . the french call the crest , cimier , because it stands upon the top of the shield , sur la cime de l'escu ; but the old and proper term us'd in scotland for a crest was , a badge , because our noblemen in riding parliaments , and at other solemnities , do bear their crest wrought out in a plate of gold or silver upon their lacquies coats , which are of velvet : and now the crest is us'd upon all seals and plates , and therefore , it is necessar for noblemen amongst us , to carry differing crests from the chief family out of which they are descended . it is ordinar to bear for a crest , a part of what is born in the charge ; thus the crest of scotland , is a lyon ; the crest of england , is a leopard ; the crest of france , a double flower de lis : and with us the earl of dumfermling carrys a cressent , and the earl of lothian , a sun in his glory : sometimes also the crest is a part of the supporters ; thus the earl of linlithgow carrys for his crest , a demy-savage proper , holding a batton in hand dexter , and his supporters are two savages with battons . the earl of weems carry's for his crest , a swan proper , and his supporters are two swans . sometimes also the crest is bestow'd by the prince , as a reward of service done to the crown ; and the royal crest cannot be born without special warrand ; and thus the earl of lauderdale , bears the crest of scotland for his crest , having a flower de-lis in place of the scepter . sometimes it is relative to alliances , and thus the earl of kinghorn bears for his crest , a lady to the west , holding in her right hand , the royal thistle , and inclosed within a circle of laurells ; in memory of the honour that family had in marrying king robert the second 's daughter . sometimes it represents some valiant act done by the bearer , thus m cclelland of bombie did , and now the lord kirkcudbright does bear a naked arm , supporting on the point of a sword , a mores head ; because bombie being forfeited , his son kill'd a more , who came in with some sarazens to infest galloway ; to the killer of whom , the king had promised the forfeiture of bombie ; and thereupon he was restored to his fathers land , as his evidents yet testifie . sometimes it respects the title of the bearer , thus the lord ross of halkhead bears for his crest , a falcons head eras'd . sometimes it relates to an office or employment , thus the lord iohnstoun , being warden of the marches , and very famous for repressing robbery , took for his crest , a spurr with wings . sometimes it is à rebus , that is to say , something borrow'd from the name ; thus the lord cranston has for his crest , a crane sleeping , with her head under her wing . and sometimes crests are taken by noblemen from the name of the countrey , as the earl of sutherland takes a cat for his crest , because sutherland is call'd cattu in irish , and was so called from the great number of wild cats , which were of old , and yet are to be found , in that shire . sometimes crests are taken from some considerable deliverance : thus the laird of anstruther gives two hands grasping a pole-axe , with the word , per●issem ni peri●ssem ; because his predecessor ( as is commonly reported ) did strike off the head of the laird of barns with a pole-axe , when he was coming to his house with an intenti●n to kill him . it is lawfull to change the crest , and colomb ▪ pag. . tells us , that it is lawfull for such as change their arms , to retain a part of their old arms as a crest . cadets also do , and may change their crests : thus dumfermling keeps not the crest of winton , nor kellie the crest of marr ; but it is most proper for cadets , when they take crests , to take a member , or some small part of their chiefs crest , or arms ; as ogilvie of birnies has taken the lyons paw , though it be ordinar to retein the chiefs crest , markt by the ordinar differences , or of a different colour . chap. xxx . of crowns . the first origine of crowns in arms , was from the romans , app. lib. . de bell. civil . for they rewarded the great actions of their citizens and warriours , with different and suitable crowns , which i have set down out of ingenious mr. cartwright . corona muralis , this was due to him that was first seen upon the wall of the enemy . corona castrensis , for him that made a breach in the wall of the enemy ; the first , a crown embattail'd , or made with battlement , being of gold ; the other , of towers . and then they had corona navalis , garnish'd with fore-castle , for service at sea , made of gold too . then corona ovalis , of mirtle , for victorie gotten with little hazard ; corona obsidialis , which was made of grass , for him that preserved an army besieged . corona civica , for him that saved a citizen from the enemy , made of oaken boughs . corona olivaris of olive leaves , for victory in the olympick games ; and corona populea , for young men that were found industrious , and studious in the exercises of virtues : but i find that amongst these rewards of honor , that of ivie , called corona hederalis , was only appropriated to the poets . crowns were still the infallible mark of kingly power , and therefore sue●on in calligula's life , observes , parum abfuit , quin diadema sumeret , & speciem principatus , in regnum converteret ; which expression i have set down , to show , that the roman emperours were then less than kings in their titles , though greater in their power . as to the crowns now born , they differ not only according to the quality of the bearer● , but according to the nation wherein they are born ; for england and france differ much in this , though the english acknowledge that they owe their heraldry to the french. i have here set down the different shapes of the english crowns . the first whereof is the crown of the empire of germany , which is but little different from that of england , in the second , which is imperial too ▪ the third is a coronet of the prince , which is the same with the kings , only the arches , mound , and cross , wanting . the fourth is a crownet of an arch-duke , which is the same with a duke , the arch only added . the fifth is a crownet florial , only proper to a duke the sixth is the crownet of a marquess , which differs thus ; it is of leaves and points , the leaves or flowers above the points . the seventh is proper to an earl , which hath points and flowers ; but the points are above the flowers . the eighth is due to a viscount , which is a circulet pearl'd , and neither flowers nor points . as to the french , the french kings crown is closs above , like the imperial , and rais'd into eight demy-diadems , enriched with diamonds , &c. the dolphine crown differs only from the kings , in that it rises upon four demy-diadems , the kings upon eight . the circle of their ducal crown is enriched with stones and pearles , and is raised with eight flowers . their marquess crown has its circle adorned only with pearles ( tempeste ) de perls , and raised into four flowers betwixt points or pearls , as the french call them . their counts carry only a circle of gold , raised unto nine points , ane cercle d' or garny de pier reries rehausse de grosses perle de comte . the viscount has only a circle of gold plain or enambled , and rais'd unto four points , or as the french term them , four pearls . baro●s have also in france , a circle of gold enambled , mounted by a bracelet of pearls . of late , both the barons in england , and lords in scotland , have got coronets by his majesties concession . the bannerets carried only a plain circle of gold , adorn'd with three ordinar pearls . our baronets cary no crown nor circle the regal crown of scotland hath arches , mound , and cross , like to that of england , adorned with precious stones and pearls , and having four flowers . de . lis , and as many crosses pat●é interchanged , farme , pag. . the ninth figure here represented , is by silvanus morgan said to be than crown which is born by homager kings , and by iohn baliol , when he held the crown of scotland of edward the first ; but i begg the gentlemans pardon to tell him , that of old the roman emperours carried no other than these , after their apotheosis , and being numbred amongst the the gods , lucan . fulminibus manes radiisque ornabit & astris . a lords coronet . chap. xxxi . of supporters . supporters are these exterior ornaments , which are plac'd without the shield at its side , and were at first invented ( as pet. sancta observes ) to represent the armour-bearers of knights ; but why then are they ordinarily two ? and therefore i rather believe , that their first origine and use was , from the custom which ever was , and is , of leading such as are invested with any great hono● to the prince , who confers it : thus when any man is created a duke , marquess , or knight of st. andrew , of the garter , or any other order , either in scotland , or else where , he is supported by , and led to th● prince , betwixt two of the quality , and so receives from him the symboles of that honour , and in remembrance of that solemnity , his arms are thereafter supported by any two creatures which he chooses ; and therefore , in the received opinion of al heraulds , only nobiles majores , who have been so invested in these honours , are allowed to have supporters : and albeit chiefs of old families have used supporters with us , yet they owe these to prescription , and not to the original institution of heraldry , as shall be observed . others , as menestier , think that when knights hung up their shields to provoke all passengers to the combat , they placed their pages , or armour-bearer under the disguises of wild-men , lyons , bears , &c. to watch who offered to touch them , and thereafter they used these figures as supporters ; but beside , that this fancy seems as wild as the supporters , it may be asked , why some men use fowls , or fishes ? to which nothing can be answered , save that beasts being once allowed , each man choosed thereafter any living creature he pleased . shields are oft-times supported either by living creatures , and these are properly call'd supporters , or by things inanimate ; and these arms are said to be co●is'd , not from costa , the ribs , as guilims alleadges , but from coté the side , an ordinar french word ; for else they would be pronounced , costis●d . the proper word for supporters in scotland is bearers . colomb and the french distinguish not betwixt supporters , and cottises ; nor did i ever see a shield cottis'd by things inanimate , and i believe these cottises are mistaken for the lower parts of the mantlings ; but the french distinguish , entre les supports , & les tenans , and call these only supporters which raise up the shield somewhat , whereas these are tenans , or holders , which hold the shield , but do not raise it ; and such are ordinarily angels , men or women ; whereas brutes , such as lyons , unicorns , &c. are said by them to be the proper supporters . i acknowledge neither the one nor the other distinction , following in this , chass . paict . . num. . conclus . . hopp . cap. . § . and the other civilians , who call all things which support arms , sustentacula : and albeit the germans assert , that supporters are only due to persons who are invested with the highest jurisdiction , and to great princes , and that guilims thinks that none under the degree of a knight baronet , and that it is believed now that none under knight baronets can have supporters ; nor do some lawyers allow these to any , save such as have a particular warrand from the prince , habendi delatores sive sustentatores , zippaeus ad l. . c. de dignitate . yet chassaneus observes , that , non interest sint ne alicujus ordinis nobiles , vel minus , sed sufficit ut in magnâ aliquâ dignitate sint constituti : so that according to his opinion , an heretable sheriff , or an eminent judge may take supporters ; and i crave liberty to assert , that all our chiefs of families , and old barons in scotland , may use supporters : for besides that , to be a chief , was of old , and is still , repute an honour , though it be adorned with no mark of nobility ; yet these chiefs have prescribed a right to use supporters , and that such a right may be prescribed , i have proved formerly , and what warrand is for most of our rules in heraldry , but an aged custom : and that they have constantly used supporters past all memory of man , even when they were knights , is clear from many hundred instances ; thus the lairds of pitcur , did , and do use , two wild-cats , for their supporters ; fothringhame of powrie , two naked men ; irwin of drum , two savages , wreathed about head and loyns with hollin , and bearing battons in their hands ; moncreiff of that ilk , two men armed at all points , bearing picks on their shoulders : and many of our noblemen have only retained the supporters which they formerly had : and that of old , barons might use supporters , de iure , seems most certain ; for they were members of parliament with us , as such , and never lost that priviledge , though for their convenience , they were allowed to be represented by two of their number , and therefore such as were barons before that time , may have supporters , as well as lord barons ; nor should we be governed in this by the custom of england , seing there is dispar ratio ; and this is now allowed by the lyon to such . supporters are not hereditary , but they may be altered at pleasure , colomb . pag. . and it is fit , that these extrinsick parts of atchievements should not be hereditary , to the end , men may have somewhat to assume , or alter , upon considerable emergents ; but it cadets keep their chiefs supporters , they use to adject some difference , as is to be seen in the earl of kellies atchievement . sometimes also , a part of the benefactors arms are taken as supporters : and thus the lairds of dundass did take the lyons , which was the earl of marches arms , to testifie how much they were obliged to that family . sometimes they are taken to signifie the employment and humour of the chooser ; thus the lord rae , when he went to germany with his regiment , did take his arms supported on the dexter side by a pick-man arm'd , at all parts proper , and on the sinister , by a musquetier proper . by supporters , sometimes the occasion of the bearers honours is signified ; and thus the earl of panmure changed his old supporters to two grew-hounds , because he was first noticed by king iames upon the occasion of his entertaining him with excellent sport in the moor of monrowman . some use to adorn their supporters with a part of the charge ; and thus the earl of monteith adorns the collars of the lyons , which are his supporters , with escalops , which are a part of his charge ; and the laird of innes , the collars of his grew-hounds with three starrs , which are the charge . the germans and spaniards sometimes want supporters , and sometimes takes supporters , which seems very irregular ; for sometimes they have the head of a lyon , or other beasts , at the opposite corners of their shields ; and sometimes their crest is a serpent , whose body surrounds the shield ; and sometimes their shields are surrounded with the banners which they have taken from the enemies . it is given as a rule by the french heraulds , that only soveraign princes , can use angels for their supporters ; but i see no reason for that rule , nor finde i it in the authors of any other nation ; so that i believe this rule holds only in france , where angels are the supporters of the prince , and so should not be used by any subject without permission : but in scotland , the lords borthwick and iedburgh , have long had angels for their supporters , which were their old supporters before they were noblemen . the compartment is that part of the atchievement , whereupon the the supporters stand , and though none have offered to conjecture what gave the first occasion to compartments in heraldry , yet i conceive that the compartment represents the bearers lands and territories ; though sometimes they are bestowed in recompense of some honorable action : and thus the earls of dowglass got the priviledge of having their supporters to stand within a pale of wood wreathed , because the earl of dowglass , in the reign of king robert the bruce , did defeat the english in iedburgh forrest , and that they might not escape , cause wreathe and impale in the night that part of the wood , by which he conjectured they might make their escape . these compartments were ordinarily allowed to soveraign princes only , nor know i any subjects in britain , whose arms stood on a compartment , save those of the marquess of dowglass above set down , and that of the earl of pearth , who hath for his compartment , a galtrap used in warr ; albeit of late , compartments are become more common : and yet some families in scotland have certain creatures , upon which their atchievements stands , as the laird of dundass , whose atchievement has for many hundreds of years , stood upon a salamander in flames proper ; and robertsone of strowan gives , a monstruous man lying under the escutcheon chained , which was given him for his taking the murtherer of king iames the first . women generally use no supporters ; but they surround their shields with a corde of their colours , which the french call , cordeliere , or las d'amour , the lace of love , cingulus laqueatus in se insertus , born first by the relict of charles viii . as some say , in veneration to st. francis , patron of the cordeliers , pet. sanct. pag. . i find muriel , countess of strathern ; to have carried her shield , anno . with one supporter , viz. a falcon standing upon the neck of a duck , which with the neck lyes under the escutcheon , and both shield and supporter are within a lozenge . chap. xxxii . of mottos , or devises . of old , men did choose some sentence or word , whereby they exprest somewhat , and yet concealed somewhat of their genius and inclination : this being carried by knights upon their arms , and being ordinarily relative to them , or explicatory of them , did give ocasion to heraulds to account these as fit ornaments of armories . the english call this a worde ; the french , a devise ; the italians , a motto ; the scots , a ditton ; the latine , epigraphe ; the grecians , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . it is placed by the french , in a scroll above the atchievement ; but in my opinion , if it relate to the crest , it should be placed above ; but if it relate to the armour , it should be placed under the atchievement , that so it may be near to the armour to which it relates . that dittons or words relate sometimes to the bearing , is clear by many instances ; thus the earl of glencairn bears , arg. a shake●fork sable , and his word is , over fork over . sometimes , and most ordinarily , to the crest , as the earl of kinghorn has for his crest , a maid , holding a thistle vert in her hand , within a garland or wreath vert , and or ; and his motto is , in te domine speravi , for having gained the affection of king robert the second 's daughter , he was much crossed in his match , but having at last married her , he took that crest , and the motto relative to it . the earl of galloway has for his crest , a pelican feeding her young ones in a nest , or ; and the motto is , virescit vulnere virtus . and yet burnet of burnetland , who has for his crest , a hand holding a pruning knife , pruning a hollen-tree all proper , hath the same motto : and having pursued burnet of lees before lindsay of the mount then lyon , to change his motto ; lees did thereupon take for his motto , alterius non sit qui potest esse suus , alluding to the occasion . sometimes it is relative to the supporters : thus the supporters of buccleugh , were two ladies in rich and antique apparel az . their lokes over their shoulders , and the word is , amo , which was assumed by his predecessors , when he got his first estate by marrying the heretrix of murdistone . sometimes it relates to the supporters and compartment : thus the earle of pearth gives for his supporters , two savages with battons on their shoulders , and under their feet , a galtrap , with this motto , gang warrily . sometimes it is relative to the difference or mark of cadencie : thus the earle of kellie , a brother of the earl of mar , gave for his word , decori decus addit avito . sometimes the word is relative to some considerable action , and to neither arms , crest , nor supporters : and thus the earl of stirling , having planted nova scotia , the word he took was , per mare per terras . sometimes they are but a meer rebus , alluding to the name , sometimes to the bearers office , as forresters motto is , blow hunter thy horn ; the lord iohnstoun , when warden of the marches , light thieves all , id est , light from your horses and render your selves . sometimes they serve to remember a family to be ware of a misfortune : thus the lord maxwell being forfeited , and thereafter restored , took for his motto , reverisco , i stand in awe to offend . sometimes they show the bearers origine more than the arms do : thus the m cphersons have for their motto , touch not the cat gloveless , to show they are of the clanchattan . these dittons serve ofttimes to instruct us , what is the true bearing : thus the earle of glencairn's ditton , fork over fork , showes that his bearing is a fork , and not an episcopal pale , as some would have it : and though bailzie of lamingtons arms are by some blazoned mollets , ( spurryals ) yet that they are starrs appears from the motto , which is , quid clarius astris . chap. xxxiii . of slvghorns , or the cry of war. not unlike these motto's are our slughorns , which are called cris de guerre in france . the use of them is either to serve as a watch-word to all of one family , or are the name of the place at which a family should meet in time of warr : and thus the m ckenzies have for their slughorn , tulloch ard , which is the place at which this clan does meet ; and the name of hume have for their slughorn ( or slogan , as our southern shires terme it ) a hume , a hume : for it is most ordinar to have either the name of the family who do meet , or the name of the place at which they do meet : and this word or cry was proclaimed every-where , by a person who carried a cross of wood burning , or a firie cross , as we call it , by which and by the cry of war or slogan , all the cadets of the family were advertised to meet at the ordinar place ; for of old , all of a family did dwell in a neighbour-hood . from which we may conclude , that these words are the marks of greatness and of antiquity ; nor were they of old allowed to any but to the chiefs of clans , and to great men , who had many followers , vassals , and dependers ; and in effect they are useless to all others . menestier allows them only to such as had power of carrying a displayed banner , and sayes , that they were taken from the name of the princes , or great men who did command . . from the chief place where they were to rendezvous . . some used the name of the family out of which they were descended . . the name of the saint they adored . . the designe they were about . . some remarkable and happy accident relating to the family , and these slughorns were not only used in publick rendezvouses , but in private combats , upon which occasions the heraulds used to cry aloud the slughorn of the combatant , when he entred the lists , and the beholders used to cry out chearfully when he prevailed . chap. xxxiv . of devises . though we confound devises and motto's , yet they differ much ; for a devise properly is a painted metaphor , metaphora in fatto , as the italians call them , wherein one thing is represented by another to which it resembles : the painted resemblance is called the body of the devise , and the word whereby these are explained , the souls of the devise : and thus it appears , that a devise comprehends somewhat like to both crest and motto , and that some authors are mistaken , who make devises to be either such as are all soul , such as the pathetick sentences used by some , to express their inclinations ; or those that are all body , such as the ancient hierogliphicks ; or such as are composed of soul and body , which are indeed the true devises . some believe that devises are as ancient as antisthenes , who gave cephisolode for his devise , incense burning , with this word , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is to say , i please whilst i consume . but others think that devises were no older than paulus iovius ; and yet petra sancta , lib. ● . simbol . heroic . asserts , that the thistle taken by achaius king of scots , when he made his alliance with charlemaigne , with the word , nemo me impunè lacesset , is the ancientest devise now upon record and all praise it as very regular and pretty . but some think it ought to be lacessit , because the present time shows best the nature of the thing , yet lacesset has more of daring and gallantry . nemo me impune lacesset the rules relat●ng to the words of the devise are , . that they be not too general , and such as might be used to almost any thing . . that the words do not express as fully the things represented , as if you saw the thing it self ; for else the representation were useless , as una hirundo non facit ver ; and this is called an embleme , and not a devise : and therefore the words of a devise must have still something that is mysteriously imperfect , as ut vivat , under a phoenix burning ; and cominus & eminus , to a porcupine , without adding the word ferit . . we must not for the same reason express the thing represented in the words of the devise , so we must not say , ita phoenix , or ut vivat phoenix . . the words must relate to the thing , and not to the person , and thus where the devise was gold in a furnace , these words , domine probasti me , are censured , because they are not applicable to the gold. . the words must not be clenching , or equivocall , for that were to make devises meer aenigmata . the blazon of the atchievement of the king of scotland , and the reasons of that bearing . the most high and mighty monarch , charles the ii , gives , as the soveraign atchievement of his ancient kingdom of scotland , or , a lyon rampant gules , armed and langued azure , within a double tressure flowred , and counterflowred with flowers de lis of the second . encirled with the order of scotland , the same being composed of rue and thistles , having the image of s t. andrew , with his cross on his breast ; above the shield , an helmet , answerable to his majesties high quality and jurisdiction , with a mantle or doubled ermine , adorned with an imperial crown , beautified with crosses patee , and flowers de lis , surmounted on the top for his majesties crest of a lyon sejant , full faced gules , crowned or , holding in his dexter paw , a naked sword proper , and in the sinister , a scepter , both erected pale-wayes : supported by two unicorns argent , crowned with imperial , and gorged with open crowns , to the last chains affixed , passing betwixt their fore leggs , and reflexed over their backs or , he on the dexter embracing , and bearing up a banner of cloath of gold , charged with the royal arms of scotland , and he on the sinister , another banner azure , charged with a s t. andrews cross argent , both standing on a compartment placed underneath , from which issue two thistles , one towards each side of the escutcheon , and for his majesties royal motto's in an scroll above all , in defence , and under , in the table of the compartment , nemo me impunè lacesset . the historians of our own and forraigne nations assert , that fergus took this lyon for his arms , when he did beat the picts : and thus hopingius , cap. ▪ pag. . § . tells us , that cum picti in agros scotorum copias primum ducerent , quibus haud minus cupidè , quam strenuè obviam ivit fergusius sublatis signis , & rumpendo ipsorum claustra , assumpsitque leonem rubeum erectum , aurea facie descriptum , cauda tergum , ut fere mos est , dum se ad pugnam incitat , verberans , eoque generosam iracundiam significans . vid. etiam beyerlink . tom. . theatr. vit . tit . signa pag. . pet. gregor . de republ. lib. . cap. . limneus de jur . publ . lib. . num . . memen . ord. equit. card. pag. . it is observed by boetius lib. . hist. cap. . & lib. . that the crown with which the lyon born as a crest , is crowned , is corona vallaris , though our painters crown him with an imperial crown ; and certainly a corona vallaris agrees better with the breaking of the picts barriers , for which this crest was at first assumed . the double tressure flowred , and counterflowred , was bestowed upon our kings by charlemaigne , when he entred in a league with achaius king of scots , to shew that the french lillies should still defend and guard the scottish lyon : the word is trescheur in the french , which comes from tressouer or tressoir , a tressing ; and i conceive that these tresses were introduced in heraldry , upon coat-armours , to represent the silver and gold laces , with which coats are usualy adorned . hoping ▪ also in the place formerly cited , tells us , that charlemaigne adorned our crown ( being then emperour as well as king of france ) with four lillies and four crosses , as a reward for , and an encouragement to the scots , to continue in the christian faith , acceptis in coronae circo , quatuor liliis aureis , cum salutiferae crucis quatuor aureis signis paulo eminentioribus , paribus intervallis discretis , ut inde scotiae gentis christianae religionis , inviolataeque fidei observatio omnibus dignosceretur . the royal badges and ordinary symbols of the kingdom of scotland are , a thistle of gold crowned . the white cross of st. andrew in a blue field . the standard bearing . diev et mon droit the collar of the order is composed of thistles , interwoven and linked with sprigs or leaves of rue all of gold , having thereunto pendent on a blew rundle , the image of st. andrew , his vesture of cloath of gold , with the white cross of his martyrdome on his breast , and in a circle invironing the figure beautified with pearles , this epigraph written , nemo me impunè lacesset ; though some think that it should be , nemo me impune lacessit , in the present time , as all other motto's are ; but albeit the present time marks more the nature of the thing : yet the future is more menacing , and expresses more of courage , and this thistle is choosed not for its nature , but for its aptness to express this effect of courage . the ordinary and common ensigne worn by the knights of the order , was a green ribband , whereat hung a thistle of gold crowned with an imperial crown , within a circle also of gold , bearing the foresaid motto , nemo me impunè lacesset . likewayes upon the feast of st. andrew yearlie , being the day of noevmber , when the knights met solemnly in the cathedral church of the town of st. andrews for celebrating the feast , they were , during the solemnity , richly apparelled , and wore their parliament robes ; having fixed on their left shoulders an azure rundle , on which was embroydred st. andrews cross argent , invironed in the centre , with a crown beautified with flowers de lis or. the blazon of the atchievement of his majesty of great britain . the most high and mighty monarch charles the ii. by the grace of god , king of great britain , france , and ireland , defender of the faith , &c. for his majestie 's atchievement , and soveraign ensigns armorial , bears these royal coats quarterly quartered , viz. first , or , a lyon rampant , within a double tressure counter-flowerdelised gules , armed and langued azure , as the royal arms of scotland : second , quartered , first and last azure , three flowers de lis or , as the royal arms of france : second and third gules , three lyons passant guardant in pale or , for the royal ensignes of england : third , azure , an irish harp or , stringed argent , for the ensigne of his majestie 's kingdom of ireland : fourth and last , in all points as the first . all within the orders of st. andrew and of the garter . above the same an helmet answerable to his majesties soveraigne jurisdiction , and thereon a mantle of cloath of gold doubled ermine , adorned with an imperial crown , surmounted on the top for his majesties crest of a lyon sejant full faced gules , crowned or , holding in his dexter paw , a naked sword , and in the sinister a scepter , both erected : supported on the dexter by an unicorn argent , crowned with an imperial , and gorged with an open crown ; to this a gold chain affixed , passing betwixt his fore leggs , and reflexed over his back : and on the sinister , by a lyon rampant guardant or , crowned also with an imperial crown as the other ; the first embracing and bearing up a banner azure , charged with a s t. andrews cross argent , and the last another banner argent , charged with a plain cross ( called of st. george ) gules ▪ both standing on a rich compartment ; from the middle whereof issue a thistle and rose , as the two royal badges of scotland and england : and for his majesties royal motto's in an escrol above all , in defence , for scotland ; and in the table of the compartment , dieu et mon droit , for england , france , and ireland . the royal badges are , a thistle of gold crowned , for scotland , a rose gules for england , a flower de lis or , for france , an harp or stringed argent , for ireland . besides these , there are badges peculiar to the kingdoms of scotland and england , represented on the banners in the royal atchievement , and advanced in his majesties standards by land and sea ▪ viz. azure , a cross of st. andrew argent , for scotland , st. andrew being patron thereof . argent , a cross of st. george ( or plain cross ) gules , for england , st. george being patron thereof . thus have i for the honor and satisfaction of my countrey , interrupted so far the course of my ordinary studies at spare hours , nor was this book only necessary for them , but for all such as love this science ; since the theory of our civilians was not hitherto sufficiently illuminated by the knowledge of blazoning , nor the practical and common knowledge of blazoning rightly founded upon the civil law and law of nations ; our ordinary practicians in this art having been such as cited the civil law without understanding it ; and as it is much nobler to raise a science , than to be raised by it ; so having writ this book as a gentleman , i designe as little praise or thanks , as i would disdain all other rewards . finis . an alphabetical table of the sirnames of these noblemen and gentlemen , whose atchievements , or any part of the same , are made patterns of bearings in this science of herauldry . a aberbuthnet page . earl of abercorn , vide hamilton . aberdeen town , . abernethy , . addair . agnew . aikenhead . aikman . ainsly . airth . aiton , . alexander , . alison . allan . andrada in spain . anstruther , . areskine , , , , , , , . arran . atchison . auchinleck , , . auchmoutie . . b badzenoch . bailzie , . bain , . baird . balfour ibid. baliol , . balnewis . bannatine , alias ballanden , , , . barrie . bell . bennet . beton . betson . bickerton . binning , . birnie . bisset . blackhall , . blackstock . blair . bonyman . borthwick . braig . branch . brand . lord brechin of old , vide wishart . brown , , . brownhill . bruce , , , , , , , . brymer . buchanan . buckleuch vide scot. bunten . burnet , , . butter . . c cairns . caithnes , . calder . calderwood . callendar , . campbel , , , . cant . carmichael . carnagy , , . carron . carruthers . carse . cartwright . cathcairt . cay , or kay . chambers . charters . cheap . chein . cheislie . clayhills . clealand . cochran . cockburn . colquhoun . colvill ibid. corbet . cornwall ibid. corsby . cowper . crab . craigdallie . craik . cranston , . craw . crawfurd . crawmond . crichton . cumming . cuninghame , , . currie . cuthbert . . d dalgleish . dalmahoy . dalrymple . dalzel . dawson . delaluna in england . dempster , . denham . dewar . dickson ibid. die . dischington . dowglas , , , . drummond , , , , . duiguid . dumbar , , . earl of dumfermling , vide seaton . dun . dundas , , , . dundie town . dunlop . durham . . e eccles . edgar . edington . edmiston . eglington , . earl of elgin , vide bruce . elleis . elliot . elphingston , , . esplin . . f falconer . fenton . fenwick . fin . findlay . fisher . fishing-company royal ibid. fleeming . fletcher . fockhart . forbes , . forman . forrest . forrester , , . forsyth . fotheringham , . fountain . fowlis . fraser , . fullerton . fythie . . g gallie . galloway . earl of galloway , vide stewart . lord garrioch . garvie . ged ibid. geddes ibid. gibson . gifford . gilchryst . gladstains . gleg . glen . earl of glencairn , vide cuninghame . glendinning . gordon , . gorran . graham , , , ▪ grant . gray . grierson . guthrie . , . h hacket . halyburton , , . hamilton , , , , . hardie . hay , , . heart . hepburn , , . hog . home , hume , or hoom , , , , , . honyman . hope . howston . hutchison . hutton . . i iaffray . lord iedburgh , vide ker. innes , . iohnston , , , . irwin . , , . k keith , , , . kello . earl of kelly , vide areskine kennedy . ker , , , , . kilgowr . viscount of kilsyth , vide livingston . earl of kinghorn , vide lyon. now strathmore , vide lyon. viscount of kingston , vide seaton . kinnaird . kinneir , . kirkpatrick , . kyd . kyle . . l lang . lamb . landell , , . lauder . lauderdale . duke of lauderdale , vide maitland . leith . lennox , , . leslie , , , . lethington , or livington . libberton ibid. liddel . lidderdale , . lindsay . earl of linlithgow , vide livingston . little . livingston , , . loch . lockhart . logan . longlands . lorn . lord lovat , vide fraser . earl of lowdoun , vide campbel . lovell . lowis . lowry . lundin , or lundie . lyll . lyon , , . lyon-office . . m macaben . macculloch . macdonald , . macdowal , , . macduff , . macferlan . macgie . macgill . macgregor . macilvain . mackenzie , , . mackintosh . macky , . maclean . maclellan , . macleod . macnaught . macpherson , . main . maitland , . mar , , . earl of mar , vide areskine . earl of march , vide dumbar . earl marischal , vide keith . marjoribanks , . masterton . maule , , . maxwell , , , . meldrum , . melvill , , . menzies , . mercer . midleton . miller . milne . moir . moncrieff . monro . monteeth , , . montgomery . marquess of montrose , vide graham . monypenny , . morison . mortimer . mosman . moubray . muir . murehead . muriel . murray , , , . mushet , . myreton . . n naesmyth . nairn . napier . neilson . nevoy . earl of nithsdale , vide maxwell . nisbet . norvell . . o ogill . ogilvie , . ogston . oliphant . ormiston . orrok . . p packstoun . earl of panmure , vide maule . panther . paterson . patton . pearson . pearth town . earl of pearth , vide drummond . pepdie , , . laird of pitcur , vide halyburton . polwart . pont . porteous . porterfield . powrie . preston . primerose . pringle , , . purves . , . r rae . lord rae , vide macky . rait . ralston . ramsay , , , . randeill . randolph , , , . rankin . richardson , . riddell . rind . robertoun , . robertson , . ross , , , . earl , now duke of rothes , vide lesly . rule . rutherfoord , . ruthven . , . s see of saint andrews . lord salton , vide fraser . sanderson . sandilands ibid. sawers . scot , , , , . scrimzeor , . scrogie . seaton , , , , , , , . sempill . sharp , . shaw , . sheires . shives . skein . skirven . sibbald . simpson . sinclair , . smyth , . spalding , . spar , . spense . spot . spotswood . sprewl . sprottie . squyre . stewart , , , , ▪ stirling , . straiton , . strang . sutherland , , , . sydserf . . t tailzefer . tarbet , . torrie . toshach . tours . troup . turnbull ibid. turner , . turring . . vv vallange . vaus ▪ veitch , . vrquhart . vrrie . . w walkinshaw . wallace . wallop . wardlaw . watson . weapont . wedderburn , . weems , , . weston . wigmer ibid. winchester . winram , or windraham , . winton , . earl of winton vide seaton . wishart , or wiseheart , , , , . wood , . wordie . wright . whytfoord . . y young. . finis . notes, typically marginal, from the original text notes for div a -e ker earl of a●erum . midleton earl of midleton . one family of the name of richardsone gives . bālnewis of drumond of kincraigie . addair . allen. spot . alison . campbell earl of argyle . campbell of glenurquhy . campbell earl of lowdoun . campbell of gargunnock . alexander earl of stirling , as his paternal coat . laing . bruce earl of elgin . drumond lord madertie . livetennent general drumond of cromlix . wishart . hacket of pitfirren . young of lennie . young of auldbarr formerly of seaton , who gives , astruther of that ilk . graham of fintray . polwart . lovell sometime of ballumbie . notes for div a -e menzies of that ilk , or of weem . carron . dewar . airth . the paternal coat of graham marquess of montrose . simpson of udoch . squyre . dalmahoy of that ilk . burnet of lees. keith earl marishal dickson of bughtrig . notes for div a -e areskine or erskine earl of mar. carnegy earl of northesk , as an coat of augmentation by the title of northesk . sawers . esplin . lord ruthven . skirven of that ilk . cunningham earl of glencairn . lundie of that ilk . murray marquess of athol . jaffray of kingswells melvill of raith . charters of hempsfield . charters of kilfaunes . lindsay earl of crawfurd . stewart . sir william sharp of stonnyhill . carmichael lord carmichael . carmichael of ballinblae . drumond earl pearth auchinlek of that ilk . fothringham of powrie . notes for div a -e vaus lord dirleton of old . bisset of lesindrum sandilands fenton of that ilk . wallop . monteith . leslie earl rothes his paternal coat . stirling of keir . scot duke of buccleugh , as the paternal coat of that name . scot of harden . scot of scotstarbet scot of harwood . scot of whitslaid . tours of innerleith . liddel . dishington sometime of ardross kinneir of that ilk . turring of foveran . binning of carlowriehauch . haliburton of egliscairn . sandersone . honyman . porterfield auchmouty . dempster of pitlover whytford . cant. haliburton of pitcur . brand of baberton . weston or waston , kay or cay wigmer . elliot of stobs . elliot of laringston notes for div a -e fochhart . tailzefer . masterton of parkmilne . lidderdale of st. mary isle . ker lord jedburgh . longlands of that ilk . hepburn . branch . bannatine of keams . elphingston lord elphingston . cochran earl of dundonald nisbet of dean . sempill lord sempil howston of that ilk . wedderburn of easter-powrie . brown of colstoun . mclellan . pakston . carruthers of howmains . mushet . chiesly of kersewell . main of lochwood cowper of gogar pearson of balmadies . pearson of kippenross . notes for div a -e wallace of ellerslie . stewart earl of murray . spence of aberdeen . of old . gray , lord gray . mure of caldwell . andrada in spain . randeil . campbell of aberuchill . nairn of strathuird one of the lords of session . nairn granchyld to the old nairns of sandford . nairn now of sandford . rutherford . his royal majesties coat as king of scotland kennedy earl of castils . fleeming earl of wigton . lyon , earl of kinghorn buchanan of that ilk . randolph sometime earl of murray . seaton of winton . murray marquess of athol . landell . landell of coule . notes for div a -e corsby . bannatyne of corhouse rind . guthry of that ilk . rait of hallgreen . sinclair of roslan . aiton of that ilk . sinclair of olbster . glendinning of that ilk . miller . butter of old . but now butter of gormack gives . spalding . mar. robertoun of carnock bennet . dawson . duiguid of auchinhuiff . lord chein of old . chein of straloth . bennet aliter . an●y of dolphington . fletcher of salton . milne . colvil lord colvil of ochiltry . sibbald of ranke●llor auchinlek of balmanno . maxwell . litle . colquhon . powrie of wood cocksholm betson of contle . dalrymple of st●ir , now praesident of session . carse of fordelcarse . kinnaird of inshture . mcferlan of kertone napeir , lord napeir lennox of woodhead smyth of gibliston . bruce of clackmannan . bruce of balcaskie bruce of newtone kirkpatrick of closburn . johnston earl of annandale currie . gorran . richardsone of smeiton notes for div a -e beton , beton of balfour . strang , of balkcaskie . ogston , of that ilk . leith of restalrig . leith of overbarns . leith , of leith-hall . purves , purves , now of that ilk . weapont . wardlaw , of that ilk . mercer , mercer of adie . fountain , hope of craighall . mcculloch , mcculloch of myretoun . mcculloch , of piltonn . lyll . lauderdale . calender . hay , earl of errol . balliol . mcnaught of kilquharitie . straiton of lowriston . blair of balthayock . myrton of cambo . hutton . eglington . notes for div a -e ker , earl of lowthian , as an coat of augmentation . gilchryst . brownhil . innes , of ilk . innes , of blairtone . murray earle of tillibardin . murray of philipshauch . sutherland aberbuthnot , viscount of aberbuthnot . aberbuthnot , brother to the said viscount . murehead of stanhope . die. one family of the name of 〈◊〉 own . binning of baird . delaluna in england . durham of duntarvie . oliphant ▪ lord oliphant . melvil , lord melvil . edmistone of ednam . kathcairt . monypenny , of pitmillie . bailzie of lamington bailzie of jeresword pont. carnagie , earl of southesk , gives for his crest . seaton , earl of winton , as an coat of augmentation . cartwright . dalzel earl of carnwath dalzel of glenea . gladstains of that ilk. gladstains of whitelaw . edington of balbartan . moir of scotstoun . morison . morieson of bognie . nevoy of that ilk. nevoy now designed of nevoy , one of the senators of the colledge of justice . aikman . aikman of cairnie agnew of lochcow . turner . blackhal : neilson of craigeaw . neilson . naesmith . naesmith , of possow . hardy . baine . rule . heart . logan . birnie . bonyman . ogilvie . ogilvie earle of airlie . ogilvie earle of finlator . ogilvie of boyne . ogilvie of newgrange . mortimer mcdowal sometime of galloway . maitland , duke of lauderdale . chrichton , earl of dumfreis . dundas of that ilk edgar . collonel william urrie . chambers now barron of ●artas in france , descended of chambers of that ilk in scotland . scot of balweirie badzenoch . ross , earl of ross of old . gleg . hepburn of humbie . guthrie of halckerton . scrimzeor , earl of dundie preston of old . preston now of that ilk . ker earl of roxburgh . baird of auchmed den . baird of newbyth , one of the senators of the colledge of justice . gordon marquess of huntly . gordon of pitlurg . gordon of rothiemay . gordon , viscount of kenmure . hog of bogend . forbes , lord forbes . forbes lord pitsligo . forbes of tolquhon forbes of monimusk . sir arthur forbes , now viscount of grannaird in ireland . windrahime . fullerton . fullerton , of that ilk bears . balfour lord of burleigh . lethingtoun . cleland of that ilk . one of the name of forrester . clay-hills of innergowrie lamb. town of perth , aliàs , st. iohnstoun . calder of asloune . mckenzie earl of seaforth . sir geor. mckenzie of rosehauch . porteous calder of that ilk . ballenden bellenden lord ballenden mcgie . liberton of that ilk . rae . troup . torrie . robertson of strowan . robertson of newbigging turnbul . turnbul of bad-rule . v●itch of davick . schives of muretoun ramsay , earle of dalhoussie . carnegie , earle of southesk . bickerton panther of pitmedden . maxwel , earle of nidsdale . atchison of gossesurd . barrie of that ilk . dunlop of that ilk . monro of foulis . sir geor. monro , lieu. general . blackhall . lawder of halton . lawder of bass. forsyth of tailzerton . mcgil of rankillor . cairns . bounten of kilbryd . kinneir of that ilk . winton of strickmartine . cranston , lord cranston . cranston of meckrie . fythie . fin. falconer . sir john falconer cockburn of langtoun . cockburn of ormiston . ogill . paterson . crawmond of auldbar . ormiston of that ilk . fenwick of that ilk . craw. cornwal . of bonhard . corbet . norvell . kilgour . brymer of wester toun . seton viscount of kingston , as an coat of augmentation . craigdallie . meldrum . urquhart of meldrum , gives . meldrum , sometime of fyvie . meldrum of segie . loch . loch of drylaw gives . moniepennie of pitmille . fisher. garvie . the mc-donalds . foreman of that ilk . foreman aliter . the royal company of fishing . tarbet . geddes of rachin . ged of that ilk . pringle of gallowshiels . pringle of torwood lie . pringle of stitchel . maull earl of panmure . maul doctor of medicine . crab of robslaw . hamilton of hags . sprottie . wood of boningtoun . wood of balbeigno gives . wood of craigie gives . wood of largo bears . forrest . kyd of craigie . winchester . mcgregor . calderwood . spotswood . mosman . watson of sauchton . walkinshaw of that ilk . scroggie . blackstock of that ilk . dalgleish . fowlis of collington . lowis of merchiston . irwin of drum. irwin of bonshaw . ralston of that ilk . aikenhead . sydeser●e . broune of colstome . royal burgh of d●ndie . kello . primrose . primrose of caringtoun . livingstone , earle of linlithgow . wedderburn of eastpoury aiton of that ilk . cumming sometime earle of buchan . riddel . cheap of rossie . hamilton , duke of hamilton . frazer . wordie of torbrecks . bayne sheriff clerk of fyfe . mcleod of that ilk . mcleod of the lewes braig of nether-auquharsk . mcaben of knockdolian . royal burgh of aberdeen lord rae . findlay . dempster of pitlover . a family of the name of scrimgeor . scheires . hutcheson cuthbert , provost of inverness . stirling of keir . leslie , earle of rothes . leslie of balguhan . leslie of wardes . skein of that ilk . skein of fintray . toshauch eccles of kildonan . elleis ▪ eccles of southside rankine of orchardhead . robertoun of bedly . seaton of barnes . patton of kinaldie . spalding of ashinillie . wright . the earl of caithness by the title of cathness , as the third coat in his atchievement craik . earle of arran of old . mcintosh as the chief of the clanchattan . lord of lorn of old . gallie . johnston earl of annandale . kirkpatrick of closburn . marjoribanks of bowbardie . melvil , sometime of carnbie the ancient coat of randolph is now born by some families of the name of dumbar . sprewl of coldoun . grierson of lag . dun of taar●●e . lockart of lee. lockhart of bar. gibson of durie . gibson of paintland rosslord ross. vallange . ross of kilravock ross of auchlossin . shaw of sauchie . shaw of sornbeg . mcilvain of grimet . lowry of maxweltoun . turner . bell of kirkonel . bell of provesthauch . kyle . orrock . smyth of methven . grant of that ilk . grant of bellindalloch . fraser , lord lovat . lord garrioch of old . notes for div a -e stewart late duke of lennox . gordone marquess of huntly . dowglas marquess of dowglas . grahame marquess of montrose . gordone earl of sutherland . lesly earl of rothes . montgomery earl of eglintone . stclair ( or sinclar , earl of caithness . home earl of home . areskine earl of kellie . weems earle of weems . bruce earl of kincardin . jus regium, or, the just, and solid foundations of monarchy in general, and more especially of the monarchy of scotland : maintain'd against buchannan, naphthali, dolman, milton, &c. / by sir george mackenzie ... mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing m estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) jus regium, or, the just, and solid foundations of monarchy in general, and more especially of the monarchy of scotland : maintain'd against buchannan, naphthali, dolman, milton, &c. / by sir george mackenzie ... mackenzie, george, sir, - . mackenzie, george, sir, - . that the lawful successor cannot be debarr'd from succeeding to the crown. [ ], [i.e. ], [ ], , p. printed by the heir of andrew anderson ..., edinburgh : . includes, with special t.p.: that the lawful successor cannot be debarr'd from succeeding to the crown, maintain'd against dolman, buchannan, and others. dolman is the pseud. of robert parsons. addendum: p. at end. errata : t.p. verso. reproduction of original in the university of illinois (urbana-champaign campus). library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database 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where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng scotland -- constitutional law. scotland -- kings and rulers -- succession. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - jonathan blaney sampled and proofread - jonathan blaney text and markup reviewed and edited - pfs batch review (qc) and xml conversion ivs regivm : or , the just , and solid foundations of monarchy in general , and more especially of the monarchy of scotland : maintain'd against buchannan , naphthali , dolman , milton , &c. by sir george mackenzie , his majesties advocat . sam. . , . . and there went with saul a band of men , whose hearts god had touched . . but the children of belial said , how shall this man save us ? and they despis'd him , and brought him no presents , but he held his peace . edinbvrgh , printed by the heir of andrew anderson , printer to his most sacred majesty , anno dom. . the design . bvchannans book de iure regni being lately translated , and many copies dispers'd . his majesties advocat , in duty to the king , and compassion to the people , who are thus like to be poison'd , has written this answer , which was necessary , notwithstanding of the learn'd answers made by barclay and blackwood , since beside that theirs are in latin , and so not useful to the people , it is conceiv'd they understood not fully our law , nor was our law so clear then as now . many arguments have been invented since their time by dolman , milton , nephthaly , &c. and experience has open'd our eyes much since their time . blackwoods arguments are calculated for the romish church , and barclay has mistaken essential points . theirs run upon history and philology . this upon our law , the laws of nations , reason and conveniency . and i am afraid , it will be said that there are too many new thoughts in mine . errata . page . for pliny read tacitus . to the universitie of oxford . the king my master , and his royal brother , being by their natural goodness inclin'd to pardon all crimes , except flattery ; and by their modesty to think all that flattery , which can be justly said of them . i could not in prudence dedicat this book to them , since the first part of it , concerns the right of the monarchy : and the second the right of the successor . and therefore ( since to support a crown , is the next honour to the bearing it ) this dedication was due to you , who have both in the last rebellion , and this factious age , maintain'd the royal interest , so learn'dly , and generously . your late decisions against the fanaticks , have almost made my reasonings useless ; for your authority will weigh as much as any privat mans arguments . and what should have more credit amongst men , than an illustrious company of learn'd and pious divines , deciding for their duty , and conscience against their interest and vanity . men who wish for no crown save in heaven ; and desire no power save over their own lusts and passions . to the episcopal church , god hath fulfilled that promise , of making kings their nursing fathers , the true heirs and best scholars of the primitive church , happier than it , in this ▪ that they can practise its vertues , without its necessities , and need not poverty to make them humble , nor armies to make them loyal . and who in it are so happy as you , who can be submissive , without being slaves , firm , without being opiniatre . zealous , without being cruel , and pious , without being bigot . to whom i cannot wish greater blessings , than that your fame may grow as great as your loyalty ; that your vniversitie may continue prosperous , till an other grow more learn'd ; and that all honest men , may be as ready to serve you , as your sincere welwisher , and humble servant , geo. mackenzie . the just right of monarchy in general , but more especially of the kings of scotland , asserted against buchannan and others . lvcifer might in reason have contented himself with that share of knowledge , glory , and power , which was bestowed upon him , by his almighty , and bountiful soveraign . and adam should have rested satisfied , with the glory of having been made after the image of god , and with the being his lieutenant in this lower world. but there are such strong charms in ambition , and vanitie , that the one resolved to hazard all that he possessed , as being second , rather than not try if he could be the first , and the other , desiring to improve his present share , forefeited those excellencies which he enjoyed . how jealous then should frail and fallen man be , in debates with those , whom the almighty has appointed to be his vicegerents amongst them ; and to whom he has said , ye are gods. and how hard is it for us to conquer that vice , which the one could not resist , though he was all light , and the other though he was all innocence ? what nations under heaven were so happie as we , under the reign of king charles the first ? secure against all invasion from abroad , by the situation of our countrey ; and from all oppression at home , by its laws , and the gracious concessions of our excellent monarchs : but more especially in that age , by the innat vertues of that king , who was severe to none , but to himself ; and whose prerogatives , no laws could bound so much as his own goodness did . and yet wearie with the burden of our own prosperity , we lusted after new improvements of liberty and property : and after we had emptied our own veins , and purses , in fighting for these ; all we gained , was to be slaves , and beggars . and having kill'd for religion a king , who had more of it , than all who fought against him ; we split our own church into a thousand pieces , and from its murthered body , did arise those sectarians , like so many worms , and insects . but yet god almighty desiring to try us once more , and make us for ever inexcusable , did not only deliver us from that slavery that we had drawn upon our selves ; but because we were all crimes , he gave us a king who was all clemencie , and who deserves to have been elected , if he had not been born our king : and yet after that he had also condescended to all our new extravagancies , and that by his conduct , all sciences flourish , and trade is so increased , that riches are become a plague . we are now troubled with jealousies , because we can be troubled with nothing else : and murmuring against the gentlest and best of kings , we are tormented daily with apparitions , visions , plots , pamphlets and libels . but under whom can we expect to be free from arbitrary government , when we were , and are afraid of it under king charles the first , and king charles the second ? and what king , or government , can be secure from those , who conspire the death of this most merciful prince , and of this so ancient , and so well moulded government ? amongst the other wicked instruments in these rebellions , i must confess that our countrey-men buchannan ( one of the chief ornaments , and reproaches of his native countrey ) the authors of lex rex , naphtali , and ius populi vindicatum , have been ring-leaders , who have endeavoured extreamly to poison this nation by perswading the people : . that our monarchs derive their rights from them . . that therefore since they derive their right from the people , they are accountable to them for for their administration , and consequently they may be suspended or deposed by them . . that the people may reform without them , and may rise in arms against them , if the monarch hinder them to reform . . that the people or their representatives may seclude the lineal successor , and raise to the throne any of the royal family who doth best deserve the royal dignity . these being all matters of right , the plain and easie way which i resolve to take for refuting them , so as the learned and unlearned may be equally convinced , shall be first , by giving a true account of what is our present positive law. . by demonstrating that as our present positive law is inconsistent with these principles , so these our positive laws are excellently well founded upon the very nature of monarchy , and that those principles are inconsistent with all monarchy : and the third class of my arguments shall be from the principles of common reason , equity and government , abstracting both from the positiveness of our law , and the nature of our monarchy : and in the last place i shall answer the arguments of those authors . as to the first , i conceive that a treatise de iure regni apud scotos , should have clear'd to us what was the power of monarchs by law , and particularly what was the positive law of scotland as to this point ; for if these points be clear by our positive law , there is no further place for debate , since it is absolutely necessary for mankind , especially in matters of government , that they at last acquiesce in something that is fix'd and certain , and therefore it is very well observed by lawyers and states-men , that before laws be made , men ought to reason ; but after they are made , they ought to obey : which makes me admire how buchannan and the other authors that i have named , should have adventur'd upon a debate in law , not being themselves lawyers ; and should have written books upon that subject , without citing one law , civil , or municipal , pro or con : nor is their veracity more to be esteemed than their learning ; for it 's undenyable that buchannan wrot this book de iure regni , to perswade scotland to raise his patron , though a bastard to the crown : and the authors of lex rex , ius populi vindicatum , and others , were known to have written those libels from picque against the government , because they justly suffered under it . i know that to this it may be answered , that these statutes are but late , and were not extant in buchanans time , and consequently buchanan cannot be redargu'd by them . . that these statutes have been obtain'd from parliaments , by the too great influence of their monarchs , and the too great pusillanimity of parliaments , who could not resign the rights and priviledges of the people , since they have no warrand from them for that effect . to the first of which , i answer , that my task is not to form an accusation against buchanan , but against his principles , and to demonstrat , that these principles are not our law , but are inconsistent with it , and it is ridiculous to think , that any such laws should have been made , before these treasonable principles were once hatched and maintained , for errors must appear before they be condemned : and by the same argument it may be as well urged , that arius , nestorius , &c. were not hereticks ; because those acts of general councils , which condemned their heresies , were not extant , when they first defended those opinions ; and that our king had not the power of making peace and war , till the year : but , dly , for clearing this point , it is fit to know that our parliaments never give prerogatives to our kings , but only declare what have been their prerogatives , and particularly in these statutes that i shall cite , the parliament doth not confer any new right upon the king , but only acknowledge what was originally his right and prerogative from the beginning , and therefore the parliament being the only judges who could decide whether buchannans principles were solid , and what was ius regni apud scctor . these statutes having decided those points contraverted by him , there can be hereafter no place for debate , and particularly as to buchannan , his book de jure regni apud scotos , it is expresly condemn'd as slanderous , and containing several offensive matters by the act , parl. . ia. . in anno . which was the first parliament that ever sat after his book was printed . to the d , i answer , that it being controverted what is the kings power , there can be no stronger decision of that controversie in favours of the king than the acknowledgment of all parties interested , and it is strange and unsufferable to hear such as appeal to parliaments , cry out against their power , their justice , and decisions ; and why should we oppress our kings , and raise civil wars , whereby we endanger so much our selves to procure powers to parliaments , if parliaments be such ridiculous things as we cannot trust when they are empowered by us ? and if there be any force in this answer of buchannans , there can be none in any of our laws , for that strikes at the root of all our laws , and as i have produced a tract of reiterated laws for many years , so where were there ever such free unlimited parliaments in any nation as these whose laws i have cited ? dly , whatever might be said , if a positive contract betwixt the king and people were produced , clearing what were the just limits of the monarchy , and bounding it by clear articles mutually agreed upon , yet it is very absurd and extravagant to think that when the debate is , what is the king of scotlands just power and right , and from whom he derives it , that the laws and repeated acknowledgements of the whole representatives of the people assembled in the supream court of the nation , having no open force upon it , but enacted at several times , in many several parliaments , under the gentlest , peaceablest , and wisest kings that ever they had , should not be better believed than the testimonies of three or four byass'd and disoblig'd pedants , who understood neither our laws nor statutes , and who can bring no clear fundamental law ; nor produce no contract nor paction restricting the king , or bounding his government . dly , that which adds a great deal of authority to this debate , and these statutes is , that as this is clear by our positive law , so it is necessarly inferred from the nature of our monarchy , and is very advantagious for the subjects of this kingdom , which i shall clear in the second and third arguments that i shall bring against these treasonable principles , nor can they be seconded by any solid reason , as i shall make appear in answering the arguments of those authors . i know that nephthaly , the author of ius populi , and our late fanatical pamphlets alleadge that our parliaments since are null and unlawful , because many who have right to sit as members , or to elect members were secluded by the declaration or test : but my answer is , first , that these were excluded by acts of parliament , which were past in parliaments prior to their exclusion , and so they were excluded by law , and no man can be said to be illegally excluded from his seat in parliament , who is excluded by a clear statute . dly , if this were not a good answer , then the papists might pretend that they are unjustly excluded , because they will not take the oath of supremacy , and because they are papists ; and how can the fanaticks pretend to make this objection , since they by the same way excluded the kings loyal subjects in the year . and . &c. or how would these authors have rail'd at any malignant for using this argument against them , which they use now most impudently against us with far less justice , for their parliaments were unjust upon other heads , as being inconsistent with the fundamental laws of the kingdom , and so their acts of exclusion were null in themselves . dly . all the statutes made since . are necessary consequences of former laws , and so are rather renewed than new laws . ly . if this were allow'd there could be no end of controversie , for all who are excluded would still alleadge that they were unjustly excluded , and consequently there could be no submission to authority , and so no society nor peace . the last answer that our dissenters make when they are driven from all their other grounds is , that they , though the lesser , are yet the sounder part of the nation ; but this shift does not only overturn monarchy , but establishes anarchy , and though they were once settl'd in their beloved commonwealth , this would be sufficient to overturn it also , for every little number of dissenters , nay , and even the meanest dissenter himself might pretend to be this sounder part of the common-wealth ; but god almighty foreseeing that pride or ignorance would suggest to frail mankind this principle , so inconsistent with all that order and government , whereby he was to preserve the world , he did therefore in his great wisdom convince men by the light of their own reason , that in matters of common concern , which were to be determined by debate , the greater number should determine the lesser ; and such as drive beyond this principle , shall never find any certain point at which they may rest : and by the same reason , the law has pronunc'd it safer to rest in what is decided , though it be unjust , than to cast loose the authority of decisions , upon which the peace and quiet of the common-wealth does depend , who would be so humble and just , as to confess that his adversary has the juster side ? or who would obey if this were allow'd ? and what idea of government or society could a man form to himself , allowing once this principle . it is also very observable , that those who pretend to be the sounder part , and deny obedience upon that account , are still the most insolent and irregular of all the society , the greatest admirers of themselves , and the greatest enemies to peace , and so the unfitest to be judges of what is the sounder part , though they were not themselves parties : but what pretence is there for that plea in this case , where the foundations of our monarchy , have been unanimously acknowledg'd by many different parliaments , in many different ages , chosen at first from the dictats of reason , and confirm'd after we had in many rebellions , found how dangerous all those popular pretences are , and in which we agree with the statsmen , lawers and divines of all the well govern'd nations under heaven , who are born under an hereditary monarchy , as it is confess'd we are . to return then to the first of those points , i lay down as my first position , that our monarchs derive not their right from the people , but are absolute monarchs , deriving their royal authority immediatly from god almighty ; and this i shall endeavour to prove , first from our positive law. by the . act par. . ch. d. in which it is declar'd , that his majesty , his heirs and successors , have for ever , by vertue of that royol power which they hold from god almighty over this kingdom , the sole choice and appointment of officers of state , counsellors and judges . but because this act did only assert that our kings did hold their royal power from god , but did not exclude the people from being sharers in bestowing this donative , therefore by the th act of that same parliament , they acknowledge the obligation lying on them in conscience , honour and gratitude , to own and assert the royal prerogatives of the imperial crown of this kingdom , which the kings majesty holds from god almighty alone ; and therefore they acknowledge that the kings majesty only , by vertue of his royal prerogative , can make peace and war , and treaties with forraign princes . because this last statute did only assert that the king did hold his imperial crown from god alone , but did not decide from whom our kings did only derive their power ; therefore by the d· act par. d ch. d. it is declar'd that the estates of parliament considering that the kings of this realm , deriving their power from god almighty alone , they do succeed lineally thereto , &c. which statutes do in this agree with our old law ; for in the first chapter of reg. magist. vers . . these words are , that both in peace and war , our glorious king may so govern this kingdom committed to him by god almighty , in which he has no superiour but god almighty alone , which books are acknowledg'd to be our law , and are called the kings laws by the th act par. d iam. . and the . act par. . iam. . these our laws both ancient and modern , can neither be thought to be extorted by force , nor enacted by flattery , since in this we follow the scripture , the primitive church and their councils , the civil law and its commentators , and the wisest heathens , both philosophers and poets . as to the scripture , god tells us , that by him kings reign , and that he hath anointed them kings , and that the king is the minister of god. david tells us , that god will give strength to his king , and deliverance to his king , and to his anointed . daniel sayes to nebuchadnezar , the god of heaven hath given thee a kingdom . and to cyrus , god gave to nebuchadnezar thy father a kingdom , and for the majesty that he gave him , all nations trembled . as to the fathers , augustin de civit. dei , l. . c. . let us not attribute unto any other , the power of giving kingdoms and empyrs , but to the true god. basil in psal. . the lord setteth up kings and removeth them . tertul : apol : contra gentes , let kings know , that from god only they have their empyre , and in whose power only they are . and ireneus having prov'd this point fully , ends thus , l. . c. . by whose command they are born men , by his likewise they are ordain'd kings . this is also acknowledg'd by the councils of toledo . c. of paris . c. . vid council aquis gran . . c. . amongst our late divines , marca the famous arch-bishop of paris , concord : sacerd : & imperij , l. . c. . n : . asserts , that the royal power is not only bestowed by god , but that it is immediatly bestow'd by god upon kings : and refutes bellarm. ●de laico c. . maintaining , that the iesuits doctrine in this , lessens authority , and raises factions , and contradicts both the design and word of god. duvalius de suprem . potest . rom. pontif. p. . q. . asserts that kings derive their rights by the laws of god and nature , non ab ipsa republica & hominibus ; and in all this the fanaticks and republicans agree with the jesuits against monarchy . in the civil law this is expresly asserted , cod. de vet . cod. enucleand . deo auctore nostrum gubernante imperium quod nobis a coelesti majestate traditum est , nov. . in init . nov. . in proem . in nov. . , . iustinian acknowledges his obligation to care for his people , because he received the charge of them from god ; and certainly subjects are happier , if their kings acknowledge this , as a duty to god , than if they only think it a charge confer'd on them by their people , and that they are therefore answerable to them . that the doctors and commentators are of this opinion , is too clear to need citations , vid. arnis . cap. de essentia majest : granswinkel . de jur . maj. cap. . & . as to the heathens , hesiod . in theog . verse . sayes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 kings are from god. homer sayes their honour is from god 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 — iliad . . verse . themistcus asserts , that the regal power came from god , orat. . with whom agrees dion . chrisostom orat. . diotog . apud stob. serm . &c. plat. in polit . &c. but above all , aristotle in polit . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . and plutarch . ages & cleom. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . if to these statutes and citations it be answered , that god almighty may indeed be the principal and chief author of monarchy , and that monarchs may derive their power from him , as from the supream beeing , that directs all more immediat causes , and yet the people may be the immediat electors of monarchs , and so kings may derive immediatly from them their power ; and thus these statutes are not inconsistent with the principle laid down by buchanan and others , whereby they assert , that kings in general , and particularly the kings of scotland , derive their power immediatly from the people . to this my answers are , that first , if we consider the proprietie of the words , there can be nothing more inconsistent , than that kings should derive their power from god almightie alone , and yet that they should derive it from the people , for the word alone , is of all other words the most exclusive . dly , the design of the parliament in that acknowledgement was to condemn , after a long rebellion , the unhappie principles which had kindled it ; and amongst which , one of the chief was , that our kings derived their power from the people , and therefore they might qualifie , or resume what they at first gave , or might oppose all streaches in the power they had given , and might even punish , or depose the king when he transgressed , none of which principles could have been sufficiently condemned , by acknowledging that , though god was the chief author , yet the people were the immediat electors . dly , there needed no act of parliament be made for acknowledging god to be the chief author , and first fountain of every power , for that was never contraverted amongst christians . thly , that foolish glosse cannot at all consist with the inferences deduced from that principle in the former statutes : for in the . act , par. . char. . it is inferr'd from his majesties holding his royal power from god alone , that therefore he hath the sole choice of his own officers of state , privy counsellers , and judges ; and in the . act , it is inferr'd from the same principle , that because he derives his power from god alone , that therefore it is treason to rise in arms without his consent , upon any pretext whatsoever : and in the . act , par. . char. . it is concluded , that because our kings derive their power from god almighty alone , therefore it is treason in the people to interrupt , or divert their succession , upon any difference in religion , or other pretext whatsoever ; whereas all this had been false , and inept reasoning , if the design of the parliament had not been to acknowledge that our kings derived not their power from the people , for though they derived their power from god , as the supream beeing only , and not as the immediat bestower , and if the people were the immediat bestowers of that power , then the people might still have pretended , that they who gave the power , might have risen in their own defence , when they saw the same abused , and might have diverted the succession , when it descended upon a person who was an enemy to their interest : but how false this glosse is , will appear more fully from the following arguments , and it is absolutely inconsistent with st. augustins opinion , formerly cited , wherein he forbids to attribute the giving of kingdoms to any other but to god. my second argument for proving that kings derive their power from god alone , and not from the people , shall be from the principles of reason . for first , the almighties design being to manifest his glory , in creating a world , so vast and regular as this is , and his goodnesse in governing it , and that men might live peaceably in it , having both reason and time to serve him , it was consequential that he should have reserved to himself the immediat dependence of the supream power , to preclude the extravagant and restlesse multitude , from those frequent revolutions which they would make , and desolations which they would occasion , if they thought that the supream power depended on them , and that they were not bound to obey them for conscience sake ; so that those expressions in scripture were very useful in this to curb our insolencies , and to fix our restlesnesse ; and it seems that kings are in scripture , said to be gods , to the end it might be clear that they were not made by men· dly , god almighty being king of kings , it was just , that as inferiour magistrats derived their power from the king , so kings should derive their power from god , who is their king ; and this seems to be clear from that analogy , which runs in a dependence , and chain through the whole creation . dly , as this is most suitable to the principles of reason , so it is most consonant the analogy of law , by which it is declar'd , that no man is master of his own life , or limbs , nemo est dominus membrorum suorum ; and therefore , as no man can lawfully take away his own life , so neither can he transfer the power of disposing upon it to any other man , and consequently this power is not derived to kings and princes by privat men , but is bestowed upon them by god almighty , who is the sole arbiter of life and death , and who can only take it away , because he gave it : and if it be objected , that this last branch of the argument , seems either to prove nothing , or else to prove that there can be no elective monarchies . to this it is answered , that even in elective monarchies , the nomination proceeds only from the people , but the royal power from god , as we see in inferiour magistracies , such as burrows royal , &c. the people elect , and so the nomination is from them , but the power of governing proceeds from the king , and not from the electors , and therefore as the people who elected the magistrats in these towns , cannot depose them by their own authority , so neither can the people depose their king , but the punishment of him belongs to god almighty . i confesse , that if the people choose a king with expresse condition , that they may punish him as the lacedemonian kings were punishable by those magistrats , call'd the ephori , the kings are in that case accountable to the people , but then they are not monarchs , having supream power as our kings have , and who are therefore declar'd to hold their power immediatly from god , and not to be at all punishable by the people . the th argument that i shall use , for proving that our kings derive not their power from the people , shall be from the natural origin of monarchie , and of ours in particular , which i conceive to be that right of paternal power which is stated in them ; for understanding whereof , it is fit to know , that god at first created only one man , that so his children might be subject to him , as all children yet are to their parents : and therefore the jesuitical and fanatical principles , that every man is born free , and at liberty to choose what form of government he pleaseth , was ever , and is most false , for every man is born a subject to his own parents , who , if they were not likewise subject to a superiour power , might judge and punish them capitally , lead them out to war , and do all other things that a king could do , as we see the patriarches did in their own families . and as long as it is known who is the root of the family , or who represents it , there is no place for election , and people elect only when the memory of this is lost , and such as overcome the heads of families in batle , succeed to them in their paternal right . if it be answered , that the father may by nature pretend to a power over his children , or it may be an elder brother over his cadets , yet there is no tye in nature subjecting collaterals , as uncles , and their descendents to those descended from the eldest familie . to this i reply , that . this power over all the family was justly given by nature , to shun divisions , for else every little family should have erected it self in a distinct government , and the weakest had still been a prey . . we see that abraham did lead out to war , and in every thing act as king , not only over his own children , but all the family , and whole nations , are call'd the children of israel , the children of edom , &c. . that must be concluded to be establish'd by natural instinct , which all men in all ages and places allow and follow ; but so it is , that all nations in all places , and times have ever allow'd the eldest son of the eldest family to govern all descended from the stock , without new elections ; and the author of the late famous moral essayes have admir'd this as one of the wisest maxims that we have from natural instinct ; for if the wisest , or strongest were to be choos'd , there had still been many rivals and so much faction and discord , but it is still certain who is the eldest son , and this precludes all debate , and prevents all dissention : for applying this to our case , it is fit to know , that if we believe not our historians , then none else can prove that the people of scotland did at first elect a king , that being contrarie to the acknowledgements of our own statutes ; and all buchannans arguments , for restricting kings , being founded upon the authority of our historians , who , ( as he sayes , ) assert that k. fergus was first elected king by the people , if he be not able to prove that our kings owe their crowns to the election of the people , without any inherent or previous right , all his arguments evanish to nothing , but on the other hand , if we consider exactly our historians , we will find that our kings reign over us by this paternal power ; and though i am not very fond of fabulous antiquities , yet if tradition , or histories can be believ'd in any thing , they should at least be believ'd against buchannan , and those who make use of them , to restrict the power of our kings , and by our histories it is clear , that gathelus having led some forces into egypt , he after several victories , setl'd in portugal , call'd from him portus gatheli , from which an collonie of that race transported it self into ireland , and another into scotland ; nor should this be accounted a fable , since cornelius tacitus , in the life of agricola , makes the scots to be of spanish , and the picts to be of german extraction . the scottish collonies finding themselves opprest by the brittains , and picts , they sent over into ireland to ferquhard , and he sent them a considerable supplie , under the command of fergus his son , who having secur'd them against their enemies , all the heads of the tribes acknowledged him for their king , and swore that they should never admit of any other form of government then monarchie ; and that they should never obey any except him and his posterity , which if they brake , they wish'd that all the plagues and miseries that had formerly fallen on their predecessors , might again fall upon their posterity , as the punishment of that perjury . all which religious vows and promises , seal'd by those dreadful oaths voluntarly given , were graven on marble tables , and consign'd for preservation into the custody of their priests : and these are boetius own words , fol. . from which i observe , . that as our laws assert , that our kings derive their power from god , and not from the people , so we ought not to believe the contrary upon the faith of our historians , except they were very clear , and unanimous in contradicting our laws , whereas it appears to me , that our laws agree with our historie , for gathelus was not at all elected by the people , but was himself the son of a king , and did conquer by his own subjects , and servants , and all those who are descended from his collonies , were by law oblidg'd to obey the eldest son , and representative of that royal family . and ferquhard is acknowledg'd to have been his only successor , nor did ever any of the scottish tribes pretend to the supremacie , and our histories bear , that none of our tribes would yield to another ; and the fatal marble chair that came from spain , remaining with these who went to ireland , does evince that the birth-right remain'd with them ; and therefore when fergus the son of ferquhard came over , he brought over with him the marble chair , which was the mark of empire . and boetius immediatly upon his arrival calls him king , and fordon the most ancient of our historians , lib. . cap. . calls him , fergusius filius ferardi aut ferquhardi ex antiquarum regium prosapia genitus , qui ambitione regnandi stimulatus magnam sibi iuvenum copiam assimulavit & albionem continuo progressus est & ibidem super eos regem primum se constituit , that is to say , he made himself the first king ▪ therefore k. iames. basil. doron , pag. . asserts , that k. fergus made himself king and lord as well of the whole lands , as of the whole inhabitants . . we read nothing at all of the consent of the people , but of the heads of the tribes , who had no commission from the people , each of them having by his birth-right a power to command his own tribe , and consequently , the royal power was not derived to fergus from the people , but had it's original from this birth-right that was both in them , and fergus , and he succeded in the right of those chiefs to command their respective families ; and boetius brings in king fergus , lib. . num . . speaking of himself , as a pious parent , as one who owes to them what a parent owes to his children : sunt pij parentes in liberos propensi , & debemus vobis quod proli genitores . and the consent given by the chief of the clanns , and the people did not give , but declare the former right , as our consent now does in acts concerning the prerogative , and as the vote of the inquest does in the service of heirs ; and thus at the coronation of our kings , it is still said by our historians , that such a man was declared king , communi suffragio & acclamatione . . this consent being only given in the armie cannot be said to have been universally by the people , nor do we read that the people did commissionat the armie , or that the armie consulted the people ; and in general it cannot be instanc'd , that the people did in any nation universally consent to election , nor is it possible all the people can meet . and in pole , which is the only elective monarchie we know , the free-holders only consent , and yet every privat man and woman have as great interest , according to these pretended laws of nature , as they have : & potior est conditio negantis . nor do we find that the commons , and mean people have any interest in the elections , of our magistrats , or parliament men ; so that popular freedom by birth , and the interest of the people , in popular elections are but meer cheats invented to engage the rabble , in an aversion to the establish'd government , when factious and insolent spirits , who cannot submit themselves to government , design to cheat the multitude by fair pretences , and to bribe them by flatterie . if it be pretended , that it is not certain , whether king fergus was eldest so● to ferquhard , nor is it probable , that if he had been such , he would have preferr'd an uncertain conquest in scotland , to his secure succession in ireland . to this it is answered , that all our histories bear , that king ferquhard sent his son fergus , and when a son is spoken of indefinitly , in such cases , he is actually understood to be the eldest . . he brought with him the marble chair , the mark of empire , which would not have been allow'd to a cadet . . it is said , that having settled the affairs of scotland , he returned into ireland to settle the differences there about the choosing of a new king , which does import that he should have been king , , if he had not prefer'd scotland to ireland , and the reason of this preference was , because ireland was then divided amongst many kings , and his predecessors had but a very small share of it at that time , and scotland being a part of a greater isle , he probably found in this greater isle , a higher flight for his hopes , and more latitude for his ambition . but albeit the kings of scotland had been originally and at first elected by the people , yet it does not at all follow necessarly as buchannan , dolman , and our other republicans pretend , that therefore they may reject them at their pleasure , or which is all one , when they imagine that the kings elected by them serve not the ends for which they were designed , and that for these reasons . . it cannot be deny'd , but that the people may consent to an election of a monarch without limitatons ; for from the principles of nature , we may learn , that whatever is in ones power may be by them transfer'd upon another ; and therefore , if the people be indew'd with a power of governing themselves , they may certainly transfer this power upon another ; and we see that all christians , and even our republicans allow , that men may sell themselves to be slaves , a custome not only mention'd but approv'd by god himself , so far does consent reach beyond what is necessary for maintaining this point . . if this could not be , then there could be no such thing as absolute monarchies , which is against the receiv'd opinion of all nations , and against the doctrine of all authors , who , though they debate that this , or that monarchie , in a particular countrey is not absolute , yet it was never contraverted by any man alive , but that the people might consent , and in many places have consented to absolute monarchies ; and by the famous lex regia , amongst the romans , populus ei & in eum omne imperium suum , & potestatem transtulit , instit . de jur . nat . gent. & civ . § . mention'd likewise by that famous lawyer vlpian , l. . ff . de constitut . princ. . we see this consequence to be very false in many other cases , and therefore it cannot be necessary here , for we find that a man chooses a wife , yet it is not in his power to put her away ; cardinals choose the pope , and chapters the bishop , and yet they cannot depose them ; the common council choose magistrats , and yet they cannot lay them aside . . this reasoning is condemn'd as most fallacious , by most learn'd , and dis-interested lawyers , and therefore it cannot be infallible , as is pretended : vide arnisaeum cap. . num . . haenon . dis . pol. . num . . panorm . ad cap. . de cler. non residend . zasius ad l. non ambigitur num . ff . de legibus , nor have any lawyers differ'd from this common opinion of mankind , except some very few , who have differ'd from a principle of pique , rather than of judgement . the next thing that i am to prove in this my first proposition , is , that our king is an absolute monarch , and has the supream power within this his kingdome , and this i shall endeavour to prove , first , from our positive law , . by several reasons deduc'd from our fundamental laws and customs . . from the very nature of monarchy it self , and the opinion of lawyers who write upon that subject , and who define absolute monarchie to be a power that is not limited or restricted by coactive law , arnisaeus , de essentia majest . cap. . num . . by the . act parl. . ia. . the parliament does acknowledge , that it cannot be deny'd , but his majesty is a free prince , of a soveraign power , having as great liberties , and prerogatives , by the laws of this realm , and priziledge of his crown , and diadem , as any other king , prince , or potentat whatseever . and by the . act parl. . ia. . the parliament consenting to his majesties restoring of bishops , declare and acknowledge the absolutenesse of our monarchy , in these words . the remeed whereof properly belongs to his majesty , whom the whole estates , of their bound n duty , with most hearty and faithful affection , humbly and truly acknowledge to be a soveraign monarch , absolute prince , iudge and governour , over all persons , estates and causes , both spiritual and temporal , within his said realm . and by the first act of that same parliament . the estates and whole body of this present parliament , acknowledge all with one voluntar , humble , faithful , united heart , mind , and consent his majesties soveraign authority , princely power , royal prerogative , and priviledge of his crown , over all persons , estates , and causes whatsoever , within his said kingdom . and because no acts were ever made , giving prerogatives , nor even declaring prerogatives to have been due , until some special controversie did require the same , so that possession , and not positive law , was the true measure of the prerogative ; therefore the parliament doth in that same act approve , and perpetually confirm all the royal prerogatives , as absolutely , amply , and freely in all respects , and considerations , as ever his majesty , or any of his royal predecessors possessed , used , and exercised the same ; and they promise that his majesties imperial power , which god has so enlarg'd , shall never be in any sort impar'd , prejudg'd , or diminished , but rather reverenc'd , and augmented as far as possibly they can . in the preface to our books of law , call'd regiam majestatem , it is acknowledg'd that the king has no superiour , except the creator of heaven and earth , who governs all . forreign lawyers also , such as lansius de lege regiae , num . . and others do number the king of scotland amongst the absolute monarchs . my second argument for proving our king to be an absolute monarch , shall be from my former position , wherein i hope i have prov'd sufficiently , that our kings derive not their right from the people ; for if the king derive not his power from the people , the monarchy can never be limited by them , and consequently it must be an absolute monarchy ; for there could be nothing more unjust , more unnatural , and more insolent , then that the people should pretend a right to limit and restrict that power which they never gave ; and the only reason why buchannan , and his complices , do assert our monarchy to be a qualified and limited monarchy , being that the people , when they first elected our kings , did qualifie and restrict their government . this position being false as appears by the absolute oath , and original constitution above set down , which is lessened , or qualified by no condition whatsoever , therefore the conclusion drawn from it must be false likewise . the third argument shall be deduced from the nature of monarchy , and in order thereto , i lay down as an uncontroverted principle , that every thing must be constructed to be perfect in its own nature , and no mixture is presum'd to be in any thing ; but he who alledges , that the thing controverted is added against nature , must prove the same ; and therefore since monarchy is that government whereby a king is supream , the monarch must be presum'd , neither to be oblig'd to govern by the advice of the nobility , ( for that were to confound monarchy with aristocracie ) nor by the advice of the people ( for that were to confound it with democracie ; ) and consequently if buchannan , and others design to prove , that our kings are obliged to govern , by the advice either of the nobility , or people , or are subject to be chastised by them , they must prove , that our kings , at their first creation , were elected upon these conditions , the very essence and beeing of monarchy , consisting in its having a supream , and absolute power . arnisaeus c. . vasquez l. . contrav . c. . budaeus in l. princeps . zas . ibid. ff . de legibus , pone enim , says arnisaeus , populum in regem habere aequalem potestatem neutrum pro summo venditari posse . when we hear of a monarch , the first notion we have is , that he is subject to none ; for to be a subject and a monarch , are inconsistent ; but if we hear that his nobility , or people , or both may depose , or punish him , we necessarly conclude by the light of nature , that they , and not he , are the supream governours . thus we see , that in allowing our king to be an absolute monarch , we have only allow'd him to be a monarch , and to have what naturally belongs to him , and that by as necessary a consequence ; for as every man is presumed to be reasonable , because reason is the essence of man , so is a king presum'd to be absolute , except these limitations whereby the monarchy is restricted , could be prov'd by an expresse contract . thly , how is it imaginable , but that if our predecessors had elected our kings upon any such conditions , but they would have been very careful to have limited the monarchy , and this contract had with these conditions been recorded , whereas on the contrary we find , that albeit great care was taken to record the oath of allegiance made to the king , and to grave the same upon marble tables , consign'd unto the custody of their priests , as sacred oracles ; yet none of all our historians make the least mention of any limitations in these oaths , or by any other contract ; and to this day our oaths of supremacy , and allegiance , are clogged and lessened by no limitations . if it be answered , that these limitations do arise from the nature of the thing it self , there being nothing more unreasonable , and contrary to the nature of government , then that a monarch , who was design'd to be a protector to his people , should be allow'd to destroy them . to this it is answered , that monarchy by its nature is absolute , as has been prov'd , and consequently these pretended limitations are against the nature of monarchy , and so arise not ▪ ex natura rei , nor can there any thing be more extravagant , than to assert that , that which is contrare to the nature of monarchy , should arise from its nature , and it might be with greater reason pretended , that because the great design of men in marriage , is to get a helper , that therefore they may repudiat their wives , when they find them unsupportable , and that the putting them away in such cases , is consistent enough with the nature of their oath , though simple , and absolute ; this cause of divorce arising from the nature of marriage it self : this is after vowes to make inquiry , and what vow , or oath could be useful , if the giver were to be iudge how far he were ty'd , and if his conveniency were the measure of his obligation . but since i shall hereafter fully prove , that these limitations are as dangerous to the subjects , as to the prince , and that ten thousand times moe murders , and other insolencies have been committed in civil wars , upon the false pretence of liberty , than ever was committed by the worst of kings ; it must necessarily follow , that those limitations ought not to be admitted after an absolute oath , for eviting inconveniencies , which at the ballance appear to be of no weight . . it cannot be denyed , but our kings have ever had the power of peace and war , the calling and disolving of parliments , and a negative voice in them , the remitting of crimes , and nomination of judges ; and therefore it must be presumed , that since the law has not limited them in those things , it has limited them in nothing ; for by involving us in war , they may expose our fortunes , our wives and children to the greatest of dangers ; and it had been great folly to limit them in any thing , after those great prerogatives were allowed : and though our histories do bear , that peace and war were ordinarly determined by the advice , and consent of the nobility , yet that does no more infer a necessity not to do otherwayes , than the ordinary stile of all our proclamations , bearing to be with advice of our privy council , infers a necessity upon the king to do nothing without their advice ; and how could the consent of the nobility have been necessary in the former ages , since all their right flowed from the king himself , and that neither they then , nor the parliament now , had , or have a power equal with the king , much less above him , as shall be fully proved in the first conclusion , that i am to draw from this doctrine ; only to what i have said , i must here add , that it being proposed to our predecessors , at the swearing the oath of allegiance to king fergus , whether they would be govern'd by a king , who should have absolute power , or by the nobility , or by a multitude ? it was answered , that lest they should have many kings in place of one , they abhorr'd to bestow the the absolute power either upon the nobility , or upon the multitude . . i cannot but exceedingly commend our predecessors , for making this reasonable choice of an absolute monarchy , for a monarch that is subject to the impetuous caprices of the multitude when giddie , or to the incorrigible factiousness of nobility when interested , is in effect no government at all ; and though a mixt monarchy may seem a plausible thing to metaphisical spirits and school-men , yet to such as understand government , and the world , it cannot but appear impracticable ; for if the people understand that it is in their power to check their monarch , the desire of command is so bewitching a thing , that probably they will be at it upon all occasions ; and so when the king commands one thing , the nobility will command another , and it may be the people a third . and as it implyes a contradiction , that the same persons should both command and obey : so where find we those sober and mortified men , who will obey , when they may command . let us consider what dreadful extravagancies , and cruelties appear'd at rome , betwixt the tribunes of the people , and the senat , one of six kings had a son , who ravish'd a woman , and thereupon the kings were expell'd , but every year almost produced a civil war , wherein vast numbers of free romans were murther'd , and in the contest betwixt sylla and marius , . senators , . consuls , . gentlemen , and . others were murther'd , and after the whole common-wealth was exhausted in the wars betwixt cesar and pompey ; and in the immediat succeeding war betwixt augustus , anthonie , and lepidus , wherein every man lost either a brother , a father , or a son , rome return'd again to its monarchy , and was never so happy , as under augustus . the people of naples complaining lately of their taxes , put themselves under the command of reforming massaniello , by whose extravagancies they suffer'd more in one moneth , than they had done under the spainsh cruelty in an hundred years . but our late reformation in brittain seems to have been permitted by god , to let us see that mix'd governments having power to reform kings , are more insufferable than tirrany ; for by it we saw that the multitude consists of knaves and fools , and both these are the worst of governors , that the best of kings will be thought wicked , when subjects are his judges , who resolve not to obey , and that it is impossible to know what is right , when every man is judge of what is wrong . the impracticableness likewise of this popular supremacy , will yet more convincingly appear , if we consider that the people are to be judges , because of their natural freedom , for then all men should have equal right to be reformers , and these can never meet nor consult together : and if it be answered , that the people may send their representatives , my reply is , that the greatest half of the nation are neither freeholders nor burgesses ; and yet those only are call'd the representatives of the people ; and what absurd tricks and cheats are us'd in choosing even those representatives , and it may be the resolution prevails by the vote of the greatest fool or knave in the meeting ; and if any one man remove by sickness or accident , at the passing of a vote ; or if any of the multitude be bryb'd or have prejudice , though on a most unjust account , that which would have been the interest of the nation , turns to be against it , so infallible a judge is the multitude . and i have seen in popular elections , hundreds cry for a thing , and thereafter ask what was the matter . ly , if the the proceres regni , or nobility are to be the check upon our kings , and to be trusted with this coercive power of calling them to an account , as buchannan pretends ; then i desire to know who invested them with this power , for it was never pretended that it is naturally inherent in them : and if the people invested them , i desire to know by what act the people transferr'd this power upon them , for they have no law , nor original constitution for this , as our kings have for their right ; and passing over the dangers may arise from their having this power , because of the factiousness , poverty , picques , humors , or ignorance that may be incident to them , it seems to me strange , why we the people should trust such to be our checks over the king , who are his own creatures , owing their honours to him , and expecting dayly from him imployments and estates ? and if they and the people differ , who is to be judges of those controversies ? nor can the nobility and commons assembled in parliament have this coercive power , for the reasons which i shall hereafter offer ; and therefore none has it , but the king is supream in himself , and accountable to none , save god almighty alone . but more of this will be found in the sequel of this discourse , upon other occasions . ly , whatever proves monarchy to be an excellent government , does by the same reason prove absolute monarchy to be the best government ; for if monarchy be to be commended , because it prevents divisions , then a limited monarchy , which allows the people a share , is not to be commended , because it occasions them ; if monarchy be commended , because there is more expedition , secresie , and other excellent qualities to be found in it , then absolute monarchy is to be commended above a limited one ; because a limited monarch must impart his secrets to the people , and must delay the noblest designs until malitious and factious spirits be either gain'd or overcome : and the same anallogy of reason will hold in reflecting upon all other advantages of monarchy , the examination whereof i dare trust to every mans own breast . ly , it was fit for the people that their kings should be above law , because the severity of law will not comply with that useful , tho illegal justice which is requisit in special cases , for since summum jus is summa injuria , and since impossibile est sola innocentia vivere , we may well conclude , that absolute monarchy is necessary to protect the guilty innocent by remissions , to break laws justly , in a court of chancery , and to crook them uprightly in our courts by an officium nobile . for strict and rigid law is a greater tyrant , than absolute monarchy . i know that some pretend that the . act . par. ia. . declaring the king to be an absolute prince , is only to be interpreted in opposition to the popes authority , he being so far absolute , only as not to be subject to the pope , who pretended then a jurisdiction over all kings . but the answers to this are clear ; first , this statute is made to declare the kings of scotland to have right by their inherent prerogative , to their exacting customs for all merchandice , because they are absolute monarchs , which argument had been ridiculous , if this absoluteness had only been in opposition to the pope , nor is there any mention of the pope in all this statute ; and what interest hath the pope in our customs . dly , when the kings power is by our statutes rais'd above the pope , it is done by declaring him supream , and not by declaring him absolute . dly , all lawyers , and states-men divide monarchies in absolute and limited monarchies , and the word absolute , is still taken in opposition to limited , as is clear by arnisaeus , bodin , &c. and whereas it is pretended that these words in this statute , acknowledging the king to be absolute , are only exprest transiently and enunciatively , but are not decisive and statutory . it is answered , that our parliaments never give our kings prerogatives , but only acknowledge what our kings have by an inherent and independent right ; and these words in this statute , are of all others in our laws , exprest with most of energy , for they are usher'd with , it cannot be deny'd , but his majesty has as great liberties and prerogatives , as any monarch whatsoever : and this acknowledgment is made the foundation of his right to exact customs . and in true reasoning , nothing is made the proposition of an argument , but that which is most uncontrovertable . i foresee that our fanaticks and republicans , will be ready to mis-represent absolute monarchy , as tyrany : but a tyrant is he , who has no right to govern ; and so he may be oppos'd , as the common enemy of all the society . and it is ridiculous to pretend with hobs , that we are oblig'd to obey whoever is once in possession ; for that were to invite men to torment us , and to justifie crimes by success . nor can it be from this deduc'd , that since it is lawful to oppose any who are in possession , that it is therefore lawful to oppose our monarchy : because they have ( as algernon sidney pretends· ) vsurpt over us , a power inconsistent with our natural liberty . and owe their right to that prescription , which the greatest tyrants may maintain by force , and to that consent which they may procure by violence , or flattery . for to this i answer , that our monarchs have their power establisht by birth-right , by consent , by prescription , and by law ; which are all the wayes whereby any right can be legally establisht . but it is a gross mistake in buchannan , and others , to conclude a lawful king punishable as a tyrant , because he becomes vitious : for though god may punish him as such , yet his people cannot ; that were to raise the servant above the master , and to occasion a thousand disorders to redress one . and when king iames acknowledges , that a good king thinks himself made for his people , and not his people for him. that is only said with reference to the kings , duty to god , but not with relation to the peoples duty to their king. and when trajan delivering the sword to the proconsul , said pro me , si mereor , in me . grotius observes justly , that this was spoke as a philosopher , and not to subject himself to the others jurisdiction . and so buchannan did most traiterously advise the printing this on our coin. nor do's this title of absolute monarch , empower him to dispose upon our estates . for it is fit to know , that government is the kings , and property is the subjects birth-right . monarchy is a government , and so can include no more , than what is necessary for government . and though the turk or mogul , arrogat to themselves , the total property of their subjects , in this they are tyrants , and not kings . and when our statute above-mentioned , says , that our kings have as much power as they , this is only to be understood of what right they have by the nature of monarchy , rex nomen est jurisdictionis non dominij , say the lawyers : for the law having said , that all things were the emperours , l : bene a zenone . § . sed scimus c. de quadr : praescript . the emperor asked the famous lawyer bulgarus in what sense all was his , who is mightily prais'd for having answer'd , omnia rex possidet imperio singuli dominio , accurs : in praem . ff . in verb : sanctioni , for what is once ours cannot be taken away without our consent : and therefore by the . act , . par. ch. . it is declared lawful for the king to make garisons , his majesty entertaining them on his own expence . and by the act . par. . ch : . it is declared that the people shall not be subject to free quarter , &c. and yet right reason teacheth us , that all the land of scotland having been once the kings ( for the law saith , that the king is safitus ratione coronae , in all the lands of scotland ) his majesty is therefore presumed proprietar of all , and every thing belongs to him , if some other cannot instruct a right which is the sense of that law , nemo terram nisi authoritate regiâ possideto : and of king malcolm canmor's law , that rex distribuit totam terram scotiae hominibus suis. and it therefore clearly follows , that the king has dominium directum , a right of superiority , as all superiors have , and that the people on whom he has bestowed these lands , are oblig'd to concur in the expence with him , for the defence of it . for as if he had retain'd the property , he would have been able with the fruits and rents to have defended it . so it is not agreeable to sense or reason that they to whom he has granted it , should not be oblig'd to defend it , especially seing all the rights made by the king , are in law presum'd meer donations ; for it cannot be deny'd but that all lands were originally granted by the king , and so must have originally belong'd to himself : for no person can give what is not his own ; and our law acknowledgeth , that all lands belong to the king , except where the present heretor can instruct a right flowing from our king , and that he is the fountain of property , as well as of justice . . in law , all who are ingag'd in a society , as to any thing that is the subject of the society , should contribute to its preservation ; and therefore the king having the dominium directum , and the vassal dominium ut ile ▪ it follows , that the vassals of the kingdom should contribute towards its preservation , and the king may expect justly an equal contribution towards the defraying the necessary expence , and thence it was , that by our old law , all heretors were obliged to furnish some unum militem , unum sagittarium , or equitem : some a bow-man , some a souldier , some a horse-man : but thereafter the king having changed these holdings , because all betwixt . and . were obliged to come to the field with . days provision , which was all that was then necessary ; it follows , that now that way of making war being altered , the subjects should contribute towards the way that is necessary for defending the kingdom . . the king by his forces protects our persons , and by his navies protects our commerce , by his ambassadors manages all our publick affairs , and by his officers , and judges , administrates justice to us : and so it is just that all this should be done on our expences , and that we should defray the publick expences of the government , and so much the rather , because by a special statute with us , it is declared that the king may impose what he pleases on all that is imported , or may discharge us to export any thing without which we could not live ; and what ever he gets from us , he distributes amongst us , without applying one shilling of it to his own private use . the king , or whoever has the management of the government , have in the opinion of lawyers , dominium eminens , a paramount and transcendent right over even private estates , in case of necessity , when the common interest cannot be otherwise maintained ; and this grotius , though no violent friend of monarchy , doth assert ve . ry positively and clearly ; and it cannot be denied that a king may take any mans lands , and build a garrison upon it , paying for it ; and that in case of a siege , the king may order whole suburbs to be burnt down for the security of the town : and whence is this power , save from that paramount and supereminent right that the king has over all private estates , for the good of the whole so. ciety and kingdom ? nor can it be denyed ▪ that the king may in time of war quarter freely ; and it is in his power to declare war , when , or where he pleases : nor do the former statutes oppose this , for they exclude not necessity that has no law , and is it self that law which gave david right to eat the shew-bread , and the christian emperours right to sell the goods of the church for maintaining their armies , with consent of the primitive fathers ; and this is so necessarily inherent in all administration , that the very master of a ship has power to throw over the goods of passengers and merchants in a storm , for the preservation of the ship : and they are not enemies to the king , but to themselves , who would deny the king this power . the third class of arguments that i am to use against these principles , shall be from reason , and experience in fortification and corroboration of our positive law , and the nature of our monarchy ; for since humane reason it self is lyable to so many errors ; and since men when they differ , are so wedded to their own sentiments , that few are so wise as to see their own mistakes , or so ingenuous as to confess them , when they see them : therefore prudence and necessity has obliged men to end all debates by making laws : and it is very great vanity and insolence in any private men , to ballance their own private sense against the publick laws ; that is to say , the authoritative sentiments , and the legal sense of the nation . if we were then to establish a new monarchy , were it not prudent and reasonable , for us to consider what were the first motives which induced our predecessors to a monarchy , and boethius and lesly both tell us , that least they might be distracted by obeying too many , it was therefore fit to submit to one , if then this reason was of force at first to make us submit to a monarchy , it should still prevail with us to obey that monarchy , and not gape idlely after every new model , ne multos reges sibi viderentur creare summam rerum aut optimatibus , aut ipsi multitudini permittere aspernabantur , sayes boethius , fol : . here the advantages of being governed by aristocracie , or democracie , were expresly considered and rejected ; so that we have our predecessors choice , founded on their way of reasoning , added to the authority of our law ; and after , we their successors , had seen the mischiefs arising from the pretences of liberty and property , with all the advantages that seeming devotion could add to these . our representatives , after two thousand years experience , and after a fresh idaea of a long civil war , wherein these arguments and reasons adduced by buchannan , were fortified and seconded by thousands of debates : they did by many passionate confessions , and positive laws acknowledge , that the present constitution of our monarchy . is most excellent , act . par : . ch : d. that inevitable prejudices and miseries do accompany the invading the royal prerogative . act . that all the troubles and miseries they had suffered , had sprung from these invasions . act . that all the bondage they had groaned under , was occasioned by these distractions . act . par. sess : . ch. . so that we have here also a series of parliaments , attesting the reasonableness of the constitution of our monarchy , and his majesties prerogatives . . we must not conclude any thing unreasonable , or unfit , because there are some inconveniencies in it ; for all humane constitutions have their own defects . but i dare say , the principles of my adversaries have moe than mine ; for common-wealths are not only subject to erre , because they have their passions as well as king ; but they are subject to moe passions : for . these who govern in common-wealthes and aristocrasies , have rivals whom they fear , and against whom , upon that account , they bear revenge , which kings want . , they are not so much concerned in these , they govern as kings ; the one considering the common interest , as a tennent does lands , of which he takes his present advantage , though he should destroy it ; the other caring for it as a proprietar does for his own ground ; the one jading it , as a man does a hired horse ; the other using it as a man does his own . . the people are ordinarly governed by these who are the worst of men ; for these ordinarly can flatter and cheat most , and can best use the hypocrites vizorn : whereas the best men ordinarly are abstemious , modest , and love a private life , and were there ever such villains as governed us in the last age ? and in this too , can we deny but our pretenders to liberty and property , are the cheats of the nation ? who , to be in employment , hate such as are in it , or are such as are discontented for being put out of it , or are bankrupts , who resolve to make up their broken fortunes by it . . even good men when they are raised to govern , grow insolent , of which princes are not capable , for they are still the same . . kings and princes know they will be charged with what they do ; but the multitude knows , that the publick in general , and not any one man will be blamed : and so every private man thinks himself secure , whilst he shifts it over on another ; or else lessens it , by dividing it amongst many . . they are very subject to factions , most men scorning to obey their fellow subjects ; and when they are in factions , who knows whom to obey ; and those factions will again subdivide in new ones , and so in infinitum ; and when either prevails , they spare none , because their opposits are enemies : but kings pity even rebels , remembring that they are their own . and i dare say , that moe were murthered and ruined in one year , of the last reforming age , than suffered by the great turk , the mogul , and the king of france in twenty years . and more severity was exercised in one year by these reformers , than by all this race of our kings ; these . years . . if it be said , that kings have ill ministers , so have common-wealths and we observ'd in scotland , that after we had taken from our king the prerogative of chusing judges and counsellours , our parliament did the next year , choose the greatest block-heads , and idiots in all the nation , whom the ring-leaders advanced , to the end they might govern all themselves ; to which cheat , kings cannot be lyable , it being their interest to have able ministers ▪ and whereas kings have no interest to prefer one to another : yet in popular governments , every one endeavours to prefer his own relations . . in difficult cases , haste and expedition requires , that one should be trusted : and even the romans behoved in great dangers , to imploy a dictator , who was accountable to no man for any thing he did . . there can be no secrecy in popular governments , as in monarchy , and what many must know , all may . . enemies may alwayes get some in popular governments to side with them , and upon specious pretexts , to retard all good designs ; and when popular men are debating for shadows , the occasion slips away irrecoverably . . either common-wealths imploy no extraordinary persons , being ever jealous : or if any man become such by great actions , or long experience , he is presently ruined . and it is observable in this age , that the great zobieskie durst never undertake any great thing since he became king of pole. and if we consider the severity of venice against their nobles , and their executing men , without citing or hearing them , and that upon meer jealousies . we must confess , that there is less liberty there , than under the worst of monarchies ; nor was ever any people so miserable as rome , during their republick , having been ruined in every age with civil wars , and having had no great man , who died not miserably , after many false and popular accusations , and did not de witt find little of that justice which he magnified in republicks . but whatever may be said against the inconveniencies arising from the passions , humours , and insolencies of the populace in common-wealths , yet much more may be said against the allowing that prerogative to them under a monarchy , for that were to distract for ever the government betwixt two contradictory supream powers , and make the people miserable in not knowing whom to obey when they differ , and to make government , which should defend against a civil war , become the cause of it ; for how can it be in reason expected , but that if the people know they can controle the king , ambitious , and discontented ring-lerders , or ignorant and bigote multitudes will be alwayes endeavouring to use this their prerogative , since it seems alwayes glorious , and oft times advantagious to oppose kings , whereas on the other hand kings cannot but be alwayes jealous of , and fear popular invasions , and both these powers shall like neighbouring princes , be alwayes endeavouring to gain advantages upon one another , and in these contests shall be spent all the time and pains that should be bestowed in resisting the common enemy , which cannot but very much lessen the love which princes ought to have for their people , and the respect which people ought to have for their prince , and how can it be imagined , but that in this case the people shall alwayes groan under greater misfortunes then these which they felt betwixt the bruce and the baliol , the king and queen ? pretended factions in the minority of k. iames . and the houses of lancaster and york , because the one can never end , being inherent in the nature of the government , whereas the other are but accidental and temporary , all which cannot but appear very probable , as well as dreadful to those who consider the late rebellion , wherein the people pretending that the king had violated their liberties , they murder'd and pillag'd all such as were not of their opinion , and after they had ruin'd their prince , the people divided and fought one against another , the greater part pretending they ought to be obeyed , because of their numbers , and the lesser pretending that they were the sounder part , and had the better cause , and it is impossible in such a case to find a judge of controversies . which is another unanswerable argument against the peoples supremacy , by which all they can gain is an endless liberty of ruining one another without hope of redress . nor can parliaments remedy this , for we have seen opposite parliaments sitting at the same time forfeiting one another , whilst the astonished multitude stood at a gaze , not knowing whom to obey , and praying that god would re-establish our lawful monarchy , with which , when it was miraculously restored , they were so overjoyed as men are when they are free'd from the gallies , in which they had been treated as slaves . and whereas these republicans pretend that the king is but a phisician , this shews that they design to have no king , for any man may lawfully change his phisician , and buchannans laying so much weight on this argument makes me suspect much his honesty , for no man can have so mean an opinion of his sense . and his comparing the monarch to a tutor is very extravagant , for no man is sworn to have such a mans heirs for tutors , but though he were a tutor , no man can remove his tutor at pleasure , as they say the people may remove their king. nor is a tutor to be laid aside but by an action before a superior judge , wherein he is to be proved to have malversed , and therefore since there is no superior judge except god , and that the people are not his superiors , it clearly follows that the people cannot lay aside their king. a tutor has not an inherent right of property as a king hath to the government of the nation , and to the imperial crown thereof , only i joyne so far with buchannan in these rhetorical expressions , that i really think the multitude is alwayes so mad that they need a king to be their physitian , and of so weak a judgement like mi. nors , that they need him for a tutor , and without his assistance and protection every hypocritical bigot , and ambitious usurper would cheat them at his pleasure , and make them not only a prey , but a tool in their own slavery . nor is there any force in that argument , the king was made for the people , and not the people for the king ; and therefore the people are nobler than the king , and ought to be preferred to him. for to this it is answered , that . the question here is not , who is more preferable , but who is the superiour ? and though one good christian be preferable to a thousand , who are not so , yet their interest in the common-wealth is not preferable ; the wiser part is still preferable to the greater part : and yet the greater will over-rule the wiser . a shepherd is ordained for the flock ; and yet it cannot be concluded , that a flock of brutes is to be preferred to any reasonable creature . . the kings interest and the peoples are inseparable in the construction of law , which presumes , that what the king does , he does for the people , and there is none above the king , that can judge him , if he does otherwise . . whether the kings power be derived from god , or from the people ? yet if it be derived from god , it is preferable , because of gods ordinance : or if from the people , it is preferable , because they , by electing him king , have consented that it should be so , and they having trusted him with the publick interest , the publick interest is still preferable . i know that buchannan and others , value themselves much upon the instance of the bruce and baliol , in which the people did declare , that they preferred the bruce , because the baliol had enslaved the kingdom to the english . and it is generally urged , that all lawyers are clear , that if a king alienat his kingdom , his people may disclaim him. but my answers are , that if a king will alienat his kingdom , the subjects are free in that case , not by their power to reassume their first liberty ; but because the king will not continue king , and they are free by his deed , but not by their own right . . even in that case , lawyers do irritat and annul the deed ; but dissolve not the contraveeners right . and as to that particular instance , it is well known that king robert the first , or the bruce , as we call him , was desirous that the parliament should threaten to choose another , if he submitted his interest to the popes decision , who pretended then to be the supream judge , over all kings . and iohn major , as many other popish writers were still enemies to the supremacy of kings upon that account . but though the bruce , to please the people , should have shunned to quarrel what they did in such a juncture ; yet that could not wrong the monarchy , nor his successors , as shall be proved . having thus cleared , that the kings power is not derived from the people , even though they had elected him , and that he is an absolute king , both by our laws , and the nature of our monarchy ; and that all this is most consistent with right reason . i come now to draw some conclusions from these principles . the first conclusion shall be , that our parliaments are not co-ordinat with our kings , in the legislative power ; but that the legislative and architectonick power of making laws ( as lawyers term it ) does solly reside in the king , the estates of parliament only consenting , which will furder appear by these reasons , . it cannot be denyed but we had kings long ere we had parliaments ( we never having had any parliaments till king kenneth the ds . time , according to the computation of the severest re-publicans themselves ; for till then we read only of the proceres regni , or the nobility , or chiefs of clanes , and heads of families , who assembled upon all occasions , to give the king advice ) and therefore our parliaments cannot pretend that they were designed as a co-ordinate power with the king , whilst he did what was right ; much less to be his judge , when he did what was wrong . . that our kings made laws of old without any consent , and that these were acquiesced in by the people , is clear , not only from our histories , which do tell us , that such kings made such laws , without speaking any thing of either nobility , people or parliament , but even from our old books of statutes , wherein there is no mention made of the consent , of either the nobility or parliament : the laws at that time beginning simply , the kings statutes , as in all the statutes of king william , king alexander d. and in the statutes of king malcolm canmore : king david the first , and king david the d. where there is not so much as mention made of the nobility , or the parliament , in the very beginning of the statutes , and that at other times the nobility were only called , and that only the nobility did sit , is very clear from the inscriptions of these parliaments , such as in the parl. k. alexander d. which bears , to have been made with the common consent of the nobility , cum communi consensu comitum suorum , without speaking of any other state. nor do i find a word of burgesses , till the parliament of k. robert the d. in . and even according to this late constitution , it is undenyable that the parliament have not even an equal power with the king , much less a power above him . . how can that judicature have a co-ordinat power with the king , when no man can sit in it but by a priviledge from the king : but so it is , that all that are members of parliament , sit there by a special priviledge from the king , and there is nothing considered to capacitate them to sit , but the force and energie of that priviledge , without respect , either to what land they possess , or what number of people they represent . and thus the nobility and bishops , sit there , by vertue of the kings creation ; and the king may creat a hundreth noblemen that morning that the parliament is to sit , though none of all the hundreth , have not one foot of land in scotland ; and though the barons must have some land , else they cannot represent any shire ; yet though a gentleman had . pounds sterling a year , he could not sit there , except he be the kings immediate vassal , and holds his lands of his majesty in capite : so that he sits not by vertue of his land , but as capacitated by the king. and though these who represent the burrows royal are commissionated by the people of their burghs ; yet the people who sent them , are not considered in that commission , but the power only which the king gives them to send : for though a town had a hundreth thousand inhabitants , and another only twenty inhabitants : yet these could not be re-presented in parliament , except the king had erected their town in a burgh royal , from which i evince two things , . that the parliament is the kings council , in which he may call any he pleases , and not as the peoples representatives only , since there are great multitudes in the nation , represented by none there : for tho they represent their constituents in parliament , yet the power of sending representatives , is derived from the king originally , and flowes not from any proper right inherent in those whose representatives they are . . that judicature cannot have a co-ordinat power with the king , which he needs not call except he pleases , and which he can dissolve when he pleases : and in which , when they are met , he has a negative voice , which can stop all their proposals , and designs ; for , if they were co-ordinat with the king , then par in parem non habet imperium , and it is against common sense to think that these two can be equal , when the power of the one flows from the other ; by which is likewise clear that the great principle laid down by buchannan , viz. that the king is singulis major , universis minor , greater than any one , but less than the collective body of the parliament taken together , is absolutely false ; because he has a negative voice over that collective body , and as they cannot meet without him , so he can dissolve them when he pleases , and i confesse it seems to me unintelligible how they can be greater than the king , by vertue of a power which they derive from the king. . the parliament is called by the kings council , as is clear from the inscriptions of all our old parliaments . thus the statutes of alexander the . begin , alexander by the grace of god king of scots did by the common council of his earls decree , &c. the statutes of k. robert bear to be by the common council of his prelats , &c. the first statute of king robert . bears that none who is elected to be of the kings council shall bring another to it who is not elected . the , and . parliaments of k. ia. . and the , , , and . of k. ia. . bear for inscriptions , the parliament or general council of such kings . and the . act of that . parliament k. ia. . bears quo die dominus rex deliberatione & consensu totius concilij , &c. and it is against sense to think that any mans counsel can have authority over him , for as we say counsel is no command . . the parliament was but the kings baron court , as is very clear to any man who will read the old registers of parliament , in which he will see that the parliament was fenc'd , and the suits were called , and absents unlawed as in other baron courts , whereof many publick records are extant , and i shall only set down that of the . parliament ia. . the words of which inscription are , in parliamento octavo , vel concilio generali illustrissimi principis , iacobi dei gratia regis scotiaetento apud perth & inchoato tificato & approbato , tanquam sufficienter & debite praemunito , per tres regni status , duodecimo die mensis julij anno domini millesimo , quadringentesimo vicesimo , octavo , cum continuatione dierum & temporum , summoni●is & vocatis debito modo & more solito , episcopis , abbatibus , prioribus , comitibus , baronibus & omnibus libere tenentibus , qui tenent in capite , de dicto domino nostro rege & de quolibet burgo regni , certis burgensibus , comparentibus omnibus illis , qui debuerunt , voluerunt & potuerunt interesse , quibusdam vero absentibus , quorum quidam fuerunt legitime excusati , aliis per contumaciam se absentantibus , quorum nomina patent in rotulis sectarum , quorum quilibet adjudicatus fuit in amerciamento decem librarum ob ejus contumaciam . and that the king was judge what barons should come to the parliament , is most clear by the . act par. . ia. . whereby it is declared , no free-holder under the sum of . pounds , shall come except he be specially called by the king , either by his officer , or by writ , and tho afterwards the king allowed two barons of every shire to be sent to represent all the barons for saving expences , yet even after that concession it is declared by the . act par. . ia. . that no free-holder be compelled to come , but gif our soveraign lord writ specially for them . it being thus clear that the parliament is the kings baron court , it seems a wonder to me how it could have entered into the heart of any sober man to think that any mans baron court , but much lesse the kings baron court , should have power and jurisdiction over him , and that it should be lawful to them , as buchannan and these other authors assert , to punish him or lay him aside , all which assertions are equally impious and illegal . . when the king resolves to lessen any way his own power , this is not done by the authority of the three estates , as certainly it would be , if they had the power to lessen his authority , but the king does the same from his own proper motive , as when the king binds up his own hands from granting remissions in cases of fore-thought fellony , ia. . par. . act . and when an act was to be made , discharging the lords of the session to admit of privat writings from the king to stop the procedure of justice , this is not enacted by the three estates but only by the king , and is founded upon the kings own promise , act . par. . ia. . and in all acts of parliament the king only statutes as legislator , and the parliament only advise and consent , which shews that they are not co-ordinat with the king , as is asserted by buchannan and others , much lesse above him . and the acts of parliament in the late rebellion having run thus , our soveraign lord , and the three estates contrare to the tenor of all the laws that ever were made in scotland . the parliament returning to their duty , ordained that style to be altered , and to bear as formerly , our soveraign lord , with advice and consent , &c. but lastly , what advantage can the people have by placing their security in the parliament , since they are so lyable to passions , errors , and extravagancies , as well as kings are , and have , if buchannan be believed , betrayed the interest of the kingdom , since k. kenneth the seconds time , now above . years ; and they are ordinarily led by some pragmatical ring-leaders , who have not that interest to preserve the kingdom that kings have : and since the king may make so many noble-men and burghs royal at pleasure , by whose votes he may still prevail . what security can we have by giving them a power above the king , or how can they have it ? from all which it may clearly appear that we have had kings long ere we had parliaments , and that the parliaments derive their power from the king ; and that at first our king only called the heads of families , and his own officers , as his council , with whom he consulted , without any necessity to call any others than he pleased , there being no law , article , nor capitulation obliging him from the beginning thereto : and our kings were so far from having parliaments associated with them in their empire , that there is no mention at all of them , or of any condition relating to them in the first institution of our kings above-related ; nor were there any parliaments in beeing at that time . but after the feudal law came to be in vigor , then our kings looking upon the whole kingdom as their own in property ; king malcolme canmore did distribute all the land of scotland amongst his subjects , as his liedge-men , which is clear by the first chapter of his laws ; and according to the feudal law , all the vassals of our kings compeared in their head-court , and therein consulted what was fit for the kingdom ; but thereafter the way of making war , requiring money and property belonging to the subject , as government did to the king , it was necessary to have their consent for raising money : and from this did arise the inserting the advice and consent of the three estates in our acts of parliament . from this also it is very clear that their opinion is very unsolid and ill founded , who think that kings can do nothing without a special act of parliament , even in matters of government . as for instance , that , he cannot restrain the licence of the press , or require his subjects to take a bond for securing the peace ; for these and the like being things which relate immediatly to government , the king has as much right to regulate these , as we have to regulate and dispose upon our property , government being the king's property . . though the monarchy had been derived from the people , yet how soon our kings got the monarchy , they got every thing that was necessary for the explication and administration of it , which as it is common sense and reason , so it is founded upon that most wise and just maxime in law , quando aliquid conceditur , omnia concessa videntur , sine quibus concessum explicari nequit . . i desire to know where there is yet a law giving the king a negative voice , a power of erecting incorporations , or a power to grant remissions , for crimes , or protections for civil debts , and yet the people is far more concerned in these ; and the king 's having power to do these , and a thousand other things , doth rather oblige and warrand me to lay down a general rule , that the kings of scotland can do every thing that relates to government , and is necessary for the administration thereof , though there be no special law or act of parliament for it , if the same be not contrary to the law of god , nature , or nations . the second conclusion that we draw from these former principles , is , that princes cannot be punished by their own subjects , as buchannan and our republicans do assert , which is most clear by the former laws , wherein it is declared , that the king is a soveraign and absolute prince , and deriving his power from god almighty . that it is treason to endeavour to depose , or suspend the king. wherein our law is founded on the nature of monarchy ; for if he be supream , he cannot be judg'd , for no man is judg'd but by his superior , and that which is supream can have no superior : and on the principles of the law of nature and nations , because saith the law , no man can be both the person who judgeth , and the person judg'd ; and it is still the king who judgeth , since all other judges do represent him , and derive their power from him , ipse se prator cogere non potest , quia triplici officio fungi nequit suspectum dicentis , & coac●● , & cogentis l. ille a●quo ff . ad trebell . it is a principle in all law , that jurisdiction and all other mandats cease with the power that granted it , and therefore as they acknowledge that a king cannot be cited till he have forfeited his just right , so how soon he has forfeited it , all the power of the ordinary judges in the nation falls , and becomes extinct , and no other judge can judge him , because no other judge can sit by vertue of any other authority , till it be known that he has forfeited his , and that cannot be till the event of the process ; and if the people be judges , yet they cannot assume the government till the king has forfeited it : and why also should they be judges , who have neither knowledge nor moderation , who are acted by humor , and delight in insolence ? and how shall they meet ? or who shall call them ? nor can the parliament judge them , because they derive their right from the king , as shall be prov'd : and though they were equal , yet no equal can judge another , par in parem non habet imperium , nemo sibi imperare potest . no man can command himself , l. si de re sua , ff . derecept . ●rbitr . nemo sibi legem imponere potest , l. quid autem ff . de donat . inter virum & uxorem , and therefore the civil law , which is ours by adoption , does positively assert , that princeps legibus solutus est , the king is liable to no law , l. princeps , ff . de legibus : for though he be lyable to the directive force of the law , that is to say , he ought to be governed by it as his director : yet he is not lyable to the co-ercive force of the law , as all lawyers that are indifferent do assert , h●rmenopol ▪ l. . tit . . sect. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the king is not subject to the law , because offending against them , he is not punisht , vid : granswinkell . cap. . arnis . cap. . francisc. a victoria relect. . num . ziegler . de jur . majes . cap. . num . . with whom the fathers also agree , ambros. in apol. david cap. . liberi sunt reges a vin●ulis delictorum neque enim ullis ad poenam vocantur legibus , tuti imperij potestate isiodorus . sent . cap. . populi peccantes iudicem me●●u●t , reges autem solo . dei timore , metuque g●hennae coercentur : and in this sense , they take these words , psal. . — against thee , thee only have i sinned ; and i was glad to find in bishop vshers power of prin●es , amongst many other citations , that the rabbies , and particularly rabbi ieremiah own●d that no creature may judge the king , but the holy and bless●d god alone , in which also heathens agree with jews and christians , ecphantas the pithagorean makes it the priviledge of god , and then of the king , to be judg'd by none , stobeus sermon . . and dion in marco aurelio tells us , that it is certain , that free monarchs cannot be judg'd , save by god alone , and if it were otherwise , we should see them very unsecure , for the ambition and avarice of insolent subjects should never or seldom miss to form their process , and why should parties be judges ? but to demonstrate the justice kings and princes are to expect from the populace and mobile , let us remember their material justice , in the usage of our saviour , when they cryed , crucifie him , crucifie him ; their sentence against king charles the martyre , when they were at the hight of their pretensions to pietie , and publick spiritedness ; their usage of de witt , the idolizer of them , and their common-wealth : and if we want a true idea of their form of process , we will find it in their usage of the arch-bishop of st. andrews and others , no l●bel , no citation , no defenses , no sentences , no time to prepare to die : and yet all this are the dictates of pure and devout publick spiritedness . buchannans bloody arguments for this position are , that tyrants have been murthered with applause , and princes would become licentious , if they were not restrained , by the just fear of being called to an account : that the roman and venetian magistrates have been punish'd by the people , and that the ordinary judges of the place have judg'd them : and that some of our kings , as well as these of other nations , have been punish'd as tyrants . to which i answer shortly , that inconveniencies must not prevail with us to break our oathes , and overturn our laws , for nothing has so great inconveniencie in it , as this has , these being but partial , and this is a total inconveniency . and the english lawyers agree , that a mischief is better than an inconvenience , and this should have been considered , before we swore to monarchy : and if the people were electors , as they never were ; yet they should have reserv'd this power , or else they cannot now challenge it . but though our law were not clear , as it is most uncontroverted upon this point : yet right reason should perswade us to have reserv'd no such power : for as kings may erre , so may the judges who are to try them : and it is more probable their tryers will , because they may be acted by revenge , ambition , or popularity ; and there is nothing so lyable to erre as the populace . the romans and venetians might have punish'd their magistrates , because these magistrates were not vested with a supream power ; nor were they soveraigns as our monarchs are . and those judges who try'd them , deriv'd not their power from those magistrates who try'd them , as our judges do ; for the same consent , and compact by which they were made the chief , the others were made also magistrates , which cannot be said of absolute monarchs , who derive not their power from the people as these do , and the instances of kings who have been murder'd , are crimes in them , who did commit them , and so should not be rules to us . and generally the best of kings have been worst us'd . but who can escape by innocence , when king charles the martyre fell by malice : such also as cry up the murtherers of tyrants ▪ who had no just right , never meant to allow the arraignment of lawful monarchs , who , when they erre , have god only for their judge ; and if they fear not him , and eternal punishment , they will not probably fear mortal men , and their own subjects whom they can many wayes escape . . there is no creature so unreasonable , but he will use his own with discretion , though there be no law obliging him to it , nor punishment to be inflict'd , if he do otherwayes : who burns his own house , or drowns his lands , though he may do it ? for the law considers , that a king is either mad , and if so , he will respect no law , and should not be punisht , at least he will not stand in awe for fear of it , or else he is of a sound judgment , and then he needs no law ; and therefore , why should we apprehend that a king will destroy his own kingdom . . a king is also obliged by his fame , to do things worthy of his high trust , and things able to abide that conspicuous hight to which he is expos'd . . though his people ought not to rebel , yet no thinking man can be sure that they will not . and therefore even the greatest tyrants fear such accidents , though they know they are not bound by these laws , that tye subjects . and if all these fail , yet we must reverence gods dispensations , and expect a redress of these unusual emergents from his divine goodness , for whose sake we suffer them ; rather then expose all to ruine , by endeavouring a revenge , that may be so unjust , in the preparative , and dangerous in the event . the . conclusion which i shall draw from the former principles , shall be , that as it is not lawful for subjects to punish their kings , so neither is it to rise in arms against them upon what pretext soever , no not to defend their liberty nor religion . which conclusion also i shall endeavour to establish on sure foundations of positive law. reason , experience , and scripture . as to our positive law , it is clear , for by the . act par. . ia. . it is declar'd rebellion to rise in arms against the kings person : and by the . act . par. k. ia. . it is treason to rebel against the kings person or authority : by the . act par. . ia. . it is treason to rise in fear of war against the kings person or his majesty , or to lay hands upon his person violently , whatever age they be of , or to help or supply these who commit treason . by the act , par. ia. . all the subjects are discharged to convocat for holding of councils or other assemblies without his majesties expresse warrand ; and by the . act . par. k. ia. . the entering into leagues or bonds without his majesties special command is declared to be sedition . all which acts are prior to buchannans time , and consequently he was very inexcuseable in advancing this rebellious principle . and these laws having excepted no case , exclude all cases and pretexts of rising in arms against the lawful monarch ; but our unhappy countrey-men having by a long and open rebellion oppos'd the most devout , and most just of all kings upon the false pretexts of liberty , and religion , the parliament of this kingdom , from a full conviction of the villanies of these times , and to prevent such dangerous cheats for the future , they did by the . act , par. . char. . declare it to be treason for any number of his majesties subjects to rise in arms upon any pretext whatsoever , and to shew that all such glosses as were us'd by buchannan were absurd , and did not evacuat the first laws , though general , the parliament did by the . act of that . parliament declare that any explanation or glosse , that during the late troubles hath been put upon these acts , as that they are not to be extended against any leagues , councils , conventions , assemblies , or meetings , made , holden , or kep't by the subjects , for preservation of the kings majesty , the religion , laws , and liberties of the kingdom , or for the publick good either of kirk or kingdom , are false and disloyal , and contrare to the true and genuine meaning of these acts. which statute is a clear decision against buchannan , finding that the statutes that were prior to his time , and all other such general statutes made in favours of the king , did formerly strike against his principles and distinctions . as also to preclude all avenues to rebellion by teaching , defending , or encouraging others to rebel upon these pretexts , as the former act declared , that actual rising in arms was rebellion . so by the . act sess. . par. . charles . it is declared treason for any subject to maintain these positions , viz. that it is lawful for subjects upon pretence of reformation , or any other pretence whatsoever , to enter into leagues , or covenants , or to take up arms against the king , or any commissionated by him . . all the arguments formerly adduc'd against the power of the subject to punish his person , do fully prove likewise that they have no power to rise in arms against him . for either the collective body of the subjects are superior to him , and if so , they may not only rise up in arms against him , but they may punish him ; but if the king be superior to them , as has been formerly prov'd , then it cannot be lawful for subjects to rise up in arms against him , no more than it is to punish his person . nor can i see how all such as declare for a defensive war , are not to be concluded guilty of designing to murther the king , for if the king come in person to defend his own right , as certainly he will , and must ; can it be thought they will shoot at none , least they kill him ? and if they shoot , how can they secure his sacred person ? and if they kill him in the field , are they less guilty of his murther , than these russians who lately design'd it ? or doth it lessen the guilt that these design'd to kill him alone privately ? whereas our moderate men will in face of the sun , and with display'd banners against god and him , kill with him all such , as being perswaded that they are obliged before god to assist him , expose their lives for their duty . . that dangerous , though specious principle of defensive arms , is inconsistent with that order of nature which god has established , and which is absolutely necessar amongst all other humane relations ; and by the same analogy , by which we allow subjects to rise against their prince , we may much more allow children to rise against their parents , servants , against their masters , souldiers against their officers , and the rabble against their magistrates : for the king does eminently comprehend all these relations in his soveraignty , as inferiour branches of that paramount , and monarchical power . and what a glorious state should mankind be left in , if anarchy were thus established , and every man should be invested with power to be his own judge ? or dares any reasonable man assert , that this is fit to be allowed in the present condition of mankind , for since the generality of men can scarce be contained in their duty by the severest laws that can be made , what can be expected from them , when they are loosed from all law , and are encouraged to transgress against it ? if the multitude could prove that they were infallible , and that no oppression could be expected from them , some thing might be said , why we might ballance them with authority . but since both reason and dolefull experience , teach us , that generally the multitude consists of knaves and fools , who alter not to the better by conspiring together , nor become juster , for being led by such ambitious , and discontented spirits , as ordinarly lead on rebellions . it is safer to obey those of the two fallible governours , whom god hath set over us , and whom the law tyes us to obey , and to whom also we are bound by the oath of allegiance ; especially , seing thus we may probably expect , that they will be more careful of us , as being their own , than meer strangers , who use us only for their own ends. and at the worst in the king , we can have but an ill master , whereas in allowing subjects to usurp , we may fight to get our selves hundreds of tyrants , and these two fighting against one another , so that we shall not even know which of these devils to obey . the arguments that can be adduc'd to justifie this principle of defensive arms , are almost answered in the former article , viz. that there is a mutual obligation betwixt king and people , so that when he breaks the one , they are free from the other , and that all government is establisht for the advantage of the people , and thus these few arguments peculiar to this point , remain now only to be here solv'd . . that self-defence is by the law of nature allow'd to all , and even to brutes ▪ why then should men who may lose more , who deserve better , and can use self-defense more innocently be debar'd from it ? . we see in scripture , that the people deserted and oppos'd their kings for religion . . this has been allow'd with us in the instance of king iames the third , against whom his subjects rose in rebellion , for mis-governing and oppressing his people , and this opposition , was first justified by god , in the success he gave to their arms , and thereafter by a special and express act in the ensuing parliament , which stands yet unrepeal'd . to which i shortly answer , that as to the first of self-defense in brutes , we must still remember , that god having design'd government to bridle the extravagancies of restless mankind , he has appointed magistrates to be his vicegerents and representatives , and has entrusted them with his power , and so opposition to them is unlawful , because it is not lawful against him ; and because if it were allow'd , all would pretend to it , and so there should be no order , nor government . and that this may be the better observ'd , god has endowed man with principles fitted for these ends of order and society , amongst which , one is , that the publick safety of the whole is to be preferr'd to the safety of any one man , or of any number of private men , who are not to be considered as the publick , because that is the publick interest , which is the representative of the nation , and that this principle may be the better obey'd , he has commanded men to suffer injuries , rather than occasion disorders , and has promised to reward patience and submission for his sake , with eternal life , a nobler prize , than we here can contend for . this being then premis'd , it is answered , that though brutes may defend themselves , because order and the common good of societies are not there concern'd ; yet there is no reason to extend this to men , whose self-defense against authority occasions more mischief , than it can bring advantage : and if this argument hold , it would prove , that every man who is unjustly condemn'd , or at least thinks so , may kill the king , or his judge ; servants might bind their masters , and the people of any private town might pull down their judge from the bench , when they thought he opprest them . and as these must submit , because they expect reparation from a higher tribunal . so god has promised reparation to those who suffer for his sake ; and the greatness and sureness of this reward , makes this no uncomfortable doctrine , and this submission is as necessary , and rather more , for mens preservation , than resistance ; and is a kind of self-defence , since opposition to authority would bring a certain ruine , and confusion , in which moe would perish , than opposition by private self defence would preserve . upon which christian principles also , ames . a protestant and calvinist divine has resolv'd that , in bonis temporalibus tenetur quisque personam publicam si●i ipsi praeferre , bonum enim totius pluris faciendum est quam bonum alicujus partis cas : conscient : l. . cap. . thes· . and lex rex confesses , p. . that a private man should rather suffer the king to kill him , than that he should kill the king , because he is not to prefer the life of a private man , to the life of a publick man. and whereas it may be pretended , that though this opposition should not be trusted to any private man , yet parliaments and the collective body should , and may be trusted with it . but to this i have answered formerly , that all convocations without authority from the king , and all rising against him are indefinitely declared unlawful , and justly , for whoever wants authority , is but in a private capacity , none having a publick capacity , save the magistrates . and if they be allow'd to rise , because their quarrel is just , it must be as just to allow a lesser number , if they have the same justice in their pretexts , and we have frequently seen , that the same persons who magnified the multitude for their numbers , did shortly thereafter divide from them , pretending that they were the sanior pars , or juster party . . this position is against the very nature , not only of monarchy , but of all governmments ; for who will obey when they may resist ? and who can be judges whether the pretences upon which arms are taken , be lawful , or not ? and therefore since it is unlawful for subjects to take up even defensive arms , until it be found that the king against whom these defensive arms are taken up be a tyrant , and an oppressor : it clearly follows , that these subjects must first have a power to judge and find that the king has erred , which is to declare the people to be judges of their king ; and we may be soon convinced that this principle is against the nature of all government , if we consider that if it were lawful for subjects with us to rise against the king , it should be lawful for these in a common-wealth , or aristocracy , to rise against their governors , since these may erre as well as kings do ; and if this were allowed , all nations should alwayes have one rebellion rising out of the ashes of another , for only they who prevail'd should be satisfi'd , and all the rest would certainly conclude that they might more justly oppose these usurpers , one or moe , then the first did oppose their lawful prince ; and thus government which is design'd for the security of the state , should run in a circle fixt upon no certain basis , and determined by no sure measures . . this principle is dangerous for the subjects , as well as for the king and other governors ; for if kings be perswaded that subjects think this opposition lawful , then they will be still jealous of them , and will be necessitated on all occasions to secure against such oppositions , and so this doctrine tends more to make our king a tyrant , than to make us free . and if the difference betwixt king and people , should draw both to arms , where can we find a judge , to whom both parties will submit ? so that to allow this power in the people to debate , is to allow a difference that can never end ; and so what innocent man shall be able to know whom he may securely follow ? and the best issue that could be expected from these debates , would be , that the one half of the nation should ruine the other : so comfortable and just is this rebellious doctrine . . if we consult either our own experience , or history , we will find that these pretexts of liberty , and religion , have alwayes been used by those who loved neither , and that they have been ordinarily used against the best of kings , and so prove to be meer cheats upon their parts who use them , and absolute villanies , if we consider against whom they are used ; and it cannot be otherwayes , for the worst of men are alwayes readiest to take arms , and the best of kings are most inclined to suffer insolence to grow up by degrees to rebellion : and as few or none ever took up arms against their king , in whom even the dullest did not see other motives than a love to liberty and religion , so when they who did take up arms upon these pretexts , did succeed in their attempts , they became themselves greater grievances to the people , than these lawful powers against whom they pretended to protect them : and when others rose against them upon the same pretexts , they did in the severest manner declare that to be rebellion in others , which they contended to be lawful in themselves . . so dangerous is this principle , that it has been alway●s us'd as a tool to promote contrary designs , and to serve the worst of men in all the opposite sides . and thus we see that the bigot papists have by it overturn'd thrones , and disinherited and murdered kings . in which the most impious of their doctors have been admir'd and follow'd by the rigid phanaticks , who did notwithstanding teach , that all papists were to be extirpated , and unquiet spirits in the establish'd republicks of rome , venice , and florence , have by this principle endeavour'd to overturn and disquiet as much their own common-wealths , as our republicans have impiously endeavour'd to destroy just monarchy , thereby to settle an usurping common-wealth . . the only pretext that can justifie the rising up in arms , being , that it is lawful to all creatures to defend themselves ; the pretext must be dangerous , since its limits are uncertain : for how can defensive arms be distinguished from offensive arms ? or , whoever begun at the one , who did not proceed to the other ? or , what subject did ever think himself secure after he had drawn his sword against his king , without endeavouring to cut off by it that king against whom he had drawn it ? the hope of absolute power is too sweet , and the fear of punishment too great , to be bounded , and march'd by the best of men : and how can we expect this moderation from these who at first wanted patience to bear the lawful yoke of government , but because examples convince as much as reason , let us remember how when this nation was very happy in the year , . under the government of a most pious and just prince , born in our own kingdom , we rais'd an army , and with it invaded his kingdom of england , upon the pretext that he was govern'd by wicked counsellors , and design'd to introduce popery ; and this was justified as a defensive war , by a long tract of general assemblies , and parliaments : and if this be a defensive war that is justifiable , what king can be secure ? or , wherein shall we seek security against civil wars ? or what can be more ridiculous than to pretend the invading kingdoms , murthering such as are commissionated by the king , after that invasion , entering into leagues and covenants against him , both at home and abroad , the robbing him of his navies and militia , and denying him the power to choose his own counsellors and judges , are meerly defensive ; but god almighty , to teach us how dangerous these defensive arms are , and how impossible it is to regulat lawless violence , how gentle and easie soever the first beginnings are , suffered our war , which was so much justified for being meerly defensive , to end in the absolute overthrow of the monarchy , and the taking away the life of the best of kings ; and it is very remarkable , that such as have begun with the doctrine of giving only passive obedience in all things , as in refusing to pay just taxes , to concur in securing rebels , &c. have from that stept up to defensive arms , and from that to the power of reforming by the sword , and from that to the power of dethroning and murthering kings by parliaments , and judicatures , and from that to the murthering and assassinating all who differ'd from them , without any other pretext or formality whatsoever , so hard a thing it is to stop when we begin once to fall from our duty : and so easie a thing it is to perswade such as have allowed themselves in the first degrees of guilt , to proceed to the highest extravagancies of villanie . oh! what a blindness there is in error ? and how palpably doth god desert them , who desert their duty ; suffering them after they have done what they should have abhorred , to proceed to do what they first abhorred really ? to these i must recommend the history of hazael , who , when the prophet foretold him , king. . , . that he should slay their young men with the sword , dash their children , and rip up their women with child , answered him , am i a dog , that i should do such things ; and yet he really did what he had so execrated . the moderation likewayes of these modest pretenders to self-defence , and defensive arms , will appear , by the bloody doctrine of their great rabbies , buchannan not only allows but invites subjects to murder their king. and lex rex , pag. . tells us , that it is a sin against gods command to be passively subject to an unjust sentence , and that it is an act of grace and virtue to resist the magistrate violently , when he does him wrong : and after that horrid civil war was ended , the author of naphtali doth justifie it , pag. , and . in these words , combinations for assistance in violent opposition of the magistrates , when the ends of government are perverted ( which must be referr'd to the discretion of them who minds insurrection ) are necessary by the law of nature , of charity , and in order to gods glory , and for violation of this duty of delivering the oppressed from magistrates , judgement comes upon people . from which he proceeds , pag. , and . to assert that , not only the power of self-defence , but vindicative , and reforming power is in any part of the people , against the whole , and against all magistrates , and if they use it not , judgment comes on ( supposing their capacity probable to bear them forth ) and they shall be punish'd for their connivance , and not acting in way of vindication of crimes , and reforming abuses . before i enter upon these arguments , which the scripture furnishes us with against these rebellious principles ; i must crave leave to say , that defensive arms seem to me very clearly inconsistent with that mortification , submission , and patience , which is recommended by our blessed saviour , in all the strain of the new testament ; and how will these people give their coat to a stranger , or hold up their other cheek to him , when they will rise even in rebellion against their native prince . . as the taking up of arms is inconsistent with the temper requir'd in a christian ; so it seems a very unsuitable mean for effectuating the end , for which it is design'd , since religion being a conviction of what we owe to god , how can that be commanded , which should be perswaded ? and how can arms become arguments ? or how can external force influence immaterial substances , such as are the souls of men. and we may as well think to awake a mans conscience by drums , or to perswade his judgment by musquets ; and therefore the apostle speaks only of spiritual arms , in this our spiritual warfare , the sword of the spirit , and the helmet of salvation , &c. but good god , how could the extravagancy of forcing the magistrate by arms , in defense of religion , enter into mens heads ? when it is unlawful even for the magistrate himself , to force religion by arms. and as subjects should not be by the king forced to religion ; so if they use force against the king , the pretext of religion , tho specious , should not defend them . and therefore when the sons of zebedee desired fire from heaven , upon these who oppos'd even our saviour , he told them , that they knew not what spirit they were of . . it seems very derogatory to the power of almighty god , that he should need humane assistance , and it is a lessening of the great esteem that we ought to have for the energy , force and reasonablenesse of the christian religion , that it needs to be forc'd upon men by arms , as if it were not able to force its own way . this mahomet needed for his cheats , but our blessed saviour needs not for his divine precepts , and therefore when peter offered to fight for him , our saviour check't him , commanding him to put up his sword , and to perswade him the more effectually , he assures him , that all these who take the sword , shall perish by it , and that his kingdom was not of this world , and so he needed no such worldly help , but if he pleas'd to call for legions of angels , his omnipotent father would send them , and sure angels are fitter and abler instruments to carry on such a work of reformation , than rebellious regiments of horse and dragoons . which divine argument serves also to refute the atheistical doctrine of buchannan , and owen , who would perswade us , that our saviour did only recommend to his disciples to flee from one city to another , when they were persecuted , because they then wanted power to resist . for tho they did want , yet our saviour could have , by legions of angels , defeated all the powers upon earth : and tertullian in his apology for the christians , insists on their patient suffering under persecution , tho their number were sufficient to have resisted . . our blessed saviour foreseeing that mans corruption would in spight of christianity , prompt him to resist ; he therefore did command by the apostle paul , rom. . v. , and . let every soul be subject to the higher power for there is no power but of god ; the powers that be are ordained of god , whosoever therefore resisteth the power , resisteth the ordinance of god : and they that resist shall receive to themselves damnation . in which text , it is very remarkable that the apostle urges this christian duty of submission , as being a mark of mans immediat dependance upon god , and as that , which when contemned brings eternal damnation . and whereas it is pretended that this text commands only submission to magistrats , whilst they act piously , and vertuously , because only in so far they are gods vicegerents , but discharges not resistence to their impious commands . it is answered that the text has no such limitation , and we must have so much respect to the scripture , as to think that if god almighty had design'd to allow such an opposition , he would have warranted it , in as clear terms , as he commanded the submission , and the reason why this submission is commanded , is not because the power is rightly us'd , but because the power is ordained of god. and we see that st. paul himself did think that the power should be reverenc'd , even when abus'd : for when the high priest was injuring him , he acknowledged that he was obliged not to speak evil of the rulers of his people , acts . . and if this place of scripture , and the submission therein commanded , were so to be limited , we behoved likewise so to limit the . commandment , and not to honour our parents , except when they are pious , nor to obey them , if they vex or trouble us ; and st. paul having written this epistle to those , who were then living under that monstruous emperour caius , did clearly design , that the christian religion was to be admired for commanding subjects , not only to obey good princes , but even submitting peaceably to tyrants . and suitable to this doctrine are these texts , heb. ch . . v , . we had fathers of our flesh , who corrected , and chastened us , after their own pleasure , and we gave them reverence ; and lest we might think that text rather a narration than a command , it is told us peter . v. . servants be subject to your masters with all fear , not only to the good and gentle , but also to the froward , for this is thanks-worthy , if a man for conscience toward god do endure grief and v. . if when ye do well , and suffer for it , ye take it patiently , this is acceptable to god , for even hereunto were ye called . our blessed saviours practice , did likewise agree most admirably with his precepts and doctrine formerly insisted on , for though no man ever was , or can be so much injur'd as his blessed self , nor could ever any defensive arms have been so just , as in his quarrel , yet he would not suffer a sword to be drawn in it , and to discourage all christians from using arms , he told these who were offering to defend even himself with arms , that whosoever should draw the sword , should perish by it , and it seems that god almighty permitted peter to draw his sword at that time meerly , that we might upon that occasion be for ever deterr'd from defensive arms , by this our saviours divine example and reasoning . the last argument i shall adduce , shall be from that most christian topick us'd by st. paul , rom. . . we should not do ill that good may come of it . and therefore since disobedience to magistrats , but much more to rebel against them , is discharg'd both by the laws of god and men : this disobedience and opposition , cannot be justifi'd by pretending that it is design'd for reforming the nation . and if it be answer'd , that this opposition is not in it self ill , because the design justifies it . it is to this reply'd , that if this answer be sufficient , then the former excellent rule is of no use : for when a servant steals his masters money to give to the poor ; or a son cuts his fathers throat , ecause he is vitious ; or when iacques clement stabed henry the . and ravilleck henry the . they might have alleadg'd the same in their own defence . nor know we a surer proof that any thing is impious , or unlawful , then when the laws of our nation have discharg'd it as a great crime , they being against and contrare to no positive law of god ; but rather suitable to the same ; and own'd as such by christian synods and divines : and there being no necessity to inforce this going out of the road. all which holds in this case , nor can it be imagin'd , how reforming by arms , can be thought necessary , since god both can without a miracle , turn the hearts of kings , in whose hands they are , as rivers of waters . and can send devout men to influence kingdoms . and should not we rather suffer patiently as the primitive christians did , that his divine majesty may be by our patience prevail'd upon , to reform us now , as he did of old our predecessors from paganism ; by our own kings , in a regular way than upon every notion of bigot and factious ring-leaders overturn all government , and order , rent all unity , and involve our native countrey in blood and confusion . and whilst we are fighting for the throne of religion , lose the true efficacy of piety , and devotion , for what use can there be of patience , humility , faith , and hope . if we will presently repair our selves , submit to no magistracy that differs from us , and believe that religion cannot subsist except by us . the fathers also of the primitive church have inculcated so much this doctrine every where , both by their doctrine and practice , and both these are so fully known , that i shall remit this point to these learn'd men who have fully handled it . only i must remember that excellent passage of st. ambrose , who being commanded to deliver up his church to the arians , sayes , volens nunquam deferâm , coactus repugnare non novi ; dolere potero , flere potero , gem●re potero ; adversus arma milites gothos , lachrymae me● , mea arma sunt , talia enim sunt munimenta sacerdotis ; aliter nec debeo nec possum resistere . which prayers and tears are likewise call'd the only arms of the church by the great nazianz : in his first oration against iulian , and by st. bernard in his . epistle . but more of this is to be found , tom. . concil . galliae pag. . where it is fully prov'd that all subjects ought humbly and faithfully to obey the regal power , as being ordained by none but god , with whom the wise heathens agree , for marcellus ( tacit. lib. . hist. ) pray'd for good princes , but obey'd bad ones ; and plinij in his panegirick to trojan , confesses that the gods had bestow'd on the emperor the sole disposal of all things leaving nothing to subjects , save the honour of obedience ▪ but because these of that perswasion will believe better calvin than the fathers , i have taken pains to consider in him these few passages , cap. . lib . institut . § . . assumptum in regiam maj●statem violare nefas est nunquam nobis seditiosae istae cogitationes in mentem veniant tractandum , esse pro meritis regem , § . . personam sustinent voluntale domini , cui inviolabile in majestatem ipso impressit , & insculpsit , § . . privatis hominibus nullum aliud quam parendi , & patiendi datum est mandatum . and all this chapter doth so learnedly and judicially impugn this doctrine , that it is a wonder why calvinists should differ from calvin . the examples adduced by our republicans , of the revolt of libra , chron. . . and from ieroboam , because he had forsaken the lord god of his fathers , and of the ten tribes from rehoboam , because of rehoboam his oppression , king. . prove not all the lawfulness of the subjects defection from their kings , because these defections are only narrated , but not allow●d in scripture , and are recorded rather as instances of gods vengeance upon the wickedness of these princes , than as examples justified in these revolters , and to be follow'd by such as read the sacred history : in which , when examples are propos'd by the spirit of god for our imitation , they are still honour'd with the divine approbation . and i hope my readers will still remember , that i design not by this treatise to encourage princes to wickedness by impunity , but only to discourage subjects from daring to be the punishers . the great esteem which the great bishop vsher has justly , even among republicans , and phanaticks , for learning and devotion , has prevail'd with me , to set down two objections used by him , with his pious answers thereto . the first is , suppose ( say they ) the king , or civil magistrate should command us to worship the devil , would you wish us here to lay down our heads upon the block , and not to repel the violence of such a miscreant , to the outmost of our power : and if not , what would become of gods church , and his religion . to which the holy man answers , that even when the worship of the devil was commanded by the cruel edicts of persecuting emperours , the christians never took up arms against them , but used fervent prayers , as their only refuge : and st. peter animats them to this patient suffering , pet. . , . beloved , think it not strange concerning the fiery trial , but rejoice in as much as ye are partakers of christs sufferings . but let none of you suffer as a murtherer , or a thief , or as an evil-doer , or as a busie body in other mens matters . by which last words , if i durst add to so great an author as b. vsher , the apostle seems expresly to me to have obviated the dreadful doctrine of rising in arms upon the pretext of religion , and the killing such as differ from them ; which if the christians did allow , they behov'd to pass for murtherers , and to discharge them to meddle in matters of government upon this pretext ; because then they behov'd to suffer justly , as busie bodies . and here b. vsher does most appositly cite st. augustine , in psal. . the world rag'd , the lion lifted himself up against the lamb , but the lamb was full stronger than the lion : the lion was overcome by shewing cruelty , the lamb did overcome by suffering . and st. ierome , epist. . by shedding of blood , and by suffering , rather then doing injuries , was the church of christ at first founded , it grew by persecutions , and was crowned by martyrdoms . the second objection is , if mens hands be thus ty'd , no mans estate can be secure ; nay , the whole frame of the common-wealth would be in danger to be subverted , and utterly ruin'd . to which he answers , that the ground of this objection is exceeding faulty , and inconsistent with the rules of humanity , and divinity ; of humanity , because this would impower privat persons to judge , and so should confound all order , and invite all men to oppose authority , and make subjects accusers , judges , and executioners too ; and that in their own cause , against their own soveraign , and against divinity , because it is contrary to the scriptures , and fathers , who command submission , humility , and patience . rex est si nocentem punit , cede justitiae , si innocentem , cede fortunae , seneca de iura . lib. . cap. . if the king punish thee , when thou art guilty , submit to justice : if when thou art innocent , submit to fortune . and if a heathen could be induced by his vertue to submit to blind fortune , how much more ought a christian to be prevail'd upon by devotion to submit to the all-seeing providence of the most wise god , who maketh all things to work joyntly for good to them that love him . and as st. augustine piously adviseth , princes are to be suffered by their people , that in the exercise of their patience , temporal things may be born , and external hop'd for . the instance of king iames the third being punished by his subjects , is so far from being an argument able to justifie subjects rising in arms against their king , that this part of our history should for ever convince all honest men of the dangers that attend defensive arms : for this excellent prince was so far from being one of these tyrants , against whom defensive arms are only confest to be just , that few princes were more meek and careful of his subjects . but because he imploy'd such as himself had rais'd , finding that the nobility had too often been insolent servants to their prince , and severe task-masters to the people ; the nobility thinking more upon this imaginary neglect , than their own duty , did from combinations proceed to arms , and rejecting all conditions of peace , they were at last curs'd with a victory , in which this gentle prince was murthered , whilst he sought to save his sacred life in a deserted miln . by which we may see that these defensive arms so much hallowed in our late debates , are but the militia of pride , vanity , and ambition , and that if they be allow'd , the best of princes will ever fall by them . and as to the act . par. . ia. . whereby it is pretended that the opposing , and even the killing k. ia. the . in battle is justified , and which act was never repelled . it is answered , first , that this statute was made by the same rebels who had opposed their lawful prince , and so was rather a continuing of their rebellion , than a justification of it . . that abominable statute proceeds on the precept of k. ia. the . calling in the english , and designing to enslave the kingdom to forraigners , which was not prov'd as it ought to have been , though the pretext had been legal , as it was neither legal nor true in the least circumstance , and the noblemen and barons are condemn'd , without being cited or heard ; though the act be not a statute but a verdict , so unjust are all rebels , who are forc'd to maintain one crime by another . . in the new collection of our statutes made by k ken. and authoriz'd in many subsequent parliaments . the dreadful and treasonable act is not insert , which was the best way to rescind it , because it was , though a reproach to the nation to have any formal law made to rescind the statute , which behov'd to preserve its memory in annulling its authority . . many statutes since that time are made , declaring the rising in arms against the king and his authority , upon any pretext whatsoever to be treason ; and expresly rescinding all acts and statutes to the contrary , as rebellious and treasonable , and there needed no more positive statutes to rescind that rebellious and treasonable combination rather than law. as to the . act . par. ia. . from which its urged , that because that act declares it treason to assault castles , and places where the kings person shall happen to be , without the consent of the three estates : and that it is therefore lawful to assault the same with the consent of the three estates , and consequently to rise in arms with the consent of the three estates is no treason . it is answered , that it being but too ordinary in the minority of our kings to have great factions amongst the nobility ( which shews also the danger of placeing the supream power in the proceres regni ) one of the factions ordinarly either having made the young king prisoner , or using to assault the castle where he was really preserved . it was therefore most wisely declared by this statute , that to lay hands upon the kings person violently , what age the ring be of , young or auld ▪ or to assailzy castles , or places where the kings person shall happen to be , without the consent of the three estates , shall be punished as treason . that is to say , that so great respect was to be had to his sacred person , that no violence was to be offered to the place where he was , untill the same was allowed by the three estates . but in all the former laws , as well as those made in our age , it is still declared treason to rebel against the kings person , or to refuse to assist him without adding , except the same be done by the three estates , which shews that there 's nothing design'd in this act in favours of their authority ; and that this king was minor the time of this act ; and that he had great troubles in his youth , is very clear from the short characters given of our kings , by skeen , in the end of our acts of parliament . it will ( i hope ) easily appear by the ballance of these arguments , that at least the municipal laws of our nation , which punish defensive arms as treason , should be obey'd by our countrey-men , since , as i have oft inculcated the laws of any nation should still be obey'd , except where they are inconsistent with the word of god , and the most that the most violent republicans alive can say upon this subject , is , that the case may be debated by probable arguments , and that neither of the positions want their inconveniencies , so that in this , as in all other debates , the law of each nation is the best judge to decide such controversies , and therefore such as maintain these principles , after so many positive and reiterated laws , are obliged for preserving the peace of humane society , and the order which god has establisht , to remove from places where they cannot obey , for they will alwayes find some place where the government will please them , and better they be disquieted , than the government of the whole world should be disturb'd , but if they will stay , and oppose the government , it must be excus'd , to execute those who would destroy it . having thus glanc'd only at answers to these objections , because i think the objections rather shining than strong , i shall sum up this debate with these reflections , first , buchannan , and our republican authors , debate all these grounds , as if we were yet to form the government , under which we were to live , whereas we live under , and are sworn to a monarchy , fixt by law and consent , time out of mind , and the levellers may as well urge that no nobleman should be dignifi'd , nor no gentleman enrich'd above , a man of good sense ; and tennents may argue that it is not reasonable , that they bearing gods image as well as the master , should toile to feed their lusts ▪ thus reason may be distorted , and we call that reason and providence , which pleases us best . . most of their citations and authorities , are the sentiments of these greeks , and romans , who liv'd under common-wealths , and so magnifi'd their countrey in opposition to usurpers , whereas our king is the father of our countrey , and whatever they said of their countrey , we should say of him , and therefore these citations concerns us no more than the law of england binds scotsmen , they praise their own children and servants , for their faithfulness and obedience to them , and yet they rail at us for being faithful to our great master , and chief parent under god. . most of the authors cited and admir'd by them , are heathens , particularly stoicks , who equal'd themselves not only to kings , but to their own gods , and against whose selfishness and pride , all christians have justly exclaim'd , and so they are not competent judges , nor sure guides to christians , in the exercise of those purely christian vertues of humility , submission , self-denyal , patience , faith , and relyance upon god. . they ballance not all the conveniencies and inconveniencies of either government , but magnifie the one and conceal the other ; and thus it is true that kings may be tyrants , but so may , and usually are the leaders of the rabble : cromwel was such , and shaftsbury had been such , he was such in his nature , and had been such in his government ; and the distractions of a civil war , which ordinarly attend competitions amongst republicans , destroy moe than the lusts of any one tyrrant can do , which made lucan conclude , after a sad review of the continued civil wars , betwixt scilla and marcus , caesar and pompeij , without considering what followed under the trium viri . faelices arabes , medique eoaque tellus , qui sub perpetuis tenuerunt regna tyrannii . . these who debate against magistracy , gratifie their own vanity and insolence ; but such devout men as ambrose , augustine , vsher and others , debate against the dictats of interest , as well as passion ; which two , nothing save grace can overcome , and there can be no surer mark of conviction than to recide against these . lastly , even buchannan repented this horrid doctrine , cambden , . year of queen elizabeths reign , in . but forasmuch as buchannan being transported with partial affection , and with murrays bounty , wrot in such sort that his said books have been condemned of falsehood , by the estates of the realm of scotland , to whose credite more is to be atributed , and he himself sighing and sorrowing , sundry times blam'd himself ( as i have heard ) before the king , to whom he was school-master , for that he had employ'd so virulent a pen against that well deserving queen , and upon his death-bed wished that he might live so long , till by recalling the truth , he might even with his blood , wipe away these aspertions , which he had by his bad tongue falsly laid upon her , but that ( as he said ) it would now be in vain ; when he might seem to dote for age , &c. idem , anno . and not content with all this ( speaking of their surprizing the king ) they compell'd the king against his will , to approve of this intercepting of him by his letters to the queen of england , and to decree an assembly of the estates , summoned by them to be just , yet could they not enduce buchannan to approve of this their fact , either by writting , or perswasion by message , who now sorrowfully lamented , that he had already undertaken the cause of factious people against their princes , and soon after died , &c. that the lawful successor cannot be debarr'd from succeeding to the crown : maintain'd against dolman , buchannan , and others . by sir george mackenzie his majesties advocat . edinbvrgh , printed by the heir of andrew anderson , printer to his most sacred majesty , anno dom. . king james in his advice to prince henry . page . if god give you not succession , defraud never the nearest by right , whatsoever conceit ye have of the person ; for kingdoms are ever at gods disposition , and in that case we are but liferenters , it lying no more in the kings , than in the peoples hands to dispossess the righteous heir . page . ibid. for at the very moment of the expyring of the king reigning , the nearest and lawful heir entereth in his place ; and so to refuse him , or intrude another , is not to hold out the successor from coming in , but to expel and put out their righteous king : and i trust at this time whole france acknowledgeth the rebellion of the leaguers , who upon pretence of heresie by force of arms , held so long out , to the great desolation of their whole countrey , their native and righteous king from possessing his own crown and natural kingdom . errata . page . delet at his majority . page . for richard d. read d . the right of the succession defended . the fourth conclusion to be cleared was , that neither the people , nor parliaments of this kingdom , could seclude the lineall successor , or could raise to the throne any other of the same royal line . for clearing whereof , i shall according to my former method , first clear what is our positive law in this case ; secondly i shall shew that this our law is founded upon excellent reason , and lastly , i shall answer the objections . as to the first . it is by the second act of our last parliament acknowledged , that the kings of this realme deriving their royal power from god almighty alone , do lineally succeed therto , according to the known degrees of proximitie in blood , which cannot be interrupted , suspended or diverted by any act or statut whatsoever , and that none can attempt to alter or divert the said succession , without involving the subjects of this kingdom in perjury and rebellion , and without exposing them to all the fatal and dreadful consequences of a civil warr , do therefore from a hearty and sincere sense of their duty recognize , acknowledge and declare that the right to the imperial crown of this realme , is by the inherent right and the nature of monarchy , as well as by the fundamental and unalterable laws of this realme , transmitted and devolved by a lineal succession , according to the proximity of blood . and that upon the death of the king or queen , who actually reignes , the subjects of this kingdom are bound by law , duty and alledgance to obey the nixt immediat and lawful heir either male or female , upon whom the right and administration of the government is immediatly devolved . and that no difference in religion , nor no law nor act of parliament made , or to be made , can alter or divert the right of succession and lineal descent of the crown to the nearest and lawful heirs , according to the degrees foresaids : nor can stop or hinder them in the full , free and actuall administration of the government according to the laws of the kingdom . like as our soveraigne lord , with advice and consent of the saids estates of parliament , do declare it is high treason in any of the subjects of this kingdom , by writing , speaking , or any other manner of way to endeavour the alteration , suspension or diversion of the said right of succession , or the debarring the next lawfull successor from the immediat , actual , full and free administration of the government , conform to the laws of the kingdom . and that all such attempts or designes shall inferre against them the paine of treason . this being not only ane act of parliament , declaring all such as shall endeavour to alter the succession , to be punishable , as traitors ; but containing in it a decision of this point by the parliament , as the supream judges of the nation , and ane acknowledgement by them , as the representatives of the people , and nation . there can be no place for questioning a point , which they have plac'd beyond all contraversie : especially seing it past so unanimously that there was not only no vote given but even no argument propon'd against it . and the only doubt mov'd about it was , whither any act of parliament , or acknowledgement , was necessary , in a point which was in it self so uncontraverted . and which all who were not desperat fanaticks , did conclude to be so in this nation , even after they had hear'd all the arguments that were us'd , and the pamphlets that were written against it , in our neighbour-kingdom . but because so much noise has been made about this question , and that blind bigotry leads some , and humorous faction drawes others out of the common road . i conceive it will be fit to remember my reader of these following reasons , which will i hope clear that as this is our present positive law , so it is established upon the fundamental constitution of our government , upon our old laws , upon the laws of god , of nature , of nations , and particularly of the civil law. as to the fundamental constitution of our government , i did formerly remark , that our historians tell us , that the scots did swear alledgeance to fergus , who was the first of our kings , and to his heirs . and that they should never obey any other , but his royal race . which oath does in law , and reason , bind them to obey the lineal successor , according to the proximity of blood. for ane indefinite obligation to obey the blood royal , must be interpreted according to the proximity in blood , except the swearers had reserv'd to themselves a power to choose any of the royal familie , whom they pleas'd , which is so true , that in law , ane obligation granted to any man , does in the construction of law accresce to his heirs , though they be not exprest . qui sibi providet , & haeredibus providet . and boethius tells us that after king fergus's death , the scots finding their new kingdom infested with warrs , under the powerful influence of picts , romans , and britans , they refus'd notwithstanding to preferre the next of the royal race , who was of perfect age , and a man of great merit , to the son of king fergus , though ane infant ; which certainly in reason they would have done , if they had not been ty'd to the lineal successor . but lest the kingdom should be prejudg'd during the minority , they enacted , that for the future , the next of the blood royal should alwayes in the minority of our kings administrat as kings , till the true heir were of perfect age . but this does not prove , as buchannan pretends , that the people had power to advance to the throne , any of the royal race : whom they judg'd most fit , for common sense may tell us , that was not to choose a king , but a vice-roy , or a regent . for , though to give him the more authority , and so to enable him the more to curb factions , and oppose enimies , he was called king , yet he was but rex fidei commissarius , being oblidg'd to restore it to the true heir at his majority : and so governed only in his vice , and consequently was only his vice-roy . but because the uncles , and next heirs being once admitted to this fidei commissarie tittle , were unwilling to restore the crown to their nephews , and sometimes murder'd them : and oftetimes rais'd factions against them . therefore the people abhorring these impieties , and weary of the distractions , and divisions , which they occasion'd , beg'd from king kenneth the second , that these following laws might be made . . that upon the kings death the next heir of whatsoever age should succeed . . the grand-childe either by son or daughter should be preferr'd . . that till the king arriv'd at years of age , some wise-man should be choos'd to govern , after which , the king should enter to the free administration , and according to this constitution , some fit person has still been choos'd regent in the kings minority , without respect to the proximity of blood , and our kings have been oftentimes crown'd in the cradle . in conformity also to these principles , all the acknowledgements made to our kings , run still in favours of the king , and his heirs . as in the first act parl. . james vi. and the ii , iii , iv. acts parl. . charles ii. and by our oath of alledgeance , we are bound to bear faithful and true alledgeance to his majesty , his heirs and lawful successors ; which word lawful , is insert , to cutt off the pretexts of such as should not succeed by law , and the insolent arbitrarieness of such , as being but subjects themselves , think they may choose their king. viz. act . parl. . james . that this right of succession according to the proximity of blood , is founded on the law of god , is clear by num. chap. . v. . and . if a man hath no son or daughter , his inheritance shall descend upon his brother , by num. . where , god himself decides in favours of the daughters of zelophehad , telling us , it was a just thing , they should have the inheritance of their father . and ordaines , that if there were no daughters , the estate should go to the brothers . saint paul likewayes concluds rom. . if sons , then heirs , looking upon that , as a necessary consequence ; which if it do not necessarly hold , or can be any way disappointed , all his divine reasoning in that chapter falls to nothing . and thus ahaziah chron. . v. . was made king ( though the youngest ) in his fathers stead ; because sayes the text , , ,the arabians had slain all the eldest : which clearly shews that by the law of god , he could not have succeeded , if the eldest had been alive . we hear likewayes in scripture , , ,god oft telling , by me kings reigne . and when he gives a kingdom to any as to abraham , david , &c. he gives it to them and their posterity . that this right of succession flowes from the law of nature , is clear ; because , that is accounted to flow from the law of nature , which every man finds grafted in his own heart , and which is obey'd without any other law , and for which men neither seek nor can give another distinct reason ; all which hold in this case : for who doubts when he heares of ane hereditary monarchy , but that , the next in blood must succeed ; and for which we need no positive law , nor does any man enquire for a further reason , being satisfied therein by the principles of his own heart . and from this ground it is , that though a remoter kinsman did possess as heir , he could by no length of time prescribe a valide right ; since no man , as lawyers conclude , can prescribe a right against the law of nature : and that this principle is founded thereupon is confest l : cùm ratio naturalis ff . de bonis damnat : cùm ratio naturalis , quasi lex quaedam tacita , liberis parentum haereditatem adjecerit , veluti ad debitam successionem eos vocando : propter quod suorum haeredum nomen eis indultum est ; adeo ut ne a parentibus quidem , ab eâ successione amoveri possint . et § . emancipati institut : de haered : quae ab intest . praetor naturalem aequitatem sequutus , iis etiám bonorum possessionem contra tabularum leges , & contra jus civile permittit . which text shewes likewayes , that this right of nature was stronger than the laws of the tables , though these were the most ancient and chief statutes of rome . which principle is very clear likewayes from the parable , math. . where the husband-men who can be presum'd to understand nothing but the law of nature , are brought in saying , this is the heir , let us kill him and seaze on his inheritance . nor does this hold only in the succession of children or the direct line , but in the collateral succession of brothers and others l. hac parte ff . unde cognati . hac parte proconsul naturali aequitate motus , omnibus cognatis permittit bonorum possessionem quos sanguinis ratio vocat ad haereditatem . vid. l. . ff . de grad . & l. . § . hoc autem ff . de bonor . possess . and these who are now brothers to the present king , have been sones to the former : and therefore whatever has been said for sones , is also verified in brothers . as for instance , though his royal highness be only brother to king charles the ii. , yet he is son to king charles i. and therefore , as saint paul sayes , if a son , then ane heir , except he be secluded by the existence and succession of ane elder brother . that this gradual succession is founded on the law of nations , is as clear by the laws of the tables , and the praetorian law of rome . and if we consider the monarchy either old or new , we will find , that wherever the monarchy was not elective , the degrees of succession were there exactly observed . and bodinus de republ. lib. cap. . asserts , that , ordo non tantum naturae & divinae sed etiam omnium ubique gentium hoc postulat . from all which , pope innocent in c. grand . de supplend . neglig . praelati concludes , in regnis haereditariis caveri non potest ne filius aut frater succedat . and since it is expresly determined , that the right of blood can be taken away by no positive law or statute l. iura sanguinis ff . de reg. jur . & l. . ff . de suis legitim . and that the power of making a testament , can be taken away by no law l. ita legatum ff . de conditionibus . i cannot see how the right of succession can be taken away by a statute : for that is the same with the right of blood , and is more strongly founded upon the law of nature , than the power of making testaments . since then this right is founded upon the law of god , of nature and of nations , it does clearly follow , that no parliament can alter the same by their municipal statutes , as our act of parliament has justly observed . for clearing whereof , it is fit to consider , that in all powers and jurisdictions which are subordinat to one another , the inferiour should obey , but not alter the power to which it is subordinat ; and what it does contrary thereto , is null and void . and thus , if the judges of england should publish edicts contrare to acts of parliament , or if a justice of peace should ranverse a decree of the judges of west-minster , these their endeavours would be void and ineffectual . but so it is , that by the same principle , but in ane infinitly more transcendent way , all kings and parliaments are subordinat to the laws of god , the laws of nature , and the laws of nations : and therefore no act of parliament can be binding , to overturn what these have established . this , as to the law of god , is clear , not only from the general dictats of religion , but hen. . cap. . the parliament uses these words , for no man can dispence with gods laws ; which we also affirme and think . and as to the laws of nature , they must be acknowledged to be immutable , from the principles of reason . and the law it self confesses that naturalia quaedam jura quae apud omnes gentes peraequè observantur , divina quadam providentia constituta semper firma , atque immutabilia permanent § sed naturalia institut . de iur. natural . & § . singulorum de rer . divis : and when the law declares , that a supream prince is free from the obligation of laws , solutus legibus , which is the highest power that a parliament can pretend to , or arrive at ; yet lawyers still acknowledge that this does not exeem these supream powers from being lyable to the laws of god , nature and nations , accurs : in l. princeps ff . de leg. clementina pasturalis de rejudicatâ bart. in l. ut vim de justitiâ & jure voet. de statutis sect. . cap. . nor can the law of nations be overturned by private statutes , or any supream power . and thus all statuts to the prejudice of ambassadours , who are secured by the law of nations , are confess'd by all to be null , and the highest power whatsoever cannot take off the necessity of denuncing watr before a warr can be lawful . and lawyers observe verie well , that these who would oppose the common dictats of mankind , should be look't upon as enemies to all mankind . my second argument shall be , that the king & parliament can have no more power in parliament than any absolute monarch has in his own kingdom : for , they are when joyn'd , but in place of the supream power , sitting in judgement ; and therefore they cannot in law do what any other supream and absolute monarch cannot do . for all the power of parliaments consists only in their consent , but we must not think , that our parliaments have ane unlimited power de jure , so , as that they may forfeit or kill without a cause or decerne against the subjects without citing or hearing them ; or , that they can alienat any part of de kingdom ; or subject the wholl kingdom to france or any other forraigne prince : all which deeds would be null in themselves , and would not hinder the partie injur'd from a due redress . for if our parliaments had such power , we would be the greatest slaves , and live under the most arbitrary government imaginable . but so it is , that no monarch whosoever can take from any man what is due to him , by the law of god , nature , and nations . for being himself inferiour to these he cannot overturne their statuts . thus a prince cannot even ex plenitudine potestatis legitimat a bastard in prejudice of former children though they have only but a hope of succession l. . & sequen de natal . restituend . and for the same reason , it is declared in the same law , that he cannot restore a free'd man ( restituere libertum natalibus ) in prejudice of his patron , who was to succeed , though that succession was but by a municipal law. for clearing which question , it is fit to know that the solid lawyers who treat jus publicum , as arnisaeus and others , do distinguish betwixt such kingdoms , as were at first conferr'd by the people , and wherein the kings succeed by contract , and in these , the laws made by king and people can exclude , or bind the successor . and yet even here , they confess , that this proceeds not , because the predecessor can bind the successor , but because the people renew the paction with the succeeding king. but where the successor is to succeed ex jure regni , in hereditary monarchies , there they assert positively that the predecessor cannot prejudge the successors right of succession . which they prove by two arguments . first , that the predecessor has no more power , nor right , than the successor : for the same right , that the present king has to the possession , the next in blood has to the succession . and all our laws run in favours of the king , and his heirs , and no man can tye his equal , or give him the law , par in parem non habet dominium . the second is , that it were unjust and unequitable that the predecessor should robbe his successor nulla ergo ( sayes arnisaeus cap. . num. . ) clausula successori jus auferri potest , modò succedat ille ex jure regni . and hottoman : lib. . de regno galliae asserts , that in france which is a very absolute monarchy , ea quae jure regio primogenito competunt , ne testamento quidem patris adimi possunt . and thus when the king of france design'd to break the salique law of succession , as in the reigne of charles the v. it was found impracticable by the three estates , and when pyrrhus was to preferre his youngest son to the crown , the epirots following the law of nations , and their own , refus'd him , paus. lib. . in the year . also amurat the grand seignior , having left the turkish empire to han the tartarian , passing by his brother ibrahim , the wholl officers of that state , did unanimously cancel that testament , and restore ibrahim , the true heir tho a silly foole . which shewes the opinion not only of lawyers but of whole nations and parliaments ; tho vander graaff , an hollander confesses , that it is not lawfull to choose any of his sons to succeed him , in which , the general quiet of the kingdom is much concerned . and therefore , tho the next heir were wiser , braver , and more generally beloved ; yet the more immediat must be received , as choos'd by god , whither good or bad , and as honored with his character . and if kings could have inverted their succession , and choos'd their own successor saint lewis had preferr'd his own third son to lewis his eldest , and alfonsus king of leon in spaine , had preferr'd his daughters to ferdinand his eldest son. and edward the vi. of england had preferr'd , and did actually preferre the lady iean gray to his sisters mary , and elizabeth . and if successions especially of such great importance , had not been fixed by immutable laws of god , and nature , the various and unconstant inclinations of the present governours , especially when shaken by the importunity of step-mothers and mothers , or clouded by the jealousie of flatterers , or favourits , had made the nations whom they governed , very unhappy : and therefore , god did very justly , and wisely setle this succession , that both king and people might know , that it is by him that kings reigne , and kingdoms are secur'd in peace against faction ▪ and it were strange , that this should not hold in kings , since even amongst subjects the honour and nobility that is bestow'd upon a man and his heirs , does so necessarly descend upon those heirs , that the father , or predicessor cannot seclude the next successor , or derogat from his right , either by renuncing , resigning , following base or meane trades , or any other : for say those lawyers , since he derives this right from his old progenitors , and owes it not to his father , his fathers deed should not prejudge him therein . fab. cod. . tit. . def. . warnee ; consil. . num. . and as yet the estates of parliament in both nations have no legislative power , otherwayes than by assenting to what the king does ; so that if the king cannot himself make a successor , neither can they by consenting : and all that their consent could imply wold only be that , they and their successors should not oppose his nomination , because of their consent . but that can never amount to a power of transferring the monarchy from one branch to another , which would require , that the transferrers , or bestowers had the supream power originally in themselves , nemo enim plus juris in alium transferre potest quàm ipse in se habet . and if the states of parliament had this power ▪ originally in themselves to bestow , why might they not reserve it to themselves ? and so perpetuate the government in their own hands : and this mov'd judge ienkins in his treatise concerning the liberty and freedom of the subject , pag. . to say , that no king can be named , or in any time made in this kingdom , by the people . a parliament never made a king , for there were kings before there were parliaments , and parliaments are summoned by the kings writtes . fourthly , a king cannot in law alienat his crown , as is undenyable in the opinion of all lawyers , and if he do , that deed is voyd and null , nor could he in law consent to an act of parliament declaring that he should be the last king. and if such consents and acts had been sufficient to bind successors , many silly kings in several parts of europe had long since been prevail'd upon , to alter their monarchy from haereditarie to elective ; or to turn it in a common-wealth ; and therefore by the same reason , they cannot consent to exclude the true successor : for if they may exclude one they may exclude all . . in all societies and governments , but especially where there is any association of powers , as in our parliaments , there are certain fundamentals , which like the noble parts in the body are absolutly necessar for its preservation ; for without these , there would be no ballance , or certainty . and thus with us , if the king and each of the estates of parliament had not distinct and known limits ( sett by the gracious concessions of our monarchs ) each of them would be ready to invade one anothers priviledges . and thus i conceive that if the parliament should consent to alienate the half of the kingdom , or to subject the whole to a stranger , as in king iohns case in england , and the baliols in scotland , it has been found by the respective parliaments of both kingdoms , that , that statute would not oblidge the successor . or if the house of commons in england , or the burrowes of scotland should consent to any act excluding their estate and respresentatives from the parliament , doubtlesse that statute excluding them would not prejudge their successors ; because that act was contrare to one of the fundamental laws of the nation . and the late acts of parliaments excluding bishops , were reprobated by the ensuing parliaments , as such ; and therefore by the same rule , any statute made excluding the legal successor , would be null and voyd , as contrare to one of the great fundamental rights of the nation . and what can be call'd more a fundamental right than the succession of our monarchy ? since our monarchy in this isle , has ever been acknowledg'd to be hereditary . and that this acknowledgment is the great basis whereupon most of all the positions of our law run , and are established : such as , that the king never dyes , since the very moment in which the last king dyes , the next successor in blood is legally king , and that without any expresse recognizance from the people , and all that oppose him are rebells , his commissions are valide , he may call parliaments , dispose the lands pertaining to the crown , all men are lyable to do him homage ; and hold their rights of him and his heirs . and generally this principle runs through all the veins of our law. it is that , which gives life and authority to our statutes , but receives none from them ; which are the undenyable marks and characters of a fundamental right in all nations . but that this right of lineal succession is one of the fundamental , and unalterable laws of the kingdom of scotland , is clear , by the commission granted by the parliament for the union in anno . in which these words are , his majesty vouchsafeing , to assure them of his sincere disposition and clear meaning , no way by the foresaid union to prejudge or hurt the fundamental laws , ancient priviledges , offices and liberties of this kingdom ; whereby not only the princely authority of his most royal descent hath been these many ages maintain'd , but also his peoples securities of their lands and livings , rights , liberties , offices and dignities preserv'd : whilks if they should be innovated , such confusion should ensue ; as it could no more be a free monarchy . . there would many great inconveniencies arise , both to king and people , by the parliaments having this power : for weak kings might by their own simplicity , and gentle kings by the rebellion of their subjects be induced to consent to such acts , in which their subjects would be tempted to cheat in the one case , and rebell in the other . many kings likewise might be wrought upon , by the importunity of their wives , or concubins , or by the misrepresentations of favourits , to disinherit the true successor ; and he likewise to prevent this arbitrarienesse , would be oblidg'd to enter in a faction for his own support , from his very infancy . this would likewise animate all of the blood royal , to compete for the throne , and in order thereto , they would be easily induc'd to make factions in the parliament , and to hate one another ; whereas the true successor would be ingadg'd to hate them all , and to endeavour the ruine of such as he thought more popular than himself . nor would the people be in better case , since they behov'd to expect upon all these accompts , constant civil warres and animosities , and by being unsure whom to follow , might be in great hazard by following him who had no right . and their rights bearing to hold of the king and his heirs , it would be dubious to the vassals , who should be their superiour , as well , as who should be their king. it is also in reason to be expected , that scotland will ever owne the legal descent : and thus we should under different kings of the same race , be involv'd in new and constant civil warrs ; france shall have a constant door open'd , by allyances with scotland , to disquiet the peace of the whole isle ; and england shab loose all the endeavours it used to unite this isle within it self . another great absurdity and inconveniency which would follow upon the exclusion of the lineal successor would be , that if he had a son , that son behoov'd certainly to succeed ; and therefore after the next lawful heir were brought from abroad to reigne , he behov'd to return upon the birth of this son ; and if he dyed he would be again call'd home , and would be sent back by the birth of another son : which would occasion such affronts , uncertainties , divisions , factions , temptations , that i am sure , no good nor wise man could admit of such a project . i find also , that as the debarring the righteous heir , is in reason , the fruitful seed of all civil warr and misery , ( for who can imagine that the righteous heir will depart from his right , or that wise men will endanger their lives and fortunes in opposition to it ? ) so experience has demonstrated , how dangerous , and bloody this injustice has prov'd . let us remember amongst many domestick examples , the miseries that ensu'd upon the exclusion of mordredus the son of lothus ; the destruction of the picts for having secluded alpinus the righteous heir ; the warrs during the reigne of william the conquerour ; these betwixt king stevin and henry the ii , betwixt the houses of lancaster and york ; betwixt the bruce and the baliol ; the murther of arthur duke of britanny , true heir of the crown of england , with many other forreigne histories , which tell us of the dreadfull michiefs arising from pelops preferring his youngest son to the kingdom of micene ; from aedipus commanding that polinices his youngest son should reigne alternatly with the eldest ; from parisatis the queen of persia's preferring her youngest son cyrus , to her eldest artaxerxes , from aristodemus admitting his two sons proclus , and euristhenes to an equall share in the lacedemonian throne . the like observations are to be made in the succession of ptolemaeus lagus and ptolemaeus phisco , in the sons of severus , in the succession of sinesandus who kill'd his brother suintilla righteours heir of spaine , and that of francis and fortia duke of millan with thousands of others : in all which , either the usurpers or the kingdom that obey'd them , perish'd utterly . to prevent which differences and mischiefs , the hungarians would not admitte almus the younger brother , in exclusion of the elder colomanus , though a silly deform'd creature , albeit almus was preferr'd by ladislaus ( the kings elder brother ) to both . nor would france acquiesce in st. lewis his preferring charles his son , to lewis the eldest . and the english refus'd to obey lady iean gray , in prejudice of queen marie , though a papist and persecuter . tali & constanti veneratione nos angli legitimos reges prosequimur &c. sayes an english historian . . if parliaments had such powers as this , then our monarchy would not be hereditary , but elective ; the very essence of ane hereditary monarchy consisting in the right of succession , according to the contingency of blood . whereas if the parliament can preferre the next , save one , they may preferre the last of all the line : for the next save one , is no more next than the last is next . and the same reason by which they can choose a successor ( which can only be that they have a power above him ) should likewayes in my opinion justifie their deposing of kings . and since the successor has as good right to succeed , as the present king has to govern ( for that right of blood which makes him first , makes the other next , and all these statuts which acknowledge the present kings prerogatives , acknowlege that they belong to him and his heirs . ) it followes clearly , that if the parliament can preclude the one , they may exclude the other . and we saw even in the last age , that such reasons as are now urged to incapacitat the children of our last monarch , from the hope of succession . viz. popery , and arbitrary government , did embolden men to dethrone , and murder the father himself who was actual king. . that such acts of parliament , altering the succession are ineffectual , and null , is clear from this , that though such an act of parliament were made , it could not debarre the true successor : because by the laws of all nations , and particularly of these kingdoms , the right of succession purges all defects , and removes all impediments , which can prejudge him who is to succeed . and as craig one of our learn'd lawyers has very well express'd it , tanta est regii sanguinis praerogativa , & dignitas , ut vitium non admittat , nec se contaminari patiatur . and thus though he who were to succeed , had committed murther , or were declar'd a traitour formerly to the crown for open rebellion against the king , and kingdom ; yet he needed not be restor'd by act of parliament upon his comming to the crown : but his very right of blood would purge all these imperfections . of which there are two reasons given by lawyers , one is , that no man can be a rebel against himself , nor can the king have a superior . and consequently , there can be none whom he can offend . and it were absurd that he who can restore all other men , should need to be restored himself . the second reason is , because the punishment of crimes , such as confiscations , &c. are to be inflicted by the kings authority , or to fall to the kings thesaury ; and it were most absurd , that a man should exact from himself a punishment . likeas , upon this account it is , that though in the canon law , bastards cannot be promov'd to sacred orders without dispensation , nor can alibi nati , that is to say , people born out of england be admitted to succeed in england , by express act of parliament there ; yet agapaetus , theodorus , gelasius and many others , have been admitted to be popes without any formal dispensation , their election clearing that imperfection . and the statute of alibi nati , has been oft found not to extend to the royal line . that the succession to the crown purges all defects , is clear , by many instances , both at home and abroad . the instances at home are , in england henry the vi. being disabled and attainted of high treason by act of parliament , it was found by the judges , notwithstanding that from the moment he assum'd the crown , he had right to succeed without being restored . and the like was resolved by the judges in the case of henry the vii , as bacon observes in his history of henry the vii . fol. . and in the case of queen elizabeth , who was declar'd bastard by act of parliament , as is clear by cambden anno . elizabeth . and though in scotland there be no express instances of this , because though some rebellious ring-leaders in scotland , have often in a privat capacity been very injurious to their king ; yet their parliaments have been ever very tender of attainting the blood royal , or presumptive heirs . but alexander duke of albanie , and his succession being declared traitours , by his brother king iames the iv. his son iohn was notwithstanding called home from france upon his uncles death , and declar'd tutor and governour , without any remission , or being restor'd : that employment being found to be due to him by the right of blood : therefore he had been much more declared the true successor of the crown if his cousin king iames the v. had died . these being sufficient to establish our design , i shall mention only some forraigne stories . charles the vii . of france who though banish'd by sentence of the parliament of paris , did thereafter succeed to the crown . and though lewis the xii . was forfeited for taking up armes against charles the viii . yet he succeeded to him without restitution . and lewis the ii. his son being declared a rebel , whom his father desiring to disinherit , and to substitut in his place charles duke of normandie , that son had succeeded if he had not been hindered by the nobility , who plainly told him it was impossible to exclude his sone from the succession . my next task shall be to satisfy the arguments brought for mantaining this opinion , whereof the first is . that god himself has authorised the inverting the right of succession , by the examples of esau , salomon , and others . to which i answer , that these instances which are warranted by express commands from god , are no more to be drawn into example , than the robbing of the aegyptians ear-rings . and it 's needing an express command , and the expressing of that command , does evince , that otherwayes iacob , nor salomon could not have succeeded against the priviledge of birth-right and possession . the next objection , is that it is naturally imply'd in all monarchies , that the people shall obey whilst the prince governs justly , as in the paction betwixt david , and the people sam. . which is most suitable to the principles of justice , and government : since relations cannot stand by one side ; so that when the king leaves off to be king , and becomes a tyrant , the people may consult their own security in laying him aside , as tutors may be remov'd when they are suspect . and that this is most just when kings are idolaters since god is rather to be obey'd then men . to all which it is answered , that god who loves order , and knows the extravagant levity , and insolence of men , especially when baited by hope of prey , or promotion , did wisely think fit to ordain under the paine of eternal damnation , that all men should be subject to superiour powers for conscience sake . pet. . . and that whoever resists the power , resists god , rom. . . reserving the punishment of kings to himself , as being only their superiour . and thus david , asa , and others , committed crimes , but were not depos'd , nor debarr'd by the people . nor were even the idolatrous kings such as achab , manasse , &c. judged by their subjects , nor did the prophets exhort the people to rise against them , though they were opposing gods express , and immediat will , and overturning the uncontraverted fundamentals of religion . nor did the fathers of the primitive church , excite the christians to oppose the heathen , and idolatrous princes , under which they lived : and paul commands them to pray for these heathen emperours . nor was the emperour basilicus depos'd for abrogating the council of chalcedon , as is pretended by some republicans , but was turn'd out by the just successor zeno , whom he had formerly dethron'd . nor were zeno or anastasius degraded for their errors in religion , or their vices by the ancient christians : but were opprest by private faction . and sure they must think god unable to redress himself , who without warrand , and against his expresse warrand , will usurpe so high a power . and we in this rebellious principle , owne the greatest extravagancy with which we can charge the pope and jesuits , and disowne not only our own confession of faith which article . chap. . acknowledges , that infidelity , or difference in religion doth not make void the magistrats just ▪ or legal authority , nor free the people from their due obedience to him , but contradict the best protestant divines , as musculus , melancthon and others vid. libell . de vitand . superstit . anno . & consil. biden . dec. . consil. . & decad. . consil. . nor can the subterfuge us'd by buchanan , and others satisfie , whereby they contend that the former texts of scripture prove only that the office , but not the persones of kings are sacred : so that parliaments or people may lay aside the persons , though not the office , seing the sacred text secures oftner the person , than the office as i have formerly more fully prov'de . and if this principle prevail'd as to the differences in the theory of religion , it would in the next step be urg'd as to the practice of religion ; and we would change our kings , because we thought them not pious , as well as protestant . and did not our sectarians refine so far , as to think dominion founded on grace ? and this opinion seems to my self more solide than the other , for certainly an impious protestant , is a worse governour , and less gods vicegerent , and image , than a devout papist . and amongst protestants , every secte will reject a king , because he is not of their opinion . and thus our covenanters , by the act of the west-kirk anno . declar'd , they would disown our present monarch , if he did not own the covenant . and though a king were protestant , yet still this pretext that he design'd to introduce popery , would raise his people against him , if differences in religion could lawfully arme subjects against their king , or did empower them to debar his successor . and when this cheat prevail'd against devout king charles the i , the martyr of that orthodox faith to which he was said to be enemie , what a madness is it to allow this fatall error , which was able to ruine us in the last age , and went so near to destroy us in this ? this is indeed , to allow that arbitrariness against our kings , which we would not allow in them to us . the second objection is , that in england the parliament has frequently devolv'd the crown and government upon such as were not otherwayes to have succeeded , as in the instances of edward the ii. and richard the iii , the first of whom was most unjustly depos'd , for making use of gavestoun , and the spencers ; which shewes how extravagant the people ar in their humours , rather than how just their power is : for besides , that we do not read , that these counsellors were unsufferable , there is no good christian that can say , that a king can be depos'd for using ill counsellors . and as to richard the iii. his case is so fully examined , and all the articles brought both against him , and edward the ii. so fully answered by the learn'd arnisaeus a protestant lawyer , ( and who had no other interest in that debate than a love to truth and law ) in that treatise , quod nullâ ex causâ subditis fas sit contra legitimum principem arma sumere , that we protestants should be asham'd to bring again to the field such instances , upon which arnisaeus , in answer to the . article against richard the ii , viz. that he refus'd to allow the lawes made in parliament , does very well remark , that this was in effect to consent to their being king , and to transferre upon them the royal power , and this will be the event of all such undertakings . the instances of henry the iv. and henry the vii . , are of no more weight than the other two , since these were likewayes only kings de facto , till king henry the vii . by his marriage with the lady elizabeth , eldest daughter to king edward the iv. , did by her transmit a just title to his successor : & therefore it was not strange , that either of these should allow the parliament to interpose , when they behov'd to owe to them the possession of the throne . but yet henry the vii . himself ( as the lord bacon relates in his historie ) shunn'd to have the parliament declare his title to be just , being content with these ambiguous words , viz. that the inheritance of the crown should rest , remain and abide in the king , &c. and upon this accompt it was , that the same king caus'd make a law , that such as should serve the king for the time , being in his warrs , could not be attainted or impeach'd in their persons or estates . as to henry the viii . his procuring an act , whereby the parliament declares that in case he had no issue by the lady iean seymour , he might dispose of the crown to whatsoever person he should in his own discretion think fit . it is answered , that by a former statute in the year of his reigne , he by act of parliament setles the crown upon the heirs male of his own body , and for lack of such issue , to lady elizabeth , and for lack of such issue also , to the next heirs of the king , who should for ever succeed according to the right of succession of the crown of england ; which shewes that the succession to the crown of england is establish't by the law of nature , and the fundamental laws of england , upon the heirs of blood , according to the proximity of degrees ; so that though that king did afterwards prevaile with the parliament to declare this elizabeth a bastard , as he did also his daughter mary , by another act , and resolve to setle the crown , upon henry fitz roy , duke of richmond , yet these acts teach us how dangerous it is to leave parliaments to the impression of kings in the case of naming a successor , as it is to expose kings to the arbitrariness of parliaments . but such care had god of his own laws , that mary succeeded notwithstanding she was papist , and elizabeth succeeded her , though she was declar'd bastard ; the rights of blood prevailing over the formalities of divorce , and the dispensations of popes : as the strength of nature does often prevaile over poisons . and god remov'd the duke of richmond by death , to prevent the unjust competition , and so little notice was taken of this ; and the subsequent act anno , that the heirs of blood succeeded without repealing of that act , as ane act in it self invalide from the beginning : for only such acts are past by , without being repeal'd . and blackwood pag. . observes very well , that so conscious were the makers of these acts , of the illegality thereof , and of their being contrarie to the immutable laws of god , nature and nations , that none durst produce that kings testament wherein he did nominat a successor , conform to the power granted by these acts , that how soon they were freed by his death from the violent oppressions that had forced them to alter a successor three several times , and at last to swear implicitly to whomever he should nominat , ( a preparative which this age would not well bear though they cite it ) they proclamed first queen mary their queen though a papist , and thereafter queen elizabeth , whom themselves had formerly declared a bastard . and as in all these acts there is nothing declaring the parliaments to have power to name a successor , but only giving a power to the king , for preventing mischiefs , that might arise upon the dubiousness of the succession , to nominat a successor ; two of the legal successors having been declar'd bastards upon some niceties , not of nature , but of the popes bulls for divorcing their mothers : so , this instance can only prove , that the king may nominat a successor , and that the parliament may consent , not to quarrell it , ( which is all that they do ) but does not at all prove , that where the right of nature is clear , the parliament may invert the same . and strangers who considered more the dictats of law than of passion , did in that age conclude , that no statute could be valide when made contrare to the fundamental law of the kingdom , arnisaeus cap. . num. . henricus viii . angliae rex eduardum filium primò , deinde mariam , denique elizabetham suos haeredes fecerat , verùm non aliter ea omnia valent quàm si cum jure regni conveniant , vid. curt. tract . feud . par. . num. . there seems greater difficulty to arise from the elizabeth c. . by which it is enacted , that if any persone shall affirme , that the parliament of england has not full power to bind and governe the crown in point of succession and descent , that such a persone , during the queens life , shall be guilty of high treason . but to this act it is answered , that this act does not debarre the next legal and natural successor . and these words , that the parliament has power to bind and govern the succession , must be , as all other general expressions in statutes , interpreted and restricted by other uncontraverted laws ; and so the sense must be , that the parliament are judge where there are differences betwixt competitors in nice and contravertable points which cannot be otherwise decided : and both this and the former acts made in henry the vi. time , are not general laws but temporarie acts and personal priviledges ; and so cannot overturn the known current of law. quod verò contrà rationem juris receptum est , non est producendum ad consequentias . and in all these instances it is remarkable , that the restriction was made upon the desire of the soveraigne , and not of the subject . and if we look upon this act as made to secure against mary queen of scotland , and to let her know , that it was to no purpose for her to designe any thing against the right , or person of queen elizabeth , as being declar'd a bastard , by act of parliament in england ; since her other right as next undoubted heir by blood to the crown , might be altered , or govern'd : we must acknowledge it to be only one of these statutes , which the law sayes , are made ad terrorem & ex terrore only . nor was there ever use made of it by queen elizabeth , nor her parliaments ; so fully were they convinc'd , that this pretended power was so unjust , as that it could not be justified by an act of parliament , being contrair to the laws of god , of nature , of nations , and of the fundamental laws of both kingdoms . but this law being made to exclude queen mary , and the scotish line , as is clear by that clause , wherein it is declared that every person or persones of what degree or nation soever they be , shall during the queens life declare or publish , that they have right to the crown of england during the queens life , shall be disinabled to enjoy the crown in succession , inheritance , or otherwayes , after the queens death ; it therefore followes , that it was never valide : for if it had , king iames might have thereby been excluded by that person who should have succeded next to the scotish race . for it 's undeniable , that queen marie did , during queen elizabeths life , pretend ▪ right to the crown , upon the account that queen elizabeth was declared bastard . and therefore the calling in of king iames after this act , and the acknowledging his title , does clearly evince , that the parliament of england knew , that they had no power to make any such act. the words of which acknowledgement of king iames's right , i have thought fit to set down , as it is in the statute it self , . ia. cap. . that the crown of england did descend upon king iames by inherent birthright , as being lineally , justly , and lawfully next , and sole heir of the blood royal. and to this recognition they do submit themselves , and posterities for ever , untill the last drop of their blood be spilt . and further doth beseech his majesty to accept of the same recognition , as the first fruits of their loyalty , and faith to his majesty , and to his royal progeny , and posterity for ever . it may be also objected , that by the , act. parl. . ia. . it is provided in scotland , that all kings and princes that shall happen to reigne and bear rule over that kingdom , shall at the time of their coronation , make their faithfull promise by oath in presence of eternal god , that they shall mantaine the true religion of iesus christ , the preaching of the holy word , and due and right administration of the sacraments now received and preach'd within this kingdom ; from which two conclusions may be inferr'd , . that by that act the successor to the crown may be restricted . . that the successor to the crown must be a protestant , that being the religion which was professed and established the time of this act. to which it is answered , that this act relates only to the crowning of the king , and not to the succession . nor is a coronation absolutly necessar , coronatio enim magis est ad ostentationem , quàm ad necessitatem . nec ideo rex est quia coronatur , sed coronatur quia rex est . oldard : consil . . num . . balbus lib. de coronat . pag . nor do we read that any kings were crown'd in scripture except ioas. and clovis king of france was the first , who was crown'd in europe . nor are any kings of spaine crown'd till this day . neither is ane coronation oath requisit ; sisenandus being the first who in the . tolletan councel gave such an oath amongst the christians , as trajan was the first amongst the heathen emperours . and we having had no coronation oath till the reigne of king gregorie , which was in anno , he having found the kingdom free from all restrictions , could not have limited his successor , or at least could not have debarr'd him by an oath . nullam enim poterat legem dictare posteris , cum par in parem non habeat imperium , as our blackwood observes . pag. . ( . ) there is no clause irritant in this act debarring the successor , or declaring the succession null in case his successor gave not this oath . . the lawfull successor though he were of a different religion from his people ( as god forbid he should be ) may easily swear , that he shall mantaine the laws presently standing . and any parliament may legally secure the successor from overturning their religion or laws , though they cannot debarre him . and though the successor did not swear to mantaine the laws , yet are they in litle danger by his succession ; since all acts of parliament stand in force , till they be repeal'd by subsequent parliaments ▪ and the king cannot repeale an act without the consent of parliament . but to put this beyond all debate , the . act of this current parliament is opponed , whereby it is declared , that the right and administration of the government is immediatly devolv'd upon the nixt lawfull heir after the death of the king or queen , and that no difference in religion , nor no law nor act of parliament can stop or hinder them in the free and actual administration ; which is an abrogation of the foresaid act concerning the coronation as to this point ▪ for how can the administration be devolv'd immediatly upon the successor , if he cannot administrat till he be crown'd , and have sworn this oath . the next objection is , that since the king and parl. may by act of parl. alter the successions of privat families though transmitted by the right of blood , why may they not alter the succession in the royal family ? to which it is answered , that the reason of the difference lyes in this , that the heirs of the crown owe not their succession to parliaments : for they succeed by the laws of god , nature , and the fundamental laws of the nation ; whereas privat families are subject to parliaments , and inferiour to them , and owe their privat rights to a municipal law , and so may and ought in point of right to be regulated by them . and yet i am very clear , that a parliament cannot arbitrarly debarr the eldest son of a privat family , and devolve the succession upon the younger : and if they did so , their acts would be null . but if this argument were good , we might as well conclude by it , that no persone born out of england , or attainted of treason could succeed to the crown ; because he could not succeed to a privat estate . all which and many moe instances do clearly demonstrat that the successor to the crown cannot be debarr'd , not the succession to the crown diverted by act of parliament . the last objection is , that robert the iii. king of scotland , was by ane act of parliament preferr'd to david and walter , who were ( as he pretends ) were truly the eldest lawful sons of robert the d. because euphan daughter to the earl of ross was first lawful wife to king robert the d , and she bore him david earl of strathern , and walter earl of athol , alexander earl of buchan , and euphan who was married to james earl of dowglass , after whose deceass he married elizabeth muir , daughter to sir adam muir ; not so much ( as buchanan observes ) from any design to marry a second wife , as from the great love he carried to elizabeth muir , whom because of her extraordinary beauty he had lov'd very passionatly in his youth , and before he married the earl of rosses daughter , and from the love which he bore to the sons whom elizabeth had born before that first marriage , who were john earl of carrick ( who thereafter succeeded to the crown by the title of robert the d , ) and robert earl of fife and monteith , he prevail'd with the parliament to prefer john eldest son by elizabeth muir , to the two sons which he had by the earl of rosses daughter , who was ( as they pretend ) his first lawful wife . in which though i might debate many nice points of law relating to this subject , yet i choose only to insist on these few convincing answers . . that in a case of so great moment historians should be little credited , except they could have produc'd very infallible documents ; and as in general one historian may make all who succeed him err , so in this case boetius ( who was the first ) liv'd and wrot years after the marriage of king robert the d , and wrot his history at aberdeen , very remote from the registers and records by which he should have instructed himself ; nor did he know the importance of this point , having touch'd it only transiently , though it has been design'dly press'd by buchanan , to evince that the parliaments of scotland might prefer any of the royal line they pleas'd ; and it is indeed probable that king robert the d. did for some time make no great noise of his first marriage with elizabeth muir , least the meaness of the match should have weaken'd his interest upon his first coming to the crown , he being himself the first of the race of the stewarts , and having so strong competitors as the earl of dowglass , who claim'd right to the crown in the right of the baliol and the cummings , as boetius himself observes . . king robert the d. having succeeded as the eldest lawful son , and having been receiv'd as such by that parliament , and his posterity by all succeeding parliaments , the possession of the king and the acquiescence of the people is the most infallible proof that can be adduc'd for proving that robert was the eldest lawful son , nor have most kings in europe , or the heads of most private families any other proof of their being the eldest and lawful sons , save that they succeeded and were acknowledg'd as such . . to ballance the authority of these historians , i shall produce the testimonie of the learned sir lewis stewart , one of the most famous lawyers we ever had , and who ought much more to be believ'd than buchanan , not only because he was more disinterested , but because he founds upon acts of parliament and old charters which he himself had seen in the registers , in which elizabeth muir is acknowledg'd to have been the first wife . buchananus lib. . in vitam roberti . affirmat euphaniam comitis rossenssis filiam primam regis roberti . uxorem fuisse & eâ mortuâ , regem superinduxisse elizabetham moram ex qua prius liberos ternos mares suscepisset , & eam uxorem duxisse , ejusque liberos regno destinasse , ut postea eorum natu maximus suc●essit quod quam falsum sit , apparet ex archivis in carcere edinburgensi reconditis , ubi exstant separata acta duorum parliamentorum , subscripta manibus ecclesiasticorum praesulum , nobilium , baronum , & aliorum statuum parliamenti , & eorum sigillis roborata , quibus elizabetha mora agnoscitur prima uxor , & euphania rosse secunda , & liberis ex elizabetha mora tanquam justis haeredibus regni , successive regnum d●cernitur , & post eos liberis euphaniae rosse nec non ibidem cartae extant plurimae , factae per davidem secundum , eorum patruum magnum ex diversis terris , ioanni filio primogenito , nepotis ejus roberti , dum euphania rosse viverit nec non davidi filio natu maximo euphaniae rosse quem solum filium indigitat roberti nepotis , quod non fecisset si elizabetha mora non prius fuisset nupta roberto ejus nepoti , nam primogenitus nunquam attribuitur notho imo ego plures quam viginti cartas in archivis inveni , ubi etiam eas reliqui , ex quibus sole clarius elucessit , elizabetham moram primam fuisse uxorem , & euphaniam rosse secundam , nam extra contraversiam , liberi elizabethae morae etate grandiores erant liberis euphaniae rosse : which paper i did get from the lord pitmeden , who has himself written some learn'd observations upon this point . . i have my self seen an act of parliament ( found out by the industry of sir george mackenzie of tarbet , now lord register ) having the intire seals of the members of parliament appended thereto , by which the parliament do swear allegiance to robert the d. the first king of the race of the stewarts ; and after him roberto comiti de carrict , filio suo natu maximo ( his eldest son ) in anno , which was the first year of his reign ; and if the pretended defect be true , it was a very palpable , and a very undenyable one , and could not but have been unanswerably known to the whole nation . and how can we imagine , that the whole parliament would have unanimously drawn upon themselves so dreadful a perjury , by excluding the lawful heir , against their national oath in the reign of k ▪ kenneth the d , whereby they swore to own always the immediate heir , or that they would have entail'd upon themselves a civil war , by preferring even a questionable heir , after the miseries which they had lately then felt , in the competition betwixt the bruce and the baliol. amongst which seals , the seal of iames earl of dowglass is one , and how ridiculous is it to think , that he would sit and declare a bastard preferable to the brother of his own lady , and to his own lady who would have succeeded if her brothers had died without succession : which act of parliament does also clearly prove , that buchanan did not at all understand matters of fact in this part of the history , for he asserts , that after the death of euphan ross , the king married elizabeth muir , and did by act of parliament obtain the crown to be settled upon robert the d , son to the said elizabeth muir , upon whom he also bestow'd the title of carrick ; all which is most false , for this act of parliament is dated in anno , and king robert the d. succeeded to the crown that year , nor did euphan ross die till the d. year after he succeeded to the crown , and so not till the year , and yet in anno this act is past , designing him heir to the crown , and earl of carrick , and consequently he was so design'd before the death of euphan ross. . i have seen a charter granted by king robert the d , when he was only steward of scotland , granted in anno , and so long before he was king. in which charter likewise , iohn , thereafter king , by the name of robert the d , is a conjunct disponer with him , under the express designation of the eldest son and heir . robertus senescallus scotiae , comes de strathern , & ioannes senescallus primogenitus & haeres ipsius dominus baroniae de kyle , &c. which charter confirms to the abbacy of pasley several lands disponed to them , by reginaldus more , father to sir william more of abercorn . and i find that david duke of rothsay , was always in the charters granted by his father king robert the first , called primogenitus , and he was no bastard , nor can this designation be given to a bastard , as is clear by covaruvias de matrim . part . . cap. . § . . num . but how can it be imagined that the monks of pasley would have taken a right from a person as heir to the crown , who was not : for this would have infer'd treason against them , beside the annulling their right , or who could understand better the lawfulness of a marriage , than a body of church-men , living in the time , and very near to the residence of the married persons , and in whose conventual-church the said king robert and elizabeth muir ly buried together . item , i have seen in the registers another charter granted by king robert the . in the first year of his reign , with the consent of iohn earl of carrick , primogenitus & haeres , allano de lavidia terrarum de whitslet ; and an other granted by the said king , . iune , anno primo regni , confirming to paulo mctire a charter granted by the earl of ross , father to euphan , wherein the said iohn primogenitus & haeres , is a witness : and to shew that the said euphan ross was then living when he was so design'd heir , there is a charter to her by the king upon the very same day of the lands of lochleaven . as also , there is a charter granted by king robert the d , the first year of his reign , to alexander his son , and another to iohn kennedy of the barrony of dalrymple , in both which the said iohn earl of carrick is call'd primogenitus , and is witness with the earl of dowglass ; so that he has been design'd eldest son and heir , openly , uncontravertedly , and in all papers , and with the consent of the second wife and her relations . . in the parliament , the said iohn earl of carrick is design'd to be lieutenant of the kingdom , and all the estates of parliament swear to own him in his government , and which statute is printed amongst the satutes of king robert the d , father to the said iohn , and which must be during the marriage with euphan ross , for she liv'd three years after her husband was king , and he succeeded to the crown anno : and this also confutes buchanan , who asserts , that he was created earl of carrick after the death of euphan ross , and it is against all sense and reason to think that he could have been acknowledg'd during her life , if he had not been the true apparent heir of the crown and a lawful son. . walter ( who they pretend should have succeeded to the crown , ) having kill'd his nephew king iames the first , son to king robert the d ; he was not only not own'd after the death of the said king iames , as certainly he had been if his title had been good , and his right so recent and demonstrable , having so many great and powerful relations , that his father was induc'd upon their account to marry his mother ; but yet the said walter was by all the parliament unanimously condemn'd as a traitor , for having conspir'd the death of his lawful prince . nor does boetius justifie walter 's title in the least , but on the contrary , magnifies the parliament for their just sentence . as did likewise aeneas silvius the popes learned legat , who exhorted the parliament to condemn him . . how is it imaginable , that king robert who had so lately , and after a strong competition come to the crown , would have adventur'd to make his title yet more disputable , by preferring a bastard to the true heir , who had so many friends by his mother , and who being an infant had never disoblig'd him . . if we will consider the opinion of the civilians , whom we and almost all nations follow in the cases of succession , we will find , that the said king robert the d was the eldest and lawful son of king robert the d. filius legitimus , & non legitimatus . for , . they conclude , that a son is prov'd to be a lawful son by the assertion of the father , alciat tract praesumpt . reg. ▪ praesumpt . . num . . and certainly the father is the best judge in such cases ; but so it is we have the father owning the said robert the d. to be his eldest son and heir , both in charters and acts of parliamnets , which are the most solemn of all deeds . . quando pater instituit aliquem tanquam filium suum , which holds in this case , where the father institutes and leaves him heir , and the parliament swears allegiance to him as the heir , mascard . de prob . vol , . conclus . . and in dubious cases , the father's naming such a man as a son , presumes him to be a lawful son , nominatio parentis inducit filiationem in dubio , l. ex facto § . si quis rogatus ff . ad trebell . . even fame , and the common opinion of the people , do in favours of these that are in possession , and in ancient cases , prove & filiationem , & legitimationem , mascard . conclus . . but much more , where the fame and common opinion is adminiculated by other arguments , fulgos consil . . panorm . in cap. transmiss . qui filii sunt ligittimi . . when writs are produc'd , calling a man a son , the law concludes him to be a lawful son. mascard . vol. . conclus . . num . all which can be easily subsum'd in our case . in which robert the d. is nam'd not only son , but heir , and allegiance sworn to him , even in the lifetime of the second wife and her relations sitting in parliament , and all this acquiesc'd in for many hundreds of years , and the competitors punish'd as traitors by the unanimous consent of all the parliament . i know that buchanan does most bitterly inveigh against those laws made by king kenneth the d , as laws whereby the ancient right of succession was innovated , and whereby the government was settled upon children who were neither able to consult with the people , nor to defend them , and whereby those had the government of the nation conferr'd upon them who were not capable to govern themselves . to which my answer is , that in this buchanan's malice contradicts his history , for his own history tells us , that the scots swore allegiance to fergus and his posterity ; and consequently fergus's son ought by law to have succeeded , and not his brother , for his brother was none of his posterity , and therefore those laws made by k. kenneth did but renew the old law , and the innovation introduc'd in favours of the uncles , was a subversion of the fundamental law to which they had sworn . . that the old law was not abrogated , but was in being by vertue of the first oath , appears very clear by buchanan himself , who confesses , that upon the death of durstus , a wicked prince , it was debated whether his son should not succeed juxta sacramentum fergusio prestitum veteremque esse morem servandum , which acknowledgeth that the succession was even in these days established by law , by oath , and by custom ; and after the death of fergus the d , his son eugenius ( though a minor ) was crown'd , and his uncle graemus allow'd to be his tutor . and buchanan also brings in bishop kennedy , lib. . praising this law as made by kenneth , a most wise and glorious prince , with advice of all his estates of parliament ; and which rather confirms ( as he says ) the old law than introduces a new one , so far did buchanan's rage against queen mary prevail with him , to praise and rail at the same individual law ; and it is observable , that it is very dangerous to recede once from fundamental laws , for buchanan makes not only the succession elective , but he makes no difference betwixt lawful children and bastards , and excludes not only minors during the uncles life , but women for ever . . in all nations where the monarchy is hereditary , minors succeed , and so this innovation of causing the next male succeed for all his life , was contrary to the nature of the monarchy and to the customs of all nations , and god in scripture gives us many instances of it : ioas succeeded when he was seven years of age , iosiah when he was eight , manasseh in twelve , and azariah in sixteen ; and yet in those days , god is said to have chosen the king , for it is said in deut. thou shalt set over thee , the king whom i have chosen , and consequently the choice of minors cannot be ill , since god almighty us'd to make such a choice . i know that eccles. . . says , woe unto the land when thy king is a child , but the criticks interpret this of a king that is childish , puer intellectu & moribus , or because factions arise by the opposition to his regents , and this inconveniency did more necessarily attend the allowing a regent king during life , for both the subjects and the true heir rais'd factions in that case , whereas the subjects only are factious in the other , and yet even they are no more factious for that short time , than they are always in common-wealths . . the reason why the minor king was to have one to supply his nonage ceasing with his majority , it was unreasonable that the remedy should have lasted beyond the disease , and the worst effect that could have been occasion'd by the infant king's minority was , that the kingdom should have been during that time govern'd by joynt advice of parliament , councils , and officers of state , which in buchanan's opinion in other places of his history and book de jure regni , is so excellent a model , that he decrys monarchy as much inferior to it . . it was most inconvenient to accustom any private family to live in the quality of a king. . it could not but occasion many murders , and much faction , for the true heir could not live peaceably under this eclipse and exclusion , nor could the uncle live without making a party to secure his pleasant usurpation . . as these divisions and factions were the natural and necessary effects that were to be expected from this irregular succession , so it is very observable , that from king fergus to king kenneth the d , we had . kings , amongst whom , almost the half were the most impious , tyranical , or lazie kings that ever we had , according to buchanan's character of them ; so happy and wise a thing is this ( so much magnified ) election of a successor by the people and their representatives , to supply the defects of the lawful heir , whereas from king kenneth the d , to king charles the d. inclusivè , we have had . kings , . of whom have succeeded by a due lineal right , and have prov'd vertuous princes , greater by their merit than their birth , as if god had design'd to let us see , that though most of them succeeded whilst they were very young , yet that he can choose a fitter successor than parliaments can do ; whereas the other . kings who came to the crown against that law of kenneth the d ▪ viz. constantine the bald , grimus , mackbeath , donal bain , and duncan the d , were all persons who deserved very ill to be preferred to the true heir , and who , as they came to the crown against law , so govern'd without it : and it is very strange , that the fanaticks , who think that every throw of the dice is influenc'd by a special providence , will not allow , that god does by a special providence take care who shall be his representative , who shall be the pastor of his flock , and nursing father of his church ; let us therefore trust his care more than our own , and hope to obtain more from him by christian submission , humility and obedience than we can by caballing , rebelling , and sacrilegious-murdering , or excluding the true successor . finis . what follows is immediatly to be subjony'd to the testimony of calvin , page . i know that to this it may be answered , that the same calvin does qualifie his own words , which i have cited with this following caution . si qui sunt ( saith he ) populares magistratus , ad moderandam regum libidinem constituti ( quales olim erant qui lacedemoniis regibus oppositi erant ephori ; & quâ etiam fortè potestate ( ut nunc res habent ) fuguntur in singulis regnis , tres ordines ; quum primarios conventus peragunt ) adeo illos ferocienti regum licentiae , pro officio intercedere non veto ; ut si regibus impotenter grassantibus , & humili plebeculae insultantibus conniveant , eorum dissimulationem nefariâ perfidiâ non carere affirmam ; quia populi libertatem , cujus se tutores dei ordinatione positos nôrunt , fraudulenter produnt . to which my reply is , that these words must be so constructed , as that they may not be incosistent with his former clear and orthodox doctrine , of not resisting supream powers , the former being his positive doctrine , and this but a supervenient caution , and they do very well consist ; for though calvin be very clear , that kings cannot be resisted , yet he thinks that this is only to be mean'd of those kings who have no superiors to check them by law , as the kings of the lacedemonians had , who by the fundamental constitution of their monarchy , might have been call'd to an accompt by the ephori , and so in effect were only titular kings : or of such monarchs as had only a co-ordinate power with the states of their own kingdom ; and even in these cases , he does not positively assert , that these monarchs may be resisted , but does only doubt whether if there be any such superior or co-ordinate magistrate representing the people , they may not restrain the rage and licentiousness of their kings : but that caution does not at all concern the ius regni apud scotos , because this cannot be said of the kings of great britain , since the states of parliament are only call'd by the king , and derive their authority from him , and the legislative power is solely in the king , the states of parliament being only consenters , he and not they can only make peace and war , and grant remissions , and against him and not them treason only is committed , and the law books of both nations do affirm , that the king is supream , and consequently even according to calvin's doctrine , neither his people , nor any of their representatives , can justly oppose , and much less punish him . i know that grotius is by the republicans , and the fanaticks , oft-times cited to defend this their doctrine , of opposing princes ; but though his testimony might be justly rejected , as being himself born under a commonwealth , yet he is most impudently cited , for he lib. . cap. . does positively lay down as a general and undoubted rule , that summum imperium tenentibus , resisti non potest , those who have the supream power cannot lawfully be resisted ; whilch rule he founds upon the principles of reason , the authority of scripture , and the practice of the primitive church ; and though he limits the same thereafter by some exceptions , yet it will easily appear , that these exceptions extend not at all to our case . for the first relates only to such kings , as have receiv'd their power with express condition , that they may be try'd by other magistrats . the second to such as have voluntarily resign'd their empire , as charles the th . did ; and so the one may be oppos'd , because they were only titular kings : and the other , because they left off to be kings , and consequently we are concerned in neither of these cases . the third limitation is only in the case where he who was truly a king , has alienated his kingdom to strangers ; in which case , grotius does contend , that subjects may refuse to obey , because he ceaseth to be their king. but as this is not our case , so even in that case grotius is very clear , that if this alienation be made by an hereditary monarch , the alienation is null , as being done in prejudice of the lawful successor , but he does not at all assert that the monarch may be thereupon depos'd by his people . the fourth relates only to such kings , as from a hatred to their countrey , design its destruction and utter ruine ; but as he confesseth himself , id vix accidere potest in rege mentis compote ; and consequently can take only place in a mad man , in which case all laws allow the kingdom to be rul'd by governours , and administrators in the king's name , if the madness be natural , and a total depravation of sense . but if by madness be mean'd a moral madness , and design to ruine the kingdom and the subjects , as was , and is most impiously pretended against king charles the first , and king charles the d , the best and most reasonable of kings ; then opposition in such cases is not at all warranted by grotius , who speaks only of a physical and natural madness ; for else , every thing that displeaseth the people should be call'd madness ; and so the exception should not limit but overturn the general rule , and should arm all subjects to rebel against their princes , and make them the soveraign judges in all cases . which is inconsistent with grotius's own doctrine , and is excellently refuted by his own reasons . the fifth relates only to kings , who by the fundamental laws of the kingdom are ty'd to such and such conditions , so as that if they fall in them , they may be oppos'd . the sixth relates only to kingdoms where the power is equally devided betwixt the king and the senate . the seventh is incase the king was at first invested by the people , with express reservation to them to resist in such and such cases , and so is almost the same with the fifth , and all these three differ little from the first . and with grotius good leave , they err also in this , that they are not properly exceptions from his own rule , for the rule being only , that supream powers cannot be resisted , these powers are not supream , and they needed not be caution'd by an exception , since they did not fall under the rule . but neither of these cases extend to us , since our king is by the acts of parliament fomerly cited , declared to be supream over all persons and in all causes , nor made our predecessors any such express reservations at the first erection of the monarchy , and consequently by grotius own positive doctrine cannot be resisted . and so far is grotius an enemy to such fanatical resistance , upon the pretence of liberty and religion , that num . . he calls the authors of these opinions , time servers only . and gronovius a violent republican and fanatick , taxes him extreamly for it , in his observations upon that fourth chapter , whose arguments adduc'd against grotius i shall answer amongst the other objections . gronovius's first argument why it should be lawful to resist the supream magistrate in defence of religion , is , because if it be not lawful for subjects to arm themselves for religion against their prince , it should not be lawful for their prince by the same rule to defend himself against turks and infidels , who would endeavour to force him to comply with their impieties . but to this it is answered , that resistance to superiors is expressly discharg'd by the laws of god and nature , as said is , but this cannot be extended to cases where there is no subjection nor allegiance ; and it may be as well argu'd , that because one private man may beat another who offers to strike him , that therefore a child may beat his parent , or a servant his master , or that because i may violently resist a private man who offers to take away my goods unjustly , that therefore i may oppose the sentence of the magistrat , because i forsooth do not think the same just . his second shift is , that our saviour commanded only absolute submission without resistance in the infancy of the church when he himself was miraculosly to assist his own servants , but this submission was to end with the miracles , to which it related . as to which , my answer is , . that all the commands in scripture may be so eluded , nor is there any duty more frequently and fully inculcated than this is , and that too in the same chapters amongst other duties , which are to last for ever , such as submission to parents , and masters , and this is founded upon plain reason and conveniency , and not upon miracles . . this was receiv'd and acknowledg'd by the pagans , as has been fully prov'd , though it cannot be pretended that they rely'd upon any such miraculous assistance . . it cannot be deny'd but the fathers of the primitive church did recommend and justifie themselves in their apologies to the heathen emperors for bearing patiently , when they were able not only to have resisted , but to have overthrown their persecuters , as is clear by the citations out of tertullian , cyprian , lactantius , augustine , and others , to be seen in grotius , de iure belli , lib. . cap. . num . . and it had been great impudence as well as sin in them , to have boasted of a recent matter of fact , which was not true ; nor could there be a greater injury done to the primitive christians , as grotius observes , than to ascribe that to their weakness , which they consider'd as an effect of duty ; and why should the heathen emperors have suffered those to multiply , who obey'd only because disobedience was not safe , for they might have certainly concluded , that by the same principle that they obeyed only because they were weak , they would disobey how soon they were able . . if the first christians in general had obeyed only because they were not able to resist , then any private christian had resisted when he was able , or would have fled or conceal'd himself , whereas it it acknowledg'd in the other answer press'd by gronovius himself , that they sought for martyrdom , and so these two answers are inconsistent ; and the thebean lègion , and others , did submit themselves voluntarly to martyrdom with their arms in their hands , and when they were able to have overthrown the emperor . and lastly , if this doctrine were allow'd , no society could subsist , for when dissenters grew strong , the lawful magistrat behov'd to perish ; whereas jesus christ did contrive the christian religion ; so as that all governours should reasonably wish their subjects to be christians ; and so as no christian should attempt to overthrow the order and establishment of civil government , and that they should not be drawn away from the practice of christian devotion by the carnal desires of being great and strong in the world , nor have any hopes in the arm of flesh to the lessening of their immediate dependence upon him . his third shift is , that his doctrine of submission and of dying for the christian religion without making resistance , was only the practice , but not the command of the primitive church , and proceeded from their immoderat affectation of the crown of martyrdom , as milntoun also pretends . but since the express command of scripture is founded upon such clear reason , and since ( as grotius well observes ) the practice of the primitive christians , who liv'd so near the age wherein these scriptures were pen'd , is the best interpreter of the scripture , it is horrid impiety to make those blessed martyrs pass for vain hypocrites , and distracted self-murderers ; and it becomes us with holy reverence to imitate those whom the christian church has ever admir'd . the fourth shift is , that the protestant churches have been reform'd by such insurrections as these , contrary to the royal authority . but this is fully answered by the learned henry more in his divine dialogues , and by du moulin in his philanax anglicus ; where likewise are to be found the many testimonies of protestant churches , and protestant divines , condemning positively the taking up of arms against the soveraign power , even for the defence of religion ; and the very presbyterian confession of faith at westminster , is so positive as to this point , that the presbyterians themselves can never answer it . the sum of which answer is , that the king of spain coming by marriage in place of the duke of burgundy , the said king of spain could pretend to no more power than they had , nor could the house of burgundy pretend to any more power by marrying the heirs of the counts of the several provinces , than these counts had over their provinces ; and therefore since none of these were soveraigns over their provinces , the provinces might have resisted the king of spain when he oppress'd them ; and consequently that resistance cannot defend such as resist supream powers upon pretence of religion , grotius de antiq. reipub. ba●av . cap. . the opposition made by the protestants in france , was not occasion'd by religion , but upon a quarrel betwixt the princes of the blood and the house of guise in the minority of francis the d , and is defended most excellently by king iames himself , not to have been rebellion , in his defence of the right of kings , pag. . the opposition made by the princes of germany to the emperor , was founded upon the inherent right in the princes , by the golden charter of the empire . and luther himself declar'd , that magistratui non erat resistendum , and has written a book to that purpose ; nor would he engage in the confederacy for defensive arms at smalcald , until the lawyers declared that that resistance was lawful by the laws of the empire , vide slydan hist. lib. . anno . the war that arose in switzerland , was not occasion'd by religion ; for the reformation was once establish'd with the con-consent of the magistrat . and the eruption that was made by other cantons upon the reform'd cantons eleven years after that establishment , vide slydan , anno . nor was it calvin who banish'd the prince and bishop of geneva , for he fled eight months before upon the detecting of a conspiracy , by which that bishop was to deliver over the liberties of that city to the duke of savoy , and for which his secretary was hang'd , vide turretin ▪ annal. reformationis , anno . and albeit those who reform'd in scotland , in the reign of queen mary , pretended authority from the king , yet they were certainly rebels , and are condem'd by rivet , a famous protestant divine , who also inveighs bitterly against this principle , castiga not. in epist. ad balsac . cap. . num . . sub finem . from all which , i observe , first , that all the protestant divines by making apollogies for such of their profession as have risen in arms against supream powers , must be thereby concluded to be asham'd of the principle . . immediatly upon the quieting those rebellions , all the protetestant churches have in their confessions of faith , declared their abhorrence of that principle ; which being the product of conviction and experience , joyn'd with duty , must be the most judicious and sincere testimony of all others . . all these rebellions have been occasion'd by a mistake in point of law , and not in point of religion ; for the divines , as i have related , have been abused by the lawyers : and therefore , since in the isle of britain , the laws of both kingdoms have declared the rising in arms against the king , to be treason , albeit for the defence of religion ; it necessarily follows , that this must be unlawful in point of conscience in this kingdom . . though good things may be occasion'd by a rebellion , yet that does not justifie a rebellion ; for though ieroboam was allow'd by god to rise against rehoboam , yet god almighty himself calls his revolt rebellion , kings . . and chron. . . and it is observable , that after this revolt , there was but one good king amongst all the rebellious kings of israel ; whereas amongst the kings of iudah , who were lawful kings , there was but one or two who were any ways impious ; so far does god bless a lawful succession . some also use as a shift against this orthodox doctrine , that the reason why the primitive christians did not oppose their emperors in the defence of the christian religion , was , because they had not been secured at that time in the exercise of their religion by the laws of the empire ; and therefore the practice of those christians can be no argument why we may not now rise to defend the orthodox religion ▪ since it is now established by law. but this objection is fully answered by that great great antiquary samuel petit. diatriba de iur. principum edictis ecclesiae quaesito , where he clearly proves , that they were actually secured by the edicts of the emperors in the days of the emperor tiberius , and downward , and yet they would not rise in arms though they were persecuted under these same emperors , because the word of god and the christian religion did command obedience under persecution , and discharged resistance and taking up of arms. add to page . i have also seen in fordon's history , lib. . pag. . a charter granted by king david to the bishops , with the consent of robert his nephew , and his sons giving power to the bishops to dispone in testament upon their own moveables , which before that time did by a corrupt custom fall to the king , in which charter , the witnesses are , robertus senescallus comes de strathern , nepos noster ioannes senescallus comes de carrict , filius suus primogenitus & haeres , thomas comes de mar , georgius de dunbar , comes de march , & gulielmus comes de dowglass ; so that here is not only the attestation of the father before he was king , naming iohn earl of carrick , thereafter king robert the d. his eldest son and heir , but the attestation of the grand-uncle king david , who could be no ways byassed in the affair ; and here he is ranked before the three eldest earls in the nation , who were then the three first subjects therein ; and it is against all sense , to think that the whole bishops would have sought the consent of the said iohn as apparent heir of the crown , if he had not been apparent heir . i find also , that fordon calls him when he is crown'd king , primogenitus roberti secundi ; nor was there the least opposition made to his coronation , nor to the coronation of annabella drummond his queen ( a daughter of the house of stob hall , now pearth , ) though both the sons of the second marriage were then alive . i find also , that boetius himself acknowledges , that the earl of marches son george , being pursu'd for having married clandestinly one of the daughters of elizabeth muir , his defence was , that he married her when she was the daughter of a private subject , and before king robert was king , whereas if she had been only a bastard-daughter , it could have been no crime to have married her . a vindication of his majesties government and judicatures in scotland from some aspersions thrown on them by scandalous pamphlets and news-books, and especially with relation to the late earl of argiles process. mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a vindication of his majesties government and judicatures in scotland from some aspersions thrown on them by scandalous pamphlets and news-books, and especially with relation to the late earl of argiles process. mackenzie, george, sir, - . p. printed by the heir of andrew anderson ..., edinburgh : . attributed to sir george mackenzie by wing and nuc pre- imprints. "reflections on the earl of argil's process" begins on p. . reproduction of original in the harvard university library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng jesuits -- scotland. church and state -- great britain -- th century. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - olivia bottum sampled and proofread - olivia bottum text and markup reviewed and edited - pfs batch review (qc) and xml conversion a vindication of his majesties government , & iudicatures , in scotland ; from some aspersions thrown on them by scandalous pamphlets , and news-books : and especially , with relation to the late earl of argiles process . edinburgh , printed by the heir of andrew anderson , printer to his most sacred majesty , anno dom. . a vindication of his majesties government , and judicatures , in scotland , &c. all wise and sober men in scotland , do with a just mixture of pity , and contempt , read those infamous pamphlets , wherein this kingdom is so maliciously traduced by some in our neighbour-nation ; and when they consider that the licentiousness of the press , does so much weaken all government , corrupt all intelligence , and blast so unavoidably the reputation of the best , and most innocent : they conclude justly , that to deny their king the necessary priviledge and prerogative of restraining the press , were to refuse to the master of a ship , the power to prevent its leaking : to deny the magistrat the power of punishing these , who corrupt the springs and fountains of a city : and to refuse to the master of a family , the power of chastising his servants when they rail at one another . i am very desirous also to be informed , how the king can by the priviledge and prerogative of his crown , have the absolute power of making peace and war ? calling and dissolving of parliaments , and a negative voice in them ? and yet should be denyed the far less priviledge of restraining the press : especially after so many proofs of its having been so dangerous , and seditious . how the magistrats of the meanest hanse-town should enjoy this priviledge , and yet that it should be deny'd to the king of great-britain . or how he should have the power to punish lybels , and yet should want the power of stopping them , it being both much safer , and easier , to prevent , then to punish . nor can i dissemble , that our nation has found the happy effects of discharging all printing without licence by an express statute , whereby we find the publick government , and every privat mans reputation most happily secured : whilst on the other hand , it is very observable , that that peer , who told it was not yet time to restrain the press in england , has liv'd to see a famous library of libels and pasquills against himself , for the conviction of this age , and the information of those who shall succeed us . we glory also in the justice of our law , that has by a special statute , ordained all such to be severely punished , who by word , or writ , devise , utter , or publish any false , slanderous , or reproachful speeches , or writs against the state , people or countrey of england , or to the dishonour of any privy councellour thereof : and therefore , we hope , that so wise and just a nation as england , which punishes those who injure a privat peer , will not suffer them to go unpunished , who rail at a nation , that is obliged to hazard their lives and fortuns for their preservation . unhappy liberty which consists in the priviledge of doing ill , and which serves for nothing , but to make the authors be contemn'd for want of breeding , and despis'd for want of sense : nor does this crime want a sufficient punishment , since it has convinced us , that the enemies of the monarchy are such liars , and so malicious , that they deserve neither to be believed , nor followed ; and how can any amongst us believe these in matters of right ? who every day lie so scandalously in matters of fact. upon this ground , i confidently believe , that no honest man , will think we in scotland have owned his royal highness , because england had an aversion for him , as a late pamphlet has maliciously asserted ; for as their worthy peers did wisely reject the bill of exclusion ; so our predecessours were obliged to this by so many oaths , and through a series of so many ages , and god had so severely punished us in the last age , for having joyned with our rebellious neighbours against our native prince , that we had been the greatest fools and rogues upon earth , to have relaps'd so soon into the fame errors ; and especially in following the example and advice of those very rebels , or their impenitent heirs , who had in ten years exercised that arbitrary government over us , against which themselves had exclaimed , and to a hight , that we had never known , and as it is very well known , that every honest man in scotland rejoyces , when they hear of the prosperity of the royal family in england , and esteem highly ▪ and love passionatly all such as have , or do contribute to it ( an union in principles , being stronger then that of the kingdoms ) so scotland being the less powerful nation , what can they gain in the contest ? or why should they envy that which is their greatest security , as well as honour . the delivering of the best of kings at newcastle was no more a national act in us , than the murdering him after a mock-tryal , was a national act in the kingdom of england rebels in both committed those crymes , whilst honest men suffer'd , with him , and for him ; and it is undenyable , that the honest party of scotland , were at that time fighting under the great montrose , against that pretended parliament , which voted his delivery , and that even our rebellious countrey-men delivered him only up to such of our neighbour nation , as did swear upon oath , that they should preserve him and his crowns , and when they found that these sectarians , neither regarded their oath nor their king : they rais'd an army immediatly , to expiat their cryme ; nor wanted ever our nation an army , even under the usurpers , to appear for the monarchy , and from us , and encourag'd by us , went that army that restor'd our present king : let then no honest man remember those national errors , except either in his prayers , when he interceeds with god , for diverting the curse which those crimes deserve ; or in judicatures , when such are to be punish'd , as would lead us back into those confusions . but why the authors of these pamphlets should condemn the very actions , which they so very faithfully copy , seems very wonderful , as it does how our fanatick countrey-men , should wish success to those who rail at their nation and their principles . open then your eyes , my dear countrey-men , and let not your own fanaticism , nor their cheats perswade you , that such as endeavour to lessen and asperse the monarchy in our neighbour . nation , will be ever faithful to you , who are sworn , even in your covenant , to maintain it in this , to you who opposed them in the last war , in their grand designs for a common-wealth , and the extirpation of the scottish race , to you who think that presbytery jure divino , which they laugh at , and never use it as an useful government in the church , though they do some times as an useful tool to rebellion in the state , and to you whom they cheated so far , and opprest so dreadfully in the late rebellion , that they know you cannot trust them . was it the church of england , or sectarians that sold you to be slaves in their plantations , that fill'd your pulpits with buff-coats , and your churches with horses ; and did not they turn all your own arguments against you , that you had us'd against episcopacy ; for as you said the bishops should not have revenues , so they said your ministers should not have stipends , as you contended , that lawn sleeves were popish ; they contended , that gowns were so too ; they in enimity to ceremony , would cover their heads at prayer , as you did in churches ; and by the same rule that you taught that subjects might reform kings , they concluded against you , that they might execute them . i shall likewise refer to your consideration , that it is the duty of every good subject , to obey the laws of that nation wherein he lives , since they must either obey the magistrate , or overturn him ; and a schism does breed so much un-christian heat , and so many civil wars , that no pious or reasonable man should engage in it , except he be necessarly obliged to separate from the the church , as absolutely anti-christian : but so it is , that the differences betwixt our episcopacy and presbytery , which have occasioned all these dangerous disorders , are founded upon no express text of scripture , else forraign churches would not acknowledge ours to be a true church , as they universally do ; nor had the fathers of the primitive church owned a government , which stood in direct opposition to the word of god. and it seems strange , that god almighty should have designed to express a thing in scripture , as necessary for salvation ; and yet we who are obliged to obey the same , should not be able to find it out . it is also very fit to be considered by you , that the reason why monarchy has always preferred episcopacy to presbyterian government , proceeds not only from an aversion to presbytery , as neither establisht by scripture , us'd in the primitive church , nor recommended by the holy fathers ; but because it has been observed , that your government being founded on equality amongst presbyters , resembles more a common-wealth ; and that you have always in this isle , reformed without the monarchs approbation , if not against it , and so have interwoven with your religion , principles opposit to monarchical government , resolving to ballance establisht authority , with pretences of religion , from which necessity has at last forced many of you to oppose all government . and it is still observable , that whatever opposes the government of the countrey where we live , must at last end in anarchy and confusion . those great idolizers of parliaments , in speaking so much against our last , shew that they care no more for parliaments , then they do for kings , and think them only infallible when they are such as themselves . for where was there ever a parliament so unanimous as ourswas in the matter of the succession , not one man having proponed any one argument against it . and what a villanous thing is it to assert , that the test is a popish contrivance , when in it we swear expresly to own the protestant religion , and breed up our children in it . and that without all mental reservations , or equivocations . and to shew how well contriv'd that oath is , in opposition to popery : not one papist in all our kingdom has taken the test. what more could his majesties commissioner have done , to show his willingness to have honest and loyal protestants enjoy their own religion . and who after this should believe these lying authors ? who would impose upon the world , that , as a mark of popery , which is the strongest bulwark imaginable against it . and though we make not the protestant religion , the instrument of cruelty , the stirrup of preferment , a cloak for all manner knavery , and a trumpet of rebellion : nor admire avowed atheists , nor pay salaries to such as deny the divinity of jesus christ , if they be usefull to other hypocritical designes , as some do ; yet our nation has reason to suspect such as will have them passe for popishly inclined , ( as if all duty , when it pleases not them were popery , ) for in our chief city , and it's suburbs , we have not popish families , in the whole diocess of s. andrews , the far largest of scotland , we have not three , and there are not . upon a sworn report , to be found in the diocess of aberdeen , which is the most suspected of all others . these wise states-men , who think insolently , that they though privat men may reform our laws , as well as their own religion ; we appeal still to that parliamentary insallibility , which they here deny : and therefore we justly contemn these pamphlets , which inveigh against the act of the third session of his majesties first parliament , whereby the estates of this kingdom oblidge themselves , to send men , into any part of his majesties dominions , wherever his authority , honour , or greatness may be concerned , which was certainly their duty ; for if they defend it only at home , their defense may prove useless , both to themselves and him , and since he is our king every where , we should assist him every where : and that the king may call his subjects , even without his own territory , is clear by all lawyers , and amongst whom ; i shall only cite , castallio de imperatore quest . . where the question is expresly treated , and this decided from the law of nations : nor need any honest subject fear our assisting their king , and traitors should be terrified . but in all this , we were much loyaler then that peer of england , who , when our rebellion rose , in , affirmed , that his majesty could not send down forces into scotland , without consent of parliament ; because , by the treaty of rippon , it was declar'd , that the subjects of one kingdom , should not in vade the other , without the consent of the parliaments of both kingdoms , which treaty is rescinded with us , and we believe england will not think that a mutual treaty can stand , when one side is free : nor consider we parliaments , as the arbiters of peace and war , that being the kings incommunicable prerogative , but this shews why our acts are rail'd at , and what loyal men they are who do it . as also , since all lawfull parliaments have ever since the reformation , both here , and in england , made very severe laws against non communicants , or schismaticks ; either no respect is to be had to those parliaments , or these laws are just , and fit : ard why the laws should have been so severe to them in queen elizabeths reign , before they had rebelled , and should now remit their severity , when by frequent rebellions , and extravagant sermons , books , and assemblies , they have incorporated so many dreadful principles , inconsistant with all government , into the bodie of their divinity : i see not , and shall be glad to be informed , and if it be pretended , that their numbers having infinitly increased since that time , should prevail with a wise magistrat to lessen his severity , we conclude just the contrary , especially , since we find , that an exact and firm , though moderat execution of the law , is abler to lessen their fury , then an indulgence , there being now very few , who go not to church , and almost all repenting , that they went not sooner , and i desire to know from these authors , if their partie in england thinks : that the true way of using papists or if the presbyterians allowed that way of arguing , when they prevail'd , and was it not that lenity , which drew on the last rebellion , and our slavery . a short view of our laws , made on that subject , with the occasion of them , will best clear this point . in the last rebellion , defensive armes , and that the people had power to depose , or suspend kings , were the great foundation , and in defence whereof , several books have been lately written , and therefore these were declared treason , and it is admir'd , how any can be called good subjects , who maintain them . the parliament did see ; that the not going to church , occasioned much atheism and ignorance : and that the hearing such as were not authorized , was a certain inlet to all sedition and herisie : since every man might preach what he pleased , and therefore they discharg'd house conventicles , and declar'd , that meetings in the fields were formall rebellion ; since rebellion is only a rising in armes , without , and contrary to the command of authority , and that sometimes there would be gathered together several thousands of people in armes , who might joyn when they pleased ; and from a conjunction , meerly of those , proceeded the rebellions . and . and they punished these with moderat fynes , far below the guilt . and how dare men be so dissingenuous , as to own themselves the only protestants , and yet to inveigh against statutes made to hinder jesuites , socinians , and others to pervert the people ; as we certainly know , they did for many years together , at those meetings , and how could this be prevented , since the poor commens know not what is orthodox . and since they were perswaded not to ask who was to preach , least they should be oblidged to witnesse against him , and as the dangers on the onehand were great , so on the other , they were desired to go to that church , which the greatest and soberest of their own ministers did , and do still frequent . some ministers fearing , that their hearers might be led as witnesses against them , infused in them , a dangerous and ridiculous principle , that no man was oblidged to depone , when he was called to be a witness , and that no man was oblig'd to depone , when the being at such illegal meetings , was referred to his oath : and this was called the accusing of ones self ; whereas all laws under heaven , oblige a man to be a witness , else no crime could be prov'd . and if this were allowed , we might have as many masses as we pleas'd ; and when any thing is referred to a mans oath , he does not accuse himself , for the fiskal accuses him ; and do not all nations prove injuries and misdemeanours by the oaths of the committers , if these are not to be capitally punished . and therefore the parliament was forced to make a statute , obliging them to depone as vvitnesses . i need not tell the dreadful equivocations lately invented to secure rebels , as when a witness depones he saw a hilt , and a scabbart , but yet knows not if there was a sword. the pia fraus of ignoramus iuries , and a hundreth other cheats , rather to be lamented , then related . and which tended to unhing all property , as well as religion , if god and zealous magistrates had not prevented it . and yet the opposing these , which is a duty , must be represented as a crime , for deluding ignorant people . the parliament then having for the necessary defense of the kingdom , by reiterated laws , commanded those things to be put to execution . laws which did not only at first seem to be just , but were thereafter upon experience , found to be so . are not they promoters of arbitrary government , who think , that the judges and magistrats of the nation , should dispense with such laws ? and whoever thinks he may dispense with the law , must certainly think , that he is ty'd by no law ; and that is to be truly arbitrary . and it is most observable , that these who are enemies to his majesties government , and his servants : are of all men alive , most guilty of that arbiltariness , which they would fix upon others . it cannot be imagin'd , that the king will contemn the laws , since they are his own creatures , as well as his support , whereas such as oppose him , or rebell against him , must first trample under foot , the laws by which the king is secur'd , and by which they are to be punish't , and it is not the masters , but robbers who break the fences . ly , are not these honest and good countrey-men , who think it cruelty to punish such as did take up arms twice in an open rebellion ? and who own all the cruelties that were committed in the late civil wars , who burn publickly the acts of parliament , and who joyn with murderers . ly . albeit those crymes be very attrocious , horrid in themselves , and dreadful in the preparative , inconsistent with humane society , and a scandal to religion . yet have not his majesties judicatures offered remissions to all such as have been accus'd , providing they would disown those rebellious principles ; so that such as dy , are the martyrs of their own crymes , and justifie their judges , even whilst they are exclaiming against them . and as no government under heaven , did ever shew so many instances of clemency , offering indemnities when there was no necessity for them , renewing and pressing those indemnities , when they were twice or thrice slighted ; and remissions , when all those gentle offers were contemn'd : so , has any man dy'd amongst us , by malicious juries , or false witnesses . ly , has not the privy council in their fyning such as were guilty , proceeded with such moderation , that albeit for many years , the laws were absolutely contemned , after many reiterations by the parliament , and proclamations from the council , pressing obedience to them : yet they have ordered execution to be suspended , as for bypast times , to all such as would obey for the future . and i must beg leave to observe , that it has been upon an exact review , found , that the rebellious parliament , . did impose more by way of fyne in one day , than the privy council has done since his majesties happy restauration : such as differ'd from their government , intreated for those pardons , which are now refus'd . and it would have been then thought very ridiculous , to offer a man his life ; who had been in arms for the king , upon his offering to live peaceably . ly . if the differences amongst us , upon which all those rebellions were founded , were matterial and did proceed from conscience ; somewhat might be said to lessen , though not to justifie the guilt , for conscience should neither be a cryme , nor a defence for crymes . yet what can now be said ? when all men willingly go to church , which certainly they would not do , if their conscience did not allow them . and it being now clear , that the former contempt of the law , proceeded from humor , and not from conscience : who can blame magistrats for preferring the law of the kingdom , to the humor of particular persons . somewhat might be likewise said for those differences , if we did not find , that they necessarly , and naturally produced principles of rebellion , assassination , contempt of magistracy , and of masters , with a thousand other impieties , and immoralities : whilst it is very remarkable , that episcopacy never bred a rebel , nor inspir'd a murderer ; but gentle , like the christian religion which it professes , it preaches obedience under the pain of eternal damnation , and practises mercy to that height , that it is now become the temper of the men , as well as the doctrine of the church . ly , in matters of government , we must ballance the safety of the whole , with the punishment of a few . and in our case , we must consider that a civil war would be much more severe , then a few executions , or fynes can be . and we need only remember the vast subsidies , the extraordinary cruelties , and boundless arbitrariness of the last age to be convinc'd , that it is not severity ; but kindness in the present government , which forces them , as a physician , rather to draw a little bloud , than to suffer their patient to run into a frensie ; especially when they know the patient has been lately inclin'd to it : and when they see the usual symptoms that foretel the approaching fit , to grow very remarkably every hour . this may be further clear'd , by comparing a little the condition , wherein his royal highness found this kingdom ; with that state to which it is now brought , under his happy influence . it cannot be deny'd , but that before his royal highness came to scotland , the fields were every sabbath cover'd with arm'd-men , upon the pretext of hearing sermons : which sermons were so far from being a legal defense against rebellion , that they were most efficacious incentives to it . his majesties most undenyable prerogatives , were upon all occasions contraverted . masters were contemn'd by their servants , and heretors by their tennents . and it was very just , and consequential , that these masters should have been contemn'd by their servants , who did themselves learn them this lesson , by contemning the king their superiour , and master . the ministers of the gospel were invaded , wounded , and assassinated . churches were either left waste , or insolently perturb'd , when they were frequented . principles of assassination were preach'd and practis'd . all such as own'd , or serv'd the government were affronted , and menac'd . pasquils and defamatory libels , vvere publickly vented and prais'd . dreams , visions and prophesies , portending the ruine and overthrovv of the government vvere spread abroad to amuse the people , and fill the heads of the vveaker sort vvith fears and jealousies . lying vvas become all our wit , and hectoring of the government all our courage : whereas novv , people are gathered in from the fields to churches . god almighty is served with reverence ; and the king as his vicegerent with respect . the royal prerogative is neither streatch'd , nor basi'd . the privy council have learn'd by his royal highnesses sitting so long amongst them , to shevv as much clemency , as may consist vvith firmness : and to sustain their justice by their courage . all animosities and differences among our nobility are compos'd and forgot : and thefts and robberies in the highlands , vvhich vvere formerly so great a reproach to the government , and a ruine to the people ; are novv not only secur'd against , by present punishments , but prevented by suitable and proportional remedies , such as commissions of justiciary , security taken from the heretors and chiftains of clans ; setling of garisons in convenient places , and giving money for intelligence to spy's . ministers are so much protected and encourag'd , that one can hardly think , if he had not knovvn their former condition , that ever the people had had any unkindness for them : men do not novv lust after nevvs , nor conventicles : but employ those thoughts , and that time upon their privat affairs , vvhich they formerly mispent , in follovving expensive field preachers : securing themselves and their estates , by a pleasant peaceableness , from the fears , as vvell as the damnage , of fines and punishments . we have no pasquils , nor hear of no visions . men honour the lavvs by vvhich they are protected , and those magistrats , by whose ministry they enjoy this peace and quiet : whilst their magistrats on the other hand , remember that his majesty and his royal highness , hate the insolence of their servants , though they may for some time suffer it : and that the preparatives they make to the prejudice of the people , will be lasting snares and burdens on their posterity . magistrats should pity the frailties to which themselves are subject , and the misfortuns which themselves cannot shun , and should cover rather than punish escapes , which have more of mistake in them than of guilt . by which paralel , our countrey-men and neighbours , may judge , whether his royal highness be so undesirable a governour , that the law of god , of nature , and nations should be brok , to exclude him from his right of succession . whether we enjoy greater , and truer liberty , under his protection : than we did under our usurping parliaments . and whether those expressions of our thankfulness , proceed from flattery , or from gratitude . reflections on the earl of argil's process . next to our laws , our judges are arraigned , and though all nations presume , that judges understand , and that we should presume them just , being ordinarly men of integrity , who are ingadg'd upon oath , and have both soul and reputation at stake ; and who know their children are to be judg'd by the preparatives they make . yet our phamphleters , who neither understand matter of law , nor matter of fact , stick not most soveraignly to decyde , that our sentences , even in criminals ( in which men cannot err wilfully , without murdering deliberatly ) are absurd , ridiculous and inhumane ▪ and yet these same men ( the great patrons of iustice ) are the secretaries of that party , who after they had murdered strafford , made an act that none should dy by that preparative ; in imitation of which horrid injustice , our rebellous zealots did execute sir iohn gordon of haddo , upon a statute made by them , after they had condemn'd him as a traitor , for bearing arms against the three estates , tho he had a special commission from the king their soveraign . and hang'd the great marques of montrose , with his declaration , emited by his majesties authority about his neck , though they had treated and concluded with the king that gave it , by whom so many noble-men and gentle-men fell for doing their duty : and so many innocent cavaleers were massacr'd after they got quarters . then it was , that an oath was taken by our states-men , not to spare the lives of either kin , friend nor ally . that three hundred were expos'd on a rock to be starv'd , and as many murdered in cold bloud after quarter . and a scaffold being erected at the cross of edinburgh , on which in six weeks time , multitudes of generous gentle-men having dy'd , a zealous minister thanked god for that altar , on which so sweet smelling a sacrifice was offer'd . whereas our merciful king , having had his father martyr'd , and being himself banish'd ; pardon'd even his fathers murderers . and granted not only pardons , but indulgences after two inexcusable rebellions . and it was very wonderful , to see his royal brother ( this formidable tyrant in our pamphlets ) pleading for pardon even to such as owned a hatred against all the royal family . nor can it be deny'd , but there is a gentleness in the old cavalier party , which demonstrats that they are in the right . and which is infinitly preferable to that soure cruelty , and morose bitterness , which make the insolent republicans , and bigot fanaticks , humourous and dangerous . and as a monarch the true father of his subjects , thinks it generous to pardon , so republicans must be cruel , to shew a zeal for the rabble which they serve . nor do i ever hear that any of those publick spirited authors , do turn the edge of their zeal against ignoramus juries , false witnesses , lying scriblers against the government , assassinats , &c. i am now come to take notice of a late pamphlet , called the scots-mist , wherein , because the late earl of argyl's process is founded upon points in jure , and consequently not so obvious to the consideration of every unlearn'd man , the author takes pains to make it appear an unanswerable instance of the arbitrariness of our judges . but before i answer his weak reflections in law , i must take notice of some few particulars in fact : as first , his judges were not judges in a packt commission ; but the learn'd and ordinary iudges of the nation . ly , what temptation could the king , or any who served him have to streatch law in that case ▪ for that , as to his life there was no design , is clear from the express order his royal highness gave , not to keep him strictly after he was found guilty . though great presumptions were offered to that generous prince of a design'd escape . and himself ordour'd in council , that the most learned advocats in scotland , should be prest to appear for him . nor was ever a prisoner us'd , either by judges , or by the kings advocat , with so much discretion and respect . ly , his jurisdictions , nor estate could be no temptation , for the late advocat had represented such reasons against his right to these jurisdictions and superiorities , as no man under heaven could answer with any shadow of reason : and the king got not one farthing of his estate , for his royal highness by his generous interposition , procur'd more of it for his children , then belonged to the family , debts being payed . and the remainder was gifted by our gracious and inimitable king amongst the creditors . and the tithes possest by that earl , returned to the church . happy kingdom , wherein the greatest instance of arbitrary government , is a person , who having nothing to lose , save what the king gave , had a fair tryal by sworn judges and jurors : and lost upon the event , neither life nor fortune . and whose family after three capital sentences , two by parliaments , and one by a solemn iustice court , is left without envy in a better condition , then almost any who serv'd the king in his great extremities . ly , all these narratives and apologies are founded on great mistakes , as if the earl had been desired to take the test ; for we desire no man , but men in office desire it , because they cannot enjoy their offices till they take it : and that the council was once pleased with the explanation he gave , as if he had given in an explanation : and the council being pleased with it , allowed him to take it in these terms : whereas the true cas was , that the earl had assured both his royal highness , and many others , that he would not take the test. notwithstanding whereof , coming in abruptly to the council , he spoke something with so slow a voice , that none say they heard him , and then clapping down-on his knees , took the test ; but some copies being dispersed of what he said , all loyal men murmured at the preparative , as tending to destroy , not only the parliaments design in the test , but to unhing all government . and the greatest fanaticks in scotland , owned they would take it in that sense ; without prejudice to their principles : and so they might , being allowed not to bind up themselves from endeavouring any alteration they should think fit for the advantage of church and state : which made the oath no oath , and the test no test. and therefore the next day , when he offered to take the test , as a commissioner of the thesaury , he was desired first to give in his explanation , which when he gave it in , it was enquir'd , if any man had heard that explanation made in council : and no man did remember he heard or understood it so . and thereafter it was voted not satisfactory . and albeit his majesties advocat allowed the earl to prove that the council heard and approved it ; yet his lordship failed in the probation : and it is absurd to think the council would have allowed an explanation , which would have evacuated the whole act , and the design of the parliament in it : as shall fully hereafter be prov'd . whereas if the earl had only designed to exoner his conscience , he might either have abstained , for no man is obliged to take the test ; or if he had resolved to know if his meaning would have been acceptable , he might have given his sense , and petitioned to know if that was acceptable , which had been a fair and sure way , both for takers and rulers . whereas , first to take , and then give in his explanation , is a certain way to secure ones own employments , and a preparative to let in any , let their principles be what they please , if they have the wit to salve their principles by apposit explications : and the dispersing copies of that paper , before it was presented in council , cannot be said to have been done for exonering his own conscience , but is the ordinary way that men take , when they resolve to defame the government . nor is our government so unreasonable , as not to desire to satisfie such as scruple , without ill designs . and this they shew in satisfying some of the orthodox clergy , who offered modestly some scruples against the inconsistency of the confession of faith , with episcopacy : and which scruples being easily cleared , they all obeyed save nineteen or twenty , in the whole kingdom at most , some whereof had also inclinations however to the good old cause . nor can i pass by here a strange abuse put upon the world in that pamphlet , as if those scruples there set down , were only the scruples of the conform clergy , whereas many papers bearing that title , were drawn by the presbyterians , and found amongst their papers ; and the paper ascryb'd to them in that book , wants the chief objection they stuck at , viz. that the compylers of that confession of faith were enemies to episcopacy ; and in place thereof , it asperses our present episcopacy , the kings supremacy , and the act of the succession , which the conform clergy never did . for clearing this process , modestly and meerly in defense of our judges , i shal first set down the earls explanation , which runs thus , i have considered the test , and am very desirous to give obedience as far as i can — i am confident the parliament never intended to impose contradictory oaths , and therefore i think no body can explain it but for himself , and reconcile it , as it is genuine , and agrees in his own sense . i take it as far as it is consistent with it self , and the protestant religion . and i do declare , i mean not to bind up my self in my station , and in a lawful way to wish , and endeavour any alteration , i think to the advantage of church , and state. not repugnant to the protestant religion , and my loyalty , and this i understand as a part of my oath . the first cryme charged upon the earl from this paper , is , that albeit by the . act of parliament . i. . it be statute , that no man interpret the kings statutes , otherwise then the statutes bears , and to the intent and effect they were made for . and as the maker understood , and whosoever does the contrary , shall be punished at the kings will. yet the king and parliament having appointed an oath to be taken for securing the protestant religion , and the kings prerogatives . and having to evite the old fanatick juglings ; and evasions of the covenanters on the one hand ; and the equivocations and mental reservations of the papists on the other . the oath does expresly bear , these words : and finally i affirm and swear , that this my solemn oath is given in the plain and genuine sense and meaning of the words , without any equivocation , mental reservation , or any manner of evasion whatsoever . the said earl did , notwithstanding of that statute , and the foresaid clause in the oath it self , take the said oath in such a sense , as did not only evacuat his own taking of it , but did teach others how to swear to it , without being thereby obliged ; and path a way to posterity , for evacuating all the acts that ever can be made for security of religion , king and government , in so far as he declares , that he did take the oath with these qualifications only . first , i will give obedience as far as i ean . ly . i think no body can explain it but for himself , and reconcile it as it is genuine , and agrees in his own sense . ly , i mean not to bind up my himself in my station , from making any alteration , i think to the advantage of church or state , &c. which is not to take it in the imposers sense , but his own , which will the more easily appear from these reasons . first , that the design of all laws , but especially the making of oaths , is that the subjects should be bound thereby , according to the sense of the legislator . which is very clear from the express words of the former statute , and by the reason whereon it is founded , which is , that the legislator may be sure of obedience , and may know what to expect from those who are to obey . and who have taken the oaths prescrib'd . and in which , divines agree with lawyers , for they tell us , that verba ju ▪ ramenti intelliguntur secundum mentem & intentionem ejus cul sic juramentum , sande : pag : . but this sense in which the earl takes the oath , does evacuat all the designs of the oath : for , first , whereas the oath design'd that this act of parliament should be simply obey'd , as a sure foundation for the security of church and state ; the earl promises only to obey it as far as he can , without telling in what he will obey . ly , whereas the oath is to be taken in the plain genuine sense of the words ; the earl declares , that no body can explain it but for himself . and reconcile it as it is genuine , and as it agrees in his own sense . which implys , that it had no plain genuine sense , in which it could have been taken . ly , whereas the parliament design'd it as a security for the protestant religion ; he declares he takes it only in as far as it is consistent with the protestant religion . which implys , that in some things it is not consistent with the protestant religion . ly , it cannot be pretended , that the parliament design'd to make an act that had contradictions in it ; and yet the earl says , he takes the oath in so far as it is consistent with it self , which imports necessarly , that in some things it is not consistent with it self . ly , the design of this oath was , to preclude all the takers from reserving a liberty to rise in arms upon any pretext whatsoever ▪ but by this explication , the earl reserves to himself a power to make any alterations that he shall think , for the advantage of church and state. by all which , i conclude , that the earl has interpret this oath otherwise than it bears , and to the intent , and effect it was made for . and otherwise than the maker understood . and therefore this explication does clearly fall under the foresaid satute . ly . if this were allowable , no member of parliament needs hereafter propose any doubts in parliament , but let the parliament make what oath they please , the taker vvill reform , and alter it as he pleases . when he takes the oath . and i desire to knovv from any man of sense , if the earl would have obtained from the parliament at the passing of it , that every man should have been allowed to take it as far as it was consistent with it self , and the protestant religion . or if they would have suffered the other qualifications in that paper to have been adjected , as a part of the act. which does demonstrat ▪ that he did not only not take it in the legislators sense , as the former statute commands . but that he did not at all take the oath that they made , but made a new oath of his own . ly , if a man should oblige himself simply upon oath , to make me a right to such lands , could this sense be consistent with it , 〈◊〉 make it as far as i can . or would the making such a right , with that quality , satisfie the obligation . or could he who receives the obligation , be sure of a good right , if the person obliged were bound to no further than he could perform . ly , all oaths must be so taken , as that the taker may be pursued for perjury ; but so it is , that when it is not known what the taker is ty'd to , it cannot be known wherein he has fail'd . and consequently in how far he is perjur'd . ly , i would willingly know , if the covenanters would have allow'd any to have taken the covenant with a qualification that he should observe it as far as it was consistent with his loyalty . and do not generally the greatest enemies to the kings supremacy declare , that they are content to take the said oath , in as far as it is consistent with the word of god , and the protestant religion . ly , if this were allow'd , every man should take the oath in a particular sense , and upon his own terms , nay and upon contrary terms , according to mens contrary interests . so that it would not be the parliaments test , but every mans own test. and there should be as many different oaths , as there are different takers . ly , former statutes having discharged the leidges to convocat , or assemble , or to enter into bonds and leagues without the kings consent , the covenanters did protest , that their taking the covenant was not against these acts ; because these acts could not be mean'd against any leagues , or meetings holden for preservation of the king , religion , and laws . and yet the : act par : : ch : : does positively declare , that all such glosses are false and disloyal , and contrair to the true and genuine meaning of these acts. and therefore this glosse must be so too , because this glosse is the very same , both in words , and design with those glosses . but though this poynt be very clear , and undenyable . yet mr. mist ( for so i must call the author for distinctions sake ) makes those three answers : first , that if the authority which is to administer the oath , do's accept the takers sense , the taker is only bound in the sense he gives , and no other . but so it is the council accepted his sense . and if they had refused , the earl had not taken the oath , nor had his refusal been a cryme . to which it is replyed , that first , if it be a cryme to interpret the kings laws otherwise than they bear , and to the effect for which they were design'd : then certainly it may be debated with very good reason , that though the council had conniv'd at the earls misinterpreting the law , neither their negligence , nor their mistake could have prejudg'd the king ; nor have been in place of a remission . for though the council be a more eminent judicature than others , yet they cannot pardon crymes , when committed . and consequently their allowance , cannot make that to be no crime which is a cryme . and we have a particular statute in scotland , that the negligence of the kings officers shall not prejudge him. nor is that statute so reasonable in any case as in this . for since this , and all other oaths are oft times administred by very ignorant persons , we should have them a thousand times cheated , and impos'd upon , by the adjecting of such qualifications as these ; if the adjecting of such qualifications as these were not punishable . because he who did administrat the oath , did once allow them . and i put the case , that if a man who had many friends in council , should have given in an explication that was uncontravertedly treasonable , by saying that he was content to take the oath , but that he design'd not by it to preclude himself from rysing in arms , when he thought fit , for the defense of the protestant religion . would it have been a sufficient defense , that the council did not challenge it in the mean time . and therefore it this was a cryme in it self , the councils allowing the explication , did not at all in strict law take off the cryme . but the judges ( resolv'd to do him all possible favour ) were more merciful then to straiten the earl upon this point . for if the earl had given in an explication to the council , and told that he subjected that paper to their consideration , and that he would take the oath upon these termes , and no otherwise , the judges would have interpos'd for the kings favour , if he had been so ensnared by the councils connivance , or mistake . nor would the king have pursued it . but the true matter of fact is , that the said paper was not given in , till the next day after the earl had sworn the test. and though the judges allowed him to prove that he had adjected these words at his first swearing of the said test , and that they were allow'd , yet he fail'd in the probation , and so the judicature is no way to be blam'd . the second defense is , that all that can be inferr'd from the above-cited law is , that no man should put a sense upon any law that should bind another , or be the publick sense of that law to all the subjects , which is most false , for the words of the law are general . that no man shall interpret the kings laws , but to the intent and effect for which they were made . and consequently this must be extended to all cases , where the law is abus'd , and the legislator disappointed by a misinterpretation . et ubi lex non distinguit , nec nos . and there is as great reason to punish such as take oaths under such wrested senses , contrair to the design of the legislator , as there is for punishing any cryme . and much more then for punishing such as misinterpret the law to others in other cases . since if this be allow'd every man may by misinterpreting the oath as to himself , evacuat all oaths , and make them ridiculous : and so not only enjoy employments contrair to the legislators design . but likewise cut down the greatest fence of government , such as oaths are now esteemed to be by all christians . the third answer made to this point is , that the legislator is surest of those who give explications of their oaths ; for they deal honestly : and it is impossible that any man can take an oath , but he must take it in his own sense . but neither is this of any moment ; for if this answer prove any thing , it will prove that no man can be challenged for adjecting any quality . and consequently the act of parliament could take effect in no case . and so not only were this act useless , but we would want an excellent remedy for curbing such as resolve to abuse the government , in rendring all oaths that are invented for its security , altogether ineffectual . and it is strange to see what absurd things men will run to , when they are put to defend an absurdity . and though every man must have a sense when he takes an oath , it does not therefore at all follow , that men must be allowed to adject senses that are inconsistent with the oath , or render the oath useless . and since this is not an oath , that all the subjects must take , it having no other penalty adjected to the not taking , but the loss of the employment , they possess by the kings meer favour . every good christian ought either to be satisfied of the design of the legislator , in the oath , or else to abstain from it . and though the mind of the legislator might secure the taker , yet that can only be when the sense is previously offered to , and accepted by him , which cannot at all be said in this case . and whatever favour may be pretended , where the taker of the oath condescends upon what he will oblige himself to ; yet that cannot be pretended in this case , where the earl does not condescend how far he can obey . and does not specifie how far he thinks it consistent with the protestant religion , or with it self . but only that he will obey it as far as he can ; and as far as it is consistent with it self and the protestant religion . so that the legislator is still unsecure , and the earl himself still the only judge . and i am desirous to know in what part of europe such qualities were ever allowed . it is also very absurd to contend , that the adjecting of these qualities can put the taker in no worse case , then if he had refused the test. and since that cannot amount to a crime , so neither can this . for it is contended , that these qualities do infer a misinterpreting of the kings laws , and a defaming of the parliament . and it is most absurd to think , that such things as these should be suffered , because they are thrown in into explications : for else under the pretence of explaining oaths , we should have virulent libels dayly against king and palliament . nor can i see why equivocations and mental reservations should be condemned if this be allowed , for such as take the test or any other oath , may at the taking of them , evacuat the obligation of the oath , by adjecting such qualities . and it is all one to the legislator , whether he be openly or secretly abas'd . only this i must observe , that the open abuse is the greater , because it adds publick contempt to the design'd cheat : and whereas it is pretended , that the magistrat may choose whether he will admit of the quality or not , which he cannot do in mental equivacations . to this it is answered , that that could only hold if the qualities adjected to the oath , were first offered by way of petition to the magistrat , that it might be known whether he would allow of them , which was not done in this case , wherein without ever applying to the king or council : the earl did by his own authority swear in his own terms . though the council and the reverend bishops took pains to satisfie some scrupulous ministers ( whose scruples were in favours of the government ) and got them the kings sense , and told them their own . and which indeed was the genuine sense of the parliament . yet that did not at all allow the earl , or any privat man to take it , in a sense inconsistent with the oath . and that too without previously offering his doubt to the king and council : and geting their approbation as said is . nor were they allowed to take it in such general terms , as did ●●●ecure the legislator , and admit the takers to be judges . the second cryme fixt'd upon the earl from this paper , is , that albeit by the : act par : : ia : : it is satute , that none of his majesties subjects , presume nor take upon hand , publickly to declaim , or privatly to speak , or write any purpose of reproach , or slander of his majesties person , estate , or government ; or to deprave his laws , and acts of parliament ; or misconstruct his proceedings , whereby any misliking may be mov'd betwixt his highness and his nobility , and loving subjects , in time coming , under the pain of death . certifying them that do in the contrair , they shall be repute as seditious and wicked instruments , enemies to his highness , and the common well of the realm ; and the pain of death shall be execute against them with all rigour , in example of others . yet true it is , that the said earl did endeavour all that in him lay , to defame the king , and parliament , and test , in so far as he did declare , that he would give obedience to it as far as he could ; which imported that the parliament had made an oath which could not be absolutely obeyed . and though the parliament never intended to impose contradictory oaths , yet no body can explain it but for himself . which did clearly import , that though the parliament design'd not to make an oath that was contradictory : yet they had made one that was indeed contradictory . and could not be made sense without privat reconciliations , and explications . and by saying that he took this oath only as far as it was consistent with it self and the protestant religion ; he did clearly declare to all the world that he thought it in some things inconsistent with it self , and the protestant religion . and since there is nothing concerns governours more than to have themselves esteemed by the people , without which , or numerous armies , government cannot subsist . and therefore our parliaments , have in place of armies , consented in the former excellent statute , that whosoever shall endeavour to deprave the laws , or misconstruct the proceedings of king and parliament , shall be punished to the death . and what can be a greater reflection upon king and parliament , in the age wherein we live , than to have made laws which cannot be obeyed , and which are inconsistent with the protestant religion . and there was no man that ever hear'd that paper , except this author , but did conclude , that upon the matter , the people would from it entertain those scruples . nor are these the inferences of people that live far from the sun , as the undiscreet author does object against this nation . but men must be as disingenuous , as he , not to confess that these are most just and natural inferences . and the inferences are so much the stronger , that both this author , and all such as were enemies to the test , did take pains to make the people believe , that the contrivers of the test , were in so far , friends to popery , and consequently , there was nothing drawn from this paper by inferences , but that which was too publickly owned by all , who were in the same circumstances with him who gave it in . mr. mist in answer to this part of the accusation , does first cry out , that crymes must not be inferred by inferences , and insinuations , seing these may be unjustly drawn against the design of the party accus'd . and no man could be secure , if men could be made criminal upon insinuations , and inferences . and this paper having been given only for the exoneration of his conscience , it is not capable of any such misconstruction , nor ought any such construction be made , except where a malitious design can be proved , in the person accused . to which it is answered , that the parliament having been very jealous of the honour of the government , which ought to be sacred . they discharg'd in general , all such words , and papers , whereby any mislyking might be mov'd betwixt the king and his subjects . and therefore since the effect was the thing they lookt to , and that it is all one to the government , what the authors design was , if the effect was wrought , and the dislike moved . they therefore ordained the effect to be punished , without adding , as they do in other cases , that whosoever shall malitiously , or upon design , write , or speak , and it is very well known , that there are no papers so dangerous , nor no satyre so bitter as these , which are coloured with specious pretexts of conscience , respect and kindness . and upon this accompt it was , that by the : act par : : ia : : all papers that tend to renew the remembrance of the former feeds betwixt the two nations , shall be punishable . and what can be more justly called insinuations , and inferences , then tendencies are . and if the people be abus'd , and inflam'd , what advantage is it to the government , that the author design'd it not . and therefore it is much safer for the government , as it is sufficiently safe for every subject , that men rather secure their own innocence , by not medling in publick matters of state , then that they should be encouraged to meddle , upon hopes , that they could not be reacht : since their design could not be prov'd . and which design and malice being latent acts of the mind , can never be otherwise prov'd , than by the nature of the action it self : and therefore , the dolus malus , or design , needs not in this case be otherwiseprov'd , than from the nature , and whole strain of the paper it self . which was so fit to inflame the people , and abuse the parliament ; that dole and premeditat malice , could not have done more prejudice . but if it were necessary to clear the earls design , further then from the paper it self . these circumstances might be conjoyn'd with what results from the paper . first , that the earls father and family , had owned eminently the principles against which this oath was taken , viz. the rising in armes , for reforming without the kings authority , and did still own the covenant . secondly , the earl himself had taken the covenant . thirdly , the , earl had all along opposed the test in parliament . fourthly , the earl had positively told his royal highness , he would not take the test. fifthly , neither the ministers , nor any other within his countrey , upon whom he could have influence , had taken the test. sixthly , i am affraid that the kindness shew'd to the earl by the fanaticks during his tryal , and the noise they have made for him since that time : may clear too convincingly , that he design'd in that paper to own that interest , for they never manifest any concern , save for those of their own perswasion . and where have we ever heard them resent the injustice done to any cavaleer , or shew more resentment than in this earls case ? so that this author do's himself prove that design , which he desiderats , and add to the guilt , which he designs to lessen . all which demonstrat , that he had an aversion for the test , and so what he did against it , was done dolo malo ; and whoever writes for him , writes against the test. ly , what juster measures could this judicature take , then by considering what the supream judicature of the nation , formerly did upon the like occasion . but so it is that the lord balmerino being accused for having misinterpreted the kings actions , in a petition given in to himself ; in which , against this statute , he endeavoured to raise jealousies in the peoples mind , of designs to bring in popery , and that by far remoter inferences than these now insisted on . he was found guilty , though his lawyers pleaded for many dayes together , that there could be no cryme , but where there was a design . and there could be no design of defaming the king , in a paper that was meerly a humble petition presented to himself , and accepted , and read once by him , without any show of displeasure ; and wherein nothing could be challenged , but by way of inserence , and implication . as also , this same earl of argyle being accused before the parliament , in anno : for leasing making , betwixt king and people , upon the acts mentioned in the earls inditement . he was found guilty upon that expression , viz. that that storm would blow over , and then the king would see their tricks . which words , he pretended did relate to privat persons formerly mentioned in the letter , and not to the parliament . and that every man should be allowed to interpret his own words , which interpretations being refus'd then , ought much less to be allow'd now , nam semel malus semper praesumitur malus , in eodem genere malitiae . in the next place , mr. mist endeavours to justifie the particular expressions , against the consequences drawn from them , by the lybel : and as to the first , he tells us , that in that expression , i will give obedience as far as i can . he did not at all imply , that the law was unjust , but only that he could notgiv obedience to it : which cannot be treason , since the refusing it absolutely would not be treason . to which it is answered , that the authors mistake is very grosse , for it was never design'd that treason should be inferred from these words : but that which was inferred from it was , that it was a gross evacuating of an oath , and a making it ineffectual , to say that a man should swear by way of quality , that he will obey as far as he can , and that he declares , this is a part of his oath . for there is no man , but will take any oath with that quality : and whatever he takes with that quality , is no oath , nor obligation at all , that can bind him in the legislators sense : and though we look upon it as no fault , nor cryme , not to take the test ; yet to take the test so , as not to remain bound by it ; and so as to teach others how to evacuat it , and so as to defame it , as this expression do's , is certainly an abusing , evacuating , and swearing to an oath in express contradiction to the act of parliament , and to the oath it self . and though it be no reproach , not to take the oath at all , for then a man expresses no opinion concerning it ; yet certainly , that with the subsequent expressions being dispersed among the people , could not but raise in them jealousies , and a contempt of the government . for having made oaths which men could not take , though they were desirous ; and for which afterwards he insinuats this reason , viz. that though the parliament designed not to make contradictory oaths , yet he thinks , that no man can take that oath , lut in his own sense . and whereas mr. mist pretends , that these words are no reflection upon the parliament , since he do's not formally say , that the parliament has made an oath that has contradictions in it ; but on the contrair , that the parliament did not designe to make contradictory oaths . to this it is answered , that the words are a very plain reflection upon the parliament ; for no man can hear one refuse to take an oath simply , because , though the legislator designed not to impose contradictory oaths ; yet de facto , the oath is such , as that no man can take it but in his own sense , and without a particular reconciliation of his own . but the hearer will certainly conclude , that the parliament has been so weak , malicious , or inadvertent , as to have contrived an oath , which has in it self contradictions . for else to what purpose was it said , that he believed the parliament designed not to impose contradictory oaths . and it is an extraordinary affront to a parliament , to have made contradictory oaths , though they did not design it ; and to have made made such an oath especially ; that no man could take it but in his own sense : whereby the whole security of the government is evacuted . for the security of the government , as well as the nature of oaths , requires that an oath should be taken in the legislators sense . and can there be a greater moving of the people to sedition , than to tell them that no man that takes that oath is bound by it farther , then he pleases , and further then his own sense leads him . and that the legislator is ridiculous in having made contradictory oaths , which without debating whether it be true or false , is a reflection upon the state ; and is unlawful for any privat subject . and if any such thing were suffered upon pretence that it were possible , or true . it should be lawful for every privat man to accuse the government . as to these words , i take it in so far as it is consistent with it self , and the protestant religion . do's so far openly import ; that in some things it is inconsistent with it self , and the protestant religion ; that whosoever would perswade us to the contrary , must think us fools and idiots . and i almost charge my self with folly , for taking pains to clear this . since , why should the earl have scrupled , to take this oath simply , and have thought it necessary to adject , that , he took it only in so far as it was consistent with it self , and the protestant religion . if he had not thought it inconsistent : and either he must say , he thought it consistent , or not . if he thought it consistent , why did he not take it simply : and if he thought it not consistent , then he owns that he thought the parliament made an oath which was inconsistent with it self , and the protestant religion . and this was to inflame the people , who are so reasonably jealous of any thing that is inconsistent with the protestant religion . beside that it is a great reflection upon their prudence , and conduct . and so every expression in this paper , do's clear up one another : and do's clear unanswerably , to all the world , that this paper is a defaming of the parliament , and a depraving of its laws , and a moving of the people to a dislike of it . which are the words of the above cited statute . and what can be a greater depraving of a law , then to make it pravam legem , a pernicious law. and what can be more pernicious , then that law which is inconsistent with the protestant religion ? and which tyes men to swear things which are contradictory ? and having affirmed all this upon oath , and having dispersed these his explications amongst the people , he did thereby shew a firm , and passionat design , to make the people believe all these ill things of the parliament . for no man uses to swear any thing to another , without a great design to have him believe it . nor do's any man disperse papers amongst the people , for the exoneration of his privat conscience . nor could he have any design in that , save to poison them with those jealousies against the test , to which he himself had shown such an aversion in the whole tract of the affair . i cannot but smyle at mr. mists critical learning , when he contends that the ' earles paper does only bear , that the earl did take the oath in so far as it was consistent with it self , and the protestant religion . but did not adject the word only , as the libel does . for he who takes it in so far as it is consistent , does take it only in so far . and certainly the author must confess , that either he designed to take it further then it was consistent with the protestant religion : or , as far only as it was consistent with the protestant religion , there being no midst betwixt these two : and so our critick may choose any of the two he pleases . the third cryme , is , treason , which is inferred from these words ; i do declare i mean not to b●●d up my self in my station , and in a lawful way , to wish , and endeavour any alteration , i think to the advantage of church , and state. no● repugnant to the proestant religion , and my 〈…〉 this i understand as a part of my oath . which treason may be founded upon many reasons ; yet to convince any reader , in a plain , familiar , and unanswerable way ; i lay down for a position which i hope no man will deny ; that all nations have made it treason , for any privat man to assume , or reserve to himself , the power of reforming church and state. for that is the highest point of government . which how soon any privat man arrogats to himself , he becomes presently governour of that kingdom , and superiour both in church and state , therein . and therefore by the : act : sess : par : : ch. : and : act : par : ch : : the power of reforming is declared his majesties sole prerogative : and all the civilians agree with us in this . inter caeteras sollicitudines ( verba sunt theodosi ) & valentiniani in novel : de iudaeis sam : haer : & pag : ) quas amor publicus pervigili cogitatione nobis indixit , praecipuam majestatis curam esse perspicimus , veram religionis indaginem . cujus si cultum tenere potuerimus , iter prosperitatis humanis aperiemos inceptis . vid. ziegler : de jur : majest . cap : : num : : arnis : de jur : majest : cap : : num : : and which is most reasonable , for whoever pretends to have power of reforming , must be greater then he who is reformed . and we have found by woful experience , that such as have endeavoured to reform , have withdrawn themselves from the subjection of the supream power , under which they liv'd . and except they resolve to force the supream power as to this point , there is no necessity of reserving a power to themselves . from all which , i form this argument ; first , it is treason to any man to reserve to himself the power of reforming church or state , that being the priviledge and prerogative of the prince , both by the common law , and the above-cited statute : but so it is the earl does reserve to himself , in this explication , a power of reforming . and therefore he commits treason . the first proposition is founded upon the nature of the monarchy , and the reasons and citations above-mentioned . the second proposition is likewise very clear , because he who reserves to himself a power to make any alteration , reserves a power to make all alterations in church and state. and consequently reserves a power to reform , in matters of the greatest importance . for in all languages , any , comprehends all. as for instance , does not he who sayes he 'l do any thing for the king , say as much , as if he said , i will do all things for him . or does not he , who confesses he believes any thing that is in the scripture , imply that he believes all things that are in the scripture . and consequently , that proposition of the earls , viz. i întend not to bind up my self from endeavouring any alteration , i think to the advantage of church and state. resolves in , and is equivalent to this proposition . i intend not to bind my self up from making all alterations , that i shall think to the advantage of church or state. and if that be not treason , nothing can be treason . the second argument is , that all lawyers are clear , that it is treason to attempt against the security of the government , l . ff . ad l. iul. majest . but so it is , that he who reserves to himself a power to reform ; attempts against the security of the state. which is clear by all the civilians , amongst whom i shall only cite arniseus , ad securitatem majestatis & reipublicae quietem nihil excogitari potest efficacius quam si summa religionis inspectio majestati reservetur . my third argument in fortification of the statutes , formerly insisted on at the debate . and for farther clearing the extent of that alleadgance , that is required by the common law , is founded upon act . ses. . par. . ch. . the very words whereof are , therefore the kings majesty and estates of parliament , declare that these positions , that it is lawful to subjects , upon pretence of reformation , or other pretence whatsoever , to enter into leagues or covenants , or to take up arms against the king , or that it is lawful to subjects , pretending his majesties authority , to take up arms against his person , or these commissiona'ed by him : or to suspend him from the exercise of his royal government : or to put limitations on their due obedience , and alleadgance , are rebellions and treasonable . in which words it is observable , that it is not the doing of these deeds , but the very asserting of these positions , that it is treason . ly , that no pretence or caution adjected to these positions , can defend them from being treasonable . ly , that the parliament thought it not sufficient to acquiesce in the special enumeration ; but so jealous were they of such tricks , that they subjoyn this general clause , that it shall be treason to put limitations , on their due obedience , and alleadgance . from which words , i infer most clearly , that for a subject , to declare he is not tyed up , to wish or endeavour any alteration , is treason , whatever pretence it be done upon . for any alteration , comprehends all alterations : and what man of common sense , or ingenuity can deny , but this is a putting limitations upon his obedience , and alleadgance , which is here declared treason . for what is a greater limitation , than to reserve to himself to be judge how far he is tyed ? and what expression or limitation can be treason by this general clause , if this be not ? or of what use can this general clause be , if it secure not against such limitations as this ? nor do i think this limitation , wherein the earl still reserves to himself to be judge , a greater security to the king , or kingdom , than if a man should tell me , that he would lock my money in a secure place , but would keep the key of it himself , in which case . i am sure , he , and not i , were master of that ney . ly , it being then treason for any man to reserve to himself the power of making such alterations as he shall think for the advantage of church and state , viz. not repugnant to my loyalty , and the protestant religion . the adjecting these cautions cannot hinder this paper to be criminal ; else , . the covenant had not been criminal , for the very words of this caution are in covenant ; the very words of the covenant being , art. . that we shall endeavour in our several places and callings , the preservation of the reformed religion . and , art. . we shall with the same sincerity , reality , and constancy , endeavour to preserve and defend the kings majesties person ; and authority : in the preservation , and defense of the true protestant rèligion . that the world may bear witnesse with our consciences , of our loyalty , and that we have no thoughts , nor intentions to diminish his majesties just power , or greatness . here are the very same expressions , accompanied with many moe , in favours of the king. ly , that cannot be a sufficient caution against treason , which never hindred any man to commit treason ; but so it is , that notwithstanding of these words , all the covenanters own'd that they might lawfully rise in arms , hold parliaments , impose taxes , and oaths , enter into leagues with forraign princes , hang and head for serving the king , &c. ergo , these words are not a sufficient caution , when subjoyn'd as a caution to the power of reforming . which is uncontraverted treason in its self . and did the great protestations of loyalty annexed to the lord balmerino's petition , defend it from being condemn'd . ly , do we not see dayly , that these who rebelled in anno : and : did openly own , that they lov'd the king as well as their accusers did . but when he was in opposition to religion , it was lawful to rise in arms against him. so litle security has the king in flowrishing professions , when the prosessors are to be judges . ly , the adjecting of this protestation , is called by lawyers , protestatio contraria facto . which kind of protestation , all lawyers under heaven reject , as inconsistent with the thing , to which they are adjected . and thus the league of france , was treason , though they did assert under the deepest protestations , the sincerest loyalty . ly , by the foresaid . act par. . ch. d . all glosses put upon the laws of this nation , in the late rebellious parliaments , to the prejudice of their alleadgance , are declared to be false , and disloyal ; and contrary to the true , and genuine meaning of these acts. and particularly that gloss , or explanation , that what they did , was for the preservation of religion . which is the very explanation put by the earl upon this oath . and from which it clearly follows by a demonstrative consequence , that explanations and glosses put upon oaths , and acts of parliament , contrary to the meaning of the acts themselves , are not to be respected . and being in law holden and repute , as unlawful , they are so far from defending the contraveeners , that they are themselves lookt upon as new crymes . from all which , it clearly follows , that the earl having reserved to himself in this explanation , a power to endeavour what he should think to the advantage of church and state. he did thereby commit treason , and that this treason is not taken off by the cautions adjected , viz. the not repugnancy to the protestant religion , and his own loyalty . whereas it is pretended ; first , that treason requires a special law from , which it ought to be inferred , i deny this position , for our lybels are oftimes found relevant on the common law , and the laws and customs of nations , and the nature of the monarchy . there was treason before there was law , for how soon kings were elected , it was treason to rise in arms against them , or to murder or betray them ; and many of our laws being but lately made , declare oft times what has been treason , not for necessity , but for the better information of the leidges . and though we have laws declaring it treason , to seek benefices at rome ; yet we have none declaring it treason to assume the title , or power of the king in general , that being inherent in the nature of the monarchy it self , treason is the fense of the government , as murder is of privat mens lives ; and to rise in arms was treason before the statute , king ia. . nor have we yet any clear statute against murder : and if special statutes were requisit in every case of treason , the greatest treason should often escape unpunished . for law thought it unnecessary to provide against these , and every age produces new kinds of treasonable extravagancies ; and traitors would easily elude and cheat the express words of a statue , if that were all that were necessary . but who can deny that the justices condemned a man justly for treason , for saying , when he was askt if the king was a tyrant : let his coronation oath , and his actions , and particularly his usurping over the church of christ be compared : and that will be soon known . and yet here was no explicite assertion ; but yet what all men easily understood , and which reproacht , and mis-represented the king as much , as any open expression : and there was no statute condemning that expression , expresly . nor can there be a law for every expression : but yet the earls treason is founded upon the express statute abovementioned . and whereas it is pretended , ly , that the earl might have as a privy counsellor , propos'd any thing to the king : and so a reservation was necessar upon that account . to this it may be easily answered , that no oath does hinder a man from doing what is lawful ; and so there needed be no reservation nor exception upon that , or the like consideration . for an exception must be of some thing that could oppose the rule . but so it is the oath which is the rule in that case , did not exclude any lawful endeavours , at the desire , or command of the prince : and so there needed no exception as to these . but the former argument still recurs , viz. he that will not bind himself up , as to any thing , reserves a power as to all things , or at least it must be interpret of unlawful things : for lawful things need no exception . and if this were sufficient , then the parliament did unjustly , in declaring that it is treason , to put limitations on our alleadgance : and that notwithstanding of any pretence whatsoever . nor could any man commit treason , if that were allowed ; for he himself would be still judge . and whereas it is pretended , ly , that he disclaims the covenant , and rising in arms expresly in this oath ; and so he could not reserve any thing , as to these . it is answered , that this were undenyable , if he took the oath simply ; but having taken the oath only , in so far as it is consistent with it self , and the protestant religion . this oath does not tye him , if he think the protestant religion shall require rising in arms. and having taken the covenant , if he still thinks the covenant binds him , he renunces it not by his oath : for this oath tyes him only as far as he can ; that is to say as far as he is free : and no man is free who thinks himself bound . and taking it only , as far as it is consistent with it self , god only , and the earl knows how far that is ; for he has not told us , how far it is consistent with it self ; and very probably , such as have taken the covenant , think not that oath consistent with the protestant religion , in so far as it binds us not to take up arms , if the protestant religion be in danger : and the antitesters papers , printed by mr. mist , tell us plainly , that it is not consistent with it self , in so far as we swear to own the successor , though differing in religion from us . and yet we swear to the preservation of the laws , of which the coronation oath is one . but whatever might have been said in defense of such limitations , before we saw what dreadful effects they had produced , both in the last age , and this . and that parliaments had so severely condemned them as treason . it is the duty of judges to be severe to such as use them , and they have only themselves to blame , who split on a rock , when they see a beacon set up to them . and it is much safer for the common-wealth , that such papers be punished , then that it should be in danger by such reservations , as leave every man judge how far he is oblieged to obey . and as there is great danger to the state on the one hand , if it passe unpunished . so there is none on the other , seing men may be secure in abstaining from such expressions , and papers . and there was never any so unnecessary as this was . and might not strangers , and our own posterity , think all the miseries that should fall on us by rebellions , and civil wars , very just punishments of our senselesse security , if after we had not only seen , but felt the mischief of such glosses . we stood still unconcernedly , as men seing their own house set on fire , by the same hands which had help't to burn it formerly . if any by ignorance , or error , stumble into a legal ; tho undesign'd crime . the law allows not judges , by an insolent pity to justifie the guilt , but suffers the king by a judicious clemency , to mitigat , or remit the punishment . in which the subjects under monarchy , are much happier than these of a common-wealth , where , in many cases the law must be cruel , or judges must be arbitrary . this is that sure city of refuge , into which , no man who flees , perisheth . and if the earl of argile , had come in will during the debate , as use is . i am sure he had been securer there , than by his defenses . but why should i admire , that this author , and those of his principles , do not see that this paper is treason . since i dare say , they will not acknowledge that it is treason to oppose the succession , and to say that it can be altered by a parliament : and yet our parliament unanimously thought that to be treason . and in the last age , they thought it not treason , but duty to rise in arms against the king , and to call parliaments without him . though all the world abhorr'd us for it . so that the fault is not in our parliaments , and judges ; but in the depraved sense , and debauched intellectuals of such , as have ( by a long custom of hating authority ) bred in themselves also , a hatred of every person , and thing that can maintain it . since then god almighty amongst the other miracles which he has wrought for his darling , as well as representative charles the merciful , begins to open the eyes of the blind , and to make some who were crooked walk straight : let us who serve this gracious monarch , reason whilst his enemies rail ; and be just , whilst they are extravagant : but withal , let us be asham'd , that they dare do more for humour and errors , than we for duty and law ; and we may expect amongst other rewards , which the rabble has not to bestow ; that we will get also that applause which is alwise the slave of victory ; and which of late seem'd to fan them so pleasantly , meerly because they were like to prevail . and for which , too many of late sacrific'd their honour , and loyalty . vvithout remembring that tho just applause , is an elogie vvritten by the hand of vertue , and a monument built of solid merit . yet that applause which is unjust , is only a sweet poyson , a plausible cheat , and the dream of one who is drunk . finis . a moral essay, preferring solitude to publick employment, and all it's appanages, such as fame, command, riches, pleasures, conversation, &c. mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a moral essay, preferring solitude to publick employment, and all it's appanages, such as fame, command, riches, pleasures, conversation, &c. mackenzie, george, sir, - . , p. printed for robert brown, and are to be sold at his shop ..., edinburh [sic] : . first edition. answered by john evelyn in his publick employment and an active life prefer'd to solitude. the only difference between wing m and wing m (at reel : ) is the lack in m of the publication date in the imprint on t.p. error in paging: p. mis-numbered . reproduction of original in the bodleian library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng solitude. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - rachel losh sampled and proofread - rachel losh text and markup reviewed and edited - pfs batch review (qc) and xml conversion a moral essay , preferring solitude to publick employment , and all it's appanages ; such as fame , command , riches , pleasures , conversation , &c. king. . . — wouldest thou be spoken for to the king , or to the captain of the host ? and she answered , i dwell among mine own people . edinbvrh , printed for robert brown , and are to be sold at his shop , at the sign of the sun , on the north-side of the street , over against the cross , . to the right honourable , john earl of cravvford , &c. my lord , seing man can glory in nothing , but in that he is god's image ; certainly , that must be his most glorious state wherein that image is most clearly seen , and this is solitude ; wherein his composed soul ( like the smooth face of the ocean ) represents , with much advantage , this glorious image which the unequal risings of stormy and aspireing waves of ambition do exceedingly conceal . the heathen poet lucretius describes the great perfections of the deity to consist in that it is , — privata dolore omni privatapericlis ipsa suis pollens opibus — and cicero upon this score confesses , that the philosophers life was of all others most preferable , because of all others , it approached nearest to that of the gods . this , my lord , invited me to write this discourse in it's favours ; which because i intended as a bundle of rods , for whipping such as were fondly ambitious , i did therefore strip naked of these leaves and flourishes of eloquence , which by making them more pleasant , could not but make them less sharp . and if any tax me for sending this book to publick view , from that solitude which both it and i so much commend ; my answer is , that either it will convince these who read it , and then it will gratifie that solitude which it hath left ; or else it will meet with censure and disdain , and then it 's fate will demonstrate how dangerous it is to gaud abroad ; to press which , is another of my great designs . i intend not really to depreciat such by this discourse as injoy honours and employment ; that design lyes as far out of my road , as it is rais'd above my power : but i intend by it to congratulate with such as either undervalue them out of inclination , or have lost them by accident ; and to discipline such unquiet humours , as like powder , do , in blowing up themselves , destroy all that is above them , or resists their violent ascent : wherein , as i obliege philosophers , by complementing the object of their complacency ; so i gratifie states-men , by reclaiming such as are the ordinary object of their fears . neither should any thing in this discourse , which is picquant against those courtiers who have been rather great then good , displease such as are both good and great , more then it should displease a gentleman of noble shapes and features , to see a painter draw another man ( though of the same species with himself ) under all the disadvantages that can be trac'd by a deforming pencile . that i should choose your lordship for my patron , is no act of virtue ; because your condition , as it stands circumstantiat , made you almost the only person who deserv'd it at all , and altogether the person who deserv'd it most ; for , being the best pattern for solitary persons , ye were the person who deserv'd most to be the patron of solitude it self : especially , having oblieged it so far , as to prefer it to that rival against which it now disputes for precedency ; and prefer'd it , after it 's adverse party had been your old acquaintance , and had offer'd to bribe you , for your suffrage , with a purse heavy enough to have weighed down a light spirit . fear not , my lord , the want of fame ( which is the only thing that solitude is thought to want ) for , as the heathens resembled it to a maid , so it hath this of a coy maid likewise , that it courts most these who seem most to undervalue it ; and rarely any person admires his own servants so much , as it doth these who are stranger ▪ to it . and great men have this loss , that their superiors will not admire them , as being less then themselves ; their equals will not , because they hate them ; nor their inferiours , because they envy them , and do but too oft imagine that they are opprest for feeding their luxury . that famous rod which wrought so many miracles for others openly in aegypt , did never it self flourish till it was laid up in the tabernacle , ( according to their opinion , who will have both these to have been one and the same ) and the diamond ceases not to enjoy a greater lustre , though hid in the darkest corner , then these pleasing blossoms do , which the weakest breath of a storm will command down from the highest branch upon which they pearch . fame then shall transmit your name to posterity , as the iews did their embalm'd bodies which they preserv'd perfumed and odoriferous in secret and retired grotts and sepulchres ; whereas it will preserve that of more publick persons , only as the aegyptians did theirs , whom by exposing to the open sun , they kept as mummie , but so black and parcht , as that it had been better they had return'd to their former ashes . but , though fame should not thus gratifie you , yet virtue ( who hath so few deserving followers now , that it cannot but pile up pyramids of favours upon such as are ) will recommend you to succeeding ages , both to let see that she wants not her trophees even in this dotage of the world ( wherein she is not so deform'd by age , as not to have charmes strong enough to conquer such as deserve her favour ) and to engage others , by this act of gratitude , to a dependence upon her . and amongst her admirers , you , as one of her minions , shall have still all deference paid you , by your lordships most humble servant . solitude prefer'd to publick employment . generous celador , i know that your advancement was to you , but as the being thrown up is to solide bodies ; from which state they cannot be so properly said to fall , as to run with inclination to that beloved centre and level , from which they were at first rais'd . i know you made no other use of that height which makes others giddie , then to take from off it's loftiest tops , a full prospect of all these vanities which so much ravish mean spirits . and your publick deportment being thus , so exact a picture of true virtue , i hope your retirement will be the shadowing of that noble draught . in the confidence of this , i send you this elogy of solitude ; not as physicians send pills , with praises to their averse patients : for , as it were below your stoicisme to need such ; so it is above my skill , to be able to administrat the meanest remedy , to so well a complexion'd soul as yours . but i praise it to you , as we use to praise a mistris to her enamoured gallant , whose intimacy with her , though it far exceeds the acquaintance of the praiser , yet it breeds not in her enamorato , an unwillingness to hear what he already knows ; complacency being oftner the product of our knowledge , then the occasion of our enquiry . in paralleling greatness and solitude , as to their moral advantages , i shall first make some few reflections upon the ends for which both are sought , upon the employments wherein both are exercised , and lastly upon the revenue made upon either of these enjoyments , when fate or death shall force us to leave both . as to the design which men propose to themselves , in pursuing greatness and publick employment ; all will tell you , that they seek these , either to under-prop their falling families , ( whose proud tops begin to bow , in homage to that mortality , which will needs one day triumph over us and ours ) or else to defend themselves against some considerable enemy ; or to wipe off the stains and scarres of disloyalty or prejudice . for , when opulent or great persons undertake them , the very rabble have so much prudence , as to condemn these for mad men ; when philosophers or strong spirits embarque in them , they say they do it to serve their countrey , and not their inclinations ; and flatterers pretend , that they design in these , the pleasing of their prince , and not of their humour ; so that as if all were ashamed of them , all do excuse their zeal after them : whereas , solitude ( like a great beauty ) is courted for it self , and not for it's portion . and such as intend publick employments , will pretend a love and design for solitude ; and when they have attained their honours , they will still praise retirement : whereas , such as live privatly may sometimes pity , but will never seem to envy such as are in publick employment . and not only is solitude courted for it self , and greatness for some remoter end ; but even greatness and publick employment are themselves oft ( if not alwayes ) design'd as subservient to solitude . thus merchants hazard drowning , and like the sun , reel about the world , that they may gain as much as may affoord them the conveniency of a recess . for this lawyers empty their brains , and souldiers open their veins ; and have oft nothing to sweeten their anxieties , but the remote prospect of a solacing retirement : so that solitude must be excellent , seing it's enemies buy it at so dear a rate . and even cesar behoved to recreat himself , with an aliquando mihi licebit , mihi vivere , esteeming that part of his life to belong to others , which was spent on other mens employments . and seing all aim at solitude , it must certainly be by as much more nobler then publick emplyoment as the end is more noble then the means : and in this it approaches very near the nature of happiness , which is defined to be that , to which all things tend , and which it self respects nothing yet acquireable . but yet i must condemn these , who are at all this pains to gain solitude , whom for this i esteem as unskilfull in the art of happiness , as these navigators in solomons time , were of the art of sailing ; who crused alongst so many tedious shoars for reaching the gold of ophir , a journey easily to be accomplished , in far less then half the time . happiness is not the product of such endeavours , and these are rather hinderances then helps to solitude . and this remembers me of that notable answer , given by cineas the philosopher to pyrrhus ; who when he told him that he intended to conquer greece , then rome , and so all the world ; askt him , why he proposed all that toil to himself ? to which pyrrhus answering , that he would do it , to the end he might at his return live happily and merrily with his friends the residue of his life . cineas tancing him most sharply , told him , that he might live so , and do so presently , and so needed not be at so much superfluous pains . man is so frail a creature , and his imperfections are so great and many , that that can only make him be reputed excellent , which can best conceal his natural frailties : and albeit our judgements are but shallow , yet here lyes our misfortune , that we are not able to abide the test of one anothers judgement . and this is the knack , for which men who are silent and reserved , or melancholy and dumpish , are reputed wise for we admire not what we see , but what we see not . and yet , neither melancholy nor silence serve so to skreen out infirmities , as solitude does ; seing such as converse in the world may be fathomed by other means then discourse , and may , upon unexpected rencounters , be even provoked to that likewise . wherefore it is a virtuous imposture , and an allowable charltanry , to design retirement ; because that secures against all the inconveniences of either of these , by abstracting us from the temptations of the one , and from the engines of the other : and if melancholy or silence possesses any thing in their nature , which can be thought excellent , certainly solitude enjoys the same in a more eminent measure ; for these make but parcels of that noble state , silence being but a solitude in discourse , and melancholy a solitude in humour : whereas solitude is more excellent then these , because in possessing both their advantages , it wants the adust , bile and jealousness of melancholy , and the constipation of silence . except some volatile heads , whose mercurial complexion hath inclined them rather to a restlessness , then virtuous activity , and who like the wind , are nothing at all when they are not moving : and ye will find the residue of men so averse from toil and employments , that they must be either bryb'd to them by gain , or baited with honour : and the most diligent amongst active states-men will wish , that their long'd-for triumphs , or desired employments , were at a period , that they might enjoy themselves ( for so they terme it ) in a solitary retirement ; which is that canaan of rest , which like moses on pisgah , they see afar off , but without hopes of enjoyment : and so fond are these upon one moment of it , when enjoyed , that they will disobliege for it on-waiters , neglect their interest , and slight oft great advantages . thus then we see , that nature , inclination and pleasure , vote all for solitude ; and that publick employment is unnatural in it's rise , and wearying in it's sequel , as it is dangerous ( if not fatal ) in it's termination . i know that there are some great persons , who like great fishes , never come to shoar till they be wounded , disasters , affronts and necessities driving them there for shelter , rather then choice ; and this makes many think , that these encomiums given to solitude , are either contrived by pedants , who could never reach preferments , or by degraded courtiers , who after they have been outed of their publick employments , harrangue against what they have lost , to satisfie , not their reason , but their revenge . but , to these i answer , that solitude is by this objection prov'd to be an excellent state , seing even the distrest expect an asyle and protection there : for distress makes us run where we may expect help ; and that must be the securest harbour , to which the distrestest vessels make their application . and i believe best these elogies , which solitude gets from such who know both states ; and because some use this as a pretext , therefore it must be excellent : for the excellentest things are only used , and can only serve as pretexts ; and that cannot but be much respected amongst men , whose very shadow can make misery pass for virtue , and make misfortunes be esteemed happiness . yet , certainly , misfortunes may make men real philosophers , as afflictions makes real christians : and it is very probable , that one , who after much confidence in court and riches , hath been tumbled down unexpectedly , will be more really convinced of it's slipperiness and emptiness , then such as never found the effects of so much revolution . but there are many also , such as dioclesian and charles the fifth , both emperors , and many others , who after a compleat fruition of all courtly successe and pleasure , have taken a solemn congy of it , whilst it yet smiled upon them , and i am confident many moe would , if they did not apprehend much hazard in their retreat , from these who thought themselves injured by them in their prosperity . in ballancing the employments of solitude , with these of greatness , because greatness will still struggle for precedencie , i shall therefore scann first it's disadvantages ; amongst which , this is one , that either publick persons have attained to the fruition of what they design'd ; and in that case , there are many wayes to make them miserable , because the substraction of any one of these many enjoyments , robs them of all the satisfaction they can enjoy in what remains . and there are but few wayes to make them happy , because little can be added to their present possessions : or , they have not attain'd to what they have projected ; and then they fret more , and suffer moe disquietings , then the meanest servant whom they command , and like that man in the parable , consider more the one lost sheep , then the ninety nine which yet remain . did the conquest of all that the sun sees , restrain , alexander from weeping , because he could conquer no more ? no. for , ambition is like hunger , which though it is once satisfied , continues no longer so , then it hath for a little time prey'd upon what was at first presented to it : and like the fire , is so far from being satisfied with what is thrown into it , that it is by that new fewel , not only enabled to destroy , but likewise forc'd to seek more aliment for sustaining it's wasting rage . these who are in publick employment , have either many dependers , or not ; if they have not , they are not satisfied : for , the scope of such is to be depended on , and the missing of this renders them more miserable , then poverty or sickness could a stoick : but if they be incircled by crouds of attenders , then are they interessed , not only in maintaining their own posts , but likewise in sustaining their numerous clients ; in whose fall , their reputation is , as in their own standing , equally interessed . and when they have been at great pains to effectuat the pretences of these their dependers , if these pretences succeed , then either the pretenders whom they assist , do arrogat the success to themselves , or their own merits : or else they think it but the price of their attendance , and so look upon it as paid before bestowed : whereas the party with whom these have to do , will ever thereafter carry the patron at implacable malice : or , if these pretences succeed not , then they impute it to the want of conduct , or of gratitude in these their lofty patrons . and if any two , or moe of these dependers , should justle amongst themselves ( as ordinarily falls out amongst such as are rivalls in favour ) then the grandee is divided in his resolution ; and as he gains no new friend by assisting the one , so he losses an old servant by opposing the other . and when a grandee hath spawn'd out his estate amongst his favourits , one of a thousand will not prove gratefull ; but though all the thousand should prove gratefull to one , the ingratitude of that one will be more unpleasant , then can be repair'd by the gratitude of all the remanent nine hundred and ninety nine . as to their equals , such as are in publick employment , lye under this inconvenience , that either they please them not , and these they either find , or make their enemies ; or , if they endeavour to please all , then the task is either impossible , or unprofitable : impossible , because after that they have crook'd their own humour to make it fall parallel to another mans vn-even fancy , then they may instantly loss their pains ; when vpon the same principle ( of pleasing all ) they indeavour to obliege one , who either is , or is believed to be , either rival , or enemy to him who was first oblieged . and is there any thing more ordinar ( though nothing more vnjust ) then to hear , ye must either not be my friend , or that mans enemy ? this pleasing all is likewise unprofitable , because things are not valued by advantage but by propriety : and thus we value that friendship most , which is born to us solely , or in a greater measure then to others . whereby it appears clearly , that if ye carry equally to all , ye obliege none , and if more to some then to others , ye disobliege these to whom ye carry least ; which certainly ( because our love is like our selves , most finit ) must be the greatest part : and these who are disoblieged , are more zealous in their enmity , then these who are oblieged , are in their friendship . the conclusion of all , which is , that albeit the great pleasure of publick employment is , that thereby they may obliege many to a dependance upon them , yet men gain by it moe , and more vigorous enemies , then such as are recluse do , albeit they profuse none of their inesteemable time upon so uncertaine a purchase . as to their superiours , it vexes doubtless such as are at so much toyl to be high themselves , to see any yet higher then themselves ; and they count as many crosses , as they do superiours . if states-men be not at the highest pitch of favour , they fret at the vnluckiness of their own fate , and exclaim against their ill-faced stars : and if they attain to it , then they are oft jealoused by their promotters : and sejanus is loaded with more contumely by his patron tiberius , then ever he was with honours . and after that these ploding pates , have raised their designs to that line , that they conceive , they may justly admire it 's noble structure , and their own skill in it's contrivance ; then that fabrick , upon which , for ( possibly ) their whole life , they have laid out the whole stock of their happiness and expectation , may be in one moment , blown over by one word from their prince , who is a man subject to his own fate , as they are to theirs : and when they perceive that the same prince is thereafter forc'd to yield to his own destiny , they cannot but conclude , that they have been themselves mean persons , who was so easily destroyed , by one who was so easily destroyed himself . if parmenio had not killed attalus , or c●eander parmenio , their disobedience had been a crime ; and when they obeyed , their obedience was really a crime in them , and was hated as such by alexander who commanded it : so that superiours do oft tye their favourits to the observance of what is contradictory , and consequently require what is impossible . it was nobly said , by that grand master of stoicisme , seneca , that , qui multa agit , saepe se fortunae objecit . and publick persons are in this , like great garrisons , which by how much the greater they are , are so much the worse to be defended , and by how much the richer they are , are so much the more stoutly assaulted . for establishing this great truth which is unum ex mirabilibus stoicorum , i shall under-prop it by these two subservient conclusions ; first , that seing that is only , in all the schools of philosophers , defin'd to be morally good , which is compleat at all points ; and that to be evil , which labours of the least defect : certainly it must be a great task , not only to do good , but even not to fall into the commission of evil . the second conclusion shall be , that as it is almost impossible not to slip into the committing of evil , yet our escapes are never forgot , when once committed ; and not only wrong they us as to that action , but they likewise detract from all our subsequent good actions : and albeit it be very hard to do what is good , yet our good actions are most unfrequently remembred ; or if they be , then they are esteemed duties , and so they bring us by that remembrance , no other advantage from men , then not to bring a tash upon us . marshal biron's many victories , obtained by his valour , for henry the fourth , walsteins for the emperour , nor essex's for queen elizabeth , did not excuse their after-treason . and balaams beast ( though otherwayes an ass ) could tell it's master , have not i ridden with thee ever since i was thine without stumbling ? and yet now thou hast struck me thrice ? from all which it follows , that publick employments , because they obliedge a man to many actions , they therefore engage him in many misfortunes , and lay him open to much detraction . neither doth mans misery stint it self here ; but , which is worse , envy , malice and mistake , blaze us for more vitious then really we are ; we commit some escapes , wherein we mistake our selves , but we are said to commit others , wherein others do but mistake us ; we commit : some , which are really our own transgressions , but we are said to commit others , which are but other mens imputations . such as are in publick employments can never want rivalls ; and such as want not rivalls can never miss mis-reports ; especially in our country , where the way to preferment is so narrow , that we imagine no man can get by his neighbour , except he run over him . o! what a divine state then must solitude be , wherein a virtuous in activity fortifies us against all these inconveniences , and begets in us a tranquillity , not conceivable by such as do not possess it ? . have ye not , my lord , oft heard great men say , i must do this , and assent to that , though neither the one nor the other satisfies my judgment ? have ye not seen great men forc'd to abandon their most deserving friends , forc'd to connive at , and oft to congratulate the promotion of their greatest enemies ? will they not be sometimes oblieg'd to put on a constrain'd countenance , feign an unnatural mine , and express what is diametrically opposit to their thoughts ; all which are servitudes which greatness exacts from us : for every force is a yoke ty'd upon our nature ; and man being more noble then brutes , because he is more free then they are , certainly what impares his freedom , destroyes his reason : and most of these restraints , as they are against nature , in being servitudes ; so they are against virtue , in being opposite to what our reason would ( if not over-power'd by interest or fancy ) exact of us . and i should think , that the same impulse , which hurries men on to desire to be great , that they may be masters , should , with far more reason carry them to be solitary : for there they are emancipat from these necessities , and have none to obey but god and nature ; masters who commands us to do nothing , but what were fit for our selves to do , albeit we were not commanded . as these countreys are esteemed most excellent and preferable , whose necessities are supplyed by their native commodities , pulling out of their own bosome all that their inhabitants require ; so by the same rule , solitude must be , by much preferable to publick employment , seing this requires , and wants but little , but the other needs much , and is not satisfied when it gets what it needs . solitude requires no avarice to maintain it's table , nor oppression to bear up it's train ; it is satisfied without coaches , lacquies , treasures and embroideries : the solitary man is not vext , that others must take the door of himself , or is able to maintain a more sumptuous table then he ; he is not disquieted at the infrequency of guests , nor echoes of his equals praises . and seing great men are still disquieted at the advancement of others , they must still be unfortunate ; for though they were capable to receive , yet they are not able to sustain the weight of all employments alone . consider these clouds which sit oft upon the countenance of men in employments , their gate like to that of an disrudered ship , and their discourse dis-joynted , and blown , as it were , all to pieces by their tempestuous passions ; and ye will find such ( many times ) to differ but by an ace , from these who have keepers at bedlam : and by these disorders ye may perceive , that employment and madnes are of too near an alliance ; and if the one , certainly both must be diseases , seing both have the same symptoms , and the same prognosticks . and in these distempers , how oft speak they things , which are thereafter either quarre led openly , or at least are the seed-plot of continual heart-burnings to these at whom they aimed ? but to abstract from all these accidental disadvantages , is it not a madness for a rational soul , for whom all the world was created , to observe nothing in this world , but whether another manages his process well , with what harmony stricks another man's pulse , or how to brigue the favour of a minion ? acts so extrinsick to the nature of an immaterial creature , such as the soul , that if men got not money by these employments , they would themselves condemn them as ridiculous . and is there any thing more ordinar , even amongst the herd of brutish busie-bodies , then to chide their friends for attending either the persons or employments of those who reward not such pains , and for so doing upbraid them as mad men ? and so they are indeed . by which it is most evident , that men in employment have nothing to excuse their madness , but that they are not madd , but for money or preferment . and is it not a shame for so noble a creature as man , to be content to shew himself madd for any hire what soever ? solitude has likewayes this advantage over publick employment , that there is no vice commissable in solitude , to which men in publick lye not yet more open ; whereas , there are some crimes , such as , treason , sedition , ostentation , and a whole tribe of the like nature , which retired persons can hardly commit ; and though they could , yet hardly does that state admit of these temptations , which are previously necessar to the commission of them . is there any thing more ordinar , then to hear one who is accused for deserting his friend , or party , to answer , that his office , or present designs , occasioned and required that defection ? and are not men , for accomplishing their projects , tempted to betray secrets , to become rivals to their friends , and assisting to their enemies ? whereas , no record can witness against retired persons , that they ever either ruined their native country , betrayed their prince , or deserted their friend ? at least , if any in that state have been tempted to the least degree of any such crime , certainly they had committed moe , and greater villanies , if they had lived in publick , where those wicked inclinations might have been strengthned , by example , design , passion , revenge , or some such temptatoin . and if our inclinations be so wild , when they are caiged up in solitude , how untame will they become , when they are licenced to range abroad ? he who would stob his prince , who had never the occasion to offend his remote cell , would burn the world , if he had a design , to which that might be subservient . did not nero , tiberius , heliog abulus and others , enjoy the repute of noble souls , before their mounting the imperial throne , brought them new vices , with new honours , and made them as much beyond other in their debauches , as they were in the power , which fed them in that their dissolut humour . since then no honest person can deny , but that it were better never to have the greatest honour , then to be said by after-ages to have committed the least villany : certainly the state of publick employment is scarce to be wished for , seing therein men are tempted to commit the greatest of crimes ; especially , seing these their escapes must be committed in publick , where they are never concealed , and but seldom ( if ever ) pardoned . as to the periods of both , certainly solitude hath by much the advantage : for , look over the callendar of all these heroes or grandees who have governed kingdoms , or were favourites of the first rate to such as did govern them ; and ye will find most of their fates marked with the red letters of a violent death , or the black letters of shame . ignominy overtakes , whom fate hath left undestroyed ; and gleans the grapes , after the other hath cut down it's vintage : — sine caede , & sanguine pauci descendunt reges & sicca morte tyranni . it is observed , that betwixt iulius cesar and charlemain , thirty roman emperors have been slain , and many since . and i am so ashamed of the cruelty of those who are of the same species with my self , that i must conceal the many other murders of king's and grandees : and as to the disgrace of others , these can hardly be sufficiently either numbered or regrated . and albeit others are not deter'd from embracing those honours under which their first owners have been crush'd upon the account , that they imagine their predecessors ruine to have flow'd from some personal frailty or error , against which they are confident they can guard ; yet certainly all should , even from this answer , conclude , that greatness must be most undesirable , seing , at least , it discovers these frailties , or tempts men to commit these errors , which thereafter occasions these ruines . neither find we any such dangers to attend solitude , either necessarily ▪ or by accident : so that albeit these be the misfortunes of those men , and not of the employment , yet seing these are only the misfortunes of men in employment , i see not why employment should be so desirable by men who fear misfortunes . but the truth is , it is impossible to warde against the unexpected blows which are thrust in at such , for they are so cunningly contrived by the attacquers ( because of the danger of being discovered ) that they are sooner felt then foreseen . who could dis-appoint the malice of those who killed these noble princes , henry the third , and henry the fourth of france ? who could have targetted buckingham against feltons thrust ? and all the prudence of cesars court could not avert his massacre in the senat , especially being contrived by his confident , brutus ; et tu fili brute said that great emperour . and that which renders the suddain fall of these heroes the more deplorable , is , that by being suddain , it not only disorders their affairs and endangers their souls , but likewise so amazes their friends and followers , that they are thereby incapacitate from providing against the sequels of that fall , and are themselves ( who only can help their falling friend ) brought to fall with him . i have oft remarked with wonder , how ghastly the favorites of a falling minion do look , and how astonishingly they are lookt at by their former intimats ; and which is strange , not only do the enemies of a fallen grandee insult over his misfortunes , but even these who were his former well-wishers , are ( to avert the jealousie of those who occasioned his fall ) necessitate to enveigh most bitterly against his memory ; dum jacet in ripa calcemus cesaris hostem . neither can i see how greatness can be defended against misfortunes ; for ordinarly these rise from such unexpected beginnings , that none see in ( or apprehend the least danger by ) them : and all the world is not able , by conjecture , to fall upon that medium by which providence intends to infer their ruine . who could have guessed , that mordecay's discovering a plot to ahasuerus wherein haman was not concerned , would be the mean to destroy that great favourite ? i have oft heard the friends of those who are now low , ask at such as told them of the slipperiness of favour , how could their patron ever be destroyed ? and it was impossible that could fall out during such a government . and yet i have my self seen these men outed of all their confident expectations ; a passionat expression , a rash act , a jealousie or mis-information which could not be foreseen , because then there was no bottom for such a conjecture , hath ruined oft-times such as never expected any alteration : and who can promise that they shall never drop one word in passion , act any thing without a previous deliberation , or never fall under mis-information ? and which is yet worse , when mis-informations are forged against great men : they are not acquainted by such as either gives or receives them , and so their defence becomes imprestable . i have heard of favourits who have been ruined , because the queen said they were handsome men , or the king thought them to excell himself in any thing wherein himself pretended to a mastership : and what plodding pate could have stav'd off , or foreseen these misfortunes ? no , no. ludit in humanis divina prudentia rebus . and seing there are many who have the courage to throw away their lives upon the revenge of a small affront , or to hazard them in an open , and yet almost a barren robbery , why should it be thought , that to saitsfie so impetuous a passion as revenge , there should not be some found who will hazard death , by giving it in the revenge of either an injury done to a family or nation , much more of an affront fixt upon the undertaker himself , in his honour , or entire fortune , as oft falls out ? but albeit great men and publick ministers escape the fate of a murder or massacre , yet how is their happiness founded ? is it not either upon the humour of a capricious people , if in a commonwealth ? and then how unsolid is that happiness where the foundation is so fleeting ? consider rome , which , though the wisest of all republicks , yet , upon a jealousie or a mistake , or some times out of wantonness , destroyed in an instant the most carressed , and most deserving of her favourits , or , upon the favour of a prince , if in a monarchy ; and then ye must confess them oft-times subject to all the caprices of a lofty humour , licenc'd by the extent of his power , to equal his power and his humour ; and entic'd , by the instigation of enemies or rivals , to stretch his humour beyond his allowed power . why did solyman the magnificent , cut the throat of ibrahim bassa his confident ? was it not to satisfie the fancy of a concubine ? or iustinian pull out the eyes of valiant bellisarius ? was it not to gratifie an insolent wife ? so that a states-man lyes open , not only to the hazard of his masters fancy , but to the passion of his wife , his concubines , his favourits and fellow-servants , and even to fate it self , which is the most comprehensive of all dangers . but albeit a states-man were able to escape privat revenge , and to mannage , with success , his princes humour , and to satisfie that of his favourits , yet he is still obnoxious to ragione del stato , and interest of state , by which his prince is oft ( to evite the rage of a multitude ) either forc'd to object his minion to their rage , as the head in a natural body defends it self by throwing up it's hand or arm to receive the stroak , or else he may be pull'd from the kind bosome of his unwilling master : and of this hazard our own age affords us a lamentable instance in the person of the great earl of strafford , whom popular fury did drag to the scaffold ; his princes protection not being sufficient for his defence ; who viewing , from that deplorable stage , the inconstancy of courtship and advancement , did leave in legacie to his son , a strait command never to aim at higher promotion then that of a justice of peace in his own county . consider likewayes how sometimes the satiety of a prince produces the same ruine of favourits , which is at other times the product of his cruelty . and comines observes , that lewis the eleventh of france used to say , that seing princes did weary of houses , countries and other inanimat things , which could never offend them , and which no rival or enemy was at the pains to traduce , it was no wonder that they wearied of favourits , who were subject to all these inconveniences . princes do likewise ruine their grandees , sometimes to satisfie their vanity , in shewing that their power is able to remove those who think they cannot fall without a miracle ; and sometimes to make way to new favourits , thinking it injustice to entail all honours upon the same persons . and , as in the body natural ; so likewise in the politick , it is observable , that nature hath provided more diseases , then the best of physicians can prevent by remedies . to conclude this period , be pleased to conclude the unluckiness of publick employment from this , that not only amongst rivals , one of two pretenders satisfie , by their fall , the rage of fate , but when it hath assisted the one to destroy the other , it then turns it's fury against the late victor : thus pompey and cesar's blood purpl'd equally the swords of murderers , agreeing in nothing but their destiny . hannibal beats the romans ; scipio beats hannibal , and the romans banish scipio . bellisarius makes gilimer king of the goths ridiculous , leading him as a prisoner in his triumph ; and fate renders bellisarius yet more ridiculous , driving him to beg , with this expression , bestow but a farthing upon bellisarius . and it is most observable , that during our civil wars , four most eminent persons , who did head contrary , as well as different parties , did all loss both their heads , and their fortunes in the quarrel ; whereas it might have been expected , that at least one of the opposits , should have worn unfadeing lawrels : and really there was more hazard in the fear , of being the one who was to be destroyed ( for they might certainly have expected , that one of themselves , should fall ) then all the grandour , which the survivers , might expect , could sufficiently requite . and when the monarch or common-wealth , which a states-man hath long served , intends either in compliance with their interests , or to gratifie their humour , to out their servant of his employment , or in order thereto to fix a crime upon him : then how can he escape from that tryal , or defend his right against that persuit ? for where the judge is party , there the law may prove advocat . and in these contrasto's , i remember few dicisions , amongst all who have collected them , of any subject , who came off with honour . seing as of all other things , so of our thoughts the first-born should be sacrificed to our almighty maker ; i therefore resolved , to begin my first discourse with these reflections , which solitude might borrow from devotion . but , since orators recommend the last place in our discourse , to the strongest perswasives ( as being able when plac'd there to leave the freshest impressions ; upon the leaving reader ) i shall therefore in this last place , ( which is , alas ! the too ordinar room allowed to devotion ) recommend to you , to consider , that god possesses moe excellencies , and we labour under moe sins , then can be fully contemplated , in the one case , or lamented in the other , throughout the whole flux of eternity . and after that we have evacuated our more refined spirits ; in chase of these fleeing follies , will it satisfie him to to have our dulled thoughts ( the lame of the flock ) served up upon his holy altars ? and seing he stiles himself a jealouse god : certainly he cannot but be jealous , that because we converss with others more then with him ; we must therefore , either love these better or expect more , either advantage or pleasure in their society then in his . i confess that publick employment , is lawfull in it self , and necessar to the common-wealth , and that men may serve god in the intervalls of their other publick negotiations . but the question is not , what is lawfull in it self ; but what is convenient for us , and seing we run already , but too slowly that divine race ; i see not why we should slow our pace yet more by taking on the burthen of publick employment . and seing all our time is but too short , for the service of him whom far more excellent creatures then we worship uncessantly , time without end : i think it strange , that we should content our selves to serve him per parenthesin , or by intervals . to these i shall add this import consideration , that most of temptations , are in solitude disarm'd of these charms , which renders them formidable to us in publick : love wants there the presence of an enflaming object to second it ; revenge wants the presence of the party injured to press it : and vanity when it wants admirers , wants force . though moses was the meekest man upon the earth , whilst he lived in the desert ; yet the extravagancy of those whom he governed , when providence had advanced him , made him offend his maker , so highly , that all his former services , could not obtain , even from the father of mercies , a liberty to enter into an earthly canaan . if naaman had lived an hermit , he needed not have crav'd the prophet leave , to bow to the idols of his master ; in the house of rimmon . and if david had not been governor of israel he had wanted the means both to humble bath-sheba ; and kill urriah , such is the ill fate of publick employment , that it not only affords us temptations , but the means likewise of effectuating that to which we are tempted . it was i confess gods own verdict of man , that it was not good for him to be alone , but this was when because of his congenial innocence , he needed not fear the contamination of society ; but to demonstrat what the hazard of being in company is : even adam could not live one day in it , and live innocent , for the first news we hear of him , after that eve was associat to him , is , that he had forefeited that native purity . i know that our saviour , was carried by satan to the wilderness , that he might tempt him there . but it is most observable , that after that experienced enemy , found that his divinity would not yeild to any thing therein represented ; he thereafter ( as the last and so the strongest shift left to him unessayed , did bring him to ierusalem ; and having advanced him above the temple , he proffer'd him the halfe of the belted world , and all it's glories ; a temptation , sitted only for such as value honour and publick employment . when god almighty intended to converse with moses , he called him from the populous camp , to the top of mount sinai . and our saviour did not disclose the glories of his transfiguration at ierusalem , but upon the top of the mount of olives . the widow who intended a lodging for elisha that great prophet , did build it apart upon the wall , furnishing it only with a stool and candlestick : and when he asked her , if he should speak for her to the king , or captain of his hoast , she told him , without farther answer , that she dwelt amongst her own friends , and in her own countrey ; intimating thereby , that there was no need of any favour kings could bestow upon such as enjoy'd so happy a recess . i recreat my self to think i see elijah sitting under a juniper tree , or in a concealed grove , visited in that solitude by the same god , who refused his presence to mighty ahab ; and to contemplat how ahaziah was able to find no ease upon his purpred couch , till he dispatched in quest of it some of his chiefest captains to court it from the same prophet , sitting upon the top of a mountain : by all which places and postures , the spirit of god ( who losses no observation ) intends doubtless to enamour us of solitude and recess . and it is very observable , that none of these old prophets are found , in scripture , at court or in publick , but as bearded comets appear in the air , where they have no other earand then to denounce judgments to the place over which they hover . god almighty , who because he is the object as well as enjoyner of our devotions , should , and does upon these and many other scores , best know how to address them ; hath commanded us to retire into our closets ( the most solitary of all our rooms ) and to make these yet more retired , hath ordained us to close our doors behind us when we make any religious applications to him ; promising , that he who seeth in secret , will reward us openly : and if we will consider these gawdy distractions , whereby our publick devotions are almost rendered no devotion at all , and that there is more noise in the world then will suffer us to hear that still voice which cryes behind us , this is the way , walk ye in it ; certainly we may conclude , from both reason and experience , ( as well as out of obedience to divine commands ) that solitude is the true forge of the purest devotions . when god did intend to discipline his beloved ( though rebellious ) israel , he chose first the wilderness of sinai , and then the two captivities to be his sacred school . and , hosea . . he tells his own people , that he will allure her ( meaning the jewish church ) and bring her to the wilderness , and speak comfortably unto her . religion hath another quarrel at advancement , which is , that it devests oft-times it's enjoyers , not only of devotion and of friendship , which is a moral virtue , but even of affection ; which is so natural to brutes themselves , that a man is worse then these when he wants it : and not only forget they it upon such necessities as might at least excuse , if not justifie , their so doing , but do so likewise to satisfie their humour ; a slavery which deserves to be condemned , though it's object were in it self justifiable . no man could have believed , if scripture had not told it , that saul would , from being an absolute monarch , descend to so low a baseness , as to cast away his daughter michael meerly that he might destroy her husband : or that a prince of midian would have prostitute his daughter cozbi , to the promiscuous multitudes of the israelit●sh camp , of design to tempt them to a sin : which could not but be attended with his own infamy , as well as their ruine . was it not for this that romulus cemented the first foundation of the roman walls with the blood of his brother remus ? and though abel and cain had the division , of what tempts ( i will not say ) satisfies now the ambition of many thousands to gratifie their expectations ; yet , was not so ample a partage able to prevent the spilling even of a brothers blood , by one whose crime was so much the greater that it was without president , and was to become an example to many thousands of succeeding ages ? many whereof might , and have been thereby not only encouraged to commit afresh this old sin , but likewayes to seek , in the greatness of this offence , excuses , whereby to lessen their own barbarity . but if any call in question the advantages that accrew to devotion by solitude , let him cast back his eye upon the primitive church , wherein the material fabrick was contriv'd dark , and situat in the remotest corners and solitary groves , both by pagans and christians ; as if that black enamel hightned the lustre of the golden candlesticks : and upon the infinit swarms of such as became moncks and hermits , encourag'd thereto by the homilies and entreaties of the noblest fathers ; of which state the emperour iustinian did , after he had kept that oecumenick councel , become so enamour'd , that he hath registrat it 's noble elogies in the frontis-piece of his divine codex . whilst , upon the other hand , the heathens of old , and now the mahumetans did , and do teach , that one of the chief torments in their hell shall be , that men will there be cast louse to to these occupations and civil employments which here exercis'd them ; esteeming it a torture for illuminat spirits , and such as are defecat from sensuality , to be re-embarast with such terrestrial affairs as busie us in this our earthly state . pardon , my lord , this in-road i have made upon devotion ; and learn from it , that solitude and devotion are so nearly related , that we can hardly praise the one , and not commend the other . i shall hear use the authority of great hero's ; who , after the fruition of both , have by much prefer'd solitude , whereas ( which is very strange ) there is not a single testimony to be had from such as these , in favours of publick employment . the first shall be of charles the great , who , being to die , cry'd out to these who stood about him ; o! how vain are the thoughts of men ? and how wretched are they that aspire to glory ? what hath my kingdom , or the service of so many men gain'd me ? much more happy had i been , if in stead of a scepter , i had weilded an hedging bill ; and if of a king i should have made my self a clown : following in this almost the very expressions of alphonsus his brother : suatocopius king of bohemia and moravia , having lost a battel against the emperour arnold , did retire himself into a wilderness , where , after he had lived a long time with three hermits , he at his death told them , that there was not any greatness preferable to the tranquillity of that solitude . the safe sleep ( said he ) which we enjoy here , makes the roots savoury , and the waters sweet ; whereas the cares of a kingdom makes all meat and drink taste bitter . that part of my life , which , i have past with you , was true happiness ; whereas that which i led upon my royal throne deserves more the title of death then of life . and giges king of lydia , puff'd up with his great wealth and many victories , having asked the oracle of apollo , if there was any man happier in the world then himself , had agesilaus the poor arcadian sheepheard prefered to him . and similis , one of adrian the emperours chief captains , having retir'd to the countrey , after all his preferments , caused grave this epitaph upon his own tomb , here lyes similis , of a very great age , who yet lived but seven years . i might here cite constantine , that excellent king of scotland ; theodatus king of the goths ; charles the fifth ; sertorius , and hundreds of other princes , if i thought it not more of advantage to solitude to say of these , that they are so many , they cannot be cited . seing then reason and experience do impresse us with so pungent disswasives from greatness , let us a little examine what can be in it , able to preponder to so weighty discouragements . the first prize contended for by great persons , is fame , a revenue payable only to our ghosts ; and to deny our selves all present satisfaction , or to expose our selves to so much hazard for this , were as great madness as to starve our selves , or fight desperatly for food to be layed on our tombs after our death . either publick ministers value much the discourses of the multitude ; and if so , they erre in offending them as oft as their gain or pleasure affords them the meanest temptation , or else they value these not ; and if so , why is there so much pains , taken for fame , which is nothing else but a collection of their suffrages : which reflection recommends much to me , that stoical fear , given to hannibal by iuvenal , — i demens , & savas carre per alpes , ut pueris place as , & declamatio fias . — climb over the alps , thou mad , vain glorious fool , that thou may children please , & be their theme at school . for convincing us of the folly of this passion , be pleased to consider , that either our souls , have the same period with our life , and then to talk of us after death , is to talk , of what is not ; and what advantage brings it to us when seing we are not , what is said o● us , cannot affect what is not , or our de●parted souls survive , in eternal bless . and then the loud halelujahs of my riads of angels , will easily drown so the voice of fame in our ears , that it will not be heard by us ; and our souls will be so replet with infinit joyes , that there will be no room for it's report , though it were exauceable ; for fame , being b● air , must yeild and flee out at the access of any thing , that is more solide , or else the souls of these , who are praised , will be damned : and then they will not be susceptible of any pleasing impressions . and i am confident that one of the torments of damned spirits , is that they imagine all the world to be full of their infamy . and seing the fame of the greatest of men , is not able to solace him in the fit of a feaver , or gravel ; why should we imagine that it can lessen the weight of such pressing torments , as infernal horrour , or eternal damnation ? to talk of amphialus , who never was , is the same thing as to talk of alexander : only amphialus , cannot be stained with cruelty , vanity and drunkenness as alexander is : but albeit fame were to be courted , what share of it can we expect , who are scarce known beyond the line of our own history , and but transiently in that likewise ? who amongst us would toil as we do , to be esteemed , as popenham or bajard , ( whom i believe very few have heard of ) and yet these acted upon the continent of the world , and did greater things then the present state of affairs will admit us to do . and i am confident , that there liv'd lately at the court of france and spain , hundreds of courtiers , who injoyed fat taller honours then we , and who would not have embraced the honours we grasp after ; and yet fame scornes to be at so much pains as once to mention their names . how many know not at present , the name of that grand visier , who but lately made germany tremble ? and to say that it was the grand-visier , is to praise his office , and not himself . who can name the greatest cardinals at rome , or dogi of venice ? and yet , what infinit pains is taken to gain these employments , by such as live upon the place ? i smile to see underling pretenders , and who live in a country , scarce design'd in the exactests maps , sweat and toil for so unmassie a reputation , that when it is hammered out to the most stretching dimensions , will not yet reach the nearest towns of a neighbouring country : whereas , examine such as have but lately returned from travelling in most floorishing kingdoms , and though curiosity was their greatest errand , yet ye will find that they scarce know who is chancellour or first president in these places ; and in the exactest histories , we hear but few news of the famousest pleaders , divines or phisitians ; and by souldiers these are under-valued as pedants , and these by them as madcaps , and both by philosophers as fools . but though fame were desirable , yet publick employment is not always attended by it : for , either advancment is attributed to the fancy of the advancer , or to fate and hazard . and in either of these cases , the person promoted is not honoured , but his fate ; and it will be loudly proclaimed as a thing most strange , that one of so mean merit or so rebellious principles , or tainted with any such vice ( as envy will either find or make ) should be promoted to such honours : whereas if the same person had satisfied himself with a solitary life , his reall vices had neither been discovered , nor such forged vices proclaimed ; and because people blame minions , whilst they live for what they dare not charge upon their master , their envy or revenge transmits to posterity , that character which was received to their prejudice , whil'st they yet governed . was perenni●● famous , though commodus then emperour rais'd him next to the throne ? or oliver the barber , though lewis . made him his minion ? no , for princes can bestow greatness , but fame lies no more under their jurisdiction the● the winds do , from which it doth b●● little differ . of all witnesses fame●s the most suspect , because it ordinarily flatters most these who depended most upon it , and were at greatest to●● to gain it's sufferage , and to depon●● falsly against the greatest of such 〈◊〉 value not it's testimony : and as it 's report , is by law judged , to be unstable as water , so in this it resembles much the water that it presents ( like to it ) the straightest objects to our sight , as crooked and uneven . and since fame depends upon the credulous multitude , and upon unrestrainable accidents , who can assure himself of it's suffrage ? or believe it when it is obtained ? if the souldiers prove cowardly , and lose a battle , the general is for ever affronted , and yet he cannot help it : or if a servant betray a states-mans secret , then the masters prudence is for ever traduced . ignominy being like all other black spots ( a tenaciousness peculiar only to that colour ) which cannot be worn off , nor washt out : and the designs of states-men being as latent , as the springs which do inwardly move mechanick machins , the people ( whose intelligence cannot reach these ) judge of the designs by the events : and if at any time the event answer the contrivers expectation , then the malicious multitude ascribe this success , either to hazard , or to their power . and , to speak seriously , power is so happy a suffragant , that it takes off much of that repute which is due to the contriver : for , who can be foyl'd having such a second ? and to convince us , that power and command conceals what strength and energie there is really in the governours wit , reflect but a little upon those pitifull rebels , who govern'd lately this countrey , and did seem most wise , whilst they were vested with power : of which , being now again devested , their wit falls far short of the first cast . like those venetian ladies , whose native stature rises , and lowes in appearance , according to the height of these , socculi whereupon they walk . but if fame be the great prize , i see not why the literati and virtuosi , or retir'd curiosi , may not put in for as large a share in it , as most ( if not any ) states-man : for , if that maxime hold , that propter quod unum quodque est tale , propter hoc , illud ipsum est majus tale : certainly it follows in true logick , that seing solitary persons are the dispensers and bestowers of fame upon great men , they cannot miss it themselves . how had aeneas conduct , or achilles valour , been forgot , had not homer or virgil sung their elogies ? and after a great man hath defeated kingdoms , a pedant is ( like the sillie worm ) able in one night , to consume that blossoming gourd of his reputation : and seing the world know not what the one did , they will believe what the other said . history ( which is the grand-register of fame ) is known for the most part only to retir'd persons , and these will admire most what suites most with their own humour : and fame it self being most oblieged to such as study solitude , it oblieges ordinarily these most , because they have oblieged it . aristotle hath prov'd himself , by his syllogisms , a greater person then alexander his famous schollar ; solon is more famous for his moral advice to cresus , then cresus , who possest those mountains of gold ; which were the subject of his advice : and cicero's tongue , though pull'd out of his head by anthony , hath spoke out his praises louder , then all the acclamations of the roman legions and echoing artillerie could proclaim that more then monarch . and seing that man is happiest , who is happy whil'st he is a man , such as attain to fame by solitude , are happier then great men , because they are happy whil'st they are able to find it , whil'st the others have it only when they are not sensible of what they have . compare iulius cesar ( to the stature of whose repute our dwarffish endeavours will never be able to rise ) with lucan , who wrote the story of his wars , and ye will find lucan the much happier : consider cesar , macerat oft with hunger , stiffned with unrewarded toil , jealous of his own souldiers , and apprehensive of the senat , tortured with the uncertain events of the war , and terrified by the having kill'd his son in law pompey , after he was sure of the victory . and then return your reflections upon lucan , sitting in the bosome of a shaddowie grove , flanckt with a christal stream , and there creating those noble lines , which have since carried his fame as far as cesars actions ; and having in this the advantage of cesar , even as to posterity , that cesars souldiers , pompey's ill fate , the senats irresolution , and the cowardliness of their auxiliaries , share with cesar in the event , and really more then he ; whereas lucan inherits the sole praise of his story now , as he did the pleasure of having wrote it whil'st he was yet alive . but to conclude the folly of fame , consider even this generous lucan , falling under the sword of nero ; because that cruel prince was ashamed to see himself so far out-done in wit by one of his own subjects : and from this learn , that fame is suspicious to its dependers , when it bestows it's favours , and injust , when it denyes them . next to this , the satisfaction received in commanding others , is admir'd as one of the ravishing advantages of publick employment : and the soul of man in this , seems to have retain'd still a false appetite of being like to it's maker . but seing this design could not be managed even by the judgement and purity of the greatest of angels , so as not to deserve the severest punishment , and did in them prove also ineffectual ; i find that little hopes can be entertained of our succeeding in it . but consider seriously , that it being a congenial humour in all mankind , to desire freedom ; certainly great men must conclude , that their dependers would not bow to such homages , if they thought not thereby to obliege their patrons , to the full requitall of what they so highly value : and therefore , these being debts , rather contracted by us then favours done us , i see not why we should so highly prise them ; and seing in return to these , protection , sallaries and offices are expected , all which put us to real pains ; consider if these imaginary pleasures deserve to be bought at the rate of such real vexations . the magnifico must himself bow to his prince , bear his extravagancies , swear a friendship with these whom he hates , dispence with affronts , spend all his time in attendance at court , and in observing these humours , which he must thereafter superstitiously obey ; and all this , that he may gain wherewith to repay salutations , flatteries , legs , congies , and such like pittifull pleasures ; and that he may scrue himself so far into the respect of the people , that he may have hats pull'd off to him , which will be likewayes done ( and for the same reason likewayes ) to a lifeless chair of state or the meanest fool , if his shoulders be strong enough to bea● a tittle , or any other the meanest mark of his princes favour . and that he may be magnified by his dependers , whom because of their interest none will believe , being bribed to depone what they say of him , is not this satisfaction a meer act of fancy ? and is it not saifer to translate our fancy to some other object , then to moderat it here ? and who can assure himself , that when he hath arrived at that pitch of command which he presently proposes , that this shall terminat his ambition ? and is not the french king as much troubled , that he cannot command the grand-signior , as a french courtier is for being lower then his king. and after that a chancellor , hath rendred his place , by any short possession familiar to him , he then despises what he enjoys , by the same principle which invited him to desire that imployment , when it was yet above his reach . but abstracting from these considerations , what can it advantage any man that another bows to him ? it can neither cure gout nor gravel : and when he is displeased at any thing else , it is so far from being able to solace him , that that which vexes him most , is , that any person can be found who dares displease one who is so great as he : and if he had not been so great , that accident which now grieves him , could not have vexed him : so that in wishing to be great , we wish that we may be made more susceptible of affronts , then nature hath already made us . i need not tell you , celador , that great men are oblieg'd to attend more submissively their superiors , then we do them : because these have moe designs then we ; and design is the occasion of our dependance . so that if there be any pleasure in liberty , we enjoy it more then these ; and if there be none , why is there so much pains taken to be great , upon expectation , that greatness sets at liberty ? a private man is not oblieged to oppose his relations , fight against his country , give his own judgement the lye ; all which are but the meanest impositions that some princeslay upon greatness : and why should men purchase , at so dear a rate , the liberty to serve others , which is all that greatness can bestow ? i know that society is one of these satisfactions which we rank amongst the pleasures of the first magnitude ; and that as to the possession of this , solitariness seems to cede to publick employments . but when we consider , that the prerogative of society stands not in seeing one another , but in rational conversation , it will appear that the difference is not wide . for , what pleasure can be received by talking of new fashions , buying and selling of lands , advancement or ruine of favourits , victories or defeats of stranger princes , which is the ordinary subject of ordinary conversation ? and really i have admir'd to see persons of virtue and honour long much to be in the city , where when they come , they found nor sought for no other divertisement then to visit one another , and there to do nothing else then to make legs , view others habit , talk of the weather , or some such pitifull subject : and it may be , if they made a farther inroad upon any other affair , they did so pick one another , that it afforded them matter of eternal quarrel ; for what was at first but an indifferent subject , is by interest adopted into the number of our own quarrels . this begets heats ; heats opprobries ; opprobries revenge ; and revenge leads either to fret , if we cannot satisfie its thirst ; or to ruine , if we cannot quench it . how many likewise are in these rencounters , tempted either to betray their ignorance or malice ? and if one know not the new name of such a dish or dress , such an intrigue , or such a quarrel or marriage , then they are esteemed block-heads . most of men desire to frequent their superiors , and there men must either suffer their raillery , or must not be suffered to continue in their society : if we converse with these who speak with more address then our selves , then we repine equally at our own dulness , and envy the acuteness that accomplishes the speaker ; or , if we converse with duller animals then our selves , then we weary to draw the yoke alone , and fret at our being in ill company : but , if chance blow us in amongst our equals , then we are so at guard to catch all advantages , and so interressed in point d' honneur , that it rather cruciats then recreats us : how many makes themselves cheap by these occasions , whom we had valued highly if they had frequented us less ? and how many frequent persons , who laugh at that simplicity which the addresser admires in himself as wit , and yet both recreat themselves with double laughters ? it is remarked by geographers , that no king alive is worship'd by his subjects but the king of binon , and that he is never seen by them ▪ and certainly , if he were seen , he would not be worship'd . and thus these ancient hero's were never deifi'd , till death had , by burying themselves , buried the memory of these infirmities , which , though they were but few in some , and mean in others , had notwithstanding enough of allay in them to make the committers , not only be conceived no gods , but oft-times to represent them as frail men . familiarity is ( in the proverb ) said to breed contempt ; which it does not only by that natural saciety , whereby nothing can become common and continue ( to our apprehension ) good , but likewise , by laying open to conversers these lapses and failours , which if they deserve not contempt , do , at least , lessen that repute which was in others founded for them rather upon idea's which they framed of our perfections , then upon these merits which might justly challenge them . familiarity hath likewise this prejudice in it , that it blunts those endeavours in us , whereby repute is ordinarily acquired ; and in remitting that exactness whereby we entertain strangers , we loss that share of esteem which exactness and politness deserves ; these extraordinary parad's , made ordinarily to our less familiars , being a holy-dayes dress in conversation , which though it flatters , ceases not therefore to weary us . our saviour does himself , and of himself , say it in holy scriptures , that a prophet hath no honour iu his own countrey ; and the foolish jews gave him ground to say so , when they concluded that he could not work miracles , because his mother and brethren dwelt amongst them , and because they did know him and his extraction . but if variety be that which is admired in society , certainly our own thoughts , or other mens books , can in these far exceed conversation ; possessing above it this advantage , that we can never be either importun'd or betray'd by these , as is much to be fear'd from the other . and it is most remarkable , that after solomon hath fixt a vanity and vexation of spirit upon all the actings of men , and hath after several times subjoyned it to publick employment , he only sayes , that reading is a wearyness to the flesh , without adding it to be a vexation of spirit . but albeit society were to be valued at the rate imagin'd , yet solitary persons injoy more ●he sweets of society then great men ●●o : for , in all addresses to these , the addressers consider only what is sit for their private interest , and little else is added , besides the dropping of a flattering expression or two : and when any dis-interessed subject is fallen upon with them , it is spoke to with so much constraint , and the speakers are so hem'd in by discretion and respect , that the discourse is manag'd with much disadvantage . and our very duty teacheth us , that to speak learnedly , is pedantry there , and to speak religiously is impertinent : so that we must either transgresse our duty , or else be mean in our conversation . but , albeit the humour of the grandee were so noble , as to admit of freedom in conversation ; yet few ingenuous spirits ( who are the only best companions ) can speak freely in publick , or to publick persons : whereas , the most hide-bound orator can pour his conceptions into his neighbours bosom , in their natural set and fashion , and with as little alteration as a discourse receives , by being cast off the press upon paper . reflect but upon these many thousand apologies which are carry'd up and down amongst such as converse much together ; and which , as they make up the greatest part both of their employment and vexation ; so are not incident to any who live solitarly , these being the natural product of conference and rencounters : and ye may conclude , that either these who make such apologies , are as real in making them , as they seem passionat in having them to be believed ; and then , conversation may appear to be most dangerous , seing these prove , that men may easily mistake , and are so easily mistaken by such as daily frequent them , as yet to need so solemn and so numerous apologies ; or else these are but feing'd , and then they prove conversation to be yet more dangerous ; seeing , as men are subject to mistake and be mistaken , so our own real apologies for those mistakes will not be believed , because of the frequency of other counterfeits ; nor can we , for the same reason , discern whether such as are made to us be real or not : what was the subject of this dayes conference , will be the subject of an accusation to morrow ; and that secret , which we thought we did but lately depositate in our friends breasts , will shortly fly in our faces from the mouth of our enemies : but though our friend were real and secret , yet his inconstancy may make these either no virtues at all , or ineffectual and unprofitable ones ; a quality now so ordinary , that i take pleasure to see both my self and others mistake the several interests which they knew intimatly a year ago , cabals and intrigues moulding themselves almost every month in different shapes , according to the humours or interests of the parties concern'd : and so pestilential is the malignity of conversation , that even ladies fail here , and this piece of frailty they are suffer'd to cary about them to keep them from being ador'd , , because of their other amiable qualities : for , if their converse were not dangerous , because that any error is there a crime , and no affront can there be reveng'd , certainly there should no place else be frequented . consider , i pray you , how discourses are laught at , though never so witty , if three or four combine to represent them as ridiculous ; how a slip , either in the choice or accent of a word , becomes irreparable , by being incurr'd in a society where nothing is design'd but censure ; and when any proves happy in that trade of jybing , they must be gauding abroad ( so tempting is this folly ) though sure to meet in these journeys the repute of slight or dishonest ; and that jearer , who at the beginning was esteem'd a wit , is , by continuing his trade ( yea though he improve in it ) undervalued as a buffoon . it was nobly observed by marcus antonius , that great emperour and philosopher , that a weaver or cobler , would willingly sequestrat themselves from all society , that they might prosecute their several trades ; and yet man cannot retire himself , that he may admire the creation , and exercise his own soul , which is the great trade of a rational creature , and of a true philosopher . and since gain can prevail with all so far , as to make them renounce society , and esteem company an idle folly ; certainly , if we would reflect upon the great advantages of solitude , both as to morality and devotion , it were an easie matter to prefer it to those which are in themselves but trifles , if not burthens . i have these three arguments to perswade me , that solitude , contemplation , or a countrey-life , have more of pleasure in them then publick employment . the first is , that pleasure , being in men , an act of the fancy , and consequently of the soul ; certainly these pleasures , which do more immediatly affect the soul , must needs be the most active pleasures ; and such are these which arise from contemplation : whereas sensual pleasures , and such as arise from exterior objects , do arrive but consequentially at that immaterial agent , and so they do move it with far less vigour . a second is , that contemplation does often drive our souls into extasies , and is so charming , that it may be rather said to ravish then please , committing so open a rapture upon our souls , that it pulls them almost into a state of separation : thus those old hermits are the members of the ancient church , who are oftest remark't to have become thus nobely sensless , being as far transported out of themselves , as they had transported themselves formerly out of the world , and lying whole weeks under that spiritual amazement , and drunk , as it were , with those streams of consolations which slow from those blessed cisterns , the open wounds of our glorious saviour . and amongst the heathens , did not pithagoras almost distract with the satisfaction conceiv'd in finding that noble and famous demonstration mention'd in the second book of euclide ? was not pliny so ravisht with the pleasure of contemplating the rarities of the hill vesuvius , as , for further enquiry to approach so near , that he lost himself in its flames ? and was not archimedes so much pleas'd with his demonstration upon the sands of siracuse , that he would not lose so much time from it as wherein he might beg his life from the rude conquerours : whereas , besides what comes from fear or revenge , we read nor hear of no such mighty passion in any of these who live in the fruition of publick employments , or sophisticat satisfactions . the third argument is , that we find the satisfaction resulting from honour and ambition , to ced to very mean pleasures , and to such as have nothing of satisfying in them , besides what they owe to the corruption of our senses , and to be such as do themselves yield easily to this energetick pleasure of contemplation . is not a gallant , and even a statesman , who is in love with a mistris , and sometimes with a whore , or hath an unquenchable thirst for wine or companionrie , willing to prefer the satisfaction of these passions to all advancement , or the pleasures which he can receive by them ? and this evidences , that this desire to govern , is , of it 's own nature , none of the strongest ; at least that our fancy may have other objects less dangerous , and equally pleasing , whereupon to dote . and a pedant , reading pompey's actions in good latine , is as much enchanted with it , at least with the having written handsomely his epitaph , as pompey could have been himself in the fruition of all his glories , and the most spreading ruff of his pride . and a countrey gentleman is as much taken with a happy chase , or a clown with a mean hire , as the happiest favourit can be with the purchase of the highest office , which the fear to lose , or new pretences , and much anxious attendance , doth lessen much to him : but if these concessions of gain or honour occasion raptures in the receivers , that joy brings more tickling with it , then is fit for the spirit of man to receive ; and occasions want of sleep , discomposure in discourse , and all these other extravagancies which proceed from grief at other times : whereas , solitude gives no other pleasures then what is fit for our recreation , or sutable to our reason and stoicall indifferency ; so that seing every state hath pleasant objects provided for the enjoyers fancy , that state must be most preferable which fancies objects the least dangerous ; and such is solitude , but such is not publick employment . i think the ancient philosophers put but a mean complement upon man , when they call'd him a little world : for certainly , his vast soul hath in it nobler idea's of all that is created , then the finitness of matter will allow to the creation it self ; whose spirit is so narrow , but it can in one thought represent larger sphears , a more vast globe , and more boundless seas , then all these which were brought from the bosom of the first chaos ? and after infinit expence hath impoverished a building prince , the meanest peasant can in his fancy add exceedingly to it's bulkishness ; and which is more , that faculty can mould idea's of thousands of species never yet created , that can bring forth moe monsters then africk , and can produce moe novelties then america : and as we cannot but admire these productions , for their variety ; so we cannot but love them , because they are our own . and thus , seing there can be no pleasure in that variety which is to be decerned in the world , but what our fancy takes , ( for , what else is there in beholding real castles , navies , courts or cities , but a divertising of our fancies ? for nature needs none of those ) certainly , retirement hath in this the start of it's rival : for there , fancy is at fuller freedom , and roaves with less contraction then when it is limited by the narrowness of the senses ; through which wickets , certainly nothing can enter which is angust or ample . in publick we see the same men most ordinarily still act the same things ; and we our selves are so much busied with our interest , that we regard little even the small variety which is discoverable in them . and certainly , it is a great disparagement to the creation to think , that there is not variety enough there , to busie our meditation ; or that there is less there then in a city or court : it is true that we 'll see there variety of hangings , cabinets , and such like toys ; but if we would view the various faces of the sky but one day , we would perceive more of variety in those , more of excellent colours and various motions , then in ten thousand such trifles as these . consider but the beauty of one tulip , and it 's several freckles ; the motion of one bird , and it 's several wheelings ; the shapes of several worms , and their different crawlings ; and ye will find task enough , and more variety there , then a city can afford , wherein they may represent you a painted rose , but not it's smell ; the shape of a foule , but not it's motion : and yet men there dot upon that one quality of shape in pictures , more then upon ten thousand reall species in the complex of all their excellent qualities ; which if ye call fineness , i see no reason why ye may not call madness virtue . it is not then want of variety in nature , but want of observation in us , which occasions this errour ; and he understood all things infinitly better then we , who said , that solomon in all his glory was not like one lily of the field . it 's reported of a great philosopher , that for fifty years he employed himself in the observation of bees , and all that time found both new task and pleasure ; and never any could say that he had observed fully all that was to be observed in floures , anatomy , astrology , or any of these sciences , amongst which the least copius in measuring lengths hath advantage of our lives ; and yet we complain . that retirement ( where these are only to be found ) hath not employment or divertisement enough for us . but if these suffice not , my dear celador , enter into your own breast , and there survey the several operations of your own soul , the progress of your passions , the struglings of your appetite , the wandrings of your fancy ; and ye will find , i assure you , more variety in that one piece , then there is to be learned in all the courts of christendome . represent to your self the last age , all the actions and interests in it , how much this person was infatuat with zeal , that person with lust ; how much one pursued honour , and another riches ; and in the next thought , draw that scene , and represent them all turn'd to dust and ashes . the world is a comedy , where every man acts that part which providence hath assigned him ; and as it is esteemed more noble to look on then to act , so really , i know no securer box , from which to behold it , then a safe solitude , and it is easier to feel then to express the pleasure which may be taken in standing aloof , and in contemplating the reelings of the multitude , the excentrick motions of great men , and how fate recreats it self in their ruine , as if it fed them with success , as the romans fed their gladiators , who serv'd for nothing else but in beating one another , to recreat the disinteressed beholders . consider how some are cartelling for not drinking of a glass , others fretting at the promotion of their equals ; one vext that he was not safely delivered of his prepared harrangue ; another scanning every syllable of his frowning mistris letter : and even these humours again laugh't at by some ; and that laughter weept at by others of these virtuosi's , who pretend to a dictatorship in moral philosophy . some admire publick employment , and prefer it to solitude , because the one gains ( whilst the other wastes ) an opulent fortune : but these should consider , that as these merchant-venturers would eminently deserve to be esteemed mad , who would hazard their stock in a voyage , where certainly ten of a thousand bottoms will not return unshipwrack't ; so pretenders to advancement must be mad , seing scarce ten of a thousand prove successfull in the design , so few are the preferments which can enrich , and so many the hazards in reaching them ; and which is worse , of these ten which are prefer'd , scarce four will be found , who do not prove so unhappily long-liv'd , as not to survive their conquests and honours ; and having got a glimpse only of happiness , en passant , do become so much the more miserable , that they have been once happy . and as to these with whom greatness is pleas'd to continue , do they not oft-times , by raising themselves as high as their fancy , raise themselves too high for their estates , and the one by swelling make the other to burst ? how few grandees are not forc'd to eek up their spendings with contracted debts after their own revenues are wasted ? whereas such as live privatly , and in a countrey-life , transmit to their posterity the remainders of that yearly rent which rests after all necessities are defray'd : so that the countrey-man must be rich , seing his necessities overcome not his fortune ; and publick persons must be reputed poor , seing they have not sufficiency for their maintenance . is not a little man as well cloath'd in his four yards of cloath , as a taler is in six ? and are not the princes of italy esteem'd but petty princes , because in desiring to be such , they have made these fortunes which might have made them rich subjects , too small for the support of so weighty titles , as that of soveraign ? but admit that these enjoyments continued for the enjoyers life-time ; yet god ordinarily takes from the length of the duration what these added to the breadth of their conquests : as a too hasty concoction destroyes the body ; so a too soon conquest estate destroyes the conquest : and what like ionah's gourd flourishes in one night , loses the next these blossoms wherewith it was adorn'd . hasten not to be rich , was the counsel of a great moralist , as well as divine , and god almighty gave us no other task , then to gain our bread , and that with the sweat of our brow : so that in desiring great and suddain estates , we are peccant both as to the matter , and manner of our acquisition : and what can we propose reasonably to our selves in thus doing ? for little can defend us against our present necessities , and nothing can defend against the future . and when these riches are pyl'd up , they serve either to satisfie nature , and that is easie ; or to satisfie fancy , and that is impossible . when a publick minister hath gain'd , by either toil , oppression , or a long courted favour , a great sum , he possibly makes a great entertainment , or buy 's a great jewel , with that or the equivalent , and either surfets in the one , or vexes himself in losing the other ; and albeit he do not , what pleasure is there in either of these , but the serving of our fancy , after the same manner that children do , when we laugh at them for hugging toyes and bables ? most men are as much troubled in the spending of what they gain , as in gaining it ; and thus one trouble creates another by an alternat succession . all we gain ( saith solomon ) is either for food or rayment ( pomp and supersluity being no design allow'd by nature ) and much or fine of either of these , serve not to defend against either cold or hunger : and so seing the peasant or solitary philosopher , attains sooner to the true end of riches by his sobriety , then the other by his abundance ; certainly he must be the richer ; and that is most excellent which attains soonest to the end for which it was destinat : if such want money to give lawers or physicians , they also want employment for these ; and without employment no man desires money : so that riches are really ( though they remain ) but like the manna , whereof he who gathered little had abundance ; and he who gathered too much , had nothing over : and if riches remain not but take the wings of the morning , and flee away , as oft they do , then consider that publick persons are most subject to these alterations ; for forfeiturs , alterations of government , or favour , intestine wars , luxurie , gain , popular fury , or an heir confiding in his fathers prosperity , or educat amidst many spending wanters , and such other dissolute persons as frequent publick places , will sooner drive to that necessity , which men should only fear , then moderation or retirement can do : and when great men are impoverish't by these accidents , they are asham'd , because of their former state , and incapable by want of suitable breeding to repair their losses , or satisfie their necessities by pains or frugality , as privat men can ; and which is worse then all this , their former prosperity makes want far more unsupportable to such , then to the other , to whom the greatest hardships have been rendered familiar . as to such who think , that publick employment and command will afford them convenience to satisfie their lust , i can say nothing , but that it 's better to live in a sober solitude , wherein men may so tame their lusts , that they need not satisfie them : there is no pleasure in eating but to such as are hungry ; and certainly , it were for our advantage , rather that we could live without being hungry , then even to have as much as might satisfie hunger when it comes : high feeding , and want of better employment , begets this ; and what impairs these extinguishes it : whereas , i am confident , such as are servilly subject to it , suffer more anxiety in the purchasing of that conveniency , then private men can do by the want of bread : for they will for that purchase disobliege friends , cheat their intimats , prove ungrate to their sweet bed-fellows , suffer themselves to be talked of , and run a thousand other hazards , which they would not encounter for staving off the greatest of these necessities under which mean men suffer ; and when this is gain'd , what brings it , but sickness , jealousies , horrours in conscience , and reproach amongst men ? when i compare solitude with publick employment , as to their recreations , i find , that the one follows only such as because nature hath invented , it doth therefore sweeten , and such as have no danger in them , besides that of being too much charming ; as hunting , hawking , angling , and the like , wherein we have occasion to learn , as well as to praise , the workmanship of our mighty maker : and in the other , such divertisements are most familiar , as if they have not been invented to gain money , or seed lust , yet are not really recreations , if they look not towards these ends ; and which are attended by so much toil , fretting , sweating , swearing , lying , cheating , and other vices , that their great pleasures are the worst of torments except their tragick periods ; of which nature , are cards , dice , tennis , danceing , drinking , feasting and whooring , which do oftner divert men from being real christians , then divertise those who are really such . if great men enjoy not recreations , they become unfit for employment , and employment becomes a burden to them ; and if they sequestrat the meanest portion of time for privat recreations , they are curst by those thousands , whom multitude of affairs , rather then laziness , hath defer'd , and who are so unreasonable as only to consider that they are put off , but not to consider wherefore . though food and rayment are no constituents , yet they are too often lookt upon as considerable appanages of our more material happiness ; and these used by great men , though they cannot make the enjoyer happy , yet serve to make the by-standers conclude themselves unhappy in the want of them : and therefore i shall make these few reflections upon both , whereby it will appear , that as to these , the meanest men are more happy then the greatest monarch . as to raiment , certainly , that used by private men , is most noble , most easie , and attended by fewest inconveniences : most noble , because in these great men follow the mode , but mean men make their own mode , and so the one , as to that , is a subject , and the other a soveraign : great men are servants not only to the fashion , but to such cloaths as are in it , they must abstain from every thing which may soil or disorder them , and must employ much of that time and life , which is the only thing they pray for , and which they buy with much torture and money from physicians , meerly in adjusting them every morning , and though it should prejudge their health or estate , they must have these fashionable and rich . how many shifts will be used , and other pleasures abandoned , that money may be got to give for these ; whereas a solitary person wears such as are convenient for his health , and may be subservient to any employment ; and that his are more easie , appears from this , that great men , when they resolve to take their ease , lay aside their robes , which serv'd for nothing else , but make themselves sweat , and others gaze : jewels and embroderies may make cloaths , by being stiff , useless and insupportable , but neither are necessary to cover our nakedness , or entertain our natural heat . and wen the fashion changes , these rich sutes serve only either to make the owner ridiculous , if he wear them , or to make him fret and grumble when he must lay them aside ; and though they continue fashionable , yet if another out-strip us in a more sumptuous suit or retinue , then we repine , and by missing our design of being more gallant then others , we likewise miss our happiness ; which , because it was not plac'd upon something which was in our own power , it is therefore in the power of every other man to take from us . as to food , that which is us'd by mean men is both more natural and more pleasant ; more natural , because it is prepar'd with less toil , and being cook'd by nature it self , serves nature more adequatly , as to all intents and purposes ; it neither entices men to eat till they be unable for their affairs , nor brings it sickness ; it affords strength , and prolongs life ; whereas , when publick employment brings riches , and these have hir'd cooks , all they can do , is to cheat the stomach into an oppression , and by fumes sent from thence , chase away fine thoughts out of our heads to make room for vapours . solitary persons dine when they please , but great men when it suits with their business ; and as they are more subject to invitations , to feasts and entertainments ; so they must there sit longer , and eat more then nature requires , and they must either dis-obliege their hoste , or kill themselves . i know many , who in place of complementing such as they invite , make them envy them ; and many who are vext when they hear of another who lives at a nobler rate then themselves , and who pillage the poor , that they may entertain the rich ; that the food of private men is more pleasant , arises from this , that the stomach hath , by its fumes , depraved the taste , so that nothing can rellish ; or custome hath render'd the finest delicacies so ordinary , that nothing can appear pleasant ; a peasant by fasting longer , or working more laboriously then at other times , can thereby heighten the rellish of his dish beyond all the art in the emperours kitchen , or apothecaries shop . and i have heard of a merchants wife , who being much subject to diseases whil'st her husbands trade flourish'd , did live very long , and very healthfully , after he was broke . and when rich persons fall sick , who knows but their physician may contribute to make the disease continue long , or the apparent air to make it end suddainly : and when the physician is honest , does he not forbid the use of all these delicacies , whereof greatness boasts of as an advantage ? the greatest pretext used to excuse this zeal , after publick employment , is , that the countrey must be served , and man is not made for himself : to which my answer is , that this makes employment the object of our duty , not of our passion , and infers it as a necessity , not as a choice , which is all that is contended for : who is so absurd as to deny his countrey that service , which is really but the return of it's protection ? or , who will be so mad as not to contribute either skill or agility in saving that ship from sinking , wherein himself sails ? and this makes me conclude such as rebell against their governors , to be as mad as these are , who pull down their own houses , which defends them oft against the circumambient and blustering storms ; and gives me a veneration for the persons of such as are my superiours , to whom nothing said here , that is disadvantagious , should be applied . but if the serving of our countrey be that impulse , which only acts us on to undertake employments , this same design should make us wait till we be called for by our countrey : do not pretenders to employment , in desiring each to enter first , obstruct all entry to employments ? as we see , in entring at publick places , where the pressing of all hinders the entry of all ; do we not upon this account oft remark , that offices are kept vacand by princes , because of the multitude of rivals who compet for preference , and so by their hast to enter , prejudge the countrey more , then by their entry they can assist it : whereas , if it were for the publick good that we undertook these employments , all would wait till their rational reluctancy were vanquisht , with either the importunities of their prince , or conveniency of their countrey : and when that design for which they were called , were satisfi'd or driven to it 's design'd period , they would willingly solace themselves again , by their retreat to these countrey-employments , from which they were at first rather driven , then brought . and certainly , if the publick interest were that which only did invite men to appear in publick , they would not repine at their being laid aside , nor force an entry through the very sides of their countrey , making a breach in its ramparts , because they cannot enter at it's gates , as too many pretenders daily do . should not such as the state have thought fit to remove from employment , consider , that others have an equal title by nature , to advancement with them ; and that , as if their predecessors in these offices had not been remov'd , they had not been advanc'd ? so either it was injustice to remove these , or else i● is no injustice to remove them ; and they should rather prove grateful for having enjoy'd these honours so long , then ingrate in repining , that they retain'd them not still , which were as unnatural as if the sun should constantly dwell in one of his twelve houses ( making that the only summer-house in heaven ) and should not , by successive withdrawings and returns , magnifie his presence by his absence , and by that constant change be so just , as not to gratifie all , that he may please a few . if these , who are in offices , were not subject to alterations , they would presume too much , and such as wanted them would certainly dispair ; whereas , now the fear of being degraded , makes such as are in employment virtuous and compassionat , fearing least their practice become their dittey ; and the hope of advancement makes such as yet have not attain'd to it , walk so as may deserve applause , and so as they may shun reproach : if such alterations were not incident to great men , they would oft want occasion and time to repent of those sins which they committed in publick , either by inadvertence , having their thoughts distracted with many things ; or by extravagancie , having their thoughts rais'd above their just level . and if there were not such alterations , great men should neither have time to admire gods many wonders , nor to review his many mercies , and it should be unknown whether greatness or solitude were the most christian state . many noble spirits have been frighted from solitude , as conceiving it to be a state wherein the soul contracts a rust , which cankers it's own substance and makes it unpleasant to others , and that it begets men the name of a countrey-clown , and unfashions him as to the world . but these should consider , that seing the finitness of our souls allows not a compleat accomplishment , it is our wisdom to fill our narrow rooms with the most necessar provisions , and these are , the knowledge of god , and his works ; from which will result that tranquility of spirit which is peculiar to philosophy , and is the guest of solitude : so that when in exchange of complement , courtship , knacks , reparties , and such other appanages of conversation , we become pious , learned and moral philosophers ; i think us losers in no other sense , then a tree is , when it 's gaudy flourish ripens into such fruit as can both please the rellish , and feed the body . it may be , a philosopher may forget by his solitude whether to give a lady his right or left hand ; but if in his solitude he hath learn'd to know what is right or wrong in her or his own actions , i think she should esteem him so much the more , and he is by much the more happier . and if the world conclude him improven , who in learning how to order an army , hath forgot how to order a ball ; i see not why they should account him an apostate in breeding , who is so intent upon the contemplation of a deity and it's productions , as not to care to adore these mortal goddesses , except for whom the pressers of this objection have little or no devotion , being rather devoted servants to these , then devout servants to the almighty : and how can that soul rust which is in continual exercise , as these of philosophers are ? and this is more to be feared in such , as by living in publick are still busied , and yet idle : for , may not we be busie in soliciting for unnecessary favours to others , in receiving and paying visits , in driving on unnecessary factions , and yet our souls contract a rust , whose cancker may make it at last moulder away to nothing ? for , what share can our souls take in such actions , wherein it hath no other concernment then such as a man hath in the motions of his enemies ? let us then admire solitude ( noble celador ) seing to it religious persons flee when they would seek gods face ; sick men when they would seek health : here states-men find their plots , learn'd men their knowledge , poets their sublime fancies . in solitude , nestle the greatest of saints ; in publick , range the greatest of sinners , to the one we owe the best of inventions , to the other the worst of cheats . having thus rais'd this pitifull structure to i'ts cape-stone , i resolve to furnish it with these two landskips ; the one of solitude , the other of greatness . when i come to represent solitude , i must confess that it's advantages are so great , as that if any thing can surpass them , it must be the esteem i have of them . and for contriving it's landskip , i represent to my self quintus maetius post humius , that noble roman , who having been brought from his plough to govern that great city , did after he had conquer'd it's enemies , return to his former employment ; and being ready to leave them , call'd for a ballance , and ▪ by putting the falces ( or marks of authority ) in one scale , and his plough in the other , did let them see , that these imperial ensigns were the far lighter . not far from him , i represent timon the noble athenian , and gerson chancellour of france , who starv'd after they had spent their estates in complement and liberality ; exclaiming against all publick persons as perfidious , and friends ( as they found ) to a mans fortune , but not to himself . here diogenes undervalues so far all alexanders presents , as to prefer one sight of the sun to all that he could command , who commanded all that the sun shin'd upon : and there fiacre , that illustrious scot , refuses to return from his hermitage to receive the crown of his ancestors . here lurks st. ierom , laughing in the midst of his own torments at the follies of the world : and there the great constantine bewails with tears the want of solitude ; and the multitude of these distractions , which though they did not extinguish , yet did disturb his devotions . below these stands a countrey-gentleman , admiring the folly of a venetian embassador , for being vext to death , because he was at a festival plac'd upon a stool , and not upon a chair ; and smiling to see a russian embassador , who could not step ( though very sound ) till he was led by two attendants ; and to hear of the emperour and turks embassadours , who at their last meeting , behov'd like two pendula's clocks , either to set their paces equally , or else not to be reputed just . represent to your self rich valleys , where the liberal soyl needs neither be bryb'd by yearly accessions , nor courted with nice attendance , nor torn by instruments ( as in city-gardens ) before it will bestow any thing upon it's masters ; but without keeping close doors ( as these do ) keeps an open house to all passengers for herbs and floures of all tastes and liveries . here the nightingale is constrain'd to stay without any other cage , then that of the native pleasures of the place ; and here the sun looks from morning to night with a pleasing countenance , upon the off-spring of his own beams , neither clouded with smoak , nor intercepted by angles of falling houses ; and these , in effect , differ from gardens , but as prose from meeter , where the materials are oft-times richer , though the contrivance be not so artificial . here the levelling , though aspiring , trees , lay their heads together , to protect such as seek shelter under their well-cloath'd branches : and the cristal-streams run slowly and turn many windings , as if by that and their quiet murmurings , they would express an unwillingness to leave so pleasant a field ; and in token of their thankfulness , do in a generous manner ( because without shewing how ) enrich freely the neighbouring lands , and draws to their master his picture in one instant , without putting him to the pains of frequent or long sitting , beyond all the skill of vandyck or angelo ; entertaining likewise for him whole plantations of fishes , which may afford him both aliment and recreations beyond all that the city can boast , where water never comes , but empty , and as a prisoner , and like all other things and persons corrupts , if it but stay a while there . here old age crowns , with innocence's livery , these who have innocently improven their youth ; and youth bestows strength , because it knows that the strength it bestows is not to be revel'd away in whooring and banqueting . here ladies scorn , and need not submit their native colours to fairding , and in their blushing at the sins and impudence of city-gallants , shew a scarlet far exceeding the noblest lillies , though solomon and all the glory of his court was not to be compar'd to one of these . here complements ( which , like cob-webs , are but the artificial texture of pitifull stuff , woven by poisonous spiders ) are look'd upon as unnecessar and dangerous ; unnecessar , because there goes much of time and pains to their contrivance , yet do they not perswade such as they are addrest to , to believe them so well as countrey-ingenuity does it's inhabitants : and dangerous , because they are ordinarily but handsom disguises for such cheating inclinations as are sent abroad to betray the party concern'd . here lovers are not like prisoners , coupled together with chains of mettal , nor joyn'd , like princes , in a league for civil interest . jealousie , that moral feaver which tortures so the soul of man , as that god was content to ordain a miracle for satisfying his doubts , finds no employment here : for virtue entertains these matches which it self hath made , and lengthens out their productions to many moe ages , then are able to consume thousands of publick families . and ( to dispatch ) here , nature , the eldest daughter of providence , governs as queen-regent , and receives so absolute a difference to all her laws , that man may be here thought to be restor'd to that primitive innocence , which he formerly forfeited by his courtship . for framing the land-skip of greatness , represent to your self alexander running like a mad man up and down the world , and killing every man who would not call him master ( for certainly , we would call any man mad , who would behave so in our streets , and yet they might as justly do the one as he the other ) and all this to gain as much as might make him a person worthy of being poyson'd ; and esteeming all his greatness so meanly , as to prefer to it's enjoyment the embraces of a whore , who would have prostitute her self to the meanest of his attenders . here lies tiberius toiling more for the title of emperour , then a porter would do for bread , and yet prefering to all that roman pomp ( after he knew what it was ) the pleasure of seeing a naked strumpet , then which no man is so mean , as not to enjoy many greater pleasures . there stands hanibal , as a switz , guarding the king of bithinia ; here chancellor bacon starts at liberty , and there the duke d' alva starv'd in prison ; in this bed lyes a jealous courtier , tortured with anothers growing , not only greater , but even equal with him ; and in another lyes one loaded with wounds , received for his countrey or prince , but not regarded by them : not far from these lyes anthony stobbing himself , and cesar stob'd by the senate . in another corner , ye may perceive a rich heir selling that rich suit to a frippery , wherein he had but lately spent a great fortune at court ; and another despairing under these wounds which he did receive , for challenging one who took the wall of him . here ye may see the head of a nobleman , who to be reveng'd of his prince for complementing another , was content to hazard the happiness both of prince and countrey , in a rebellion which at last could not but ruine himself and his family ; and there ye may see the quarters of another , who after he had gain'd much more honour then he at first design'd , yet was so desirous to have more , as that to satisfie that desired super-addition , he would hazard what he was already possessed of in jeopardies , which any man not blinded by ambition , might have seen to be fatal . in a third corner , lyes heaps of such as somerset , marquess d' ancre , duke murdock , cardinal wolsey and others , whom nothing but their affronts have made famous , albeit they were the greatest ministers and minions of their age . in a fourth corner are represented many great men , who having left a pleasant country to come to a city , covered with smoak and infected with stink , are there vext to get money to entertain their ladies in that luxury and fineness , whereof the one tempts them , and the other tempts others to entertain these amours which are dangerous , and may prove fatal ; and who have likewise quit their own families , wherein all these respects were pay'd them , that they are glad to have occasion to pay at that court , for which they exchang'd their former residence ; and who , by the diseases occasion'd by want of that free air which they have left , are rendred unable to rellish all the other pleasures which they expected to enjoy in the city . and if after all this , ye will not conclude a solitary life to be more noble then publick employment , yet at least ye will , with seraphick mr. boyl , confess , that there is such a kind of difference betwixt virtue shaded by a private , and shining in a publick life , as there is betwixt a a candle carryed aloft in the open air , and inclosed in a lantern ; in the former of which situations it gives more light , but in the latter it is in less danger to be blown out . i shall ( celador ) in this last place , close this discourse with the last advantage of solitude ; which is , that by abstracting ' its favourits from being rivals to great men , and from being sharers with covetous men , it conciliats to them that applause , which as it was due to their merit , so was obstructed by these and the like incentives . — defunctus amabitur ide●● hath been the fare of many who were persecuted whilst they were alive ; and death and solitude have this in common , that they suffer enemies and obliege friends , to express their former esteems : fame resembling in this a shot , where the ball is sled , before the report arrive at our ears . but i have spent so much of the age of this night , in ending this letter , that it now begins to grow gray ; and the dapling twilight brings as much light as to let me see , that i have been rather zealous , then manerly , in shewing you how much i am , dear celador , your most humble servant , and sincere well-wisher . finis . notes, typically marginal, from the original text notes for div a -e sect. . the motives to both compared . sect. . the employments and difficulties of both compared . sect. . sect. the periods of both . sect. . motives to solitude from religion . kings . . kings . . sam. . numb . . marineus lib. . sect. ●an . examined . sect. . the pleasure of commanding others examin'd . se. ct . the satisfaction of society examin'd . sect . that solitude is more pleasing then publick employment . heraclitus . democritus . sect. . solitude enriches more then publick employment . exod. . sect. . the satisfacti of lust consider'd . sect. . the recreations of both compared . sect. . both compared as to their food and rayment sect. . object , that the countrey must be serv'd . sect. it is just that there should be changes in favour . sect. solitude lessens not our vivacity of spirit . sect. the landskip of solitude sect. the landskip of greatness . that the lawful successor cannot be debarr'd from succeeding to the crown maintain'd against dolman, buchannan, and others / by george mackenzie ... mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) that the lawful successor cannot be debarr'd from succeeding to the crown maintain'd against dolman, buchannan, and others / by george mackenzie ... mackenzie, george, sir, - . [ ], , p. printed by the heir of andrew anderson ..., edinbvrgh : . errata: prelim. p. [ ]. r. doleman was the pseudonym of robert parsons. reproduction of original in the university of illinois (urbana-champaign campus). library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng parsons, robert, - . kings and rulers -- succession. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - rachel losh sampled and proofread - rachel losh text and markup reviewed and edited - pfs batch review (qc) and xml conversion that the lawful successor cannot be debarr'd from succeeding to the crown : maintain'd against dolman , buchannan , and others . by sir george mackenzie his majesties advocat . edinbvrgh , printed by the heir of andrew anderson , printer to his most sacred majesty , anno dom. . king james in his advice to prince henry . page . if god give you not succession , defraud never the nearest by right , whatsoever conceit ye have of the person ; for kingdoms are eve● at gods disposition , and in that case we are but liferenters , it lying no more in the kings , than in the peoples hands to dispossess the righteous heir . page . ibid. for at the very moment of the expyring of the king reigning , the nearest and lawful heir entereth in his place ; and so to refuse him , or intrude another , is not to hold out the successor from coming in , but to expel and put out their righteous king : and i trust at this time whole france acknowledgeth the rebellion of the leaguers , who upon pretence of heresie by force of arms , held so long out , to the great desolation of their whole countrey , their native and righteous king from possessing his own crown and natural kingdom . errata . page . delet at his majority . page . for richard d. read ad . the right of the succession defended . the fourth conclusion to be cleared was , that neither the people , not parliaments of this kingdom , could seclude the lineall successor , or could raise to the throne any other of the same royal line . for clearing whereof , i shall according to my former method , first clear what is our positive law in this case ; secondly i shall shew that this our law is founded upon excellent reason , and lastly , i shall answer the objections . as to the first . it is by the second act of our last parliament acknowledged , that the kings of this realme deriving their royal power from god almighty alone , do lineally succeed therto , according to the known degrees of proximitie in blood , which cannot be interrupted , suspended or diverted by any act or statut whatsoever , and that none can attempt to alter or divert the said succession , without involving the subjects of this kingdom in perjury and rebellion , and without exposing them to all the fatal and dreadful consequences of a civil warr , do therefore from a hearty and sincere sense of their duty recognize , acknowledge and declare that the right to the imperial crown of this realme , is by the inherent right and the nature of monarchy , as well as by the fundamental and unalterable laws of this realme , transmitted and devolved by a lineal succession , according to the proximity of blood . and that upon the death of the king or queen , who actually reignes , the subjects of this kingdom are bound by law , duty and alledgance to obey the nixt immediat and lawful heir either male or female , upon whom the right and administration of the government is immediatly devolved . and that no difference in religion , nor no law nor act of parliament made , or to be made , can alter or divert the right of succession and lineal descent of the crown to the nearest and lawful heirs , according to the degrees foresaids : nor can stop or hinder them in the full , free and actuall administration of the government according to the laws of the kingdom . like as our soveraigne lord , with advice and consent of the saids estates of parliament , do declare it is high treason in any of the subjects of this kingdom , by writing , speaking , or any other manner of way to endeavour the alteration , suspension or diversion of the said right of succession , or the debarring the next lawfull successor from the immediat , actual , full and free administration of the government , conform to the laws of the kingdom . and that all such attempts or designes shall inferre against them the paine of treason . this being not only ane act of parliament , declaring all such as shall endeavour to alter the succession , to be punishable , as traitors ; but containing in it a decision of this point by the parliament , as the supream judges of the nation , and ane acknowledgement by them , as the representatives of the people , and nation . there can be no place for questioning a point , which they have plac'd beyond all contraversie : especially seing it past so unanimously that there was not only no vote given but even no argument propon'd against it . and the only doubt mov'd about it was , whither any act of parliament , or acknowledgement , was necessary , in a point which was in it self so uncontraverted . and which all who were not desperat fanaticks , did conclude to be so in this nation , even after they had hear'd all the arguments that were us'd , and the pamphlets that were written against it , in our neighbour-kingdom . but because so much noise has been made about this question , and that blind bigotry leads some , and humorous faction drawes others out of the common road . i conceive it will be fit to remember my reader of these following reasons , which will i hope clear that as this is our present positive law , so it is established upon the fundamental constitution of our government , upon our old laws , upon the laws of god , of nature , of nations , and particularly of the civil law. as to the fundamental constitution of our government , i did formerly remark , that our historians tell us , that the scots did swear alledgeance to fergus , who was the first of our kings , and to his heirs . and that they should never obey any other , but his royal race . which oath does in law , and reason , bind them to obey the lineal successor , according to the proximity of blood. for ane indefinite obligation to obey the blood royal , must be interpreted according to the proximity in blood , except the swearers had reserv'd to themselves a power to choose any of the royal familie , whom they pleas'd , which is so true , that in law , ane obligation granted to any man , does in the construction of law accresce to his heirs , though they be not exprest . qui sibi providet , & haeredibus providet . and boethius tells us that after king fergus's death , the scots finding their new kingdom infested with warrs , under the powerful influence of picts , romans , and britans , they refus'd notwithstanding to preferre the next of the royal race , who was of perfect age , and a man of great merit , to the son of king fergus , though ane infant ; which certainly in reason they would have done , if they had not been ty'd to the lineal successor . but lest the kingdom should be prejudg'd during the minority , they enacted , that for the future , the next of the blood royal should alwayes in the minority of our kings administrat as kings , till the true heir were of perfect age . but this does not prove , as buchannan pretends , that the people had power to advance to the throne , any of the royal race : whom they judg'd most fit , for common sense may tell us , that was not to choose a king , but a vice-roy , or a regent . for , though to give him the more authority , and so to enable him the more to curb factions , and oppose enimies , he was called king , yet he was but rex fidei commissarius , being oblidg'd to restore it to the true heir at his majority : and so governed only in his vice , and consequently was only his vice-roy . but because the uncles , and next heirs being once admitted to this fidei commissarie tittle , were unwilling to restore the crown to their nephews , and sometimes murder'd them : and oftetimes rais'd factions against them . therefore the people abhorring these impieties , and weary of the distractions , and divisions , which they occasion'd , beg'd from king kenneth the second , that these following laws might be made . . that upon the kings death the next heir of whatsoever age should succeed . . the grand-childe either by son or daughter should be preferr'd . . that till the king arriv'd at years of age , some wise-man should be choos'd to govern , after which , the king should enter to the free administration , and according to this constitution , some fit person has still been choos'd regent in the kings minority , without respect to the proximity of blood , and our kings have been oftentimes crown'd in the cradle . in conformity also to these principles , all the acknowledgements made to our kings , run still in favours of the king , and his heirs . as in the first act parl. . james vi. and the ii , iii , iv. acts parl. . charles ii. and by our oath of alledgeance , we are bound to bear faithful and true alledgeance to his majesty , his heirs and lawful successors ; which word lawful , is insert , to cutt off the pretexts of such as should not succeed by law , and the insolent arbitrarieness of such , as being but subjects themselves , think they may choose their king. viz. act . parl. . james . that this right of succession according to the proximity of blood , is founded on the law of god , is clear by num. chap. . v. . and . if a man hath no son or daughter , his inheritance shall descend upon his brother , ; by num. . where , god himself decides in favours of the daughters of zelophehad , telling us , it was a just thing , they should have the inheritance of their father . and ordaines , that if there were no daughters , the estate should go to the brothers . saint paul likewayes concluds rom. . if sons , then heirs , looking upon that , as a necessary consequence ; which if it do not necessarly hold , or can be any way disappointed , all his divine reasoning in that chapter falls to nothing . and thus ahaziah chron. . v. . was made king ( though the youngest ) in his fathers stead ; because sayes the text , the arabians had slain all the eldest : which clearly shews that by the law of god , he could not have succeeded , if the eldest had been alive . we hear likewayes in scripture , god oft telling , by me kings reigne . and when he gives a kingdom to any as to abraham , david , &c. he gives it to them and their posterity . that this right of succession flowes from the law of nature , is clear ; because , that is accounted to flow from the law of nature , which every man finds grafted in his own heart , and which is obey'd without any other law , and for which men neither seek nor can give another distinct reason ; all which hold in this case : for who doubts when he heares of ane hereditary monarchy , but that , the next in blood must succeed ; and for which we need no positive law , nor does any man enquire for a further reason , being satisfied therein by the principles of his own heart . and from this ground it is , that though a remoter kinsman did possess as heir , he could by no length of time prescribe a valide right ; since no man , as lawyers conclude , can prescribe a right against the law of nature : and that this principle is founded thereupon is confest l : cùm ratio naturalis ff . de bonis damnat : cùm ratio naturalis , quasi lex quaedum tacita , liberis parentum haereditatem adjecerit , veluti ad debitam successionem eos vocando : propter quod suorum haeredum nomen eis indultum est ; adeo ut ne a parentibus quidem , ab eâ successione amoveri possint . et § . emancipati institut : de haered : quae ab intest . praetor naturalem aequitatem sequutus , iis etiám bonorum possessionem contra tabularum leges , & contra jus civile permittit . which text shewes likewayes , that this right of nature was stronger than the laws of the tables , though these were the most ancient and chief statutes of rome . which principle is very clear likewayes from the parable , math. . where the husband-men who can be presum'd to understand nothing but the law of nature , are brought in saying , this is the heir , let us kill him and seaze on his inheritance . nor does this hold only in the succession of children or the direct line , but in the collateral succession of brothers and others l. hac parte ff . unde cognati . hac parte proconsul naturali aequitate motus , omnibus cognatis permittit bonorum possessionem quos sanguinis ratio vocat ad haereditatem . vid. l. . ff . aegrad . & l. . § . hoc autem ff . de bonor . possess . and these who are now brothers to the present king , have been sones to the former : and therefore whatever has been said for sones , is also verified in brothers . as for instance , though his royal highness be only brother to king charles the ii. , yet he is son to king charles i. and therefore , as saint paul sayes , if a son , then ane heir , except he be secluded by the existence and succession of ane elder brother . that this gradual succession is founded on the law of nations , is as clear by the laws of the tables , and the praetorian law of rome . and if we consider the monarchy either old or new , we will find , that wherever the monarchy was not elective , the degrees of succession were there exactly observed . and bodinus de republ. lib. cap. . asserts , that , ordo non tantum naturae & divinae sed etiam omnium ubique gentium hoc postulat . from all which , pope innocent in c. grand . de supplend . neglig . praelati concludes , in regnis haereditariis caveri non potest ne filius aut frater succedat . and since it is expresly determined , that the right of blood can be taken away by no positive law or statute l. jura sanguinis ff . de reg. jur . & l. . ff . de suis legitim . and that the power of making a testament , can be taken away by no law l. ita legatum ff . de conditionibus . i cannot see how the right of succession can be taken away by a statute : for that is the same with the right of blood , and is more strongly founded upon the law of nature , than the power of making testaments . since then this right is founded upon the law of god , of nature and of nations , it does clearly follow , that no parliament can alter the same by their municipal statutes , as our act of parliament has justly observed . for clearing whereof , it is fit to consider , that in all powers and jurisdictions which are subordinat to one another , the inferiour should obey , but not alter the power to which it is subordinat ; and what it does contrary thereto , is null and void . and thus , if the judges of england should publish edicts contrare to acts of parliament , or if a justice of peace should ranverse a decree of the judges of west-minster , these their endeavours would be void and ineffectual . but so it is , that by the same principle , but in ane infinitly more transcendent way , all kings and parliaments are subordinat to the laws of god , the laws of nature , and the laws of nations : and therefore no act of parliament can be binding , to overturn what these have established . this , as to the law of god , is clear , not only from the general dictats of religion , but hen. . cap. . the parliament uses these words , for no man can dispence with gods laws ; which we also affirme and think . and as to the laws of nature , they must be acknowledged to be immutable , from the principles of reason . and the law it self confesses that naturalia quaedam jura quae apud omnes gentes peraequè observantur , divina quadam providentia constituta semper firma , atque immutabilia permanent § . sed naturalia institut . de jur , natural . & § . singulorum de rer . divis : and when the law declares , that a supream prince is free from the obligation of laws , solutus legibus , which is the highest power that a parliament can pretend to , or arrive at ; yet lawyers still acknowledge that this does not exeem these supream powers from being lyable to the laws of god , nature and nations , accurs : in l. princeps ff . de leg. clementina pasturalis de re judicatâ bart. in l. ut vim de justitiâ & jure voet. de statutis sect. . cap. . nor can the law of nations be overturned by private statutes , or any supream power . and thus all statuts to the prejudice of ambassadours , who are secured by the law of nations , are confess'd by all to be null , and the highest power whatsoever cannot take off the necessity of denuncing warr before a warr can be lawful . and lawyers observe verie well , that these who would oppose the common dictats of mankind , should be look't upon as enemies to all mankind . my second argument shall be , that the king & parliament can have no more power in parliament than any absolute monarch has in his own kingdom : for , they are when joyn'd , but in place of the supream power , sitting in judgement ; and therefore they cannot in law do what any other supream and absolute monarch cannot do . for all the power of parliaments consists only in their consent , but we must not think , that our parliaments have ane unlimited power de jure , so , as that they may forfeit or kill without a cause or decerne against the subjects without citing or hearing them ; or , that they can alienat any part of de kingdom ; or subject the wholl kingdom to france or any other forraigne prince : all which deeds would be null in themselves , and would not hinder the partie injur'd from a due redress . for if our parliaments had such power , we would be the greatest slaves , and live under the most arbitrary government imaginable . but so it is , that no monarch whosoever can take from any man what is due to him , by the law of god , nature , and nations . for being himself inferiour to these he cannot overturne their statuts . thus a prince cannot even ex plenitudine potestatis legitimat a bastard in prejudice of former children though they have only but a hope of succession l. . & sequen de natal . restituend . and for the same reason , it is declared in the same law , that he cannot restore a free'd man ( restituere libertum natalibus ) in prejudice of his patron , who was to succeed , though that succession was but by a municipal law. for clearing which question , it is fit to know that the solid lawyers who treat jus publicum , as arnisaeus and others , do distinguish betwixt such kingdoms , as were at first conferr'd by the people , and wherein the kings succeed by contract , and in these , the laws made by king and people can exclude , or bind the successor . and yet even here , they confess , that this proceeds not , because the predecessor can bind the successor , but because the people renew the paction with the succeeding king. but where the successor is to succeed ex jure regni , in hereditary monarchies , there they assert positively that the predecessor cannot prejudge the successors right of succession . which they prove by two arguments . first , that the predecessor has no more power , nor right , than the successor : for the same right , that the present king has to the possession , the next in blood has to the succession . and all our laws run in favours of the king , and his heirs , and no man can tye his equal , or give him the law , par in parem non habet dominium . the second is , that it were unjust and unequitable that the predecessor should robbe his successor nulla ergo ( sayes arnisaeus cap. . num. . ) clausula successori jus auferri potest , modò succedat ille ex jure regni . and hottoman : lib. . de regno galliae asserts , that in france which is a very absolute monarchy , eaquae jure regio primogenito competunt , ne testamento quidem patris adimi possunt . and thus when the king of france design'd to break the salique law of succession , as in the reigne of charles the v. it was found impracticable by the three estates , and when pyrrhus was to preferre his youngest son to the crown , the epirots following the law of nations , and their own , refus'd him , paus. lib. . in the year . also amurat the grand seignior , having left the turkish empire to han the tartarian , passing by his brother ibrahim , the wholl officers ▪ of that state , did unanimously cancel that testament , and restore ibrahim , the true heir tho a silly foole . which shewes the opinion not only of lawyers but of whole nations and parliaments ; tho vander graaff , an hollander confesses , that it is not lawfull to choose any of his sons to succeed him , in which , the general quiet of the kingdom is much concerned . and therefore , tho the next heir were wiser , braver , and more generally beloved ; yet the more immediat must be received , as choos'd by god , whither good or bad , and as honored with his character . and if kings could have inverted their succession , and choos'd their own successor saint lewis had preferr'd his own third son to lewis his eldest , and alfonsus king of leon in spaine , had preferr'd his daughters to ferdinand his eldest son. and edward the vi. of england had preferr'd , and did actually preferre the lady iean gray to his sisters mary , and elizabeth . and if successions especially of such great importance , had not been fixed by immutable laws of god , and nature , the various and unconstant inclinations of the present governours , especially when shaken by the importunity of step-mothers and mothers , or clouded by the jealousie of flatterers , or favourits , had made the nations whom they governed , very unhappy : and therefore , god did very justly , and wisely setle this succession , that both king and people might know , that it is by him that kings reigne , and kingdoms are secur'd in peace against faction . and it were strange , that this should not hold in kings , since even amongst subjects the honour and nobility that is bestow'd upon a man and his heirs , does so necessarly descend upon those heirs , that the father , or predicessor cannot seclude the next successor , or derogat from his right , either by renuncing , resigning , following base or meane trades , or any other : for say those lawyers , since he derives this right from his old progenitors , and owes it not to his father , his fathers deed should not prejudge him therein . fab. cod. . tit. . def. . warnee ; consil. . num. . and as yet the estates of parliament in both nations have no legislative power , otherwayes than by assenting to what the king does ; so that if the king cannot himself make a successor , neither can they by consenting : and all that their consent could imply wold only be that , they and their successors should not oppose his nomination , because of their consent . but that can never amount to a power of transferring the monarchy from one branch to another , which would require , that the transferrers ; or bestowers had the supream power originally in themselves , nemo enim plus juris in alium transferre potest quàm ipse in se habet . and if the states of parliament had this power originally in themselves to bestow , why might they not reserve it to themselves ? and so perpetuate the government in their own hands : and this mov'd judge jenkins in his treatise concerning the liberty and freedom of the subject , pag. . to say , that no king can be named , or in any time made in this kingdom , by the people . a parliament never made a king , for there were kings before there were parliaments , and parliaments are summoned by the kings writtes . fourthly , a king cannot in law alienat his crown , as is undenyable in the opinion of all lawyers , and if he do , that deed is voyd and null , nor could he in law consent to an act of parliament declaring that he should be the last king. and if such consents and acts had been sufficient to bind successors , many silly kings in several parts of europe had long since been prevail'd upon , to alter their monarchy from haereditarie to elective ; or to turn it in a common-wealth ; and therefore by the same reason , they cannot consent to exclude the true successor : for if they may exclude one they may exclude all . . in all societies and governments , but especially where there is any association of powers , as in our parliaments , there are certain fundamentals , which like the noble parts in the body are absolutly necessar for its preservation ; for without these , there would be no ballance , or certainty . and thus with us , if the king and each of the estates of parliament had not distinct and known limits ( sett by the gracious concessions of our monarchs ) each of them would be ready to invade one anothers priviledges . and thus i conceive that if the parliament should consent to alienate the half of the kingdom , or to subject the whole to a stranger , as in king johns case in england , and the baliols in scotland , it has been found by the respective parliaments of both kingdoms , that , that statute would not oblidge the successor . or if the house of commons in england , or the burrowes of scotland should consent to any act excluding their estate and respresentatives from the parliament , doubtlesse that statute excluding them would not prejudge their successors ; because that act was contrare to one of the fundamental laws of the nation . and the late acts of parliaments excluding bishops , were reprobated by the ensuing parliaments , as such ; and therefore by the same rule , any statute made excluding the legal successor , would be null and voyd , as contrare to one of the great fundamental rights of the nation . and what can be call'd more a fundamental right than the succession of our monarchy ? since our monarchy in this isle , has ever been acknowledg'd to be hereditary . and that this acknowledgment is the great basis whereupon most of all the positions of our law run , and are established : such as , that the king never dyes , since the very moment in which the last king dyes , the next successor in blood is legally king , and that without any expresse recognizance from the people , and all that oppose him are rebells , his commissions are valide , he may call parliaments , dispose the lands pertaining to the crown , all men are lyable to do him homage ; and hold their rights of him and his heirs . and generally this principle runs through all the veins of our law. it is that , which gives life and authority to our statutes , but receives none from them ; which are the undenyable marks and characters of a fundamental right in all nations . but that this right of lineal succession is one of the fundamental , and unalterable laws of the kingdom of scotland , is clear , by the commission granted by the parliament for the union in anno . in which these words are , his majesty vouchsafeing , to assure them of his sincere disposition and clear meaning , no way by the foresaid union to prejudge or hurt the fundamental laws , ancient priviledges , offices and liberties of this kingdom ; whereby not only the princely authority of his most royal descent hath been these many ages maintain'd , but also his peoples securities of their lands and livings , rights , liberties , offices and dignities preserv'd : whilks if they should be innovated , such confusion should ensue ; as it could no more be a free monarchy . . there would many great inconveniencies arise , both to king and people , by the parliaments having this power : for weak kings might by their own simplicity , and gentle kings by the rebellion of their subjects be induced to consent to such acts , in which their subjects would be tempted to cheat in the one case , and rebell in the other . many kings likewise might be wrought upon , by the importunity of their wives , or concubins , or by the misrepresentations of favourits , to disinherit the true successor ; and he likewise to prevent this arbitrarienesse , would be oblidg'd to enter in a faction for his own support , from his very infancy . this would likewise animate all of the blood royal , to compete for the throne , and in order thereto , they would be easily induc'd to make factions in the parliament , and to hate one another ; whereas the true successor would be ingadg'd to hate them all , and to endeavour the ruine of such as he thought more popular than himself . nor would the people be in better case , since they behov'd to expect upon all these accompts , constant civil warres and animosities , and by being unsure whom to follow , might be in great hazard by following him who had no right . and their rights bearing to hold of the king and his heirs , it would be dubious to the vassals , who should be their superiour , as well , as who should be their king. it is also in reason to be expected , that scotland will ever owne the legal descent : and thus we should under different kings of the same race , be involv'd in new and constant civil warrs ; france shall have a constant door open'd , by allyances with scotland , to disquiet the peace of the whole isle ; and england shab loose all the endeavours it used to unite this isle within it self . another great absurdity and inconveniency which would follow upon the exclusion of the lineal successor would be , that if he had a son , that son behoov'd certainly to succeed ; and therefore after the next lawful heir were brought from abroad to reigne , he behov'd to return upon the birth of this son ; and if he dyed he would be again call'd home , and would be sent back by the birth of another son : which would occasion such affronts , uncertainties , divisions , factions , temptations , that i am sure , no good nor wise man could admit of such a project . i find also , that as the debarring the righteous heir , is in reason , the fruitful seed of all civil warr and misery , ( for who can imagine that the righteous heir will depart from his right , or that wise men will endanger their lives and fortunes in opposition to it ? ) so experience has demonstrated , how dangerous , and bloody this injustice has prov'd . let us remember amongst many domestick examples , the miseries that ensu'd upon the exclusion of mordredus the son of lothus ; the destruction of the picts for having secluded alpinus the righteous heir ; the warrs during the reigne of william the conquerour ; these betwixt king stevin and henry the ii. betwixt the houses of lancaster and york ; betwixt the bruce and the baliol ; the murther of arthur duke of britanny , true heir of the crown of england , with many other forreigne histories , which tell us of the dreadfull michiefs arising from pelops preferring his youngest son to the kingdom of micene ; from aedipus commanding that polinices his youngest son should reigne alternatly with the eldest ; from parisatis the queen of persia's preferring her youngest son cyrus , to her eldest artaxerxes , from aristodemus admitting his two sons proclus , and euristhenes to an equall share in the lacedemonian throne . the like observations are to be made in the succession of ptolemaeus lagus and ptolemaeus phisco , in the sons of severus , in the succession of sinesandus who kill'd his brother suintilla righteours heir of spaine , and that of francis and fortia duke of millan with thousands of others : in all which , either the usurpers or the kingdom that obey'd them , perish'd utterly . to prevent which differences and mischiefs , the hungarians would not admitte almus the younger brother , in exclusion of the elder colomanus , though a silly deform'd creature , albeit almus was preferr'd by ladislaus ( the kings elder brother ) to both . nor would france acquiesce in st. lewis his preferring charles his son , to lewis the eldest . and the english refus'd to obey lady iean gray , in prejudice of queen marie , though a papist and persecuter . tali & constanti veneratione nos angli legitimos reges prosequimur &c. sayes an english historian . . if parliaments had such powers as this , then our monarchy would not be hereditary , but elective ; the very essence of ane hereditary monarchy consisting in the right of succession , according to the contingency of blood . whereas if the parliament can preferre the next , save one , they may preferre the last of all the line : for the next save one , is no more next than the last is next . and the same reason by which they can choose a successor ( which can only be that they have a power above him ) should likewayes in my opinion justifie their deposing of kings . and since the successor has as good right to succeed , as the present king has to govern ( for that right of blood which makes him first , makes the other next , and all these statuts which acknowledge the present kings prerogatives , acknowlege that they belong to him and his heirs . ) it followes clearly , that if the parliament can preclude the one , they may exclude the other . and we saw even in the last age , that such reasons as are now urged to incapacitat the children of our last monarch , from the hope of succession . viz. popery , and arbitrary government , did embolden men to dethrone , and murder the father himself who was actual king. . that such acts of parliament , altering the succession are ineffectual , and null , is clear from this , that though such an act of parliament were made , it could not debarre the true successor : because by the laws of all nations , and particularly of these kingdoms , the right of succession purges all defects , and removes all impediments , which can prejudge him who is to succeed . and as craig one of our learn'd lawyers has very well express'd it , tanta est regii sanguinis praerogativa , & dignitas , ut vitium non admittat , nec se contaminari patiatur . and thus though he who were to succeed , had committed murther , or were declar'd a traitour formerly to the crown for open rebellion against the king , and kingdom ; yet he needed not be restor'd by act of parliament upon his comming to the crown : but his very right of blood would purge all these imperfections . of which there are two reasons given by lawyers , one is , that no man can be a rebel against himself , nor can the king have a superior . and consequently , there can be none whom he can offend . and it were absurd that he who can restore all other men , should need to be restored himself . the second reason is , because the punishment of crimes , such as confiscations , &c. are to be inflicted by the kings authority , or to fall to the kings thesaury ; and it were most absurd , that a man should exact from himself a punishment . likeas , upon this account it is , that though in the canon law , bastards cannot be promov'd to sacred orders without dispensation , nor can alibi nati , that is to say , people born out of england be admitted to succeed in england , by express act of parliament there ; yet agapaetus , theodorus , gelasius and many others , have been admitted to be popes without any formal dispensation , their election clearing that imperfection . and the statute of alibi nati , has been oft found not to extend to the royal line . that the succession to the crown purges all defects , is clear , by many instances , both at home and abroad . the instances at home are , in england henry the vi. being disabled and attainted of high treason by act of parliament , it was found by the judges , notwithstanding that from the moment he assum'd the crown , he had right to succeed without being restored . and the like was resolved by the judges in the case of henry the vii , as bacon observes in his history of henry the vii . fol. . and in the case of queen elizabeth , who was declar'd bastard by act of parliament , as is clear by cambden anno . elizabeth . and though in scotland there be no express instances of this , because though some rebellious ring-leaders in scotland , have often in a privat capacity been very injurious to their king ; yet their parliaments have been ever very tender of attainting the blood royal , or presumptive heirs . but alexander duke of albanie , and his succession being declared traitours , by his brother king james the iv. his son john was notwithstanding called home from france upon his uncles death , and declar'd tutor and governour , without any remission , or being restor'd : that employment being found to be due to him by the right of blood : therefore he had been much more declared the true successor of the crown if his cousin king iames the v. had died . these being sufficient to establish our design , i shall mention only some forraigne stories . charles the vii . of france who though banish'd by sentence of the parliament of paris ▪ did thereafter succeed to the crown . and though lewis the xii . was forfeited for taking up armes against charles the viii . yet he succeeded to him without restitution . and lewis the ii. his son being declared a rebel , whom his father desiring to disinherit , and to substitut in his place charles duke of normandie , that son had succeeded if he had not been hindered by the nobility , who plainly told him it was impossible to exclude his sone from the succession . my next task shall be to satisfy the arguments brought for mantaining this opinion , whereof the first is . that god himself has authorised the inverting the right of succession , by the examples of esau , salomon , and others . to which i answer , that these instances which are warranted by express commands from god , are no more to be drawn into example , than the robbing of the aegyptians ear-rings . and it 's needing an express command , and the expressing of that command , does evince , that otherwayes iacob , nor salomon could not have succeeded against the priviledge of birth-right and possession . the next objection , is that it is naturally imply'd in all monarchies , that the people shall obey whilst the prince governs justly , as in the paction betwixt david , and the people sam. . which is most suitable to the principles of justice , and government : since relations cannot stand by one side ; so that when the king leaves off to be king , and becomes a tyrant , the people may consult their own security in laying him aside , as tutors may be remov'd when they are suspect . and that this is most just when kings are idolaters since god is rather to be obey'd then men . to all which it is answered , that god who loves order , and knows the extravagant levity , and insolence of men , especially when baited by hope of prey , or promotion , did wisely think fit to ordain under the paine of eternal damnation , that all men should be subject to superiour powers for conscience sake . pet. . . and that whoever resists the power , resists god , rom. . . reserving the punishment of kings to himself , as being only their superiour . and thus david , asa , and others , committed crimes , but were not depos'd , nor debart'd by the people . nor were even the idolatrous kings such as achab , manasse , &c. judged by their subjects , nor did the prophets exhort the people to rise against them , though they were opposing gods express , and immediat will. and overturning the uncontraverted fundamentals of religion . nor did the fathers of the primitive church , excite the christians to oppose the heathen , and idolatrous princes , under which they lived : and paul commands them to pray for these heathen emperours . nor was the emperour basilicus depos'd for abrogating the council of chalcedon , as is pretended by some republicans , but was turn'd out by the just successor zeno , whom he had formerly dethron'd . nor were zeno or anastasius degraded for their errors in religion , or their vices by the ancient christians : but were opprest by private faction . and sure they must think god unable to redress himself , who without warrand , and against his expresse warrand , will usurpe so high a power . and we in this rebellious principle , owne the greatest extravagancy with which we can charge the pope and jesuits , and disowne not only our own confession of faith which article . chap. . acknowledges , that infidelity , or difference in religion doth not make void the magistrats just ; or legal authority , nor free the people from their due obedience to him , but contradict the best protestant divines , as musculus , melancthon and others vid. libell . de vitand , superstit . anno . & consil. biden . dec. . consil. . & decad. . consil. . nor can the subterfuge us'd by buchanan , and others satisfie , whereby they contend that the former texts of scripture prove only that the office , but not the persones of kings are sacred ▪ so that parliaments or people may lay aside the persons , though not the office , seing the sacred text secures oftner the person , than the office as i have formerly more fully prov'de . and if this principle prevail'd as to the differences in the theory of religion , it would in the next step be urg'd as to the practice of religion ; and we would change our kings , because we thought them not pious , as well as protestant . and did not our sectarians refine so far , as to think dominion founded on grace ? and this opinion seems to my self more solide than the other , for certainly an impious protestant , is a worse governour , and less gods vicegerent , and image , than a devout papist . and amongst protestants , every secte will reject a king , because he is not of their opinion . and thus our covenanters , by the act of the west-kirk anno . declar'd , they would disown our present monarch , if he did not own the covenant . and though a king were protestant , yet still this pretext that he design'd to introduce popery , would raise his people against him , if differences in religion could lawfully arme subjects against their king , or did empower them to debar his successor . and when this cheat prevail'd against devout king charles the i , the martyr of that orthodox faith to which he was said to be enemie , what a madness is it to allow this fatall error , which was able to ruine us in the last age , and went so near to destroy us in this ? this is indeed , to allow that arbitrariness against our kings , which we would not allow in them to us . the second objection is , that in england the parliament has frequently devolv'd the crown and government upon such as were not otherwayes to have succeeded , as in the instances of edward the ii. and richard the iii , the first of whom was most unjustly depos'd , for making use of gavestoun , and the spencers ; which shewes how extravagant the people ar in their humours , rather than how just their power is : for besides , that do not read , that these counsellors were unsufferable , there is no good christian that can say , that a king can be depos'd for using ill counsellors . and as to richard the iii. his case is so fully examined , and all the articles brought both against him , and edward the ii. so fully answered by the learn'd arnisaeus a protestant lawyer , ( and who had no other interest in that debate than a love to truth and law ) in that treatise , quod nullâ ex causâ subditis fas sit contra legitimum principem arma sumere , that we protestants should be asham'd to bring again to the field such instances , upon which arnisaeus , in answer to the . article against richard the ii , viz. that he refus'd to allow the lawes made in parliament , does very well remark , that this was in effect to consent to their being king , and to transferre upon them the royal power , and this will be the event of all such undertakings . the instances of henry the iv. and henry the vii . , are of no more weight than the other two , since these were likewayes only kings de facto , till king henry the vii . by his marriage with the lady elizabeth , eldest daughter to king edward the iv. , did by her transmit a just title to his successor : & therefore it was not strange , that either of these should allow the parliament to interpose , when they behov'd to owe to them the possession of the throne . but yet henry the vii . himself ( as the lord bacon relates in his historie ) shunn'd to have the parliament declare his title to be just , being content with these ambiguous words , viz. that the inheritance of the crown should rest , remain and abide in the king , &c. and upon this accompt it was , that the same king caus'd make a law , that such as should serve the king for the time , being in his warrs , could not be attainted or impeach'd in their persons or estates . as to henry the viii . his procuring an act , whereby the parliament declares that in case he had no issue by the lady jean seymour , he might dispose of the crown to whatsoever person he should in his own discretion think fit . it is answered , that by a former statute in the year of his reigne , he by act of parliament setles the crown upon the heirs male of his own body , and for lack of such issue , to lady elizabeth , and for lack of such issue also , to the next heirs of the king , who should for ever succeed according to the right of succession of the crown of england ; which shewes that the succession to the crown of england is establish't by the law of nature , and the fundamental laws of england , upon the heirs of blood , according to the proximity of degrees ; so that though that king did afterwards prevaile with the parliament to declare this elizabeth a bastard , as he did also his daughter mary , by another act , and resolve to setle the crown , upon henry fitz roy , duke of richmond , yet these acts teach us how dangerous it is to leave parliaments to the impression of kings in the case of naming a successor , as it is to expose kings to the arbitrariness of parliaments . but such care had god of his own laws , that mary succeeded notwithstanding she was papist , and elizabeth succeeded her , though she was declar'd bastard ; the rights of blood prevailing over the formalities of divorce , and the dispensations of popes : as the strength of nature does often prevaile over poisons . and god remov'd the duke of richmond by death , to prevent the unjust competition , and so little notice was taken of this ; and the subsequent act anno , that the heirs of blood succeeded without repealing of that act , as ane act in it self invalide from the beginning : for only such acts are past by , without being repeal'd . and blackwood pag. . observes very well , that so conscious were the makers of these acts , of the illegality thereof , and of their being contrarie to the immutable laws of god , nature and nations , that none durst produce that kings testament wherein he did nominat a successor , conform to the power granted by these acts , that how soon they were freed by his death from the violent oppressions that had forced them to alter a successor three several times , and at last to swear implicitly to whomever he should nominat , ( a preparative which this age would not well bear though they cite it ) they proclamed first queen mary their queen though a papist , and thereafter queen elizabeth , whom themselves had formerly declared a bastard . and as in all these acts there is nothing declaring the parliaments to have power to name a successor , but only giving a power to the king , for preventing mischiefs ; that might arise upon the dubiousness of the succession , to nominat a successor ; two of the legal successors having been declar'd bastards upon some niceties , not of nature , but of the popes bulls for divorcing their mothers : so , this instance can only prove , that the king may nominat a successor , and that the parliament may consent , not to quarrell it , ( which is all that they do ) but does not at all prove , that where the right of nature is clear , the parliament may invert the same . and strangers who considered more the dictats of law than of passion , did in that age conclude , that no statute could be valide when made contrare to the fundamental law of the kingdom , arnisaeus cap. . num. . henricus viii . angliae rex eduardum filium primò , deinde mariam , denique elizabetham suos haeredes fecerat , verùm non aliter ea omnia valent quàm sicum jure regni conveniant , vid. curt. tract . feud . par. . num. . there seems greater difficulty to arise from the elizabeth c. . by which it is enacted , that if any persone shall affirme , that the parliament of england has not full power to bind and governe the crown in point of succession and descent , that such a persone , during the queens life , shall be guilty of high treason . but to this act it is answered , that this act does not debarre the next legal and natural successor . and these words , that the parliament has power to bind and govern the succession , must be , as all other general expressions in statutes , interpreted and restricted by other uncontraverted laws ; and so the sense must be , that the parliament are judge where there are differences betwixt competitors in nice and contravertable points which cannot be otherwise decided : and both this and the former acts made in henry the vi. time , are not general laws but temporarie acts and personal priviledges ; and so cannot overturn the known current of law. quod verò contrà rationem juris receptum est , non est producendum ad consequentias . and in all these instances it is remarkable , that the restriction was made upon the desire of the soveraigne , and not of the subject . and if we look upon this act as made to secure against mary queen of scotland , and to let her know , that it was to no purpose for her to designe any thing against the right , or person of queen elizabeth , as being declar'd a bastard , by act of parliament in england ; since her other right as next undoubted heir by blood to the crown , might be altered , or govern'd : we must acknowledge it to be only one of these statutes , which the law sayes , are made ad terrorem & ex terrore only . nor was there ever use made of it by queen elizabeth , nor her parliaments ; so fully were they convinc'd , that this pretended power was so unjust , as that it could not be justified by an act of parliament , being contrair to the laws of god , of nature , of nations , and of the fundamental laws of both kingdoms . but this law being made to exclude queen mary , and the scotish line , as is clear by that clause , wherein it is declared that every person or persones of what degree or nation soever they be , shall during the queens life declare or publish , that they have right to the crown of england during the queens life , shall be disinabled to enjoy the crown in succession , inheritance , or otherwayes , after the queens death ; it therefore followes , that it was never valide : for if it had , king iames might have thereby been excluded by that person who should have succeeded next to the scotish race . for it 's undeniable , that queen marie did , during queen elizabeths life , pretend right to the crown , upon the account that queen elizabeth was declared bastard . and therefore the calling in of king iames after this act , and the acknowledging his title , does clearly evince , that the parliament of england knew , that they had no power to make any such act. the words of which acknowledgement of king james's right , i have thought fit to set down , as it is in the statute it self , . ja. cap. . that the crown of england did descend upon king james by inherent birthright , as being lineally , justly , and lawfully next , and sole heir of the blood royal. and to this recognition they do submit themselves , and posterities for ever , untill the last drop of their blood be spilt . and further doth beseech his majesty to accept of the same recognition , as the first fruits of their loyalty , and faith to his majesty , and to his royal progeny , and posterity for ever . it may be also objected , that by the , act. parl. . ja. . it is provided in scotland , that all kings ▪ and princes that shall happen to reigne and bear rule over that kingdom , shall at the time of their coronation , make their faithfull promise by oath in presence of eternal god , that they shall mantaine the true religion of iesus christ , the preaching of the holy word , and due and right administration of the sacraments now received and preach'd within this kingdom ; from which two conclusions may be inferr'd , . that by that act the successor to the crown may be restricted . . that the successor to the crown must be a protestant , that being the religion which was professed and established the time of this act. to which it is answered , that this act relates only to the crowning of the king , and not to the succession . nor is a coronation absolutly necessar , coronatio enim magis est ad ostentationem , quàm ad necessitatem . nec ideo rex est quia coronatur , sed coronatur quia rex est . oldard : consil . . num . . balbus lib. de coronat . pag . nor do we read that any kings were crown'd in scripture except ioas. and clovis king of france was the first , who was crown'd in europe . nor are any kings of spaine crown'd till this day . neither is ane coronation oath requisit ; sisenandus being the first who in the . tolletan councel gave such an oath amongst the christians , as trajan was the first amongst the heathen emperours . and we having had no coronation oath till the reigne of king gregorie , which was in anno , he having found the kingdom free from all restrictions , could not have limited his successor , or at least could not have debarr'd him by an oath . nullam enim poterat legem dictare posteris , cum par in parem non habeat imperium , as our blackwood observes . pag. . ( . ) there is no clause irritant in this act debarring the successor , or declaring the succession null in case his successor gave not this oath . . the lawfull successor though he were of a different religion from his people ( as god forbid he should be ) may easily swear , that he shall mantaine the laws presently standing . and any parliament may legally secure the successor from overturning their religion or laws , though they cannot debarre him . and though the successor did not swear to mantaine the laws , yet are they in litle danger by his succession ; since all acts of parliament stand in force , till they be repeal'd by subsequent parliaments : and the king cannot repeale an act without the consent of parliament . but to put this beyond all debate , the . act of this current parliament is opponed , whereby it is declared , that the right and administration of the government is immediatly devolv'd upon the nixt lawfull heir after the death of the king or queen , and that no difference in religion , nor no law nor act of parliament can stop or hinder them in the free and actual administration ; which is an abrogation of the foresaid act concerning the coronation as to this point ; for how can the administration be devolv'd immediatly upon the successor , if he cannot administrat till he be crown'd , and have sworn this oath . the next objection is , that since the king and parl. may by act of parl. alter the successions of privat families though transmitted by the right of blood , why may they not alter the succession in the royal family ? to which it is answered , that the reason of the difference lyes in this , that the heirs of the crown owe not their succession to parliaments : for they succeed by the laws of god , nature , and the fundamental laws of the nation ; whereas privat families are subject to parliaments , and inferiour to them , and owe their privat rights to a municipal law , and so may and ought in point of right to be regulated by them . and yet i am very clear , that a parliament cannot arbitrarly debarr the eldest son of a privat family , and devolve the succession upon the younger : and if they did so , their acts would be null . but if this argument were good , we might as well conclude by it , that no persone born out of england , or attainted of treason could succeed to the crown ; because he could not succeed to a privat estate . all which and many moe instances do clearly demonstrat that the successor to the crown cannot be debarr'd , nor the succession to the crown diverted by act of parliament . the last objection is , that robert the iii. king of scotland , was by ane act of parliament preferr'd to david and walter , who ( as he pretends ) were truly the eldest lawful sons of robert the d . because euphan daughter to the earl of ross was first lawful wife to king robert the d , and she bore him david earl of strathern , and walter earl of athol , alexander earl of buchan , and euphan who was married to james earl of dowglass , after whose deceass he married elizabeth muir , daughter to sir adam muir ; not so much ( as buchanan observes ) from any design to marry a second wife , as from the great love he carried to elizabeth muir , whom because of her extraordinary beauty he had lov'd very passionatly in his youth , and before he married the earl of rosses daughter , and from the love which he bore to the sons whom elizabeth had born before that first marriage , who were john earl of carrick ( who thereafter succeeded to the crown by the title of robert the d , ) and robert earl of fife and monteith , he prevail'd with the parliament to prefer john eldest son by elizabeth muir , to the two sons which he had by the earl of rosses daughter , who was ( as they pretend ) his first lawful wife . in which though i might debate many nice points of law relating to this subject , yet i choose only to insist on these few convincing answers . . that in a case of so great moment historians should be little credited , except they could have produc'd very infallible documents ; and as in general one historian may make all who succeed him err , so in this case boetius ( who was the first ) liv'd and wrot years after the marriage of king robert the d , and wrot his history at aberdeen , very remote from the registers and records by which he should have instructed himself ; nor did he know the importance of this point , having touch'd it only transiently , though it has been design'dly press'd by buchanan , to evince that the parliaments of scotland might prefer any of the royal line they pleas'd ; and it is indeed probable that king robert the d . did for some time make no great noise of his first marriage with elizabeth muir , least the meaness of the match should have weaken'd his interest upon his first coming to the crown , he being himself the first of the race of the stewarts , and having so strong competitors as the earl of dowglass , who claim'd right to the crown in the right of the baliol and the cummings , as boetius himself observes . . king robert the d. having succeeded as the eldest lawful son , and having been receiv'd as such by that parliament , and his posterity by all succeeding parliaments , the possession of the king and the acquiescence of the people is the most infallible proof that can be adduc'd for proving that robert was the eldest lawful son , nor have most kings in europe , or the heads of most private families any other proof of their being the eldest and lawful sons , save that they succeeded and were acknowledg'd as such . . to ballance the authority of these historians , i shall produce the testimonie of the learned sir lewis stewart , one of the most famous lawyers we ever had , and who ought much more to be believ'd than buchanan , not only because he was more disinterested , but because he founds upon acts of parliament and old charters which he himself had seen in the registers , in which elizabeth muir is acknowledg'd to have been the first wife . buchananus lib. . in vitam roberti . affirmat euphaniam comitis rossenssis filiam primam regis roberti . uxorem fuisse & eâ mortuâ , regem superinduxisse elizabetham moram ex qua prius liberos ternos mares suscepisset , & ●am ●x●rem duxisse , ejusque liberos regno desti●●sse , ut postea eorum natu maximus suc●●essit quod quam falsum sit , apparet ex archivis in carcere edinburgensi reconditis , ubi exstant separata acta duorum parliamentorum , subscripta manibus ecclesiasticorum praesulum , nobilium , baronum , & aliorum statuum parliamenti , & eorum sigillis roborata , quibus elizabetha mora agnoscitur prima uxor , & euphania rosse secunda , & liberis ex elizabetha mora tanquam justis haeredibus ; regni , successive regnum dcernitur , & post eos liberis euphaniae rosse nec non ibidem cartae extant plurima factae per davidem secundum , eorum patruum magnum ex diversit terris . ioanni filio primogenito , nepotis ejus roberti , dum euphania rosse viverit nec non dar vidi filio natu maximo euphaniae rosse quem solum filium indigitat roberti nepotis , quod non fecisset si elizabetha mora non prius fuisset nupta roberto ejus nepoti , na● primogenitus nunquam attribuitur notho in● ego plures quam vigint● cartas in archivis inveni , ubi etiam eas reliqui , ex quibus sole clarius elucessit , elizabetham moram prima●● f●isse uxorem , & euphaniam rosse secundam , nam extra contraversiam , liberi elizabethae morae etate grandiores era●t liberis euphaniae rosse : which paper i did get from the lord pitmeden , who has himself written some learn'd observations upon this point . . i have my self seen an act of parliament ( found out by the industry of sir george mackenzie of tarbet , now lord register ) having the intire seals of the members of parliament appended thereto , by which the parliament do swear allegiance to robert the d . the first king of the race of the stewarts ; and after him roberto comiti de carrict , filio suo nat● maximo ( his eldest son ) in anno , which was the first year of his reign ; and if the pretended defect be true , it was a very palpable , and a very undenyable one , and could not but have been unanswerably known to the whole nation . and how can we imagine , that the whole parliament would have unanimously drawn upon themselves so dreadful a perjury , by excluding the lawful heir , against their national oath in the reign of k. kenneth the d , whereby they swore to own ▪ always the immediate heir , or that they would have entail'd upon themselves a civil war , by preferring even a questionable heir , after the miseries which they had lately then felt , in the competition betwixt the bruce and the baliol ▪ amongst which seals , the seal of james earl of dowglass is one , and how ridiculous is it to think , that he would sit and declare a bastard preferable to the brother of his own lady , and to his own lady who would have succeeded if her brothers had died without succession : which act of parliament does also clearly prove , that buchanan did not at all understand matters of fact in this part of the history , for he asserts , that after the death of euphan ross , the king married elizabeth muir , and did by act of parliament obtain the crown to be settled upon robert the d , son to the said elizabeth muir , upon whom he also bestow'd the title of carrick ; all which is most false , for this act of parliament is dated in anno , and king robert the d . succeeded to the crown that year , nor did euphan ross die till the d. year after he succeeded to the crown , and so not till the year , and yet in anno this act is past , designing him heir to the crown , and earl of carrick , and consequently he was so design'd before the death of euphan ross. . i have seen a charter granted by king robert the d , when he was only steward of scotland , granted in anno , and so long before he was king. in which charter likewise , john , thereafter king , by the name of robert the d , is a conjunct disponer with him , under the express designation of the eldest son and heir . robertus senescallus scotiae , comes de strathern , & ioannes senescallus primogenitus & haeresipsius dominus baroniae de kyle , &c. which charter confirms to the abbacy of pasley several lands disponed to them , by reginaldus more , father to sir william more of abercorn . and i find that david duke of rothsay , was always in the charters granted by his father king robert the first , called primogenitus , and he was no bastard , nor can this designation be given to a bastard , as is clear by covar●v●as de matrim . part . . cap. . § . . num . but how can it be imagined that the monks of pasley would have taken a right from a person as heir to the crown , who was not : for this would have infer'd treason against them , beside the annulling their right , or who could understand better the lawfulness of a marriage , than a body of church-men , living in the time , and very near to the residence of the married persons , and in whose conventual-church the said king robert and elizabeth muir ly buried together . item , i have seen in the registers another charter granted by king robert the . in the first year of his reign , with the consent of john earl of carrick , primogenitus & haeres , allano de lavidia terrarum de whitslet ; and an other granted by the said king , . june , anno primo regni , confirming to paulo m ctire a charter granted by the earl of ross , father to euphan , wherein the said john primogenitus & hares , is a witness : and to shew that the said euphan ross was then living when he was so design'd heir , there is a charter to her by the king upon the very same day of the lands of lochleaven . as also , there is a charter granted by king robert the d , the first year of his reign , to alexander his son , and another to john kennedy of the barrony of dalrymple , in both which the said john earl of carrick is call'd primogenitus , and is witness with the earl of dowglass ; so that he has been design'd eldest son and heir , openly , uncontravertedly , and in all papers , and with the consent of the second wife and her relations . . in the parliament , the said john earl of carrick is design'd to be lieutenant of the kingdom , and all the estates of parliament swear to own him in his government , and which statute is printed amongst the satutes of king robert the d , father to the said john , and which must be during the marriage with euphan ross , for she liv'd three years after her husband was king , and he succeeded to the crown anno : and this also confutes buchanan , who asserts , that he was created earl of carrick after the death of euphan ross , and it is against all sense and reason to think that he could have been acknowledg'd during her life , if he had not been the true apparent heir of the crown and a lawful son. . walter ( who they pretend should have succeeded to the crown , ) having kill'd his nephew king james the first , son to king robert the d ; he was not only not own'd after the death of the said king james , as certainly he had been if his title had been good , and his right so recent and demonstrable , having so many great and powerful relations , that his father was induc'd upon their account to marry his mother ; but yet the said walter was by all the parliament unanimously condemn'd as a traitor , for having conspir'd the death of his lawful prince . nor does boetius justifie walter 's title in the least , but on the contrary , magnifies the parliament for their just sentence . as did likewise aeneas silvius the popes learned legat , who exhorted the parliament to condemn him . . how is it imaginable , that king robert who had so lately , and after a strong competition come to the crown , would have adventur'd to make his title yet more disputable , by preferring a bastard to the true heir , who had so many friends by his mother , and who being an infant had never disoblig'd him . . if we will consider the opinion of the civilians , whom we and almost all nations follow in the cases of succession , we will find , that the said king robert the d was the eldest and lawful son of king robert the d . filius legitimus , & non legitimatus . for , . they conclude , that a son is prov'd to be a lawful son by the assertion of the father , alciat tract praesumpt . reg. , praesumpt . . num . . and certainly the father is the best judge in such cases ; but so it is we have the father owning the said robert the d. to be his eldest son and heir , both in charters and acts of parliamnets , which are the most solemn of all deeds . . quando pater instituit aliquem tanquam filium s●um , which holds in this case , where the father institutes and leaves him heir , and the parliament swears allegiance to him as the heir , mascard . de prob . vol. . conclus . . and in dubious cases , the father's naming such a man as a son , presumes him to be a lawful son , nominatio parentis inducit filiationem in dubio , l. ex facto § . si quis rogatus ff . ad trebell . . even fame , and the common opinion of the people , do in favours of these that are in possession , and in ancient cases , prove & filiationem , & legitimationem , mascard . conclus . . but much more , where the fame and common opinion is adminiculated by other arguments , fulgos consil . . panorm . in cap. transmiss , qui filii sunt ligittimi . . when writs are produc'd , calling a man a son , the law concludes him to be a lawful son. mascard . vol. . conclus . . num . all which can be easily subsum'd in our case . in which robert the d. is nam'd not only son , but heir , and allegiance sworn to him , even in the lifetime of the second wife and her relations sitting in parliament , and all this acquiesc'd in for many hundreds of years , and the competitors punish'd as traitors by the unanimous consent of all the parliament . i know that buchanan does most bitterly inveigh against those laws made by king kenneth the d , as laws whereby the ancient right of succession was innovated , and whereby the government was settled upon children who were neither able to consult with the people , nor to defend them , and whereby those had the government of the nation conferr'd upon them who were not capable to govern themselves . to which my answer is , that in this buchanan's malice contradicts his history , for his own history tells us , that the scots swore allegiance to fergus and his posterity ; and consequently fergus's son ought by law to have succeeded , and not his brother , for his brother was none of his posterity , and therefore those laws made by k. kenneth did but renew the old law , and the innovation introduc'd in favours of the uncles , was a subversion of the fundamental law to which they had sworn . . that the old law was not abrogated , but was in being by vertue of the first oath , appears very clear by buchanan himself , who confesses , that upon the death of durstus , a wicked prince , it was debated whether his son should not succeed juxta sacramentum fergusio prestitum veteremque esse morem servandum , which acknowledgeth that the succession was even in these days established by law , by oath , and by custom ; and after the death of fergus the d , his son eugenius ( though a minor ) was crown'd , and his uncle graemus allow'd to be his tutor . and buchanan also brings in bishop kennedy , lib. . praising this law as made by kenneth , a most wise and glorious prince , with advice of all his estates of parliament ; and which rather confirms ( as he says ) the old law than introduces a new one , so far did buchanan's rage against queen mary prevail with him , to praise and rail at the same individual law ; and it is observable , that it is very dangerous to recede once from fundamental laws , for buchanan makes not only the succession elective , but he makes no difference betwixt lawful children and bastards , and excludes not only minors during the uncles life , but women for ever . . in all nations where the monarchy is hereditary , minors succeed , and so this innovation of causing the next male succeed for all his life , was contrary to the nature of the monarchy and to the customs of all nations , and god in scripture gives us many instances of it : j●as succeeded when he was seven years of age , josiah when he was eight , manasseh in twelve , and azariah in sixteen ; and yet in those days , god is said to have chosen the king , for it is said in deut. thou shalt set over thee , the king whom i have chosen , and consequently the choice of minors cannot be ill , since god almighty us'd to make such a choice . i know that eccless . . . says , woe unto the land when thy king is a child , but the criticks interpret this of a king that is childish , puen intellectu & moribus , or because factions arise by the opposition to his regents , and this inconveniency did more necessarily attend the allowing a regent king during life , for both the subjects and the true heir rais'd factions in that case , whereas the subjects only are factious in the other , and yet even they are no more factious for that short time , than they are always in common-wealths . . the reason why the minor king was to have one to supply his nonage ceasing with his majority , it was unreasonable that the remedy should have lasted beyond the disease , and the worst effect that could have been occasion'd by the infant king's minority was , that the kingdom should have been during that time govern'd by joynt advice of parliament , councils , and officers of state , which in buchanan's opinion in other places of his history and book de jure regni , is so excellent a model , that he decrys monarchy as much inferior to it . . it was most inconvenient to accustom any private family to live in the quality of a king. . it could not but occasion many murders , and much faction , for the true heir could not live peaceably under this eclipse and exclusion , nor could the uncle live without making a party to secure his pleasant usurpation . . as these divisions and factions were the natural and necessary effects that were to be expected from this irregular succession , so it is very observable , that from king fergus to king kenneth the d , we had . kings , amongst whom , almost the half were the most impious , tyranical , or lazie kings that ever we had , according to buchanan's character of them ; so happy and wise a thing is this ( so much magnified ) election of a successor by the people and their representatives , to supply the defects of the lawful heir , whereas from king kenneth the d , to king charles the d , inclusivè , we have had ● . kings , . of whom have succeeded by a due lineal right , and have prov'd vertuous princes , greater by their merit than their birth , as if god had design'd to let us see , that though most of them succeeded whilst they were very young , yet that he can choose a fitter successor than parliameuts can do ; whereas the other . kings who came to the crown against that law of kenneth the d , viz. constantine the bald , grimus , mackbeath , donal bain , and duncan the d , were all persons who deserved very ill to be preferred to the true heir , and who , as they came to the crown against law , so govern'd without it : and it is very strange , that the fanaticks , who think that every throw of the dice is influenc'd by a special providence , will not allow , that god does by a special providence take care who shall be his representative , who shall be the pastor of his flock , and nursing father of his church ; let us therefore trust his care more than our own , and hope to obtain more from him by christian submission , humility and obedience than we can by caballing , rebelling , and sacrilegious-murdering , or excluding the true successor . finis . what follows is immediatly to be subjony'd to the testimony of calvin , page . i know that to this it may be answered , that the same calvin does qualifie his own words , which i have cited with this following caution , si qui sunt ( saith he ) populares magistratus , ad moderandam regum libidinem constituti ( quales olim erant qui lacedemoniis regibus oppositi erant ephori ; & quâ etiam fortè potestate ( ut nunc res habent ) fuguntur in singulis regnis , tres ordines ; quum primarios conventus perag●nt ) adeo illos ferocienti regum licentiae , pro officio intercedere non veto ; ut si regibus impotenter grassantibus , & humili plebeculae insultantibus conniveant , eorum dissimulationem nefariâ perfidiâ non carere affirmam ; quia populi libertatem , cujus se tutores dei ordinatione positos nôrunt , frandulenter produnt . to which my reply is , that these words must be so constructed , as that they may not be incosistent with his former clear and orthodox doctrine , of not resisting supream powers , the former being his positive doctrine , and this but a supervenient caution , and they do very well consist ▪ for though calvin be very clear , that kings cannot be resisted , yet he thinks that this is only to be mean'd of those kings who have no superiors to check them by law , as the kings of the lacedemonians had , who by the fundamental constitution of their monarchy , might have been call'd to an accompt by the ephori , and so in effect were only titular kings : or of such monarchs as had only a co-ordinate power with the states of their own kingdom ; and even in these cases , he does not positively assert , that these monarchs may be resisted , but does only doubt whether if there be any such superior or co-ordinate magistrate representing the people they may not restrain the rage and licentiousness of their kings : but that caution does not at all concern the jus regni apud scotos , because this cannot be said of the kings of great britain , since the states of parliament are only call'd by the king , and derive their authority from him , and the legislative power is solely in the king , the states of parliament being only consenters , he and not they can only make peace and war , and grant remissions , and against him and not them treason only is committed , and the law books of both nations do affirm , that the king is supream , and consequently even according to calvin's doctrine , neither his people , nor any of their representatives , can justly oppose , and much less punish him . i know that grotius is by the republicans , and the fanaticks , oft-times cited to defend this their doctrine , of opposing princes ; but though his testimony might be justly rejected , as being himself born under a commonwealth , yet he is most impudently cited , for he lib. . cap. . does positively lay down as a general and undoubted rule , that summum imperium tenentibus , resisti non potest , those who have the supream power cannot lawfully be resisted ; whilch rule he founds upon the principles of reason , the authority of scripture , and the practice of the primitive church ; and though he limits the same thereafter by some exceptions , yet it will easily appear , that these exceptions extend not at all to our case . for the first relates only to such kings , as have receiv'd their power with express condition , that they may be try'd by other magistrats . the second to such as have voluntarily resign'd their empire , as charles the th . did ; and so the one may be oppos'd , because they were only titular kings : and the other , because they left off to be kings , and consequently we are concerned in neither of these cases . the third limitation is only in the case where he who was truly a king , has alienated his kingdom to strangers ; in which case , grotius does contend , that subjects may refuse to obey , because he ceaseth to be their king. but as this is not our case , so even in that case grotius is very clear , that if this alienation be made by an hereditary monarch , the alienation is null , as being done in prejudice of the lawful successor , but he does not at all assert that the monarch may be thereupon depos'd by his people . the fourth relates only to such kings , as from a hatred to their countrey , design its destruction and utter ruine ; but as he confesseth himself , id vix accidere potest in rege mentis compote ; and consequently can take only place in a mad man , in which case all laws allow the kingdom to be rul'd by governours , and administrators in the king's name , if the madness be natural , and a total depravation of sense . but if by madness be mean'd a moral madness , and design to ruine the kingdom and the subjects , as was , and is most impiously pretended against king charles the first , and king charles the d , the best and most reasonable of kings ; then opposition in such cases is not at all warranted by grotius , who speaks only of a physical and natural madness ; for else , every thing that displeaseth the people should be call'd madness ; and so the exception should not limit but overturn the general rule , and should arm all subjects to rebel against their princes , and make them the soveraign judges in all cases . which is inconsistent with grotius's own doctrine , and is excellently refuted by his own reasons . the fifth relates only to kings , who by the fundamental laws of the kingdom are ty'd to such and such conditions , so as that if they fail in them , they may be oppos'd . the sixth relates only to kingdoms where the power is equally devided betwixt the king and the senate . the seventh is incase the king was at first invested by the people , with express reservation to them to resist in such and such cases , and so is almost the same with the fifth , and all these three differ little from the first . and with grotius good leave , they err also in this , that they are not properly exceptions from his own rule , for the rule being only , that supream powers cannot be resisted , these powers are not supream , and they needed not be caution'd by an exception , since they did not fall under the rule . but neither of these cases extend to us , since our king is by the acts of parliament fomerly cited , declared to be supream over all persons and in all causes , nor made our predecessors any such express reservations at the first erection of the monarchy , and consequently by grotius own positive doctrine cannot be resisted . and so far is grotius an enemy to such fanatical resistance , upon the pretence of liberty and religion , that num . . he calls the authors of these opinions , time servers only . and gronovius a violent republican and fanatick , taxes him extreamly for it , in his observations upon that fourth chapter , whose arguments adduc'd against grotius i shall answer amongst the other objections . gronovius's first argument why it should be lawful to resist the supream magistrate in defence of religion , is , because if it be not lawful for subjects to arm themselves for religion against their prince , it should not be lawful for their prince by the same rule to defend himself against turks and infidels , who would endeavour to force him to comply with their impieties . but to this it is answered , that resistance to superiors is expressly discharg'd by the laws of god and nature , as said is , but this cannot be extended to cases where there is no subjection nor allegiance ; and it may be as well argu'd , that because one private man may beat another who offers to strike him , that therefore a child may beat his parent , or a servant his master , or that because i may violently resist a private man who offers to take away my goods unjustly , that therefore i may oppose the sentence of the magistrat , because i forsooth do not think the same just . his second shift is , that our saviour commanded only absolute submission without resistance in the infancy of the church when he himself was miraculosly to assist his own servants , but this submission was to end with the miracles , to which it related . as to which , my answer is , . that all the commands in scripture may be so eluded , nor is there any duty more frequently and fully inculcated than this is , and that too in the same chapters amongst other duties , which are to last for ever , such as submission to parents , and masters , and this is founded upon plain reason and conveniency , and not upon miracles . . this was receiv'd and acknowledg'd by the pagans , as has been fully prov'd , though it cannot be pretended that they rely'd upon any such miraculous assistance . . it cannot be deny'd but the fathers of the primitive church did recommend and justifie themselves in their apologies to the heathen emperors for bearing patiently , when they were able not only to have resisted , but to have overthrown their persecuters , as is clear by the citations out of tertullian , cyprian , lactantius , augustine , and others , to be seen in grotius , de jure belli , . lib. . cap. . num . . and it had been great impudence as well as sin in them , to have boasted of a recent matter of fact , which was not true ; nor could there be a greater injury done to the primitive christians , as grotius observes , than to ascribe that to their weakness , which they consider'd as an effect of duty ; and why should the heathen emperors have suffered those to multiply , who obey'd only because disobedience was not safe , for they might have certainly concluded , that by the same principle that they obeyed only because they were weak , they would disobey how soon they were able . . if the first christians in general had obeyed only because they were not able to resist , then any private christian had resisted when he was able , or would have fled or conceal'd himself , whereas it it acknowledg'd in the other answer press'd by gronovius himself , that they sought for martyrdom , and so these two answers are inconsistent ; and the thebean legion , and others , did submit themselves voluntarly to martyrdom with their arms in their hands , and when they were able to have overthrown the emperor . and lastly , if this doctrine were allow'd , no society could subsist , for when dissenters grew strong , the lawful magistrat behov'd to perish ; whereas jesus christ did contrive the christian religion ; so as that all governours should reasonably wish their subjects to be christians ; and so as no christian should attempt to overthrow the order and establishment of civil government , and that they should not be drawn away from the practice of christian devotion by the carnal desires of being great and strong in the world , nor have any hopes in the arm of flesh to the lessening of their immediate dependence upon him . his third shift is , that his doctrine of submission and of dying for the christian religion without making resistance , was only the practice , but not the command of the primitive church , and proceeded from their immoderat affection of the crown of martyrdom , as milntoun also pretends . but since the express command of scripture is founded upon such clear reason , and since ( as grotius well observes ) the practice of the primitive christians , who liv'd so near the age wherein these scriptures were pen'd , is the best interpreter of the scripture , it is horrid impiety to make those blessed martyrs pass for vain hypocrites , and distracted self-murderers ; and it becomes us with holy reverence to imitate those whom the christian church has ever admir'd . the fourth shift is , that the protestant churches have been reform'd by such insurrections as these , contrary to the royal authority . but this is fully answered by the learned henry more in his divine dialogues , and by du moulin in his philanax anglicus ; where likewise are to be found the many testimonies of protestant churches , and protestant divines , condemning positively the taking up of arms against the soveraign power , even for the defence of religion ; and the very presbyterian confession of faith at westminster , is so positive as to this point , that the presbyterians themselves can never answer it . the sum of which answer is , that the king of spain coming by marriage in place of the duke of burgundy , the said king of spain could pretend to no more power than they had , nor could the house of burgundy pretend to any more power by marrying the heirs of the counts of the several provinces , than these counts had over their provinces ; and therefore since none of these were soveraigns over their provinces , the provinces might have resisted the king of spain when he oppress'd them ; and consequently that resistance cannot defend such as resist supream powers upon pretence of religion , grotius de antiq. reipub. ba●av . cap. . the opposition made by the protestants in france , was not occasion'd by religion , but upon a quarrel betwixt the princes of the blood and the house of guise in the minority of francis the d , and is defended most excellently by king james himself , not to have been rebellion , in his defence of the right of kings , pag. . the opposition made by the princes of germany to the emperor , was founded upon the inherent right in the princes , by the golden charter of the empire . and luther himself declar'd , that magistrat●● non erat resistendum , and has written a book to that purpose ; nor would he engage in the confederacy for defensive arms at smalcald , until the lawyers declared that that resistance was lawful by the laws of the empire , vide slydan hist. lib. . anno . the war that arose in switzerland , was not occasion'd by religion ; for the reformation was once establish'd with the con-consent of the magistrat . and the eruption that was made by other cantons upon the reform'd cantons eleven years after that establishment , vide slydan , anno . nor was it calvin who banish'd the prince and bishop of geneva , for he fled eight months before upon the detecting of a conspiracy , by which that bishop was to deliver over the liberties of that city to the duke of savoy , and for which his secretary was hang'd , vide turretin . annal. reformationis , anno . and albeit those who reform'd in scotland , in the reign of queen mary , pretended authority from the king , yet they were certainly rebels , and are condem'd by rivet , a famous protestant divine , who also inveighs bitterly against this principle , castiga not. in epist. ad balsac . cap. . num . . sub finem . from all which , i observe , first , that all the protestant divines by making apollogies for such of their profession as have risen in arms against supream powers , must be thereby concluded to be asham'd of the principle . . immediatly upon the quieting those rebellions , all the protetestant churches have in their confessions of faith , declared their abhorrence of that principle ; which being the product of conviction and experience , joyn'd with duty , must be the most judicious and sincere testimony of all others . . all these rebellions have been occasion'd by a mistake in point of law , and not in point of religion ; for the divines , as i have related , have been abused by the lawyers : and therefore , since in the isle of britain , the laws of both kingdoms have declared the rising in arms against the king , to be treason , albeit for the defence of religion ; it necessarily follows , that this must be unlawful in point of conscience in this kingdom . . though good things may be occasion'd by a rebellion , yet that does not justifie a rebellion ; for though jeroboam was allow'd by god to rise against rehoboam , yet god almighty himself calls his revolt rebellion , kings . . and chron. . . and it is observable , that after this revolt , there was but one good king amongst all the rebellious kings of israel ; whereas amongst the kings of judah , who were lawful kings , there was but one or two who were any ways impious ; so far does god bless a lawful succession . some also use as a shift against this orthodox doctrine , that the reason why the primitive christians did not oppose their emperors in the defence of the christian religion , was , because they had not been secured at that time in the exercise of their religion by the laws of the empire ; and therefore the practice of those christians can be no argument why we may not now rise to defend the orthodox religion , since it is now established by law. but this objection is fully answered by that great great antiquary samuel pelit . diatriba de iur. principum edictis ecclesiae quaesito , where he clearly proves , that they were actually secured by the edicts of the emperors in the days of the emperor tiberius , and downward , and yet they would not rise in arms though they were persecuted under these same emperors , because the word of god and the christian religion did command obedience under persecution , and discharged resistance and taking up of arms. add to page . i have also seen in fordon's history , lib. . pag. . a charter granted by king david to the bishops , with the consent of robert his nephew , and his sons giving power to the bishops to dispone in testament upon their own moveables , which before that time did by a corrupt custom fall to the king , in which charter , the witnesses are , robertus senescallus comes de strathern , nepos noster ioannes senescallus comes de carrict , filius suus primogenitus & haeres , thomas comes de mar , georgius de dunbar , comes de march , & gulielmus comes de dowglass ; so that here is not only the attestation of the father before he was king , naming john earl of carrick , thereafter king robert the d . his eldest son and heir , but the attestation of the grand-uncle king david , who could be no ways byassed in the affair ; and here he is ranked before the three eldest earls in the nation , who were then the three first subjects therein ; and it is against all sense , to think that the whole bishops would have sought the consent of the said john as apparent heir of the crown , if he had not been apparent heir . i find also , that fordon calls him when he is crown'd king , primogenitus roberti secundi ; nor was there the least opposition made to his coronation , nor to the coronation of annabella drummond his queen ( a daughter of the house of stob-hall , now pearth , ) though both the sons of the second marriage were then alive . i sind also , that boetius himself acknowledges , that the earl of marches son george , being pursu'd for having married clandestinly one of the daughters of elizabeth muir , his defence was , that he married her when she was the daughter of a private subject , and before king robert was king , whereas if she had been only a bastard-daughter , it could have been no crime to have married her . a memorial for his highness the prince of orange in relation to the affairs of scotland together with the address of the presbyterian-party in that kingdom to his highness : and some observations on that address / by two persons of quality. cromarty, george mackenzie, earl of, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a memorial for his highness the prince of orange in relation to the affairs of scotland together with the address of the presbyterian-party in that kingdom to his highness : and some observations on that address / by two persons of quality. cromarty, george mackenzie, earl of, - . mackenzie, george, sir, - . church of scotland. general assembly. presbyterian address from scotland to the prince of orange. p. printed for randal taylor ..., london : . "by george mackenzie, viscount tarbat, and sir george mackenzie" --halkett & laing ( nd ed.) reproduction of original in huntington library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng william -- iii, -- king of england, - . scotland -- church history -- th century. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - judith siefring sampled and proofread - judith siefring text and markup reviewed and edited - pfs batch review (qc) and xml conversion a memorial for his highness the prince of orange , in relation to the affairs of scotland : together with the address of the presbyterian-party in that kingdom to his highness ; and some observations on that address . by two persons of quality . psal. xcv . . forty years long have i been grieved with this generation , &c. licensed . london , printed for randal taylor near stationers hall. . a memorial for his * highness the prince of orange in relation to the affairs of scotland . may it please your highness , the rise of our animosities , and the reason why they are warmer in scotland than in england , is , that england reformed by the royal authority , and therefore the government of their church was suted to the monarchy ; but scotland reforming by force and violence , some of our reformers coming from geneva , and the republicks of switzerland , tho otherwise good divines , yet were so far mistaken in their politicks as to inspire many of their converts with an aversion to the monarchy , as well as to popery ; buchanan and others wrote books which were thereafter condemn'd as treasonable even in king iames's minority . these puritans ( as they were then called ) so vex'd the righteous soul of king iames the th , that he was never at ease or secure till he succeeded to the crown of england , and then he setled episcopacy in scotland ; as most sutable to the monarchy , and fitted to unite the two kingdoms : and though it was fully agreed to for many years , yet some factious and ambitious noblemen being desirous to advance themselves , though by the ruin of their country ; and some priest riden and blind zealots among the gentry , admiring the parts and persons of their enthusiastick preachers , were instigated by them to join with the puritanical party , and at length to rise in a most unjustifiable war against their lawful sovereign . during which , the presbyterians entred in a covenant , wherein they obliged themselves by solemn oath to extirpate prelacy and bring all opposers of their covenant to condign punishment : and thereafter into a league with england , wherein they obliged themselves to reform england after the model of the best reformed churches abroad , for their own ends leaving the rule thus general . all these oaths and leagues being entred into by subjects without and against , yea and in despite of the royal authority , and the evident design of them being to overturn the fundamental constitution of the church and state in the two kingdoms , were therefore mostly justly condemn'd as treason by the parliaments in both nations . notwithstanding whereof , the covenanters in prosecution of the black designs of these oaths , raised first the rabble , and afterwards strong armies against that most pious and protestant king charles i. who out of a religious desire as much as in him lay to preserve their peace and his own , condescended to all that they desired , in a parliament held by himself at scotland . but the lust of rebellious zealots hath no bounds ; for the faction encouraged with this success , and having obtained now the government of the church , they immediately after usurped that of the state , calling by their own pretended authority rebellious parliaments , wherein they rescinded all the royal prerogatives , murthered thousands of the kings best subjects , and almost quite ruined all the antient families of the nation who opposed them , preferring and enriching chiefly mean and factious persons who headed the rabble , robbing more from these loyal families in one month , without any pretext of law , than hath been exacted from them since the kings restauration in prosecution of it ; besides the many other barbarities which they committed under pretext of religion ; as the poyniarding hundreds of them in cold bloud after quarter granted , and the hanging them with the kings commission about their necks . at length having robbed the king of all power to defend himself , they gave him perfidiously up to those who inhumanly murthered him at his own palace-gate , to the great reproach and scandal of the reformation ; themselves being all the while after supported by these very regicides , against the royalists , whom they called malignants ; till god restor'd king charles ii. and then offers of peace and pardon were made to these presbyterians , provided , they would but disown the covenant and their rebellious principles . but they refusing all offers , episcopacy was restored chiefly for the monarchies sake : the faction being enraged at this , proceeded with all fire and fury to preach up rebellion in their conventicles . the parliament in the mean time justly displeased at this insolence and contempt of authority , and desirous to secure the peace and the people from the poison of rebellious and false doctrine , appointed all to come to church ; whereupon they broke forth in open rebellions , and some of their ring leaders being taken in the guilt , and not disowning nor promising to help these faults , were punish'd in order to terrify others ; and this is all the severity complain'd of . by this your highness may see : . that you being come to support our laws , you are in honour bound to support episcopacy , which is confirmed by twenty seven parliaments . . that episcopacy is necessary for support of the monarchy , and that the scottish presbytery is not opposed by us as an ecclesiastical government , but as having incorporated into it many horrid principles , inconsistent with humane society , in which the monarchy is more concerned than we . . that what these who were in the government did , was conform to law , and that these laws were made for preservation of the protestant religion , monarchy , humane society , and self-defence . and that they value their church-government more than the protestant religion , is clear by their late compliance with the papists upon getting an indulgence ; whereas the church of england and we hazarded all rather than comply ; they magnified the dispensing power , and we opposed it . . this appears more clearly by their present principles , whereby many , as we are informed own , that subjects have a right to force their king to do them justice , and that they are his judges , and may dethrone him ; that the rebellion against king charles the first and second , and in favour of the duke of monmouth were just ; and that the monarchy being returned by forfeiture to the people , there remains no prerogative with future kings who are to have no more power than the people will give them : and because we love the monarchy , we are decry'd as slaves ; whereas it had been easier for us to have connived at their insolencies , and to become republicans with them . . to evidence that they resolve not as yet to be quiet ; they in place of accommodating differences at this time , wherein all protestants should shew what happy change they hope for from your highness coming to restore our religion and laws , do threaten magistrates out of their government , and ministers from their charges , forcing them to swear , after many indignities , that they shall never return to their imployments , doing thereby all that in them lies to disgrace your highnesses designs , and to persuade the nation that they onely must give measures , and that none can live peaceably there without complying with all their inclinations . . that their numbers are not near so great as ours , appears convincingly from this : that twenty seven parliaments have run unanimously against them under four kings , and that they have still been easily overcome in all their rebellions : and though now they appear numerous here , yet that proceeds from their being all here , upon design to make themselves appear considerable , that they may be thought necessary ; and to the end , that some of them may recover what was justly taken from them , and may get employments by procuring the possessors to be incapacitated . whereas others , trusting to the laws , the interest of the monarchy and your highness's just sense of things , thought no such appearance necessary till the convention . these presbyterians have also instigated some tumults , to fright honest men , who will not rise in arms without authority , yet if there be not forces sent down under well-principled officers , they will be forced again to beg leave to raise new forces in self-defence , without which we can neither live at home nor go to serve your highness in the convention . . many of them pretending that their presbytery is iure divino , and that they are bound to it by oaths ( tho declared treason ) do own that they can submit to no laws inconsistent with presbytery , whereas we are ready to comply with whatever your highness and a parliament shall find convenient for the monarchy and the good of the kingdom , being grieved at those animosities in which they delight . and to demonstrate our innocence and our readiness to accommodate all matters justly , we desire to be heard before your highness or any you shall name . . we do in the next place , offer to your highness's consideration , whether in this age , wherein episcopacy is acknowledged to have been the best bulwark against popery , the english , who so justly love and reverence episcopacy will unite with scotland , if subjected to presbytery ; especially since the presbyterians , who generally own the covenant ▪ are sworn to extirpate episcopacy , having violently and effectually concurred in the last age , to throw it out of both nations . which oath will certainly bind them to overthrow episcopacy in england more industriously , when england by the union becomes a part of their native countrey . we design not by this to load all of that persuasion , amongst whom we confess many are so moderate as to deserve , that for their sake we should encline heartily to such an indulgence as may satisfie sober dissenters , nor would we have troubled your highness with this account , if we had not been assured that there was an address prepared , craving a total extinction of episcopacy , as contrary to the divine right of presbytery ; which if it be acknowledg'd , they can be subject to no law ; and the covenant , though illegal and irreligious , must be the rule : which if yielded , no sober man can live in security ; and though some things may now be reformed in that address by advice from london , yet the first draught shews their inclination : and even the extinction of episcopacy which will certainly be craved , they being sworn to it in their covenant , obliges us to offer this in defence of our laws , and to prevent the inconveniences and insolencies which would ensue on so great an alteration . lastly , we humbly entreat your highness to consider , that in the church , as it is now established by law under episcopacy amongst us , we have no ceremonies at all , no not so much as any form of prayer , no musick but singing in the churches , the doctrine and discipline is the same both in the church and conventicle ; and in a word not one ace of difference between the two , but that in the present church instead of their moderators , whom themselves have sometimes confess'd may be constant , we have bishops whom the king is pleased to make lords , allowing the presbyters a free vote in their elections ; and even the bishops govern only by presbyteries and synods , as the world shall have a more particular and full account of hereafter . and now after this we leave your highness and the world to judge , what just ground they have for their separation from our churches communion : or if the difference betwixt us and the presbyterians , for such they all own themselves , be indeed such as may justifie their constant clamour , present noise and tumults , their uncharitable censures and cruel persecutions of their reformed brethren ; whether the difference betwixt us be truly such as may warrant their dividing the church , disturbing the state , and weakning the reformation , which your highness hath so generously and piously ingaged to protect ; and which we shall always heartily pray god to prosper you in . the reader is desired to observe first , that the figures placed in the address , lead to the annotations , on that part of it which are marked with the same figures . secondly , that the publick resolutioners and remonstrators were two conten●ding parties among the scots presbyterians , who as they found favour from the usurper , or had power and interest with the rabble , mutually excommunicated and persecuted one another . these were called publick resolutioners , who adhered to the publick resolves of the state in favours of the king : and they called remonstrators , who dissented from these proceedings of the publick , by their open remonstrances against them . the presbyterian address from scotland to the prince of orange . may it please your royal highness , when we ( ) begin to think how the lord hath blessed your illustrious progenitors in being the happy instruments of so much good to his church , and in standing in the gap , and appearing for the people of god , his truth and interest in times of the greatest extremity , when matters seemed desperate in the eyes of all who could look no higher than the hand of second causes , and how the lord crowned their resolute endeavours with the success of planting ( ) a beautiful church in the united provinces , and delivering the people of god there from the fury of the spanish persecutions . and that your royal highness hath succeeded these worthies of the lord , as in their estates and dignities , so in their zeal for the gospel of christ , sympathy withi his ( ) suffering people , and magnaninous resolution in appearing in such an astonishing way for the ( ) kingdom of our lord iesus , and for his faithful servants , while lying in the mouth of the lyon , while refuge failed , and we looked on the right and left hands ( ) and no man was found till the lord raised up your highness , and put it in your heart to lay down life and all things of a ( ) corporal interest at the stake , while ye did act for his glory , and lamentably oppressed servants . ah , we have not hearts to prize that wonderful mercy , the greatness of past and present sufferings , the inexpressible hazard , the irremediless ( as to the hand of man ) condition we seemed to be in , do heighten the mercy beyond our apprehension , so that when your highness first appeared , we were like them that ( ) dream , and our hearts were filled with matter of hope and ioy , yet how are we overwhelmed with fear , considering our ( ) provocations and sinning in the face of iudgments , and in a day of so much wrath and indignation , the combination of so many potent adversaries , the perils from winds and raging seas , the hazard to your valiant army , but especially to your highnesses royal person , sent us to the throne of grace ( and oh how great had our guiltiness been , if we had lain by ) to ( ) wrestle for the protection of heaven towards your highness's person , army and navy . and now that the lord hath not despised the prayer of the destitute , and hath made his out-stretched arm appear in the prudent conduct and desirable success of such an heroick vndertaking , and that the lord hath ( ) melted the hearts of some in making them joyn with your highness's forces , hath bound up the hands of ( ) implacable adversaries , and hath stopt all ways of escaping , is the doing of our god , and it 's wonderful in our eyes . and god forbid , that ever we forget such a mercy , or that we neglect to stir up the people under our charges to magnifie his name for so seasonable and so great a mercy , which upon several accounts may be compared with the delivering of god's people out of egypt , and out of babylon , and from antichristian darkness by the reformation , begun by zuinglius and luther , if now we get grace to improve it to the ( ) honor of his name . great sir , as the welfare and happiness of the kirk hath mainly influenced your highness's great vndertaking , so we are confident , that the sad case of the kirk of scotland , occasioned by the overturning of that ( ) beautiful government , the presbyterian government of the kirk established there , and mother churches in france , united provinces , &c. will by your tender care , and providence , now find a sutable remedy : and that your highness will commiserate the deplorable state of a kirk once ( ) famous for its reformation , purity , ( ) piety , order and vnity . ( ) and oh how refreshing was it to christs afflicted ones , to find that your highness was so nearly concerned , and so deeply touched with our late sufferings , as to hold forth your sympathy in your highness's gracious declaration , containing one just epitome of our sad tryals , and unparallel'd ( on such account ) sufferings , which would require a volume for rehearsing the several particulars , and giving a full history of the merciless perseiutions we were forced to lie under , since the erection ef prelacy : yea , the severity ran to such an heighth , that by the eighth act of king james the seventh his parliament , it was statute and ordained , that all preachers in houses or field conventicles , and all present at field-meetings , should be punished by ( ) death , and confiscation of goods . and tho by the light of nature , and law of nations , it be the oppresseds innocent refuge to supplicate the iudges or ruler , yet with our rulers it was accounted a crime of the highest demerit . and his majesties commissioner in his first parliament , after his return from exile , sent to the several provincial synods , then meeting at the set time , to raise them ; which accordingly they did . so soon as they did move , as all of them were to do , towards a supplication to the parliament for ratifying the government of the kirk , established by king and ( ) solemn acts of parliament . and what tongue can express the oppression we have met with since that day . and tho it were not pertinent in this our humble address to trouble your royal highness with an account of particulars , yet we have given to ( ) these now sent from us to your highness , such information concerning those , as during the short time of our staying together , we could provide , which they are ready to offer to your highness , when required ; neither could we take upon us to condescend upon any method for remedy of our grievances , but intirely relying upon your highness's zeal for the glory of god , and good of this kirk , do in all humility beseech , and in the bowels of christ iesus intreat your highness to procure the ( ) extirpation of prelacy , and re-establishment of presbyterian government of this kirk , and of the restoring of the faithful ministers of christ to their respective charges , from which they were so unjustly thrust out . it will not ( ) ( we hope ) seem strange to your highness's goodness , tho some of us being on the place about the time the king allowed to ministers the free exercise of their ministry , opened the prison doors , and set the captives at liberty , recalled the exile , took off the arrests , and permitted these to return to their homes , ( ) who know not where to hide their heads , did by their address thankfully acknowledge the favour of a little respite from so much slavery and intolerable sufferings , all of them being ready solemnly to protest , that it was far from their thoughts to homologate the liberty granted to papists , or the arbitrary dispensing power , to speak nothing of that absolute power , without reservation , claimed by his majesty , and ( ) asserted by parliament and council . but our confidence of your highness's perswasion of our integrity in that matter , makes us forbear any farther apology . but oh , as the lord hath followed your pious endeavours for the delivering of britain and ireland from the persecution they were lying under ( while we could espie no remedy ) with wonderful success : so he will be pleased to strengthen your highness ( ) for going on in his work , and will make you an happy instrument for delivering of other churches groaning under popish persecution . babylon the great must fall . and that this may be the time , and your highness the man of gods right hand , whom he hath made strong for being eminently instrumental in such a glorious work , that he would more and more sanctifie and ( ) humble you under his bountiful dispensation , and would guard and preserve your person , and multiply his choice blessings spiritual and temporal on your precious princess , your royal consort , shall be the continual prayer of serene highness , your assiduous orators at the throne of grace , and most faithful and humble servants . their letter to the prince : which they ordered to be sent at the same time with the preceding address . sir , if we might have met for moving in this great concernment , or had known how to transmit a testimony of our congratulation at your highness's safe arrival , we had not been so far wanting in duty , as to have delayed to this time . and if it had been supposed needful to have called a fuller meeting , we know few or none , except such as are byassed by interest , or ( ) accession to our persecution , who would not have cordially concurred as in one gratulation ; so in this our humble supplication to your royal highness , and for evidencing our zeal for your highness's happiness and prosperity , we have appointed a solemn day of thanksgiving for your highness's great and glorious success to be forthwith observed in all congregations , and that continual prayers be poured out to god for your highness's royal consort , as in families of private devotion , so in our publick meetings . edinburg , . ian. . annotations . you are pleased to call the prince royal highness , we do not grudge him the highest titles ; we know he deserves the greatest that are due to the most worthy heroes , and we hope , that in due time he shall justly enjoy these that are proper to the most glorious monarchs ; only we cannot but think it strange , that the popes and puritans should be the only clergy-men that take upon them , without publick consent , to dispose of royal titles . just so in your late address to king iames the seventh , you are pleased to compare him to some of the great deliverers of god's people in the old testament , altho in your former books , sermons and prayers , you would allow no better titles to the best of your own protestant kings , but that of ahab , iehu , or ieroboam . ( ) when we begin to think , &c. ] the reader ought not to imagine , that this address is like their extemporary prayers , ( wherein if one may judge by their expressions , they never so much as begin to think . ) no , this is the last effort of all the remonstrator-wit in the nation revised and refined , and indeed the smoothness and harmony of the first paragraph is an undeniable proof of their thoughtfulness and eloquence . however , i hope the glorious actions of the prince , and those of his illustrious ancestors shall be recorded far otherwise than in the panegyricks of enthusiasts . ( ) a beautiful church , &c. ] this expression is remarkable ; for that the protestant church in the united provinces presume not to prescribe to the state , as your assemblies always did ; sometimes purging the army , as you did the king's at dunbar , to the ruin of it ; sometimes declaring against the publick acts of the nation , as you did against the honorable attempt , made by duke hamilton , to relieve the king , when prisoner at the isle of wight . for tho that army was raised and sent under his grace for that purpose into england , by the publick authority of the nation , yet you were pleased to condemn it as an irreligious design , and the battel it self as an unlawful engagement ; afterwards compelling the best of the nobility to do open penance in sack cloth before your congregations , for being concerned in it . moreover , it 's worth your notice , that the reformed churches in the united provinces , which you confess so beautyful , have their organs , which they use in the divine service ; they observe other holy days besides the lords day , and in all their publick administrations have a grave liturgy , or set form of prayer , wherein they religiously and constantly use the lord's prayer , creed and ten commandments , all which you disclaim as superstitious fooleries . ( ) his suffering people , &c. ] tho you made others to suffer more , and with far greater bitterness and cruelty ; yet you would have your selves thought the only people in britain that dare suffer for conscience sake . you forget , it seems , how in the time of your covenant your scaffolds stood up for some months , imployed in the bloody execution of many noble and worthy persons , who because of their previous oaths of allegiance , and canonical obedience , could not in conscience or honor submit to your covenant , the obligations whereof you thought sufficient to cancel all former tyes , even those of the ten commandments not excepted . ( ) the kingdom of the lord iesus , &c. ] id est , presbytery , after the scotch model , for that in their language is the kingdom of christ , altho your ruling elders and you , governed with such a rod of iron , as seems quite opposite to christ's scepter . ( ) no man was found to help us , &c. ] did not father petre , with all vigor , employ his power and interest , at the court , to procure your indulgence and toleration ? if he had not applyed himself to serve your interest , he had not obeyed the directions of his society for distracting the reformation : then you faithfully served the whore of babylon , in supplanting the church , when her face was against a more powerful and formidable enemy . ( ) of a corporal interest , &c. ] a fulsom expression indeed , but that 's not extraordinary for some men to use , were not honor and reputation things of far greater value for a prince to venture , but you presume to measure his highness by your own scantling . ( ) like them that dream , &c. ] when his highness knows you better , he will find that you are dreamers indeed . 't were good for the people , whose morals you have debauched , that you dream'd less ; for it cannot be denyed , but that in the multitude of your dreams there are divers vanities . ( ) our provocations , &c. ] there is certainly nothing could recommend you more to his highness , than most ingenuously to confess and forsake your habituul faults , your incurable spight against the royal race , your sawciness to king iames the sixth , your binding king charles the first a sacrifice upon the altar , your open rebellions against king charles the second . if you will heartily acknowledge these provocations , and what you have frequently done against the authority of king and parliament , and by some publick deed of yours renounce the principles that naturally yield such consequences , then there is no doubt but the prince of orange will accept your repentance . ( ) to wrestle , &c. ] it cannot be denyed indeed , but that your prayers in the publick are wrestlings without a metaphor , but they are levelled most against the pulpit , and all the struggling is how to press out one sentence after another , and to keep wind in the bags for two hours together . just so we were told , after you were warmed with the dispensing power , that the queens big belly was the effect of the heat and pregnancy of these your wrestlings in prayer . but the priests thought 't was the result of their devotions at loretto . and as you ascribe all the courage and conduct of this wonderful action of the prince to the prevalency of your own prayers ; so in your addresses to king iames , you alledged all the piety and goodness you so much magnified in the late indulgence , to have proceeded from the same fountain ; altho it be well known that that very indulgence was first framed at the conclave , & sent hither from rome : & secr. coleman's letters , still upon record , are sufficient to convince the world , that such an indulgence was all along design'd as the readiest method to destroy the north. heresie . ( ) melted the hearts of some , &c. ] namely , the sons of the church of england , who , as you would charitably represent them , can do nothing in favours of the protestant religion , but when they are forced to it by some extraordinary accidents , or outward violence . ( ) implacable adversaries , &c. ] compare this with your late address to king iames , when you had neither the courage nor fidelity to open your mouths against popery , altho your selves could not but be convinced , that it was violently breaking in upon us at the door which was opened mostly by your divisions . here you also promise to stir up the people under your charges ; i know not how they came to be under your charge , but this the whole nation too well knows , that the design of most of your sermons and prayers too is to stir them up , as you have done formerly , to tumults , calumnies and assassinations , and whose name i beseech you , do you magnifie in this , unless it be his who was a lyar and murderer from the beginning . here also it 's observable , that in the list ye assign of the first reformers , ye make no mention of the learned calvin ; sure the peaceable father knox would not have denyed him the honor of naming him among the reformers , and at least have given him equal place with either zuinglius or luther . but ah his letters , his unsavoury letters , these unadvised and unholy letters to the limbs of the beasts , the bishops of england , our throughly reformed consciences cannot away with these letters , wherein like a worldly courtier , and carnal politician he compliments and commends these popishly affected bishops , and approves of the constitution of their superstitious church , as most agreeable to the government of the state and monarchy of england , tho not to the republick at geneva . these ye think were carnal and worldly ends , unbecoming the purity of your new light and doctrine , therefore the poor old gentleman calvin must be no longer mentioned among the reformers . another dash of a through-paced assembly would certainly exclude luther too ; for you know he never took the covenant , and therefore could not be throughly reformed . and besides he seems to smell rankly of the scarlet whore , in the superstitious forms of prayer , ceremonies in worship , and holy days , which he allowed and appointed to be observed in the church where he was concerned . ( ) improved to the honor of his name , &c. ] you should have added here , and to the persecution of far better christians than our selves . ( ) beautiful government , &c. ] if the devils sacrifices , human blood aud slaughter , the trampling upon the state , the exirpation of all liturgies , and the everlasting contentions of publick resolutioners and remonstrators could make it beautiful , it cannot be denyed but that it was so in the highest degree . ( ) once famous for , &c. ] a church without prayers , whose worship is invisible , and as often vaiyed as the several administrators appear in different places , or are affected with different passions ; a church without canons , without uniformity , and void of decency , in this sense your church was and is still famous . ( ) purity and piety , &c. ] in this catalogue of excellent things that made your church famous , not one word of charity ; indeed that 's none of the ingredients of the remonstrator-constitution . he who would see that in its proper colours , let him strip christianity naked of all morality , and in lieu of that , place these vices which our saviour reproved in the pharisees ; hypocrisie , pride , insolence and singularity . then add to these a conversation so ordered , as to apply the prophetical language of the old testament , frequently and impertinently to every trifling occurrence , keeping at the same time the greatest distance from what 's recommended in christ's sermon on the mount ; and by this means a man may have some idea of the religion of our remonstrators . ( ) on how refreshing , &c. ] 't was very comfortable indeed to you , that you imagined his highness the prince had no account of the regular clergy , but from these that studied to defame them , and to represent them all , without exception , either as ignorant or wicked persons . but to your great grief the prince is not precipitant , he will deliberately enquire into your former ways , and how the remonstrator-learning appeared , either in sermons , as books against popery , when it so fiercely assaulted us . may be some will be so just as to tell his highness , that learning was never so much your talent , and that some of the most famous doctors * our nation had since the reformation , men whose learning and conscience were their greatest crimes , were not allowed a country church to preach in , nor so much as the benefit of a private school to teach , when you were last upon the stage . ( ) punished by death , &c. ] it would be difficult for you to name one man put to death for being present at a field-conventicle , tho i could name some that you have killed formerly for wearing the king's livery . † and it would be as impossible for you to justifie your meetings in the field with vast numbers of armed men , when the laws have declared it treasonable , and when there is not any thing in the worship of the church established by law , that you scruple at , except the lord's prayer , the doxology , and the reading of the scriptures before the minister goes into the pulpit : neither of which we are ashamed of ; tho you ought to be for separating upon that account . ( ) solemn acts of parliament , &c. ] the king and parliament having experience of your sawcy behaviour , and unheard of cruelties for so many years did in a full and free parliament re-establish the episcopal government about a year after the restoration of king charles ; and it is arrogant , as well as unjust , for you to imagine , that his highness the prince will believe you , when you asperse the memory of his royal uncle king charles , ( whom all men know to have been merciful and wise to a miracle ) with such cruelties as are inconsistent with the laws of nature and nations . ye ought in justice to have told the prince also how many indulgences he emitted in your favours , and how little you deserved them at his hands : you should have likewise told him , that episcopacy never forced it self upon the state by violence , ( as presbytery did , and still endeavous to do . ) but the king , nobility and gentry , wearied with the tyrannical discipline of your assemblies , did over and again ratifie that apostolical government in parliament , and cannot therefore now be removed till those many laws be taken away even by them who are deeply sworn never to endeavour the alteration of the government in the church or state. which oath was not as your covenant , pressed upon any without the consent of lawful authority , nor under any penalties , except the not being intrusted in publick offices be accounted as such ; and it were very hard not to allow the government the choice of such as should serve in it . ( ) these sent from us , &c. ] and you are confident his highness will believe all they say without any farther examination , just as you would have the ignorant mobile believe , and receive all your doctrines with an implict faith. ( ) extirpation of prelacy , &c. ] and will nothing less satisfie you , than the total extirpation of that government which hath now continued in all the parts of the christian church for fifteen hundred years , and was first planted with christianity it self by the apostles , whose doctrines , it seems , you relish not in these points which are not agreeable to your covenant . when the parliament is legally constituted , and the sense of the whole nation fully heard , there may be some things in the constitution of the church-government made more perfect , but it is strange , if it can be entirely removed , unless the civil government of the nation be again usurped by a committee of the general assembly . it will be considered who they are that demand this change ? a set of men who have renounced the communion of all the reformed churches in europe , presbyterian or episcopal : for the conform clergy in scotland are willing to refer all debates between them and you to foreign presbyterians , who cannot be supposed to have any biass to our side . and tho your industry and faction ( in populous cities on the south side of forth ) make you appear numerous ; yet any , who throughly knows the nation , knows that you are not truly one twentieth part of it . but whatever your strength be , let me intreat you , that when ye beg for new revolutions , ye would forbear to abuse the sacred name jesus , by making it the prologue to confusions in his church ; alas , it hath been too too ordinary to usher in such black designs with that holy name . ( ) we hope , &c. ] now comes in your apology for your late address , under the influences of the dispensing power , and then your zeal against popery appeared in a profound silence ; for you told your people you preached christ , and that was enough , tho you did not insist on the particular controversies against rome . now and then you darted some waspish reflections against the church of england , when she was otherwise employed than to take notice of your whistling arguments and unjustifiable spight against her , which appeared more visible lately when it was tost in your divan ; whether or not you should address the prince of orange for abolishing episcopacy over all britain and ireland ; but tho you be sworn to that in your covenant , yet you must wait some further time for it . it is a part of the ceremony ye use in removing the conformed clergy of the west , to inquire if they have the book of common prayer of the church of england , and if they have it , it is wrapped up in the ministers gown , and both committed to the flames together , with loud shouts of joy and triumph . witness your late outrage to mr. bell , minister of kilmarnock , and even your pretended kindness for the prince of orange is known to be much cooled , since you heard of his communicating with the church of england : nor is it long since you preached that the church of england was more idolatrous than the church of rome ; because they received the sacrament kneeling , where they believed no corporal presence to be . just so one of these whom you have since appointed a commissioner from you to the prince , hearing that his highness frequented the prayers of the church of england , and that he had received the sacrament from the hands of a bishop , was so unadvisedly indiscreet and impertinent , as to say , that he never expected better of a dutch conscience . a true specimen of a remonstrator's charity , and signal evidence , that ye value not the best consciences , when they will not stretch to the full length of your covenanted standard . i cannot here omit what one veatch , canting in mr. hamilton's meeting house at edinburgh lately said , his words were these ; oh sirs , wonderful things , and great things , sirs , very great things have been done here by mean instruments : ( meaning the rabble , on whose commendation he had fully enlarged before . ) but alas , sirs , the half of your work is not done , so long as the prelates and curates are to the fore ( that is in true english so long as they are left alive ) and if the prince of orange will not put to his helping hand , and lend god a lift , i will say to him as modecai did to hester , hester iv . . who knows but thou art come to the kingdom for such a time as this ; but if thou wilt altogether hold thy peace , deliverance will come from another place to the jews , ( a most pertinent epithet for remonstrators ) but thou and thy fathers house shall perish . another of their preachers about the same time , holding forth to his auditory , said , oh sirs , sirs , but ye be an hide-bound people , a lucken handed and fast griping people , sirs , i could gar ( that is cause ) a few fourteens ( that is scotch marks ) drive all the prelates and curates out of the town ; indeed i could easily do it , sirs . this is a doctrine very agreeable , i confess , to the covenant ; but whether it be so to the gospel of peace or no , i leave the world to judge . ( ( who knew not where to hide their heads , &c. ] good lack , poor gentlemen , no where to hide their heads ! and yet if we may believe what ye confidently affirmed before , the byass of the whole nation is for presbytery ; it seems they were a very merciless , as as well as unconscionable people , who were so much affected to your cause , and yet would not allow the professors of it , when persecuted , the least shelter , ( mendaces oportet esse memores ) but this was your comfort , in these troubles , that many angels were sent to support you , and if it were not that i am resolved to avoid all personal reflections , i could name some , who when removed from their places for nonconformity , had little or nothing ; and yet purchased considerable estates under the pretended persecution . the severity of our laws never appeared against dissenters for having different opinions from the established church ; nor can you instance any one that suffered either ecclesiastick or civil censure , only upon that account , but for high treason against the state. some indeed , according to their demerit , suffered death , such as cameron , one of your preachers , who emitted a declaration of war against the king , declaring , that every covenanted brother was bound to cut off from the face of the earth his majesty , and all that had , or did bear office under him : and hackstoun of rathallat , and a weaver , murtherers of the late archbishop of s. andrews , as also a fidler , who had murdered his own wife , when big with child . these were some of the martyrs of your new gospel , whose heads and hands you have lately removed from the publick gates at edinburgh , and buried with all the solemnity that the reforming rabble , and your preachers upon their van , could possibly make . ( ) asserted by parliament , &c. ] the absolute power seemingly implied not asserted in some parliaments , is not to be understood in that unlimited sense , that your assemblies assumed it to themselves , but as it is restrained and interpreted by the constant tenor of our laws , the practice of the nation , and the just and necessary exceptions that all such general words must be supposed to receive from reason and the liberties of mankind . ( ) for going on in his work , &c. ] let it be a through reformation , a truly covenanted work , such as may bring all malignants , the most protestant kings not excepted , to condign punishment , or else you 'll never believe it to be indeed the work of the lord. ( ) humble you , &c. ] he will be sufficiently humbled , if ever you get him under the yoke of presbyterian discipline , and you should take all care to conceal from him the methods you are wont to use for humbling princes ; as also the difference betwixt your way , and that of the presbyterian churches abroad , either in france , or the netherlands . ( ) accession to our persecution , &c. ] you mean undoubtedly the conform clergy , whom , when you have not power to persecute , ye shew your inclinations to it , by calumniating and misrepresenting them . however in the present business , whenever lawful authority injoyns them , they will be ready to observe a day of thanksgiving for our deliverance from popery and slavery , with more chearfulness and order than you can pretend to . in the mean while it 's worth the prince's notice ; how you adventure without the state to appoint publick solemnities . it may be some will inform his highdess how your predecessors appointed a thanksgiving on that very day wherein the state had injoyned a fast. and to shew their cross disposition , a fast at another time , when king iames the sixth had appointed a feast for the publick entertainment of foreign ambassadors in the city of edinburgh . this is the address which in your publick meeting of the assembly at edinburgh you agreed to , and subscribed ; but upon the news of the prince's having communicated with the english church , you demurred a little , and the sending of it to his highness was delayed till ye heard from your friends at court , by whose advice your address perhaps suffered some alterations before it was sent thither ; but these , as i am credibly informed , were not material , and therefore deserve no notice . however , the industry you used to have some persons of quality at london subscribe it , was very remarkable ; for , as some of these persons themselves have told me , you would not allow them to read it , till they should first sacredly promise to subscribe it . a method very agreeable to that which ye used in getting hands to the covenant , when several young children were taught to write their names of purpose to affix them to it ; and school-boys were brought from dreiving their tops , to dreive on the work of the lord in subscribing the covenant . implicit faith , it seems , is a doctrine as much in vogue among scots presbyterians , as among papists themselves ; and the consistory and conclave do not really differ so much as you would have the world believe . in all this that i have said , i must tell you , that i have no thoughts of cruelty against distenters , i indeed pity them , as deluded . and if it were in my power i would not persecute them , but rather , as brethren , restore them with the spirit of meekness . i allow , that so long as they are willing to contain themselves within the just liberties and limits of subjects , they have as good a right to the royal protection , as any other set of men in the nation ; but then they should let the world see , that they can allow other protestants to live too , as having the same natural right with themselves : and that they are capable of such an accommodation as the learned protestants abroad are not against : and that they do not abhor the communion and practices of other reformed churches ; and particularly , that they do not think themselves bound by the covenant , or any other tye to persecute these of the church of england . lastly , it were very just and pertinent in them to declare their resolutions never again by their sentences , to counteract and condemn the decrees of the supreme civil judicatures of the nation ; and to satisfie the world in this , it will be fit for them by some publick deed to disclaim and renounce that absolute supremacy or papacy which the kirk hath always claimed over kings , and civil powers . many publick and known instances might be assigned , wherein they have challenged and usurped this power ; but hercules may be known by his foot , and therefore one instance that 's yet fresh in the memory of many , shall serve for all ; and it 's that of the unnatural as well as undutiful behaviour of the kirk to their lawful sovereign king charles the second in the year , when like a hunted partridge he fled from the birds of prey in england to them for sanctuary . the easiest proposals they made to him were no less than these : . to subscribe the covenant , which they knew his majesty did not , nor could not like , because of the destruction it had brought upon his father and kingdoms , and of the door it opened for continual rebellion against himself . . to make publick satisfaction to the kirk , that is open penance before their congregations , for his own sins , and these of his fathers house , particularly for his and his families godless opposition ( as they called it ) to the cause of god , the work of the covenant . . that his majesty should subscribe , and publish to the world a declaration , charging himself and his family with the whole guilt of all the miseries and blood ( not excepting that of the royal martyr his father ) which had been occasioned by these unhappy civil wars themselves had raised , and carried on for so many years before . upon these conditions they promised to make him a most glorious king indeed . but when his majesty modestly declined the last two , which in honor and conscience he could not submit to , immediately out comes that tundering bull from the general assembly against him , the act of the west kirk ; it was commonly called so , because the assembly was held at the west church of edinburgh , where both the foresaid declarations which they would have imposed upon the king , and that act of the west kirk are still kept , and to be seen upon record in the publick register at that place . a true and exact copy of which act , as it was faithfully transcribed from the authentick original , i shall here for the satisfaction of the reader subjoyn . west kirk , the th . day of august , . the commission of the general assembly , considering , that there may be just ground of stumbling , from the king's majesties refusing to subscribe , and emit the declaration offered unto him by the commissioners of the general assembly , concerning his former carriage and resolutions for the future , in reference to the cause of god , and enemies and friends thereof , doth therefore declare , that this kirk and kingdom do not own or espouse any malignant party , quarrel or interest , but that they fight meerly upon their former grounds and principles , and in defence of the cause of god , and of the kingdom , as they have done these twelve years past ; and therefore as they do disclaim all the sin and guilt of the king , and of his house , so they will own him and his interest no otherways than with a subordination to god , and so far as he owns and prosecutes the cause of god , and disclaims his and fathers opposition to the work of god , and to the covenant , and likewise all the enemies thereof . and that they will with convenient speed take into consideration the papers sent unto them by oliver cromwel , and vindicate themselves from all the falshoods therein contained , especially in those things wherein the quarrel betwixt us and that party is mistated . as if we owned the late kings proceedings , and were resolved to prosecute and maintain his present majesties interest , before , and without a full acknowledgment of the sins of his house , and former ways , and satisfaction to god's people in both kingdoms . sic subscribitur a. ker. the order for printing this act is signed by tho. henderson . accipe nunc danaum insidias , & crimine ab uno — disce omnes . many papers to this purpose , and more odious , might be published , but my design is not to expose , but if possible , to reclaim those whom this antimagistratical party leads by an implicit faith of the assemblies infallibility in all its oracles ; nor would i have sent this abroad , if our whole church and nation had not been first attacqued by them , and that not only in their present outrages against all who are not of their gang ; but also in most scandalous and scurrilous libels , in one whereof they have accused the government in all its proceedings since the restoration , to have been worse than the inquisition ; tho it was malicious , yet it was cunningly done in them to print and publish this among strangers ; for they knew it could find no credit at home , where the falshoods of it would have been as easily discovered as the malice of the authors is . the publick proceedings of the nation against that party , were indeed no more than self-defence , and therefore may easily , as they will be shortly vindicated , and justified to the world , where all the matters of fact of that which they call persecution , and the true causes of it , will be impartially discovered and laid open , which will be but little to the credit of the party , or their pretended martyrs , of whom they have now promised so glorious and full a history ; and i doubt not but the impartial and unprejudiced part of mankind will abominate and abhor when they hear the former and present barbarities and bloody cruelties , which that covenanted party , under pretence of reformation , have committed , and do daily at this time inflict , without any respect to office , age or sex , upon all such as differ from them , only in a very inconsiderable punctilio of government , and not in the least point ( that themselves can alledge ) either of doctrine , discipline or worship . and i doubt not but his highness the prince , by their open disobedience to his late proclamation for securing the peace , and by their opposition to , and contempt of all former government , will be soon convinced , how impossible it is to make them quiet under any ; and the world will be easily satisfied by but a little inquiry into their principles and practices , how inconsistent the papacy of the scots presbytery is with any form of government , except that of popery , which arrogantly presumes ( as they also do ) to punish and persecute all governors in the state at their pleasure , and manage all secular interests in ordine ad spiritualia . would to god they would but comply with this one advice of the apostle , study to be quiet , and do your own business . finis . notes, typically marginal, from the original text notes for div a -e * n. b. these were written some time before the prince was proclaim'd king of england , &c. * the learned doctors at aberdeen were all deposed and expelled , for disputing against the legality of some subjects imposing oaths upon others , without the consent of lawful authority . † two of king charles the second's life-guard murthered at swyn abbie some few years ago , being by some of that party barbarously shot from the windows , and killed , as they sate at supper in their inn. aretina; or, the serious romance written originally in english. part first. mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing m estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) aretina; or, the serious romance written originally in english. part first. mackenzie, george, sir, - . , [ ], p. printed for robert broun, [evan tyler?] at the sign of the sun, on the north-side of the street, edinburgh : . by sir george mackenzie. evan tyler's name in imprint suggested by wing. reproduction of the original in the british library. augustan reprint society: "an apologie for romances" only. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - judith siefring sampled and proofread - judith siefring text and markup reviewed and edited - pfs batch review (qc) and xml conversion aretina ; or , the serious romance . written originally in english. part first . edinbvrgh , printed for robert broun , at the sign of the sun , on the north-side of the street , . to all the ladies of this nation . fair ladies , i do , like moses trembling mother , leave this my first born upon the banks of envies current , exposed to the muddy and impetuous streams of merciless censure ; wishing , that the fair hands of the meanest of your number would vouchsafe to dandle it in the lapp of your protection ; it is but an abortive birth , posted to the world before its time , by an unavoidable emergent , and so i fear shall never prove strong , nor be able to go much abroad : yet if it be admitted to suck the breasts of your favour , it may possibly prove strong enough ( shielded by your affection ) to graple with malice , and all other opposition . whilest my winged curiositie , pilgrimaged through all the corners of my memory ; desirous to know wherewith it was fittest to adorn the porch of this mean structure ; duty at last pleaded , that it was lese-majesty against your supremacy , even to doubt whether it was fit to give you the precedency . for , since the best eyed fancy , cannot observe any traite in your peerless faces , wherein nature hath not prodigalled her charmes ; so perfection were imprudent , and so no perfection , if it palaced not it self in such accomplisht creatures . and if there be any orthodox maxime in phisognomy , we may conclude , that such excellent faces are assorted with excellent souls : providence being like these prudent artists , who bestow the choisest cases only upon the richest pieces . and seing one look darted from your irresistible eyes , is able to conquer , in a moment , these over whom neither reason , nor courage , could never raise their trophies ; we may conclude that there is something in you , which nothing in man ( who seigneurises over all other creatures , and who can pretend to nothing stronger then courage and reason ) can ever equal . it is to pleasure you that wit is studied , and were it not that ye might be pleased , certainly providence had placed wit beyond the reach of our studies : it is to sooth your humor , that men school themselves in patience ; and by your miraculous voice , the storms of their passions are calmed ; from your beauty , cowards borrow courage , and niggards liberality ; so that all these scattered colonies of vertues , which are squandred amongst men , are all originated from your example . but as it was duty , so it is prudence in me to beg your patronage ; for how can the body of this book be abissed , and sink in the gulf of scorn , if its head be handed up by such admired beauties ; neither think i , that malice can be so malicious , as to along a thurst at the author , who ensconces himself behinde such sacred persons ; lest the blow destinated for him should wound them who targets him . i have chosen so many patronesses , to evidence that there is none of your never enough admired sex , but may lay claime to the patronage of all that drops from my pen ; as also , fearing that among such a number , i should scarce finde one who would be so excessively hospitall , as to lodge in her cabinet or chamber such an unacknowledged orphelin . the disappointment of my fears in this , is rather th● wish , then the expectation of , fair ladies , your most humble servant . an apologie for romances . it hath been rather the fate , then merit of romances in all ages , to be asperst with these vices , whereof they were not only innocent , but to whose ante-doting vertues they might justly pretend : for whereas they are judged to be both the fire , and faggots , wherby lov'd flames are both kindled and alimented ; i believe verily , that there is nothing can so easily extinguish them , for as these who have at court , seen numbers of peerless and wel deckt beauties ; can hardly become enamoured of an ordinary country-maid ; so these who have seen a philoclea , or cleopatra , depenciled by the curious wits of sidney , and scuderie , will hardly be invassalled by the ( to them scarce approaching ) treats of these , whom this age garlands for admired beauties . others for sooth accuse them , for robbing us of our precious time ; but this reproach is ill founded ; for if the romance be abject , none will trisle away their time in reading it , except these who would mispend it however , and if they be excellent , then times is rather spent then mispent in leafing them over . there is also a third race of detracters , who condemn them as lies ; but since their authors propose them , not with an intention to deceive , they cannot properly be reputed such : and albeit they seem but fables , yet who would unkernel them , would finde budled up in them reall truthes ; and as naturalists observe , these kernels are best where the shells are hardest ; and these mettals are noblest , which are mudded over wi●h most earth . but to leave such phanaticks in the bedlame of their own fancies , who should blush to trace in these paths , which the famous sidney , scuderie , barkley , and broghill hath beaten for them , besides thousands of ancients , aud moderns , ecclesiasticks , and laicks , spaniards , french , and italians , to remunerat whose endeavours , fame hath wreathed garlands ( to be temple their ingenious and ingenuous heads ) which shall never fade whilest learning flourishes . i shall speak nothing of that noble roma●ce , writen by a bishop , which the entreaty of all the eastern churches could never prevail with him to disown ; and i am confident , that where romances are written by excellent wits , and perused by intelligent readers , that the judgement may pick more sound information from them , then from history , for the one teacheth us onely what was done , and the other what should be done ; and whereas romances presents to us , vertue in its holy-day robes , history presents her only to us in these ordinary , and spotted sutes which she weares whilst she is busied in her servile , and lucrative imployments : and as many would be incited to vertue and generosity , by reading in romances , how much it hath been honoured ; so contrary wise , many are deterred by historical experience from being vertuous , knowing that it hath been oftner punished then acknowledged . romances are these vessels which strain the christal streams of vertue from the puddle of interest ; whereas history suffers the memory to quaff them of in their mixt impuritie ; by these likewise lazy ladies and luxurious gallants , are allured to spend in their chambers some hours , which else , the one would consecrat to the bed , and the other to the bordell : and albeit essayes be the choicest pearls in the iewel house of moral philosophy , yet i ever thought that they were set off to the best advantage , and appeared with the greatest lustre , when they were laced upon a romance ; that so the curiosity might be satisfied , as well as the judgement informed , especially in this age wherein the appetit of mens judgements is become so queasie , that it can rellish nothing that is not either vinegared with satyres , or suggared with eloquence . i know that these who have devanced us in this imployment , will as our eldest brothers in time , have a double portion of fame bestowed upon them , and no wonder , seing they had store both of expression and invention to make choice of , and if any of us use their expressions , albeit we were only debtor to our own invention for them , yet we should be thought to plagiarize : wherefore he who writes now , should read what hath been written formerly ; not to the intent that he may borrow , but least he should borrow any thing that is theirs . i perceive there have been two errours committed by the first writers of romances : the first was , that they stuffed their books with things impracticable , which because they were above the reach of mans power , they should never have fallen within the circle of his observation : and such was amadis de gaule , palmeron de oliva &c. the other errour was in the style , which because of its soaring pitch was inimitable : and as the first hath been the fault of the first writers , so the last hath been the fault of the last writers , wherefore the famous scuderie hath written so , as that his invention may suit well with our practise , and his style with our discourse , and especially in his clelia , wherein he professes that he hath adapted all to the present converse of the french nation and that is really the mould wherein all tru romances should be casten . there are some who embroider their discourse with latin and greek termes , thinking , like these who are charmers , that the charme loses its energie , if the words be not used in latine . but this is as rideculous , as if one who desires to make his face seem pleasant , should enamble it with red , blew , green , and other colours ; which though they are in themselves pleasant , yet are rediculous when placed there . and this is an university style , which savours too much its pedant , and is at best but bastard oratory , seing the scope of all orators is to perswade , and there can be no perswasion where the term is not understood ; examples of this are brown , charletoun , &c. the second style , is that of moral philosophers , where the periods are short , and the sense strong , and our experience teacheth us , that the shorter any thing be , it is the stronger : this style suits best with preachers , whose it is to debit the grand misteries of faith and religion ; for , seing sentences there should be weighty , if they were either many , or long , they would burden too much the hearers . the third style , is that of barrasters , which is flourished with similees , and where are used long winded periods ; and of all others , this is the most preferable , for seing similitude is but a harmony , this style shews that excellent harmony , and rapport , which god intended in the first creation ; and which the philosophers of all ages have ever since admired . this lawyers have learned from the paucitie of all humane lawes , which makes them oft recurr to that topick , which teaches them to argument from the paritie of reason . and in this they resemble mechanicks , who , by applying a cord , whose length they know , to any body whose length they ignore , do thereby learn its measures also . and by this way nathan in the old testament , and our saviour in the new , repremands the errors of david and the self conceated iewes . the fourth style is where the cadence is sweet , and the epithets well adapted , without any other varnish whatsoever : and this is that style which is used at court , and is paterned to us by eloquent scuderie . i hear there is now a ridiculous caball of ladies at paris , who terme themselves the precious , and who paraphrase every thing they speak of , terming a mirrour , the conselour of beauty , and a chair , the commoditie of conversation , &c. and thus they have progressed from painting of faces to paint expressions . as for my self , since i expect no applause , i need fear no censure ; and if i satisfie not others , i shall at least satisfie my self , for it was to form to my self a style that i undertook this piece , whose defects i hope the sober readers will pardon , since their clemency will not be oft tempted with crimes of this nature : only this i begg , that these who will not do me the favour to read the last part , will not do me the wrong to read the fi●st part ; for as the lord bakon very well observes , our thoughts are like our years , whereof the first are alwayes the worst ; and it is no wonder , for boyling youth customarly throws the scum upmost . i have concealed my name till i see how my undertaking is relished ; for which reason likewise , i have sent this piece to the world unaccompanied , as a swatch of what i intend , reserving the web , till i see how the stuff pleases . the subject hath made this first part serious , and my inclination shall make the second pleasant . a poem , by the same author , upon his majesties happy return . stay , fame , why do'st thou to the future post , to learn some new adventures ? tym's not lost in viewing our great charles his safe return , resembling ashes new sprung from their urn ; or do'st thou post to trumpet these rare news , to godless pagans , or to christless jews ? thereby them to convince , that ther 's a god among'st the christians , who will explod out of his noble registers of life and fame , ignoble traitours , and their hatfull name . mans oldest charter is that text divine , all that thy feet can trample shall be thine ; since then his feet hath trampled europe round , it 's only limit shall his kingdom bound , though france and spain be compted the two poles , whereon our european orbe still roles , yet thou the axis of that orbe shall be , to wheel these poles as it best pleaseth thee . heaven him exiled not , but sent him abroad , to shew the matchlesse art of our great god in framing matchless spirits , and to each of these strange nations , patience to preach . malice , with fruitlesse strokes shall wearied now yeild up her sword , and to thy scepter bow . thou fortunes wheel , by vertues hand shall hold and stop the course of that proud changling bold . with black affliction heaven thus enambled hath for furder lustre , his pure golden faith ; and as with crosses heaven did once him wound , so now with crosses heaven hath him crown'd ▪ all shall our thristle , the blessed thristle call , and in fames eden our rose flourish shall , and of our lillies we may justly say , that solomon ne're flourished as they ; let then our harpe play , and our lyons daunce , for joy that heaven should thus our king advance . great gloucester's cipressehearse , wreathed by a loyal hand . we did admire what made the heavens tear , and why the clouds did such dark sables wear : it was that they in tears might pay respect to gluocester , whom they did much affect : and that the hard hearted earth might softned be ; at the sad news of his sad tragedie . the lower heavens thus purg'd themselves , that they might in parade be , when he pass'd their way : the season wep't in rain , and sigh'd in winde , our mother earth did great distempers finde at her great loss , and with a pale wet face , did her dear son in her cold armes embrace . the rivers swell'd with rage , and every hill , was with a vail of black mist covered still . the leaves likewise , fell trembling from their trees when first they heard news of his obsequies . if plato like the musick of the sphaers , we understood , then might our nimble ears perceive , how they quiv'rd grief in mournfull tones . paused with sighs , and bass'd with hollow grones . men thought , dame nature now being old and weak , durst nothing that was curious undertake ; wherefore , to shew men that they were mistaken , that master piece was by her undertaken ; which though it was presented as her last ; shew she a printise was , in making what was past . and though in eden commenc'd was the creation , yet its accomplishment was from our british nation . his body shew'd to what perfection rare , dust might refined be by divine care : and yet god thought it neither fit nor just , that such a noble soul should lodge in dust , untill that dust by death were more refin'd , and fired to re-lodge so great a minde : the gods apollo have deprived , that he as the more learned should have his dietie . but why should air ? lend mortals furder breath , it s sure , that they may still condole his death , and may it coyne in termes of highest praise , and stamp that coyne with some heart brusting phrase . but since he 's gone , we may conclude that sure there is another world yet more pure then ours , or that heavens quire did want a voice , which only could supplyed be by this choice ▪ and that god hath this peer from earth's lower house transplanted to the high upper house of heaven , for ever to be sainted ▪ to his ingenious friend , the author of aretina . thy beardless chin high voicedly doth declare , that wisdoms strength lyes not in silvered hair : and as few ciphers , rich sums does express ; so thy rich wit shines in a few years dress , for as men did the suns first light admire ; so art thou lov'd when thou dost first appear . yet shall thy crocodil like fame still grow , and on its shoar , praises shall ever flow . reader , correct these errors with thy pen , before thou read the book . page . line . read. agapeta ult ominat then for to themselves . because cannot crown longer able boute-feus aretina ; or , the serious romance . melancholy having lodged it self in the generous breast of monanthropus ( lately chancellour of egypt ) did , by the chain of its charms , so fetter the feet of his reason , that nothing pleased him now but that whereby he might please that passion ; thinking all time mispent which was not spent in its service , frequenting more woods than men , deeming them the only fit grove to sacrifice in , the choicest of his thoughts to the worst of passions . wherefore , having one day wandred abroad in a neighbouring desert , he came at last to a deep valley , fruitfull of nothing but trees , and trees fruitfull of nothing but melancholy , overlookt by rocks , in whose wrink●ed faces , aged time had plowed thousands of deep furrows , whose gloomy brows threatned perpetually to smother the subjacent valleys ; a place fit only to be ( as it was presently ) the hermitage of melancholy and stage of cruelty : he had not long stayed , when his admiration was arrested by a noise blown in his ears ( as he thought ) by the bellows of death , yet seconded by a sight yet more horrid : for , he saw at some distance two ladies , loaded with iron sheckles , which chained them together , stript of their cloaths above the middle , and strypt by two cruel rascals , who ( albeit torture made the ladies run ) yet equalled the number of their lashes to that of their paces ; and not far from them , were ten gentlemen ( as they seemed by their habits ) fighting against two knights followed only by one esquire ; where courage seemed to combat against number , valour making the ten seem but three , and fear making the three seem ten ; yet courage shew at last that it might be resisted by number , but could not be overcome by it ; for , the death of six , forewarned the other four , that it was not time to stay : fear having left them only so much reason as to conclude , that seing they could not resist them , being ten , how could they resist when they were but four ? wherefore , leaving flouds of bloud to witnesse the gallantry of their conquering adversaries , they posted away : the knights willing to pursue these run-awayes ( who had now added cowardisnesse to their former crimes ) yet more willing to rescue the miserable ladies , left these rascals to be punished by a torturing conscience , and the just gods , and spurred after the ladies , who were presently abandoned by these hangmen ; but providence ( which had borrowed their swiftnesse to lend it to their adversar●es ) delivered these villains into the hands of the pursuing knights , who brought them back where the ladies were , bathing themselves in their own innocent bloud : who having fallen on their feeble knees , the eldest of them weeping , spoke thus ; o noble gentlemen , surely providence had never created such silly creatures as weak women , if they had not likewise provided such noble champions as ye are to be guardians to their weak innocencie , and innocent weaknesse : we acknowledge we are yours ( if bloud be a price able to buy things of small value ) neither can those to whom we belonged formerly pretend right any longer to us , no more than the first owners can pretend right to their goods , which being robbed from them by unjust pirats , are after some time and danger regained by other true conquerours ; or land taken by vsurpers , is to be restored by a third conquerour to its first masters : happie we , who cannot by any postliminius right , return to our former liberty , seing to be slaves to such masters is to be no slaves at all . but seing our tears are no fit recompence , for those tears of bloud which your bodies both have shed , and yet do shed for us , we shall cease to trouble you , whom we cannot requite . but whilest they were admiring what was already spoken ( wherein she shewed much learning from whom no learning could be expected ) and whilst she was about to add more , monanthropus , by his coming , interrupted , both the admiration of the one , and the discourse of the other , who , puzled whether to congratulate the good fortune of the knights , to regrate the misery of the ladies , or to accuse the cruelty of those rascals ( with whom the knights had made them to exchange fetters ) who were now standing accused by their own roguish looks , yet at last he accosted the knights thus : gentlemen , albeit i might accuse you as strangers , for exercing any jurisdiction , much more the highest jurisdiction , in a stranger nation , yet your valour , your successe , and your cause , obligeth me to believe , that ye are commissionated by the immortal gods , to punish these rascals , and to liberate these noble ladies : for , seing such extraordinary feats as ye have done , are above the reach of such ordinary means as is mans strength , we must believe that they are either perpetrated immediatly by supernal or infernal powers ; and seing the infernal furies are not so much friends to innocency , as to help it , or so much enemies to cruelty , as to punish it , we must think , that ye have been aided by some divine power ; therefore i shall rather admire than challenge you ; for , to no purpose is the admirative faculty bestowed upon man , if it be not exercised in such cases as this : therfore let me beg of you to lodge with me this night , seing the condition of these ladies pleads for good accommodation , and there is none to be had for persons of either your or their quality , besides my house , whose best accommodation is , its nearnesse to this place . to which the tallest of these two knights ( named megistus ) replyed thus ; courteous sir , neither ye , nor these ladies , have reason to extol so much our courage , as to admire these fellows cowardishnesse , and to think that their guiltinesse was their strongest enemy , and that the veriest coward could not but be stout in such a quarrel : but as to your proffer , albeit we thank you extreamly for it , yet we will wait upon these ladies to shelter them from any future inconveniencie , and to see them beginning to return from the region of death , wherein they seem now to enter ; for , seing providence hath given them us for attenders , it were a breach of trust to desert them . but the poor ladies , ( who were about not only to accept the proffered accommodation , but likewise to beg it before it was proffered ) thanked monanthropus for his kindnesse , and intreated the knights to go alongst with them : which when they had accorded to , after much reluctancy , he mounted the ladies behind the knights , and whilst they paced slowly , both to case the ladies , and to keep company with monanthropus , who refused to ride upon kalodulus his horse ( for so was he who served the knights named ) both monanthropus , and the two knights , joyned in a suit to the ladies , that they would inform them both of the rise and tract of their so lamentable misfortune ; especially monanthropus , whose melancholy appetite rellished nothing so well as what was sauced with novelty , to which the sweet ladies easily condiscended ; grief being like a mine , which the greater vent it gets is the lesse noisome , as also knowing that the villany of their enemies would conciliat respect to their innocency ; so the lady who spoke formerly , broke off thus : gentlemen , our father ( who was a nobleman in thracia ) was one , who lived rather to study , than studied how to live ; and who endeavoured more to treasure up learning in himself , than money for his posterity , yet who never stained his blotlesse fame with either negligence , or prodigality ; yet it was rather his fortune , than his merit , to be misconstrued by most of his neighbours , and mainly for his retirednesse ; some thinking that he conversed not with them because he thought them unworthy to be conversed with ; others thought his retirednesse flowed from his being conscious to some imperfection in himself , which made him unfit for conversation ; so that as the one hated him for his supposed pride , so the other undervalued him for his supposed unworthinesse : neither was there a third sort wanting , who judged that it was peavishnesse , which confined him at home , fearing lest he should be induced to spend when he came abroad : thus he lived , educating his children , me especially , in ordinary learning , scorning alwayes those who thought knowledge rather a burden , than a qualification to those of our sex , and that it was enough to a woman to know how to bring forth children : for , said he , seing nature hath been more a step-mother to women , than to men , giving them shallower judgments than to men , it appears to have been natures meaning , and it should be their endeavours , to supply by pains that natural imperfection : and seing they are given as helpers to men , how can they help him , except they understand how to do it ? and also , seing they should recreate man in his solitarinesse , how can they do that without some knowledge ? having spent thus his short life , he was at last invited by death , to go and receive the reward of his vertue . after his death , two gentlemen ( even those two , who first assaulted these worthy gentlemen ) whom conversation rather than affection ( for they were not capable of any such impression ) had made rather comrades than friends , and who conversed together rather out of necessity than choice , because others hated them so as that they would not converse with them ; or else , they fearing to be checked for their escapes , would converse with none but with themselves , whose mutual escapes pleaded for mutual pardon . these two came in suit of us two , who were two sisters , the only daughters of our father ; but their spotted same before they came , and their imperious carriage after , made us not only not love their persons , but even abhor their very names : which they , after some time , perceiving , intended to extort by compulsion , what they could not willingly obtain from us ; whereupon , our only brother being sick , and hearing that our mother resolved to consult a neighbouring astrologer , bribed so his corrupt judgement , as that he promised to tell her , that nothing could ransom our brothers life , but our pilgrimage to delphus , there to sacrifice two turtles for him to apollo . we , who thought nothing too dear for us , when compared with our dear brother , resolved to undertake the journey , and being dismist , loaded both with our mothers tears and jewels , we had not travelled twelve miles , waited upon only by two gentlemen , our cousins , and two maids , when at the entry of a wood we were assaulted , or rather surprised , by ten gentlemen , masked , our cousins assoon slain as seen , and poor we , taken captives by those of whom we knew nothing , save only that by their masks we might know that they intended some villany which they durst not avow ; our maids being sent away we knew not where , and our selves captives we knew not to whom , amazement seized so on us , as that we feared we knew not what : but to screw up our misfortunes to the highest pin , our two lovers unmasked themselves , o what torment was it to us , to behold our tormentors ! and especially in a place where none could either pity , or relieve us ; and we became now like fools and children , who think it a great happinesse not to see the authors of their unhappinesse , which makes them , when they are assaulted by any fear , cover their heads ; but they who hasted to enjoy that , which when they had enjoyed , would doubtlesse have slighted , began to unmask their minds aswell as their faces , and told us plainly , that we behoved either to love , or die ; a word as strange as cruel : for , how can the chill coldnesse of constraint kindle the real flames of true love ? and seing force is able to make those who formerly loved , thereafter hate , how can it make those who once hated , therafter love ? but they who understood as little true love , as they practised true modesty , did most impertinently importune us to accept them for our husbands , swearing , when they could not perswade us by threats , that we were the maddest women breathing who refused to bewives to such gallant gentlemen , and mistrisses of so large fortunes ; recounting to us sometime their valiant acts , and sometime questioning their prepared servants anent the state of their thriving affairs , not forgetting to number hundreds of mistrisles whom they had slighted for us , and how many sighed for them , albeit they sighed for us . this discourse , albeit unpleasant in it self , yet seemed more unpleasant because of the discoursers gestures and antick modes , which could have perswaded strangers , that they erred purposly to make us laugh ; at last they led us to a cave in the bosome of a rock , which seemed to be deaths chamber of presence , paved with mire , and tapistred with slime and cobwebs : here we were welcomed by an old hag ( the nurse of my lover ) whose face i thought at first , had been masked with some terrible mask , but at last i perceived , that nature had conjoyned swarthy colours with ugly shapes , to shew that art could not outstrip her in making an horrid face ; her words , ecchoed by the hiddeous rock , seemed to be the cryes of the damned spirits , when they are punished in hell for their misdemeanours . our accommodation could only brag of its suitablenesse for ugly things , so corresponded with ugly things , as ye would have sworn , that every thing contended which should be most ugly : a sheep was eaten half alive , and sent bleating to their bellies , and their bread which seemed to be knead gravel , was eaten as greedily as if it had been the finest flowre ; at supper she began to accuse the courtiers for nice●y , in imploying knives and napkins , and swore by her black kirtle , that the reason why ladies did eat so little at table , was , because they did eat so largely in their chambers . thus having spent the night lying on the ground ( a bed never made since the creation ) we longed for the morning , which came no sooner than we wished it had been past , and thought that the sun by its slow motion , intended likewayes to conspire with our other tormentors : yet after some four dayes stay , the immortal gods , who knew our innocency , decreed our delivery , by a way as unexpected as the delivery it self : for , the fore-named mathematician , who began now in his solitude to consult the stars , whereas he had formerly in his poverty consulted his purse , did one morning acquaint the lovers that he did read their ruine in the face of heaven , if they dismist us not : this diurnal , from such a place , and such a person , did so allarm their already frighted consciences , that they resolved to quit us , meerly , because they found they could not keep us : wherefore fearing lest our return to our own countrey , should be a mean to banish them from theirs , they resolved to bring us over here to egypt with our faces covered , that our punishment might be the greater , and our return the more uncertain : after that fashion did they lead us three dayes ( never considering that heaven saw us , albeit we saw not it ) till at last , like serpents , who carry their sting in their tails , they resolved to make the last act of their cruelty the worst , making our tragedy like all other tragedies , whose most deplorable event is represented in the last scene : wherefore , finding this wood correspond with their desires , they committed us to these cruel tygres , who had avenged their masters affronts , and ended our miseries , if the arrival of those gentlemen had not prevented both . this story and their journey ended both equally , and they were as much solaced by the one , as wearied by the other : and now they began to descry the top of the much longed-for castle , and being entered in a sweet alley , which was guarded on both sides by walnut , chesnut , and cipress trees , which decored extreamly the avenues to the castle , they were saluted by four gentlemen cloathed in blue sattin , who were attending monanthropus's ▪ return , which was later that night than ordinary ; the knights and ladies finding their respect betrayed formerly , by the meannesse of monanthropus exteriour garb , did , in a most submissive manner , crave him pardon , and bestowed upon him now , with its interest , what respects they had ignorantly detained from him formerly , and the younger of the two knights ( called philarites ) commissionated , by the assenting looks of his companions , spoke thus : my lord , nature having levelled all men as to what can be seen , and strangers knowing nothing more of one another , than what instruction nature bestows on them , their ignorance deserves pardon , if they homologate not their first errours , by their after continuance in them ▪ and we see magistrates carry before them the ensigns of their offices , gentlemen followed by their liveries , and knights of orders carry the badges of their honours , as beacons to warn strangers not to split upon the rocks of either disrespect , or incivility : which shews , by the rule of contraries , that strangers may be pardoned , albeit they deny respect to those who wear not honours livery ; and albeit we might have seen in your honours face and carriage , the impression of more than ordinary majesty , yet the confusion wherein we were , may plead our innocency . monanthropus , whose humour and age made him averse from ceremony , told them , that their generous carriage did oblige him too much , and that their apologie had prevented his ; for albeit they had cunningly vailed their births , yet their generosity did somewhat draw aside the curtain , and did let the most undiscerning eye see somewhat more of nobility , than their modesty did discover by discourse . the knights and he having skirmished a little thus in complement , he intreated the knights to hand up stairs the weary ladies ; for their age and pains had merited better their hand , than he had done or could do . at the top of the stairs , they entered an antiparlour , richly tapestred with hangings , representing paris choice when he bestowed the apple upon the fairest ( which seemed to be not only a relation of what was past , but also a prophecy of what was to be acted shortly upon that stage ) there they were welcomed by a lady , rather grave than old , followed by a troup of rare beauties ; where ( notwithstanding the rest seemed only to be black patches to set off with the greater advantage the beauty of a young lady who was monanthropus his daughter , a lady so accomplished , as if nature in her , had like that old painter , borrowed a tra●te from the greatest beauties in the world to adorn one ) philarites , after megistus and the ladies had saluted all , and after as he himself had saluted the mother , coming to salute the daughter , and bowing as low as the verge of her garment , being deserted by strength , and over-powered by admiration , did fali dead at her feet . the wounded ladies , surprized by his fall , did shout , and by that shout astonished more than formerly , the already commiserating by-standers , who began already to sacrifice thousands of tears to his departed ghost , and were sending their sad cryes to accompany to the elisian fields his lovely soul ; mean while , his admiration which had intimated to his internal bloud and spirits the admirable beauty of aretina ( so was the young lady called ) sent his bloud gushing out at his veins , every drop striving with its fellow which should first see that hyerogliphick of comlinesse ; but he , poor gentleman , lay as if his soul and body had been divorced in the court of heaven , for it refused to return to its old lodging , notwithstanding of the many invitations given it , both by the skill of the physician , and care of the ladies : at last some blushes began to appear as the avantcurriers of life , which did somewhat animate the company , whose faces reflected formerly the paleness that appeared in his , each being willing even to wear deaths livery for his sake ; at last he began by groans , to vomit up his melancholy , and to stretch his arms , which when megistus perceived , he caused carry him to his chamber , where they put him in bed , not fully yet recovered . thereafter monanthropus and his lady waited first upon the unknown ladies , and thereafter upon megistus to their chambers , where supper was dressed up for them , and two maids were allowed the ladies for attendants : but megistus , fearing that philarites grief might prove desperate , ( great spirits producing nothing which is not great , and as the greatest fires have the greatest flames ) resolved , by his wit to assist his friends patience ; wherefore calling for kalodulus his servant , he commanded him to convey himself secretly up to the seiling of the chamber , and to take a hollow tree with him , through which he should ( after he found philarites awake , and beginning to complain ) cry with a counterfeit voice , philarites , the gods , as a reward of thy vertue , have allowed thee aretina for thy wife ; and , to confirm thee in this truth , have desired thee to send to morrow to that great oak , which is sacred to iupiter , and there thou shalt find a ring , with this inscription , believe the gods ( for megistus had gotten such a ring from one of his fathers magicians , who had foretold him many fortunat events , and at his departure had bestowed this ring upon him ) kalodulus , whose love to philarites made him both willing to undertake , and cunning in the accomplishment , of this enterprise , did secretly climb up where he was desired , and where he could not be discovered because of the darkness of the night ; and after half an hours stay , philarites began to groan , and to second his groans thus : o unfortunate philarites ! hath passion cut the throat of thy reason , or hast thou lost thy wit with thy bloud ? wilt thou willingly enter the lists , where stronger spirits have been defeated by weaker enemies , than that lovely object thou saw this evening ? wilt thou render thy self uncapable to be megistus friend , and thy fathers heir , for a fancy which is unpracticable ? yea , which is more , wilt thou derogate from that ladies worth , by daring to stile thy self her lover ? either thou must conceal thy passion , and then why lovest thou ? else thou must vent it , and then declare thy self distracted . kalodulus , who waited this opportunity , spoke as he was taught , and that so cunningly , as that kalodulus passed really for mercury ( the trunche-man of the gods ) in philarites conceit : whereupon , falling in an extasie of respect to the gods , and of joy for the message , he gave kalodulus leasure to retire himself to his bed , where feigning that he was asleep , philarites called for him , asking if he heard any thing ? who answered , no , sure , for he was asleep : but the other pressing an answer , kalodulus said , that it was only the effects of his distemper . the night being past , philarites entreated kalodulus , to go and dig under the root of the sacred oak , to see what he could find . but kalodulus , after some faint disswasion , was at last willing to go : where having gone , he seemed to dig , and at last found the ring ( which he could not miss , seing it was in his pocket ) with which he returned to his master , telling him , to aggrage the matter , that he found it wrapt up in an oaken leaf . this trick of leg●rdemain was proven by philarites , his hope to be a vision , and did so animate him , that he was in greater danger to have died for joy now , than he was to have died for grief formerly , like a lamp extinguished by too much oyl , the soul in that resembling the body , which is soonest surfeted by the best of viands . whilst they were canvassing this strange businesse , megistus ( who being anxious of the event , had risen timously ) knocked at the door , and being entered , he began to enquire how he had rested . philarites commanding kalodulus to retire , imbracing megistus , said , dear comrade , since the soul of two friends seems to be but one soul bilocated , and lodged in two bodies , which is notwithstanding , not a whit the lesse one soul , no more than the same soul ceaseth to be the same , because it is altogether in the arms , altogether in the head , and in other distinct members : seing then we are animated by the same soul ( whereof yours is the nobler part ) how can , or why should , we be strangers to one anothers joyes or griefs ? my extasie yesternight told you all i can tell you this morning ; but albeit it had concealed it , yet i would not . ye saw how aretina's face disarmed my courage , and forced me to render before i could put my self in a posture of defence ; i am love and hers martyr , at which word he trembled . megistus , who resolved to solace his friends melancholy , answered : it cannot be you love ; for else loves flames would never suffer you to tremble , which is the ordinary effect of cold . alas , said philarites , seing none can behold aretina , and not love her , i fear we are rivals . truly , replyed megistus , i love her also ; but the difference is , that it appears ye love her as your mistris , and i love her as a compleat lady ; and albeit i loved her as my mistris , yet the love i carried to her would strike sail to the respect i bear to philarites . alas , said philarites , the ●irst part of your discourse makes me think , that you have not remarked aretina , and the second part makes me think , that ye who knows every thing else , knows not what it is to love . no , no , replyed megistus , as my eyes cannot be so far mistaken , as to mistake the case for the watch , so neither can my judgement be so hallucinated as to love the body in stead of the soul : it is not beauty that i admire either in her or you ( albeit both be lovely ) no , it is your vertue , which seing i know to be real in you , whereas it is but presumptive in her , i cannot chuse but love you better : but , philarites , ye jest , when ye say ye love ; can it be that your courage , which hath resisted so many men , is not able to resist one woman ? stain not your wisdom by loving , before ye know the object to be lovely : stain not your birth , by loving a subject , ye who are born a prince ; stain not your duty , by chusing a wife before you consult your father , take a wife from his hands from whom ye have received every thing else : for , it is not just that he should not chuse her , who is to be princess of his kingdoms , and mother to his heirs ; and seing by the law of nations an heir cannot marry without the superiours consent , why shovld it be lawfull to you to marry without the consent of your father , who being your prince , is your superiour . philarites was about to answer , but was interrupted by monanthropus , his lady , and his daughter , who were entring the chamber ; salutations being mutually exchanged , and the ladies seated , megistus craved the lady pardon for their yesternights trouble : for , said he , madam , if your modest looks , and the experience we have of your civilities , made us not expect that your goodnesse would seal us a pardon , we might think our selves as unfortunate , as now we have reason to extoll our good fortune , which hath given us your ladish . to be our physitian , and your house to be our hospital ; the gods , whose service ye respect principally , must be your paymasters : and as for us , all we can do , is to imploy in your service all that remnant of bloud which ye have conserved in our veins . sir , replyed the noble lady , the protection of these noble ladies is a debt which all our sex is not able to requite , and it were an unpardonable sin against the immortal gods , to abandon two gentlemen , whom they look upon as their minions ; gentlemen , pardon ye your bad entertainment , and your complementary guilt shall be easily pardoned . having thus ended , she asked how philarites rested , and what he needed ? but megistus fearing lest aretina's presence should re-inflame him , and knowing that they who were in feavers should not sit so near the fire , entreated the ladies and monanthropus to leave him to the care of doctor diet , and doctor quiet , healths ordinary physicians , which they did , and went away , accompanied by megistus , to visit the unknown ladies ; where they found them , entertaining themselves with two lutes , lent them by their attenders : their lutes and their voices strove for preference , yet the voice carried the applause ; and no wonder , seing it is the instrument which the gods themselves have fabricated . their musick joyned to the description monanthrop . had made of them to his lady and daughter , did so indear the ladies to them as that still thereafter during their aboad it was hard to separate them , monanthropus desiring to satisfie his curiosity , and curious to know a person he so much admired , desired megistus to fetch a walk , leaving the ladies to their private entertainments . so going abroad , he conducted him to a garden , all enamelled with flowers , chequered all alongst according to their several colours ; and thereafter to an aviary , wherein grew many fragrant odoriferous trees , wherein birds of all nations , and of all colours , nested , and withall shadowed a walk , wherein one would hear their dissonant voices conspiring to make one melodious harmony , which seemed to be natures lute , and which shewed how hard it is for art to imitate dame natures perfection ; here monanthropus used every morning and evening to recreate both his ears and eyes , with variety both of notes and colours , contrariety here producing as pleasant effects , as it useth to produce unpleasant elsewhere : from this they went to a mount , whose ascent was facilitated by stairs of marble , and whose stairs was shaded with orange trees , budding continually , betwixt each two whereof stood a basin of marble , whence issued waters of divers colours , receiving their tinctures from minerals , purposly concealed ; upon the top of this mount stood a house of pleasure , gilded above , and all struck out in windows , the residue of the wall being strong cristal , whose reflections upon the gilding , did cast a curious lustre ; there stood a pair of organs , moved with a water-work , with which three cages of birds , made a melodious consort ; above this was a closet , repleat with mathematical engins , whence monanthropus observed all the heavenly motions : thence they were called to dinner , where at the entry of the palace they perceived a young pedant , who was seating a lady on horsback , and would needs have the gentleman who was in the saddle turn the right side of the horse ; for , said he , the noblest side should be given to a lady : but so it is that the right side is the noblest , ergo. this forced monanthropus against his inclination to laugh merrily . after dinner , monanthropus and megistus walked to the bibliothick , which was richly tapestred with books , each science having its own division , and the chief authors , drawn by a most exquisite pencil , standing above ; the floor paved with marble , cut out in the shapes of globes and spheres : they had scarce fetcht two or three turns here , when monanthropus ( whose melancholy hungred to be fed with the legend of megistus life ) smiling , said ; sir , it is somewhat unmannerly , yet most ordinary , amongst strangers to inquire after one anothers extraction , and the more it is concealed , the more our curiosity is set on edge ; men thinking every thing that is hid , like to the hidden minerals , which the deeper they are concealed in the bowels of the earth , are so much the more precious ; and man hunting happiness ( a prey which he shall never catch in this world ) and not finding it in what he knows , concludes that it lurks in that which is concealed from him ; and man concluding that each desires to reserve for himself what he finds most excellent , imagines that every thing which his neighbour conceals , must be excellent , because he reserves that for himself ; others enquire after mens secrets , because they dream , that once having known anothers secrets , they have the revealer at their devotion ; yet , sir , i hope , that as your generosity will not jealouse me , so your goodnesse will satisfie my enquiry . megistus who found it an obligation he owed to monanthropus's civilities , replyed thus : my lord , albeit my reason did at first , and my experience hath since , taught me the expediency of masking my condition , yet your favours have prevailed against both ; wherefore , sir , ye shall know that i am son to the king of ethiopia , and that whilst i lived at my fathers court , i began to reflect upon the great advantages that did accrue to princes by their travels ; for these are the mirrours wherein princes may see their own blemishes , which their own subjects may sometimes laugh at , but will never discover to them : as also the want of foreign languages ( which they learn in their travels ) obliges them to reveal to interpreters the most mysterious affairs of state , when they treat with strangers ambassadors , and makes them unfit to pry into their scope ; likewise their travels acquaints them with the humours and interests of other nations , wherin homebred princes are sometimes cheated , and often mistaken ; by these princes are obliged to moderate their passions , to inure themselves to hardship , and to converse with men of all conditions : another advantage they have likewise , which is , that by travelling whilest they are young , they conceal many imperfections , which , to their great losse , their youth would have discovered , if they had lived at home . these and many such considerations , prompted me to travel , and to disguise my name and birth , which , as it forced me to spend lesse , so it capacitated me to learn more than else i could have done . so having come over to athens , the general rendezvous of all great spirits , i did there meet philarites , whose fame and excellent qualities made me cull him out for my intimate comrade : but , sir , i will reserve this story for his own narration , that so he may have somewhat to gratifie your lordship with , his and my condition having robbed us of all other opportunities of doing your lordship the least pleasure . monanthropus glad of this discovery , but sorry for his former mistake , did intreat megistus to remember the apologie he had made the other day , whereat megistus smiling , said , that all the reparation of honour which he required , was his lordships secresie in a matter of such importance , and that he desired likewise , rather out of custom than out of fear , and desired that his lordsh. should not think it detracted from the confidence he placed on his ingenuity , seing the most intire , and the least jealous friends will desire the like , meerly to signifie that they look upon what is related as a thing wherein they desire secresie , which their friends would else take for matters of no such moment ; and withall he intreated , that his lordship would acquaint him with the true state of affairs , as they stood for the time in that nation wherin he now sojourned , seing intelligence was the soul of policy , by which it was animated , and without which statesmen could neither foresee nor shun inconveniences ; and of all intelligence that was to be preferred , which was had by one who had been an actor , as his lordship was ; to which monanthropus courteously replyed , your highness ( which title megistus conjured him not to make use of , lest by it he should be deciphered ) by your command compells me to do what none but ye could gain from me , for that discourse will reflect upon and detract from my native country , of whose honour i would be as tender as of my mothers ( for seing i am come out of its bowels , i do in a manner esteem it my mother ) as also my narration may seem to receive a false tincture from my discontentment , neither is it fit to make such relations to strangers , who may glean from it some of the hidden maximes of our state , the concealment of which would make the discourse seem empty , and would leave you , sir , ( seing i must term you so ) most unsatisfied ; yet seing that same providence which hath sent you thither , perswades me that it hath singled you out , as a physician to cure our maladies , i shall conceal none of our infirmities from you . wherefore , sir , ye shall know , that this kingdom , ( which is one of the first lodgings given to poor mortals by the immortal gods ) was governed alwayes by kings , and to abridge my story ( leaving to history what may be learned from it ) plistus , father to our present monarch , was a good , but a simple prince , whereof his nobles taking advantage , sought to settle the government really in their persons , that they might imploy the publick treasure , to repair the breaches which their profuse luxury had made in their private fortunes , and the power and honour of the state to satiate their unsatiable ambition : wherupon , first , six , and then moe , combined amongst themselves , and against their prince , which plistus , simple in other things , but witty in this , perceiving , became almost distracted with fear , yet providence diverted that blow , which doubtlesse else had murdered both him and his kingdom ; for mal●hus the mufty ( for so they call our high-priest ) convocating all the priests ( whose number the laziness and superstition of our nation hath made infinit ) to a solemn assembly , went and secretly proffered his service and assistance to his prince , whose hatred to the nobles , and whose fear of the event , had made him willing , not only to accept , but even to desire the aid of his subjects ; the king having first thanked , and then condescended to imbrace his proffer , they plotted the extirpation of the complotting noblemen , which was thus acted : the noblemen and the priests meeting in alexandria about the same time , malchus having taken an oath both of secresie and obedience from all of them , unfolded to them the complot of the noblemen , and how the king had none to confide in besides them , whose courage might make in one instant , their countrey and their king eternally happy ; he likewise shewed them proof of the noblemens treason , and of the kings pleasure : whereupon , all assenting , he went by way of procession , carrying the image of apollo streight to the lodging where the noblemen were assembled , where having seized upon them , and upon their papers , which had been shewn him by one of their secretaries , whom he had bribed , he was presently rescued by the king , who commanded the flocking people to retire home : the king in requitall of this courtesie , advanced presently malchus to be chancellour of the nation , wherein at first he evidenced both so much wit and moderation , as that the gods themselves seemed to be his cabinet counsel ; yet at last his ambition , which he had all this time keeped chained by prudence , did at last break prison , and he treated privately with some of the imprisoned nobles , to ransom themselves by marrying his neeces , which they willingly accorded to ; he likwise perswaded the king that it would blunt extreamly the edge of the peoples envie , and would strengthen extreamly the kingdom , whose noble parts the nobles were , and consequently whose weaknesse would weaken the body ; and that wise kings should be like wise physicians , who should never cut off a diseased member , if there be any hopes to cure it ; he sent abroad upon foreign imployments all the active spirits , fomented all the old jealousies , and created new betwixt the nobles , so that the king by curing himself of one disease ( as it hapneth in the usage of all nimious and vehement cures ) fell in another , as ( if not more ) dangerous , malchus , finding that one of his own countrymen was unfit to be his minion and successour after his death , did chuse one sophander a grecian ( who had been resident at the court for the athenian senate ) to be his favourite : for , he imagined that if he had chosen a nobleman of his own nation , he might have supplanted him ; and if he had chosen a base and low-born gentleman , his extraction being notorious to all the nation , might have rendred him despicable ; and a stranger uncertain of any assistance , behoved to rely upon him : besides , wanting both friends and foes in the nation , he would impartially without either connivance or revenge , execute all his commands . this fellow , became his creature ( and he might well be called so , because he made him of nothing a potent prince ) others alledged , that because the people did belch out so many injuries against malchus for his avarice ( making his private chests the publick treasure ) saying , that he was in the politick body , like the spleen in the natural , whose growth did proportionally occasion the leannesse of the other members : therefore he choosed this sophander ( whose avarice was his greatest , if not his only vice ) that they might after his death by collationing their lives , extoll his ambition by comparing it with his successours avarice . now all the court began to adore malchus in sophanders person , each one foreseeing that any imp , ingrafted on such a root , would one day flourish extreamly , and that its shadow should one day be able to shelter those who retired under it , from either the cold chilnesse of poverty , or the scorching flames of envie ; yea , the king himself caressed exceedingly this infant minion , but so cautiously as that he seemed rather to love him in obedience to malchus his desire , than out of any secret inclination to sophander , or aversion from malchus , albeit these two passions were really the legs whereon his passion did walk . thus malchus did by the hand of his pleasure sway the sceptor of soveraignity , his fancy being the sole and supream judge , even in matters of the greatest importance , from whose sentence the royal throne it self durst receive no appeal , and whose smiles were the greatest reward that the proudest egyptian durst pretend to ; the office of chancellour became too narrow an orb for this great planet to move in : wherefore , as an extraordinary person , he must have an extraordinary imployment , and must be advanced to be first minister of state , a title not understood by us , and never heard of by our ancestors , but which suited well with his ambition , both being boundless . none durst now dispute his power , seing none could pretend to know it ; and seing the king himself was , who could repine against the condition of a subject ? nothing was presented to him now , but what was confected with the sugar of flattery : not a word dropped from his mouth , but was instantly received in fames most sacred vessels ; and the most erroneous of his actions , were canonized as example for posterity ; yet fear ( the ordinary lacquey of greatness ) began to tell his conscience in the ear , that he was rather adored than loved , by those who even loved him best , which made him resolve by the news of his death , to try whether it was love or fear that made the humours of his compatriots so plyable ; in order to this design , feigning himself first sick , and then blazing abroad his death by the mouth of his physicians , did by the dissembled closure of his eyes , open the fond mouthes of the unwary courtiers , who were glad to find an occasion to vomit up that poysonous malice , which had even by its venom almost destroyed the vessels wherein it was keeped ; but the next morning the physicians told that his soul had but lurked in , and not fled from his apoplectick body , and he himself being recovered , did deal death most liberally amongst those who were so liberall of their characters of him , whilest they supposed that he was dead . yet at last death did show , that the armour of greatness was not proof against its darts , and did hurry him away , cursed by all , and lamented by none , the people supposing they had buried him and their miseries in one tomb , did now coin thousands of hopes in the mint-house of their expectation ; but their miseries which had begun to ebb by malchus death , did now begin to flow afresh by the succession of sophander , whom the queen ( fearing that the nobles who did not obey him who was both their countryman and their prince , would far lesse obey her , whose reign was but temporary , and whose sex was but fragile ) did after the death of her husband , who survived not long malchus , choose him for her confident . the young kings name served them for a rampart against all opposition , and his infancy made the uproars of her enemies be looked upon as a sin greater than treason , being committed both against the majesty of a king and the infancy of a childe , and rendred them criminal both as men , and subjects . yet this same innocency which made the opposers so guilty , did likewise give time and life to the far more heinous crimes of the defendants . sophander having got the tutory of the young king , acquainted him with all the pleasures which might alienate his mind from affairs of greater importance , but keeped him alwayes a stranger to the mysteries of state , as things which would certainly disquiet , and might possibly break his spirit : telling him , that it was too soon for him to have his crown lined with the black sables of care , and that he might in his youth commit some solicismes of state , which might for ever stain his royall repute : he likewise retarded his marriage , fearing lest anothers worthiness should fill the room , which he unworthily had gotten in his princes heart ; till at last , overpowered by necessity , he matched him with a neighbouring princess , whose pliable humour might rather be subservient than destructive to his greatness , i ( who had been promoted to be chancellour immediatly after malchus death ) became now the eye-sore of sophanders avarice , for he thought my charge void , because it was not filled with one of his partisans , who might at last like small rivers discharge themselves in the ocean of his treasures : whereupon i , who scorned like those other asses , to carry gold to his bottomless coffers , did resolve rather to shelter my self in the sanctuary of a private life , than to bow the top-sail of my integrity to the flag of his ambition ; wherefore i retired to this place and condition , which i have alwayes since found a harbour able to shelter me from the most violent storms of pride and avarice , wherewith those are shattered , who sail in the ocean of court-luxury . this discourse did extreamly satisfie megistus judgment , and kindle his courage , and monanthropus perceiving the coals of his courage once kindled , did by the bellows of wit and occasion , endeavour to adde heat to excite the flames which he found already kindled ; and it was resolved at last that eudoxa the elder of these two ladies should go to alexandria , where she should stay till by bonaria's intercession ( so was monanthropus lady called ) she might be admitted to be one of agapeta ( the kings daughters ) ladies of honour , where she might be serviceable to their designs , and a stirrup wherby megistus might the more easily mount the saddle of preferment . let us now return to visit philarites , whose love had plunged him in the ditch of melancholly irrecoverably , who loved nothing in himself except the love he carried to aretina , whose good fortune he notwithstanding cursed a thousand times , because it had placed her above the reach of his courtesies , the skilfull pencile of his passion did draw aretina's portracture upon every object that presented it self to his sight ; and his noble heart , which was formerly mars his shop wherein he forged thousands of heroick thoughts , became now an altar whereon he sacrificed daily his dearest faculties to his lovely aretina , his reason , which had still been the steersman in all his former courses , did in this tempest of melancholy abandon its charge , presumption assured him , that providence and foresight in this case , were but cowardishness ; for , how could one of his courage , especially engaged in such a quarrel , fear armies of inconveniences ? on the contrary , fear assured him that his hopes were meer presumption ; for , how could the divine aretina be merited by a stranger , destitute of friends and attenders ? and how could he think that she who knew the value of every thing , would bestow her self upon one who did not merit her ? thus passion warred against passion , but all of them conspired against philarites , who , deserted by reason , and assaulted by passion , was brought to so low a passe , as that neither the skill of the physician was able to recruit his body , nor the perswasions of megistus able to settle his confused spirits . but that which afflicted him most , was , that occasion never propined him with an opportunity of meeting with aretina all alone , till at last occasion repenting of the severity it had used against him , brought at last bonaria and aretina to his chamber , whom charity had invited thither to assist by their skill and care his natural strength , which was not able for to combate all alone these troups of diseases which did daily attaque him . bonaria , being instantly called away , left a fair field for his passion to expatiate it self in philarites , who intended to be very frugal of his time , insisted thus . divine aretina , the least sparkle of your acquaintance is able not only to thaw the ice of indifferency , but even to kindle the flames of love in a colder breast than mine . but , madam , the great disproportion betwixt your merit and my naughtiness , obliges me to smother my affection , and yet i know that in smothering it , i shall murther a person who might otherwise live to do you service : my death shall be honourable , if i be not buried in the tomb of your disdain , and yet my life ( being imployed in your service ) might bud forth in something worthy of your and the worlds noticing : but as for me , i esteem it not , if i receive it not as a donative from your clemency . fair lady , i shall alwayes esteem my self more or lesse fortunate , accordingly as ye frown or smile upon me , and your thoughts are the only stars whereby my horoscope may be casten . he stopped here , perceiving that aretina had covered her face with a blush , and fearing to offend her whom he so much adored , he patiently waited for this answer . noble philarites , i know that such gallants as you , use , like skilfull comedians , to act still at home those personages which they are to represent publickly upon the stage ; wherefore i am confident that ye are inuring your self with such a country-maid as i am , to those civilities and court-modes , which the ladies at courts will expect from you , i know your wit sports it self by such genty recreations ; and seing it may accomplish your spirit , i pardon you f●eely . she spoke this with so charming a grace , and with so much indifferency , as that neither philarites fear , or hope , were able to glean any thing from it ; at last , rising to bid him adieu , she let a scarlet ribband fall , which philarites secretly ( fearing to be perceived , and being perceived to be frustrated ) snatcht up immediately , and kept alwayes afterwards as the paladium of his good fortune . after two or three weeks were thus spent , philarites came abroad , rather seeking an opportunity to entertain aretina , than out of a desire to meliorat his health , and whilest they were walking after dinner in the next adjacent garden , where all the knights and ladies had gone to seek the arbours protection against the heat of the sun , they perceived a gentleman , who in all humility presented monanthropus with letters from sophander , entreating his lady and daughters presence at his neeces nuptials , who was to be espoused to the prince of goshan . monanthropus alledged indisposition of health for himself , but promised that his lady and daughter should wait upon his eminence , and his neece . telling him that he was sorry that the distance was not greater , and the solemnity lesse , that their obedience to his eminencies commands might the better appear . the gentleman told him , that seing that complement could hardly be requited by sophander himself , it were vanity in him to endeavour an answer . the next morning the ladies , accompanied by the unknown knights , did by coach begin their journey to alexandria , and it was almost hard to tell , whether megistus grief in leaving monanthropus , or philarites joy in accompanying aretina was greatest . the day being fair at their departure , continued not long so , for the heavens willing to cause the earth drink healths to their bon-voyage , did by impetuous showers send it water enough to drink : the sky , which intended to look chearfully at eliza's nuptials , did by wind and rain purge it self of all its malignant humours ; heavens bottles having at last emptied themselves by these furious showers , the sky did cover its face by a vail of mist , whereby the coachmans horizon was abridged to the length of two or three paces at most , providence intending by the hand of this darknesse , to lead them out of that naturall darknesse wherein their ignorance had enveloped them ; and now the coachman did flie fast from the angry face of heaven , but the faster he drove the m●re he strayed ; which he never perceived , till time had dissipated the mist , and then both he , and the other attenders , found themselves in a forrest , where they saw no path nor person to direct them what rout to take : at last the ladies and knights , who were walking on foot , ( megistus birth having allowed him bonaria's hand , leaving aretina to now happy philarites ) they perceived an old hermite , who appeared to have borrowed times beard to cover his wrinkled face and naked breast , who did accost them thus ▪ ladies , it appears that rather errour than intention , hath drawn you hither . the ladies granted it was so , but told him that they thought themselves most fortunate , in having erred , seing their errour had occasioned such a remarkable rancounter , wherefore they entreated to know his aboade , and the occasion of his solitude . i am , said he , an hebrew , who have refuged my self from being a sad witness of the deplorable condition of my country , whose miseries are mine by adoption . i live here in a rock , wherein there is nothing worthy of observation . the ladies entreated they might see it ; for , sure ( said they ) there is nothing worthy of your choice which is not worthy of our observation . seeing their eagerness , and coveting an opportunity to confer with him , he conducted them to a rock , elevate somewhat above the circumjacent valley : where nature had been the only architecture , yet so handsomly arched and pended , that it might have passed for one of arts master-pieces ; within there stood a table , whereon were some old volumns , and some of his own manuscripts ; over it hung some walnut and fig-trees , which were his only granaries , and which reached him his food in at his window : two steps below the entry without , was a spring of christal water ; where the rock seemed to gush out tears because it could not afford him better liquor : the neighbouring trees seemed to lay their heads together , to skreen his open windows from the scorching heat , and the weary wildernesse seemed by his dwelling there , to be an house of pleasure . when they were entered and had seated themselves to recreate their wearinesse , and admire his garb and gravity , he began to usher his discourse by some tears ( by whose continual streams it appeared he had formerly whitened his snow-white beard ) he seconded his tears with this ensuing discourse , in obedience to the ladies , who desired to be satisfied anent the occasion of his solitude . madam , the omnipotent and omniscient god ( for i acknowledge but one ; for , if there be any god , he must be infinite , and if infinite , he must be one ; for , there cannot be moe infinites than one : for else , the one is not infinite , seing he wanteth the perfections of his fellows , and so something may be added to his perfection . and the diversity of your gods , shewes not the plurality of the gods , but denoteth only the diversity of the true god his attributes : for , he is wife , and his wisdom is represented by your apollo ; he is most irresistible , which is figured to you by your god mars , &c. ) i say , the omnipotent god hath created innumerable creatures , whose greatest use is meerly to shew the power of their creator ; and in every creature there is a masse of mysteries , and each of them is a volumn too large to be read during a mans whole life : wherefore seing the court and conversation sealeth that book , and trifles away the time , i should and might bestow upon it , i resolved to divorce my self from these adulterating imployments , and retire my self to solitude , which is a hall , wherein through the prospect of meditation , a man may see a compleat muster of all god's creatures ; and seing it affordeth a man opportunities to converse with the eternal god , i think it much preferable to the world wherein ye converse most ( if not only ) with poor mortals , from whom nothing is to be learned , and with whom much may be lost ; as also the loud cryes of worldly pleasures will not suffer a man to hear the language of an offended conscience ; and the world being sins element , sins seem not heavy whilest one is there , no more than the above-running waters burthens the swimming fishes : there men are affrighted by poverty , and distracted by ambition ( which albeit it be alwayes mounting , yet shall never climb to heaven ) every age seems a season wherein grows a distinct crop of vices ; in infancy , ignorance ; in youth , love and vanity ; in middle-age , ambition , revenge , and prodigality ; in old age , jealousie , dotage , and avarice : yea , the vertues themselves which are to be found there , cannot stand upon their own legs , except they be underpropped by some vice or other ; if one love his friend , he will think nothing sin which may gratifie him , and another must maintain his liberality by the oppression of his subjects and servants . but these vices will not lodge with those who lodge in wildernesses , because they find themselves starved by the indigency of their landlords , and barrennesse of the soil . but , madam , these two skulls , which lye upon my table ( the one whereof is that of alexanders , and the other plato's ) albeit they be dumb to others , yet they preach to me the vanity of all things under the sun , and as skilfull anatomists , discover to me the sillinesse of crawling man ; their skuls shewn so appositly , did wring tears from the eyes of the beholders , neither did the hermite now weep alone , and his tears seemed to be like a little water imployed by the mariners to pump up a far greater quantity . only philarites ( whose breast was so repleat with other meditations , that there was no room left for such celestiall contemplations ) did shed only some few , meerly to accompany those which came in rivers from aretina's eyes . whilest they were thus drowning the hermites cave with their plentifull tears , the rude coachman told them , that albeit they were staying there , yet the sun would not stay for them , and therefore intreated their hast . at which the ladies starting up , they were by the hermite conducted to their coach , whence shewing them the way to alexandria he returned , promising to sacrifice hundreds of prayers for their erring souls . when he was gone , philarites beholding aretina , said , he thought her fair face , mantled with such incomparable colours and charms , did speak as loudly mans excellencie , as the ugliest of those skuls spoke his infirmity . alas , said bonaria , fourty years hence the disproportion will not be great , when all these colours shall be hidden in the wrinkles of an old face , and when the frost of age shall have nipped all these flourishes , and the cold wind of time shall have blown away these blossoms which now appear . certainly , said philarites , the soul must be an excellent creature , which , as the sun , produceth imaginary colours in optick prismes and doves necks , so it in a more noble way doth produce really those admirable colours which appeareth in that and other excellent faces ; neither can it be thought a disparagement to the soul , that it suffereth these to fade in age , seing in exchange of these it bestoweth upon the body then the real advantages of prudence and experience ; which cannot be said to be the least worth , because they are the least beautifull : no more than the autumn can be called the worst season , because in lieu of the springs flourishes , it bestows upon us the real fruits which have been knotted in it : and , no doubt , the soul must be a noble artist , which makes all these veins , muscles , nerves , and noble parts of mans body move so regularly , whose number and varity , albeit they shew the excellency of our fabrick , yet do infallibly occasion our weaknesse ; for any one of these many parts can lodge death with all its train : and the finger , or toe , albeit they are most of all others , remote from the heart , yet can they deliver up that citadel of life , the heart , into the hands of death its mortal enemy . sure , said aretina , seing the body is in it self so frail , they are much to blame who are so enamoured with these colours which are so fading . i am confident , replyed philarites , that none is so mad as to become enamoured of the body in any other sence , but meerly as it is the shell wherein such a rare pearl as the soul is keeped , and as many love the son , because he is son to such a father ; even so many love these colours , and that vivacity whereof it can only brag , as they are the effects of the within residing soul ; and to confirm us in this , we may conceive that no man is so distracted , as to love that which cannot requite his love nor be sensible of it , and consequently seing it is not the body which is sensible , or which requites love , we may conclude that it is not the body , but the soul , which men dote so much upon ( if true vertue may be called dotage ) and both history and experience tels us , that men have continued to love those whose beautie had thereafter been murdered by accidents . philarites was by this discourse so lulled over in an extasie of pleasure , as that he became insensible what pleasure was ; or , as it happeneth in all other pleasures , the fear of its short continuance , made him dissatisfied with the present enjoyment ; and albeit he called oft to the coachman to drive slowly , alledging that the nimious motion of the coach troubled the ladies delicate complexions , yet in spight of his wishes , and of the bribed coachmans obedience , they arrived at alexandria sooner than either he wished or expected . the ladies retired to their own lodgings , which were still furnished , expecting them , but the knights lodged as near as convenience could suffer them . after supper came eudoxa , masked , to wait upon the ladies ( for she had been now a fortnight at court ) and acquainted them how all things went there . the next morning the knights went to wait upon sophander , and finding his secretary in the outer court , they entreated him to shew his eminency that there were two strangers who desired to kiss his hands . sophander concluding that either they had some notable businesse to impart to him , or else , that they were men of extraordinary extracts or endowments ( which is the happy lot of all confident persons ) else they durst not so confidently address themselves to one of his quality and humour , desired they might advance . philarites , after mutual salutations , harrangued him after this manner . eminent sir , fame , who in obedience to the gods decree , hath trumpeted your praises in all nations , especially in ours ; hath invited ▪ us to come and serve the apprentisage of our youth , under the eye of such an expert artist in all humane policy , as your eminency is ; wherefore , sir , seing ye are the tutelary angel of all other strangers , we expect a share in your protection as well as others , and our lives shall still be stages , whereon we shall act the personages of your humble servants . sophander , who had by their equipage perswaded himself of their extraordinary birth , and by their discourse did discover the promptnesse of their spirits , did caress them as persons capable and worthy of the highest imployments , and proffered not only his protection , but even his service to them . the knights intreated that he might path a way for them to the kings presence , and that their first appearance might be under his conduct ; which he soon accorded to , desiring them to accompany him , who was then going to salute his majesty , and to go a hunting with him . sophander asked their names and extractions ; but they craved him pardon for their disobedience in that particular , seing their disobedience might capacitate them the more to do his eminency service ; they went thus discoursing till they entered a garden where the king was , seeing his huntsman prepare all things for his majesties sport . at sophander's entrance , each strove who might appear most submissive , and a stranger would scarce have known which of the two was the king ; and nature seemed to have given each courtier two eyes , that he might by them observe both their motions , and two ears , to receive both their commands . sophander presented the two knights to his majesty , whose noble deportments , albeit they had not been presented by sophander , and whose being presented by him , albeit they had not been of so majestick a deportment , was sufficient to recommend them highly to the kings eye , but both being joyned , made him confer double respect upon them . megistus seemed the more martial , but philarites the more courtly , yet so , as that neither megistus warlikeness wanted courtiness , nor philarites courtiness somewhat of a martial behaviour ; and as , if philarites had not been present , megistus would have seemed the most courtly gentleman that eye could have lookt upon ; so , if megistus had not been present , 〈◊〉 would have thought philarites the most warlike gallant that nature could have framed . megistus was the more learned , but philarites was the more eloquent ; yet so , as megistus learning supplyed his small want of eloquence , and philarites eloquence made his inequality in learning with megistus undiscernable . thus nature seemed to teach mortals that she could cast perfection in severall moulds , and that her grammar did admit two superlatives . megistus , whose vice it was to be master-speaker ( for they did all things by vices ) after he and philarites both had kist his majesties hands upon their knees , spoke thus : sir , it is not to be admired why we come , but it is rather to be admired why all the gallants in the world come not to spend their best years in your majesties court , which is incomparably the best of places ; we are come , sir , to list our selves amongst your majesties servants ; not that we are so vain as to think that your majesty needs such servants , but because we stand in need of such a soveraign as your majesty , and of such breeding as your court can afford us ; suffer us , like young plants , to grow under the sunshine of your protection , and challenge the fruits when they come to maturity , as properly due to none but to your majesty . this discou●se delivered so accomplishedly , made all the hearers imagine that the speaker was surely mercury , come there to make parade of his eloquence ; and as their deportment , so their personages and equipage made them very conspicuous . megistus was cloathed in black , which was a pure scarlet dyed black ( and seemed to be as if a black curle had been drawn over a cloath of gold ) richly embroidered ; he carried on his cloak a crescent of diamonds , on his hat he carried a hatband of the same fashion , whose beams were reflected by a plummach of black feathers . philarites was cloathed in white , his cloak doubled with mertricks furres , and all richly embroidered with gold and scarlet , carrying a plummach of white feathers , tipped with scarlet . that week seemed to post away , that it might make way for the next , wherein the nuptials were to be celebrated ; and albeit all the three days seemed to run in one , yet the bridegroom was sorry that phebus coachman might not be bribed to drive faster ; desire , like all other bodies , moving the faster the nearer it approacheth its center . at last came that week and day so much longed-for , whose bright morning ominated happinesse to the longing couple . at ten a clock appeared the bride , walking betwixt agapeta and aretina , who were the two poles of beauty whereon the sphear of love moved : after them followed a company of beautifull virgins , all wearing the brides livery , which was white satin , enclining as it were to change its colour , and which appeared , when motion raised its pyle , that it hovered whether it should appear white or not . as they passed alongst a green alley , to go to apollo's stately temple , there stood mount parnassus beautified with grasse and flowers ; its top was encircled by nine ladies , each wherof represented one of the nine muses , and who mingling their voices with the notes of their harmonious , though different instruments , did make the hearers stand motionless , the spirits which formerly moved their other members , having then run all to their ears to recreat themselves with the sweetnesse of that charming musick ; the whole mount lurked a while in the clouds of smoak , which the burning myrrhe , cinamon and frankincense spred over it , which at last evanishing , shewed the by-standers mercury , who stood upon the top of the mount , and making a low reverence , delivered thus to the bride his eloquent commission . if any of the gods had been unmatcht , no mortal man should suc● a prey have catc●t , as fair eliza , with whom venus fair , is willing loves soveraignity to share , and that in heaven , she shall loves scepter sway , whilst earths great globe , eliza , doth obey . a● her command , her scepter here i break , whereof one half your snow-white hand must take . the bride surprized with joy , and joying in the surprisal , took the one half which mercury had proffered her , and marched to the temple , followed by the bridegroom , walking betwixt megestus and philarites , whom sophander had placed there , both to gratifie them , and to obviate the contests which precedency might have occasioned amongst the native nobles ; the churches were so richly decked as if the gods had lent all heavens furniture to decore their altars , and the magnificence of each thing was such as if mars and venus had been the persons to be married . after dinner the gentlemen ( whose courage seemed to them rusted whilst they rested ) invited one another ( albeit none of them needed any invitation besides what they got from the mouth of honour ) to ride at a small ring , which was presented by the bride ; all rode , but all had neither the same skill nor successe : for as the address and skill of some made the ring seem greater to them than it was , so the lourdnesse of others represented it to them lesse than really it was ; but whilst they were thus busied , a gentleman , ushered by two trumpets , diverted the kings eye from being longer the arbiter of these martial games , who presented him with a paper , sent by his master the knight of mars , which was read by the gentleman ( to whom the king indulged that favour ) and repeated by an herald , whose tenour was as followeth . gentlemen , when i perceived venus altars so much frequented , and the grasse growing about the altar of mars , i could not but count this amongst the other fits of the worlds dotage ; neither need mortals dispute any longer the preference betwixt love and courage , seing the gods themselves had determined it : for they , by chusing a man to be god of courage , and a woman only to be god of love , have in a mystical way shewn us , that courage is as much to be preferred to love , as man in excellency surpasseth woman ; but if divinity cannot perswade you , consult moral philosophy , and it will tell you , that courage is captain of vertues life-guard : for , who durst be just without courage ? and without courage what a silly thing were love ? which behoved to lye hidden in the womb of a lovers brain , if courage as a skilfull midwife , helped not to bring it to the world ? as also all vertues must be voluntary ( for if they were not voluntary , they were not vertues ) and consequently the more voluntary they be , they must be the greater vertues ; whence it follows , that seing nothing is so voluntary as courage ( yea , courage cannot be constrained ) and that love is oft necessitated either by the irresistiblenesse of the object , or the weaknesse of the lover , that courage is the more preferable vertue . and how many miserable creatures are there who would willingly 〈◊〉 love , as a guest who neither carrieth respect , nor bringeth advantage to his tortured host , so seing they would willingly be rid of it , surely it must be in it self an act altogether involuntary . likewise we see , that seing every good is diffusive of it self ; surely the more diffusive a vertue is , it must be esteemed so much the more ; and of all vertues , courage extends it self to the advantage of most ( nothing being either atchieved or accomplished without it ) and of all vertues , love extends it self to fewest ; that being the purest love which is fixt upon one , and the purest courage which defends all . but if philosophy cannot perswade , consult policy , whereof courage is the darling , being the army of common-wealths , and the walls of cities ; but albeit love hath been oft their bane , yet it was never their protector . but if neither of these can perswade , then let him who is dissatisfied appear to morrow , where my sword shall prove what neither of these can , and let him remember , that if none appear , courage shall be declared conquerour ; and if any appear , yet courage must still triumph above love , to whom it must owe its defence . after this cartel was read , the herald affixt copies of it upon the palace gates , and upon a brazen pillar , purposly fixt in the royal barriere , or lists , where ( as the form was amongst the ancients ) he hung up the knight of mars his shield , which those who were to fight on hors-back were to touch on the left side , and those who were to fight on foot ( which was reputed the noblest way , as being subject to fewest accidents ) behoved to touch on the right side , whence sprang the fashion of carrying shields pendants , so much used in their times ; he who triumphed after a ridden combat , carrying his shield thereafter hung by the left corner ; and he who triumphed on foot , carrying his shield hung by the corner dextre . megistus smiling at the challenge , asked philarites , if ever he heard any thing in athens proven by a sword ? no truly , replyed the other , except by argumentum in caesare , or argumentum ad hominem , be meaned that manner of probation . megistus and philarites , who never strove formerly , did now strive who should accept the challenge , which controversie was at last , by the throw of a dye , decided in megistus favours ; whereupon he took pen and ink , and returned the gentleman this answer . martial knight , love might have been said never to have erred , if it had not contributed to thy birth , who now like an ungrateful son spittest in the face of thy peerless parent . why fightest thou in defence of courage ? is it not because thou lovest it ? and if so , thou can do nothing in defence of courage but what love commands thee to do , whereby thou shewest that courage is but the arm , and love the head , and so love is as far preferable to courage as the head is to the arm , or the master to the slave ; before the immortal gods created the world , they loved one another , but courage was not then exerced by them , neither could it be : for where there were no wrongs , no miseries , there neither could nor can be courage , courage being bestowed upon mortals either to punish wrongs , or endure miseries ; and since the world was created , how should the gods be adored if they were not loved ? if love were much imployed , there would be no wrongs , no miseries , and so there should be no need of courage ; and the blessed souls shall no wayes stand in need of it , and yet shall be perfect : which demonstrates that courage in it self is no perfection . but , sir , seing ye have no love , ye can have little reason . wherefore , albeit i love extreamly , i do not , notwithstanding , love to blot paper idely , in perswading those who are incapable of perswasion ; but shall to morrow appear at the place appointed , and ( to retort your epilogue ) if ye appear not , love shall triumph ; and if ye appear , it is because ye love to defend courage , and so courage owes its defence to love. this answer was delivered to the gentleman , who delivered it to his master ; and albeit every person at court longed to see the event , yet their love to megistus made them fear to see even what they so much desired , whose generous carriage had bragaded them all on his side . the next morning philarites came to gird on megistus armour , and at the time appointed the martial knight ( who waited his hour ) appeared in the lists of honour , which was a large and plain valley , a great part whereof was in the middle pallizaded with stoups of cipres timber all gilded ( as was the custom of old ) shewing to the world an emblem of what they were appointed for , which was to be a field where death was gilded with the specious pretext of honour and valour : within was a tribunal erected for the judges , upon whose footstool did sit two heralds , holding in their hands two swords crowned , and besides whom stood two trumpets , from whom the signal was to be expected , and by whom the conquerour was to be conducted home in triumph : without , were seats for the ladies , under whom were ranged the noblemen and knights , in the midst of whom sat the king , under a pale of state , with a crown lying upon his cushion , wherwith the conquerour was to be honoured , which , to differe●ce it from the kings own crown , was surmounted by a lyon rampant , holding in his fist a sword erected . after him entered ( as the mode was ) the party challenged , who at his entry touched the point sinistre of the challenger's sword , which hung upon the pillar , telling him in that language of formality , that he was to fight on hors-back . the knight of mars was mounted on a white horse , whose flanks were stained with red spots , as if they had been dyed with the drops of bloud which seemed to trickle down from the wounds , which an exquisite pencile had made upon his armour , whereon was represented a wounded knight , crowned with lawrels . the bosses of his bridle were two little cupids , in whose faces his martial horse seemed to spit his frothy foam ; his shield was decored with this device , cupid throwing a dart at mars , which his hand meeting on the way , did break in pieces ; his motto was , not love , bvt weaknes conqvereth . megistus armour was all white , spangled here and there with bleeding hearts ; his shield for its device carried paris giving the golden apple to venus ; the word was , to the fairest . whilst they waited for the signal , the horses did dance to the musick of their own courage , and by champing on their own bits , seemed angry that their masters would not suffer them to decide the quarrel . the trumpets at last summoning the riders to begin their carreirs , their horses , who whilst they stood were damming up their speed , opening now the sluce , did by a speat of speed carry their masters to a longed-for rencounter , where the lances pressed forwards by their masters strength , and pressed backwards by their enemies resistance , did , like weak boats , split in this co●ntertide of courage and resistance , resolving rather to break than to be dyed with the valourous and innocent bloud of such incomparable combitants . the knights finding themselves deserted by their lances , sought assistance from their swords , which had formerly been grave●makers to so many valourous knights . thus fortune ( thinking she had done the martial knight honour enough in enabling him to resist so long ) inclined to favour megistus , importuned thereto by the suits of all the bystanders , who would have surely have favoured the martial knight , because of his singular courage , if he had been fighting against any else than against megistus , and in any other quarrel than that wherein he was then engaged , the ladies eying him as an enemy to their sex ; and the gentlemen hating him as an enemy to the ladies . whilst they were trying how to conquer , the martiall knight thinking that not to overcome instantly , was to be overcome shamefully , lifted up his arm as if he had been sending it to bring fresh assistance from his patron mars , ( which posture , albeit it was against the rules of the art , yet he thought megistus tottering condition might licentiate him to use , hoping to remit himself in his old posture , before megistus regained his saddle ) intended to separate at one blow megistus from his saddle , and his soul from his body , but he was mistaken ; for megistus vaulting aside , suffered not the sword to fall upon his , but upon disappointments shoulders ; but that was not the only inconvenience of that artless stroke : for the strength imployed being great , and the disappointment yet greater , he had almost been dragged by it out of his saddle , and had almost by his sword cut the earth , seing he could meet with nothing nearer to resist him ; like a dog , who bites the stone , because he cannot meet with the caster ; which megistus perceiving , and unwilling to slight such an opportunity ( called by some masters of that art , a tempo ) did by a contertemps blow send him posting to the earth , to which he formerly enclined , but irresolvedly ; yet albeit he fell , his courage fell not with him , for , in falling , he struck off one of megistus's horse legs , who not being accustomed to stand upon three feet , fell upon his knees , as if he craved him pardon for the afront his master had done him : the martial knight like a ball rebounding by the same strength that threw it to the earth , bolted up immediately . megistus , who had rid himself of his stirrups , did the like , and now they coaped so furiously as that what formerly they had done , seemed , in respect of what they were now doing , to be but like those essay thrusts , which learners along in a fencing-school before they put themselves in a posture , and seemed to be but the earnest-peny of that great bargain they were now making : at last the martial knight , considering that the bloud which he spent in opposing megistus , would be better imployed if spent in his quarrel , recoyling three steps , called to the judges , that , for any thing he knew , it was the god mars against whom he was fighting , and so , to atone his guilt , he was willing to break his sacrilegious sword , this merry conceit shewed a quaint wit in him , in whom they had spied a strong courage formerly ; and now both of them , throwing away their swords , did imbrace each other , wrestling as it were who should be kindest . the judge asked how the crown should be bestowed ? give me it , said the martial knight , and i will place it on the head of this deserving gentleman . megistus refused it , and said , that his friendship was too great a prize to remunerate so small a victory . thus the king and court returned home , expecting with a long desire the afternoons tilting . after dinner , the king , court and judges being placed in their respective places , as formerly . the first who entered these lists of death , was a knight who seemed dead already : his armour was all black , and made him appear to be deaths armour-bearer : his horse , whose counter was suitable to his masters armour , seemed by his prancing to cut up a grave for his dead master ; he was discerned at last to be the valiant terez , who fought in honour of the deceased lady tina , once his dear mistris ; he told the judges he came there , to beg a pasport from some noble hand to post to heaven after her ; where seing he resolved to go , he intended to go in the chariot of honour . the judges at first intended to deny him preference , telling him , that as life , according to the course of nature , preceded death ; so in the course of justice , lifes champions were to be preferred . at which answer , the black knight showed some dissatisfaction : yet the judges considering that the bloud royal ( whereof terez was one ) were exempted by their birth , from such trifling ceremonies , and judging it an inhumane act to adde affliction to the afflicted , resolved to authorize his appearance . he carried in his shield a turtle dove , sitting upon a leafless oak ; his motto was , only one . against him appeared two or three knights successively , who being vanquished , served as steps whereby terez might the more easily mount fames theater : at last appeared one knight , whom the sun had withered , and seemed to resemble one of those dead bodies whom the egyptian mummie had preserved hundreds of years ; his shield was beautified with a dying-man , all withered except one hand , wherein he carried a scarlet ribbon : the motto was , love worketh contraries ; meaning , that it could make a fresh body become withered , and a withered hand become fresh ; this was philarites , and that was aretina's ribbon ; the bosses of his bridle were two lilly roots , whose leafless stalks served for the reigns . these two seemed rather to court , than shun death ; and the desire they had to k●ll one another , seemed not to proceed from any desires they had to live ( for providence could inflict no greater punishment as life upon them ) but rather , because they desired to have one anothers company in the other world : thus they spent many blows , and shed more bloud than the by-standers imagined their bodies were masters of . aretina was told by philarites heart ( which he had depositated in her custody ) that the combatant who wore the scarlet ribbon , was philarites , and that she was the sun , by whose beams his lovely body had become so parched : whereat she blushed , or rather her bloud , desiring to be judge and witnesse of philarites courage , came to her cheeks , to try if thence they might descry that noble courage , which it heard all the spectators so much extoll : but philarites beholding aretina ( as if her face had been an arsenal from which he was to expect new armour ) did by an irresistible stroak , kill that heart , which grief had formerly so sore wounded ; being thrown thus to the ground , he threw up his eyes to heaven as if his soul intended from thence to take its flight to paradise . philarites running to him , did by his tears wash those bleeding wounds which his sword had formerly opened , to whom the black knight gave a diamond ring , as a memorial of his true respect , which he had after that same manner received from pilades ( aretina's dear cousin and friend ) whom he had killed the year preceding in combat . many regrated his losse , and a witty gentleman at court dressed him this epitaph . it seems the gods to flit from earth intend , seing their best furniture away they send from this our globe , here in a coffine , fame interred lyes embalm'd by terez name . let mortals then rear him a tomb of tears , whilst their sad hearts a double mourning wears . after supper , whilest terez ghosts were troubling all their quiet , there entred a fellow , who told his majesty that he was to shew him a monster . the king desired he might present it upon a stage , whereon the commedians used to act , that it might be easily discerned , and the whole court the better satisfied . whereupon the fellow mounting the stage , and removing the sheet that covered his promised monster , there appeared an old fellow , with a pair of large harts horns ; at which a merry gentlewoman snuffing , said , a strange monster forsooth , whereof i have such another lying in my bed at home . the fellow having viewed him on all quarters , did thus begin his description . this acteon , is by his kind wife called her hart , and he is so ; for she hath made him so . he came to the world when capricornus presided amongst the celestial signs , at which time he received the name of cornelius ; the man in the moon was gossip , who , as a donative , bestowed upon him the fair cap which he now wears , which his wife fearing he should lose , hath borrowed needls from her kind neighbours to sow it on faster ; and where-ever he enters ( such is her pride ) that she will have five or six to follow him : at last , she did not fancy the name of cornelius tacitus ( saying that it was not famous ) but she would needs have him called cornelius publicus ( he being the publican , and she the sinner ) she having one day offended him ( as young women do oft old men ) he called her whore ; and she , fearing that neighbours might thereafter upbraid him with the name of a lyar , hired some pretty gentlemen , who were her acquaintances , to vindicat his name from that aspersion ; whereat the good old man ( finding that he was mistaken ) did , like the snails when they are angry , shoot out his horns . this description ended , they went all to bed , and with that day they ended the solemnity of these nuptials . the second book . forgetfulnesse did now begin to claim soveraignity over what past , and the pleasures of that famous solemnity , which had not long since been in its flourish , was now in the fall of its leaf ; and every man returned to his former imployment , sorry that pleasure , which had only shewn them a glimpse of the face , should have passed by so quickly ; and they resembled now poor gally-slaves , who after some short recreation , are called back to their former oars . but philarites , besides the common melancholy wherein he shared with others , had likewise a private stock of his displeasure , wherewith his melancholy soul traded continually : for , nothing pleased him , seing he could not please aretina : his dayes seemed nights , because not illuminated by the sunshine of her smiles ; and his nights seemed death , because not quickned by hopefull thoughts : and fearing that bonaria should bring home her daughter with her , he entreated eudoxa to cause agapeta intercede for her stay at court , which agapeta did , and prevailed so , that bonaria returning home left aretina with the princess . whilest all others went abroad to hunt , philarites stayed at home , hunting occasions to meet aretina , but all in vain ; for agapeta ( whom vertue had glued to aretina ) thought alwayes she wanted company when she wanted aretina ; yet , one afternoon aretina's waiting-mai● ( with whom he kept constant correspondency , and whom his generous carriage , and rich donatives , had gained ) acquainted him , that she was to stay at home retiredly till six a clock ; for she had alwayes endeavoured , since the last combat , to wash by her wishes that tauney colour , which the armour and device represented , and was divesting her self of that indifferency towards philarites which she had used formerly , weighing all his qualities in the ballance of love ( which would have proven weighty enough even in the ballance of truth ) and his very fame ( which is but naturally a thing very light ) appeared heavie here . whilest she was curiously recapitulating to her self all his endowments , philarites enters the hall , asking if aretina was quiet ? she finding her mind in disorder , and accusing her very thoughts , as if they had divulged her secrets to philarites , ( for none knew them but they ) resolved not to admit him , yet that resolution was presently re-called by a second , which condemned the first of unmannerlinesse ; whereupon she desired that he might advance : for love perswaded her , that the gods , who were his favourites , and are mortals privie-counsellours , had inspired him to choose so favourable an opportunity . philarites , at his entry , making a low reverence ( as if he would have kist the ground , because she had once trod upon it ) said , madam , i fear that as i am fortunate in finding you solitary , so i am unfortunate in having an opportunity to disquiet your solitarinesse , but my obedience in retiring , if commanded , shall testifie that my errour streamed from ignorance . sir , ( replied aretina ) your company would be preferred by the finest wits at court to any else , and why should i refuse to accept that favour which better than i would entreat for . philarites being seated in a chair near aretina , did , like a ship newly entred the harbour , discharge a volley of sighs ; but his spirits , who had retired to assist his heart presently wounded by a dart , short from aretina's eye , had left his tongue frozen by the cold chilnesse of fear ; yet she perceiving by what he had spoken formerly what he would have spoken now , ( her cunning supplied his dumbnesse ) to enter him in some discourse , and fearing he should enter upon that subject , asked what newes were currant at court ? philarites lifting his dejected eyes , said , madam , why should one who hath no interest in the world , such as i am , ask what the world is doing ? truly , said aretina , if ye have as much interest in the world , as ye have courage to astonish the world , or had as much need of the world , as it hath of you , i am confident your interest would cede to none . since my courage cannot he serviceable to you , madam , ( replied philarites ) i value it not ; or , at least , since you will not imploy it , for i shall never use it but either in vertues , or your quarrel ; and seing your goodnesse will never engender enmity , my courage shall be uselesse : neither vallue i vertue so much for any reason , as because it is a thing wherein ye take some pleasure . i thought ( quoth aretina ) that ye had swept away these cobwebs of folly ( or of love , as ye will term it ) from the cabinet of your generous soul ; and i judged alwayes formerly , that none but fools and mad-men were taken in these cobwebs , which that crafty spider , cupid , weaves , to ensnare poor mortals , but that such strong courages as yours would easily break through them . fair lady , replyed philarites , i am not prisoner in follies cobwebs , but in those golden chains which loves fair hands have twisted for me . alas , madam , i would have thought my self happy once this morning to have received your commands , but now i think my self unhappy , seing when i have received , i cannot obey them . ye command me not to love : but that is as unpossible as to command me to banish my reason and senses ; for , love and they seem now to be incorporated in one : and ye would think him an unskilfull physician who would apply nothing to his patient , but would intreat him only to convalesce . wherefore , madam , apply the lenitives of clemency to cure my wounded heart , which else is incurable . if ye be really distempered with that passion ( said aretina ) imploy your reason . alas , madam , quoth philarites , ye send me to the wrong physician ; for my reason confirms my passion , and perswades me it is reasonable to love a person of your extraordinary qualities , and that seing all your acquaintances adore your perfections , it were vanity in me to be singular , it imploys , as a guard for it , my memory to remember those excellent discourses which i have heard from you ; it imploys my eyes to behold those ravishing looks , and my judgment to ponder the singular effects of your rare prudence : so that ( fair lady ) the only sanctuary i can refuge my self in , is your favour . but think ye ( said aretina ) that i will prove so great a stranger to my parents , as to choose without their advice ? ( for , to chuse without ones consent , is to chuse against his consent , seeing possibly his consent can never be extorted from him , and so by chusing before he consent , we care not whether he consent or not ) and especially being a woman , whose reason is weaker , and whose passion is stronger than that in a man , and so the one hath more need to be directed , and the other more need to be restrained than in men ; and thereupon she opened a book which lay upon her table , wherein she made him read this subsequent discourse . experience teacheth that a womans miscarriage is more prejudicial to her self , and more dishonourable to her parents than a mans ; and so where the wrong may be greater , the consent of the party wronged seems more requisite ; seing the consent is required to skreen the consenter from a future wrong : whereon hath been built that signal law , that a man may necessitate his daughter to marry , but not his son : because , if the daughter not marrying , tash her repute , her fathers repute is irrepairably wronged , and her own being , dyed black by immodesty , can never return , neither to its own , nor any other colour . and there is reason it should be so , because where the crime is most to be feared , there the law should be most strict : and surely women are more prone to imbrace what their passion proffers them than men are ; as also , because there is more modesty required in them , the offending of modesty must surely in them be a greater vice . the reason why modesty is more required in them than in men , are first , because seing that is the main vertue which nature hath bestowed upon them , they should therefore endeavour to be rich in that ; and as men should exceed women in courage , because courage is the vertue of their sex ; so women should exceed men in modesty , because modesty is the vertue of theirs , nature having bestowed something upon every species , wherein they are to excel others , suffering them for their greater ornament , to monopolize the perfection of some one quality . whence every species is necesary in the world , and adds some ornament to it ; but the politick reason why modesty is by the law thought more requisite , and immodesty in the law more punished in women , because immodesty in women can be more destructive to the commonwealth , rendring heritages uncertain , and fathers carelesse of their posterity , not knowing if their supposed children be come out of their own loyns ; which was the cause likewise why adultery was only reputed such , when there was an unlawful familiarity betwixt a married woman and a man , whether married or unmarried ; but familiarity betwixt a married man , and an unmarried woman , was not reputed adultery , albeit now both be punished equally , as being perjury against the immortal gods , whereas then no vow was made . philarites laying aside the book , aretina continued thus ; sir , as it were absurd in me to love without my parents consent , so it were yet more absurd in me , without his consent , to match with a stranger ( for , whom i love , him i intend to match with ) for how can i know his extraction whose person i know not ? and i will never love him whose extraction i am ignorant of : for i have oft heard my father say , that it was probable that mens spirits alwayes corresponded to their birthes ; whereupon she put in his hands the former book of essays , wherein she desired him to read this subsequent discourse . it is certain that the gods who have chosen princes and nobles to be their vicegerents upon earth , will replenish their souls with endowments requisite for the discharge of so weighty an imployment ; and seing the imploying unfit persons , is a folly scarce incident to men , it were blasphemy to charge the gods with it ; for , albeit the gods sometimes shewes their soveraignity in acting above the reach of our reason , yet seing man is formed after the image of the gods , and seing the rational soul is this image , surely what reason teacheth us , that the gods will do . it might be thought likewise injustice in the gods , if they subjected us to those who could not command ; and as it seems prejudicial to us , so it may prove derogatory and destructive to their interest : for , either the arrogant folly , or despicable simplicity of governors , are the nurseries of all publick combustions and commotions ; wherein the very temples are not exempted from the edge of popular fury . but besides these , nobility wants not its other advantages , as that of breeding , which seems to be the ●oul's soul , and the cream of all humane perfections , and that of confidence , their birth being a rock situated above the reach of malices greatest shot . the distance likewise which others must keep with persons of quality , is no weak bulwork to defend their honour , and to maintain their respect : for , the best of men , having much of naughtinesse in them , the retirednesse enjoyned to them by their dignity , and the distance enjoyned to inf●●●urs by their duty , is a skr●en which vails over all these imperfections , and conceals what is not worthy of the noticeing ; man being like bad merchandize , which looks best when looked upon at a distance , or when presented in a dark shop ; so that oft-times what is gilded by retirednesse , passes for the real gold of prudence . philarites laying aside the book , looked as if his tongue had been with childe of somthing which it wanted strength to bring into the world , at last said , madam , ye are loved by one who is subject to none but to aretina , and who albeit he be a prince , yet accompts it a greater happiness , and a more sublime honour to be your subject , than a prince in his own nation . here he stopped , as if he would have accused himself for not stopping sooner . aretina ( glad to be now assured of what she formerly conjectured ) told him , that there was yet one ingredient requisite to be infused in loves potion , which was constancy ; neither resolve i ( said she ) to cast the anchor of my love but upon some sure ground , which will not suffer it to slip : for , constancy is more requisite in a lover , than nobility in a courtier ; and as the one will be required by my parents , so the other will be required by my self , neither will ever i marry but him in whose generous person i see those accomplishments first married . six a clock striking , advertised aretina that she behoved to wait upon agapeta , so bidding philarites adieu , she left him to admire his own happinesse , who returned now as deeply fraughted with joy , as he entred fraughted with grief ; like a ship who had unloaded her self of her pricelesse ballast , that she might load her self with rich and precious commodities . now love did begin to kindle its flames in the chimney of megist●s breast , which were continually augmented by the bellows of fame , whose mouth brea●hed nothing so much as aretina's praises ; but that chimney , never heated by the like fire formerly , suffered these coals to kindle but slowly : in the end , cupid , who had long hovered whether to shoot or not , fearing that megistus heart , ( hardned by the continuall exercise of martial imployments ) should be unpenitrable by his darts , at last loosed a shaft ( resolving to hazard a dart to conquer such a noble soul ) which did wound his poor heart so deeply , as that the hand of his courage could never there-after pluck out the dart ; nor yet could the hand of his reason cure the wound : for one morning , going to fetch a walk in the garden royal , he perceived , unexpectedly , agapeta , who was pulling some cherries , the trees bowing their branches , that she might by her own hand pull their fruit : megistu● saluting her , would have retired , yet so 〈◊〉 that he shewed a desire to advance ; like 〈◊〉 fencer , who by a feint would have his adversary believe what he intends not ; but agapela willing to discourse with him , whose discourse each man at court so much commended , intreated him to advance , telling him that these cherries would rellish the better that they were eaten in his society , whose presence could make the worst fare a feast . madam , replyed megistus , who feeds on your ravishing looks , feasteth beyond all the dainties that venus table can afford him . but whilest she was pulling these cherries , megistus was pulling the poysoning hemblocks of poysoning love : for , looking upon agapeta's eyes , he thought they were cupids quiver , wherein he kept all his mortal darts ; every trait of her face seemed a storehouse of sweetness , and her hair , which because of its colour , and curlings , resembled so many gold rings , proved to him chains to fetter the feet of his trembling soul : he was in end awaked out of his extasie of admiration , wherein his love had lulled him asleep , by philarites , who had traced him from his chamber , whom agapeta saluting courteously , they fetcht some walks in the pleasant alley , recounting the various and charming pleasures of the ●ast solemnity ; and amongst the other pleasing passages that had occurred , agapeta told h●m how a lady had fairded her decayed looks , with the youthfull colours that she had borrowed from art , was deciphered by a young gentleman , who by the reflection of a burning-glasse , melted away those splendid colours , who seemed shamefully to hast away● how soon they were discovered . i remember , said megistus , of such an affront , wherewith just providence rewarded a young ladies cheating pains in our country , who being mistris of a ball given her at her own lodging , retired alwayes to an inner chamber , where , by a little feather , she sprinkled her face with some white lilly water , with which she seemed continually to recruit those auxilaries , which she had hired out of arts territories to assist her weak beauty : a gentleman perceiving that the phyol wherein it was , stood in the dark corner of a chamber , which she had purposly obscured ( fearing lest light should discover that work of darknesse ) went and removed the phyol , exchanging it with another full of ink , which the lady at her return made use of as formerly , besmearing her face with it , and returning , was welcomed by the unrestrainable laughter of all the spectators . it is just , said agapeta , that the gods should punish those , who by the pencil of vanity will undertake to amend any thing in a piece which hath once past their hands , they are ( added megistus ) like those cunning hunters , who cover branches with birdlime to ensnare some silly fowl , which little expects their art ; yet i think that as these are sk●llesse merchants , who hazard much , where there is but little to be gained , and where the gain , albeit they escape , cannot ballance the losse if their voyage thrive not ; so those ladies will lose more in their repute , if once entrapped , than the repute of a fine face can advantage them , if discovered ; for the one will cry them down below all those at court , albeit the other can never plead preference to them before all those raying faces which shine there : yea , i think they accuse themselves of some notable defect , which they think cannot be palliated but by some notable cheat , and detracts extreamly from their own sex , shewing that colour is its greatest ornament , and from ours , in thinking that colour is a sufficient price for our dearest liberty . agapeta being called-for by a lady from the queen , left megistus in a drooping condition , like a lowring solsequium at the suns absence , or like the disconsola●e body receiving the flitting soul's last adieu . not long after this , an accident at court disturbed somwhat the quiet of both the knights , who dragging after them one link of misfortunes fatal chain , were followed by all its fellows . some noblemen at court not daring to attaque sophanders grandour in his own person , resolved to affront him in the person of these knights , his avowed minions , and petitioned the king that their priviledges might not be infringed by his nimious respect to strangers ; and that seing their predecessors had planted by their pains , and watered by their bloud , the thriving vine of blossoming monarchy in that nation , that they their successors might now eat with pleasure , and in safety , its delicious fruits ; and that strangers might not reap what they had sown , therefore they entreated his majestie not to prefer these strangers to them , seing albeit they might be nobles at home , yet they could not be esteemed as nobles in egypt : for , albeit gentility ( because it is a quality dyed with the bloud ) be the same everywhere , so that a gentleman in one nation is a gentleman in every nation , he having received that honour from the hand of nature , whose subjects all nations are ; whence it comes that a gentleman of one kingdom may by the law of arms challenge another , seing he leaves not his bloud when he leaves his country ; yet nobility is the donative of the prince , which none are obliged to acknowledge who are not his subjects , and so out-reaches not his territories , but , like the loadstone , loseth its energie when without the spheare of its allowed activity : therefore by the law of nations , and of arms , noblemen are not accounted such when amongst strangers . the king calling megistus and philarites privatly , told them the quarrel ; who entreated his majesty to satisfie his nobles , and not to put them in the scales with strangers , whose assistance was lesse valuable , and more uncertain than that of his natives . but the king ashamed of their insolency , and willing to gratifie the generous knights , told them , that he would advance them to be knights , and honor them with the collar of iupiter , an order instituted in egypt , to difference highly-deserving persons from the rabble of ordinary knights , whom the ambition of the subject , and lenity of the prince , had , by making it ordinary , made it despicable ; and that thereby they might claim preference from all the other subjects every-where , without the verge of national solemnities , such as in parliaments , senates , councils , where none could be admitted but these , whose fortunes lying within the circle of the nation , might oblige them to riske their lives for their countries safe●y ; men being alwayes most willing to go when interest pouseth them : as also it is dangerous to admit strangers to the intimacy of national mysteries ; neither is it thought prudence in a king , to admit those to manage affairs who have not estates to be hostages for their fidelity , and to repay the injuries done , during their government , to private persons . the knights did on their knees acknowledge his majesties civilities , but told him that they wished his majesty not to prostitute these honours to ignominy , by conferring them upon persons , so little meriting ; for they were sensible how destructive the impressa of honour was to subjects , draining the purses of su●jects in buying them from the hands of profuse courtiers , who , as they sinned against the king , in abusing his favours ; so they sinned against the gods and common-wealth , in imploying its price , as suffultors to support the shield of their matchless pride , and how when these abject richlings , or richlesse gentlemen had once come by them , they behoved to make vanity and luxury to bear up the train of these useless honours : these disadvantages are swelled to a prodigious excrescensie , by another as bulkish as any of the former ; for , by that means trade is every-where almost starved , nobility hindring those who are stocked with money to imploy it in merchand●zing , and poverty disabling those who now traffick , from driving a trade suiting with the exigency of the nation , which makes me entitle my country to an infinit happinesse , seing traffick and trading effaces not their true nobility , wh●ch two our custom accounteth most compatible ; whence accresces this great advantage , that young venturers being descended of noble families , are often recruited by the well-stored c●sh of their friends , after that a rude storm , or some other inevitable accident , hath preyed upon their first adventures , whereas , if they were destitute of this assistance , they behoved to lose their hopes when they lost their stocks , and so the commonwealth would be robbed of their endeavours , whose spirits were as great as their misfortunes ; and , on the other hand , noblemen by their means are encouraged to put their native commodities to the best fyne . the k●ng , vanquished by their obstinate refusal , condescended not to accumulate them with these his justly tendered favours , telling them that opportunity might ripen for them more satisfying honours . but the well-spring of philarites hard fate , ceased never to bubble up fresh misfortunes , imploying all the weapons of discontentment to rout his unconquerable vertue , hating alwayes spirits of such a noble detramp , because they scorn to make her the center of their happiness ; as if she would perswade men , that they could not subsist without her assistance : wherfore seing his quiet could not be disquieted by pride , she resolved to imploy jealousie , whose subtile hands twisted this curious snare for him . a lady , sister to the prince of goshan , named pinasa , whose beauty suited well with her birth , and whose birth furnish'd her respect enough at court , had of a long time looked upon philarites with loves spectacles , but finding that her portracture could never be drawn upon the ground of philarites heart , till aretina's were first defaced , studied all means to perpetrat happily , what she desired so passionatly ; yet finding that philarites love could not be cheated , she endeavoured to cheat aretina , whose modesty she expected might more probably co-opere with her malice ; not permitting her to trace the crook●d path of her sinistrous designs , so nimbly as philarites male passion doubtless either would or could ; but finding that she alone was not able to draw malices chariot , yoaked with her self an old hagg in the same imployment , and bribed her venal spirit , which because it was venal , might easily be bribed ; who measured every thing ; yea , vertue it self , by the yard of money , not caring for heaven , but because it was said to be paved with gold ; nor respecting the gods , but because their favour was a mine , out of which much precious treasure might be digged : this wretch did undertake the conduct of that wretched affair , promising , because of her easie addresse to aretina , and intimacy with her servants , to pousse it to a wished-for period ; thus launcing out into the deeps of malice , the sails of her diligence , were filled with an unexpected gale of success : the barrennest earth being fertilest of such poysonous weeds ; and she , who was fit for nothing else , was by malice exceedingly fitted for this . and now philarites hard fortune , which had decreed the event , had likewise marshalled very orderly all the means , by which , as by sinews , this great body of jealousie was to move : for , one day walking in a meadow ( whose face was by over-spreading nylus hid twice a year , that it might appear the more beautifull ) did , as unfortunatly , as unexpectedly , encounter a clew of ladies , whose rec●eations had trysted them hither . megistus and philarites had alwayes valued highly such company , but never so much as now , seing they appeared to them coppies of their mistrisses original beauty : after them followed the martial knight , and aristo , pinasa's brother ; thus the number of the ladies and that of the knights was equal : salutes being interchanged , philarites fearing lest the conduct of the ladies might hatch some private disgusts amongst either the ladies , or themselves , about their attendance , ( and so that they might ignorantly , though innocently , relapse into the same danger out of which they were but lately escaped ) and to determine that indifferencie which might oblige all equally to wait upon all , he entreated each lady to lend him some concealed token , which when he had gotten , and had hudled up in a hat , he desired each gentleman to draw out one , and that each should attend and entertain her , whose unseen token should fall to his share : for ( said he ) incomparable ladies , the hazard is not great where none can chuse what is not excellent , so that i may say , there was never more of lottry seen where there was lesse of hazard ; each of us is happy in the share he hath gotten , and yet each of us may be thought unhappy in wanting what share we want ; so that pleasure and disappointment never met so amicably as in this particular . thus they spent some time in walking ( lot having coupled them cunningly together ) but pinasa finding that this disappointed the desire she had to banquet her eyes upon philarites lovely countenance , intreated they might pass some time under the shadow of a neighbouring arbour ; which all obeying , they retired thither , where being seated , pinasa broke silence thus ; gentlemen , as there is nothing lesse taking than a confused look , and dejected countenance , ( where the runaway looks represent the sad spectacle of a flying army ) so there is nothing that can discompose a countenance more , than the fixt eye of a confident gentleman , whose silence alloweth him time for that imployment , whereby modesty is twice a sufferer , both by the gentleman who s●reweth it a note higher , and by the gentle womens selves , who tune it a note lower than is either allowable or seant ; wherefore i wish we might use some game to sport away time , and to prevent our blushes : but seing our accustomed recreations are covered almost with the gray hair of loathing , i wish megistus , ye would invent some new one , that the court might hereafter hug it , as a memorial of your sparkling vivacity of spirit . madam , replyed megistus , i have no other sufficiency for the discharge of that duty but what i borrow from your ladiships commands , wherefore , madam , it were injustice to refuse you what is your own . since there is no absolute perfection but in heaven , nor absolute imperfection but in hell , ( the earth participating of their extreamities , as it reconciles both their distances ) and seing those even who see their dearest objects in the mirrour of love , see some blemishes in them , ( which proveth that the most accomplisht of things wantteth some accomplishment ; for if it could be seen any where , it would be seen there ) i wish every lady would tell what imperfection she could dispense best with in that person she most loveth . what will ye propose , philarites ( continued pi●asa ) for this nights entertainment ? truly madam ( answered philarites ) seing discourse is the best physiognimy of our thoughts ( the tongue being but secretary to that skilfull enditer , the heart ) and seing neither prudence , nor respect , will suffer us to pry narrowly into one anothers thoughts ; i wish we might hit at some indirect way whereby our enquiry might be somewhat gratified ; wherefore i wish one of us might tel her who sits next him , in the ear , some remark of any person here present , at which all the rest might divine , according to their fancy , every one of us endeavouring to conjecture what was the first speaker observation , and he or she who shall be by maniest voices judged to have been most mistake , shall forfeit some pawn , to be disposed of at the discretion of the society . this last pleased them best ; and after they had by its help diverted themselves sufficiently , the night summoned them to remove : and pinasa willing to bestow something upon philarites , which might terrifie aretina's jealousie , did let a ribbon fall carelesly ( which she had worn in so remarkable a place at all the last solemnity , as none could but remark it ) which philarites ( in whose hand hers was ) taking up , presented her with ; but she , willing to imploy it as a chain to fetter his passion , desired him to keep it , as a memorial of her gratefulnesse , for that unparalell'd favour she , and all the remanent ladies had received at his hands . whilest times glasse was thus running , the old hagg was by the coals of diligence and treachery , kindling the flames of jealousie in aretina's breast , whose ardent affection to philarites had softned her to an easie reception of it ; contentment being like other delicacies , whereof the sweetest becomes soonest putrified , and the souls of the delicatest tramp are like the bodies of the poorest complexion , whose purity bowes soonest to decays scepter ; and the fear to be surprized in following the hidden tract of mis-information , is the mean whereby they are often mis-informed ; thus love , which perswaded aretina that she was unworthy of such a lover as philarites , did likewise peswade her , that philarites would pearch his love more worthily upon some other object , and , by being inconstant , would make inconstancy a vertue : but there was more rhetorick musted up in that dumb r●bbon than in all the loquacious oratory of old pla●eta , and jealousie did enter by the same porch that love first entered : she impeached now philarites as guilty of high treason against love , and adduced her own eyes as witnesses , who seemed to deluge themselves in tears , lest they should see the sad effect of his prodigious inconstancy , which durst upon his arm brave the sight of affl●cted aretina ; yet her jealousie was glutted with a more pregnant argument of his assured change : for placeta , who had studied the musick of what enchantment the tarantula of aretina's melancholy was best pleased with , caused a cunning fellow ( who traded in the adulterating of writs , and resembling every mans character ) writ a letter with his greatest cunning , ( giving him a stoln letter for his pattern ) wherein philarites might be made to exchange his mistris ; whose tenour was thus : the disconsolate philarites , to the peerless pinasa . madam , the torrent of my boundlesse passion , hath in fine swelled to such an excrescency , that the banks of reason are no longer able to restrain it . i find my self guilty , if i evaporate my passion , and choaked if i evapor it not . my reason hath chosen your pleasure as arbiter , to reconcile these , else irreconciliable antagonists : who●e conflicts harrasse that heart , which is only yours . if i courted ever any else but you , it was only to facilitate to me the great task of your love , in regard whereof all my former passions seem but essays . assure your self , fair lady , that whilest philarites lives , he must love ; and whilst he loves any , he will love you . i shall keep my love in the prison of privacie , till ye send it a remission ; neither shall it ever come abroad but upon the paroll of your permission . this letter was given to pinasa , who being one day at court , watched by the diligent eye of sorrowing aretina , did carelesly , as it seemed , let it fall , within the command of aretina's reach , who stealing it into her pocket , retired to her chamber , to see what she could pick out of it , and having shut the door , did read her ruine in these fatal characters . o pattern of basenesse , how hast thou betrayed my credulity ! how hast thou stifled my hopes , and stained thine own valour ! yet alas , poor aretina , thou hast prostitute thy faith to his roguishness , and thou appearedst as willing to be entangled , as he was willing to entangle thee ; it was strange thou couldest be so infatuated with a stranger , and now it appears more strange that thou shouldest startle at so necessary an event ; thou who wast the envy of ladies , and the image adored by gallants , wilt now be the object of both their laughters ; and seing philarites's bewitching deportment will bundle up respect for him at all hands , the same carriage will surely blunder thee , and thou and he will be like two buckets in the well of fate and fame , whereof the one must rise to the same proportion that the other falls ; and as the ocean of fame ebbs upon the shoar of thy repute , it must flow upon his ; and surely his propitious fortune will make all thy acquaintances conclude , that he left off to love thee because he discovered somthing in thee which was not lovely . miserable aretina ! who hast banquerouted that stock of fame , which the indulgent gods had once bestowed upon thee , and who hast now rendred thy self as despicable as once thou wast lovely ; misery hath once ●atched thee in its arms , and will never dismiss thee ; fame hath banished thee , and will never rehabilitat thee ; thy parents joys are massacred in thee , and in the roll of thy crimes stands likewise the black crime of thy paracide ; all those additions of honour which served once to adorn the shield of thy repute , serve now as diminutions to it ; and , as a punishment of thy crime , thy name shall still last in the registers of infamy . thus did aretina stand streaming out lakes of tears , as if she would have drowned that letter , because philarites's name was written in it ; like an implacable judge , ordaining the malefactor to be hanged in effigie , because he cannot be found in person ; and riving out her hair because it afforded him once contentment , her passion verged upon destraction , and the musick of her sury , like the six notes , did raise themselves a degree alwayes higher ; she evited company , lest they should upbraid her with her misfortune ; and her retirements were as racks wherupon her unapeasable grief did torture her , and her disease was so much the more dangerous that she durst admit no physician : thus she lived alwayes dying , and thus she dyed whilest she was yet living . yet love , for its own defence , did alleadge , that jealousie might be mistaken aswell as hope , and especially amongst women , whose genius byassed most that way : for as men , because of their courage , are oftenest befooled by hope ; so women , because of their innate timerousness , are oftenest betrayed by fear : and of all women , lovers are soonest overcome by fear ; for , as their love multiplieth perfection in the person loved , so those perfections multiply fears in the person loving ; even as they whose coffers regorge with treasures , fear most the losse of their treasure . love likewise teacheth us to overvalue others , and undervalue our selves , and so perswadeth us that all the world gapes after what we affect most , and that of all pretenders we deserve least ; and so there is reason to fear , that seing we deserve it not , albeit none pretended to its enjoyment , that there is much more reason to fear a losse of what we love , in the throng of so many competitors . now pleasure intended to change its camp , and , like the sun , to make all the world debtor to it splendor by turns , intending often to aggreage its respect by its absence , and to conciliate respect elsewhere by its presence , so that oftentimes it doth ( like all other agents ) by the same means , produce contrary events ; so that some by being merry , others by being retired ; some by being proud , others by being humane , attain , by these contrary midses , to the same end of glory ; like two men by opposite wayes meeting others on the other side of perfections globe , to which men may go by contrary motions : for , whilst the court was bathing themselves in their pleasure , a currier comes , telling the king that a navie of strangers were riding before iris , expecting a safe entry from the next tide ; and that some fishers had by their flags perceived them to be the navie of prastus king of persia , who disputed propriety in the kingdom of egypt : for , xistus , grandfather to the king who now liveth , was by birth king of persia , and for his valour , elected king of egypt , and so prastus's father , being his first-born , was righteous heir of both crowns ; but the nation really scorning to be annexed to persia , and thinking that slavery too unworthy a recompence for their respectfull choice , elected the second son ; because , albeit he was but second son to xistus , yet he was their kings eldest son , prastus's father being born before his fathers acquest of egypt , and so they preferred him to his elder brother , so that ever since he and his successours , have still waited a quarrel to revenge their unjust resentments . the king allarmed with these news , did by his fear , adde to the strength and number of prastus forces , and by looking upon his own forces through the wrong end of truths prospect , did see them lesse , and more inconsiderable than really they were ; his danger was eminent , and his forces scattered ; his courtiers dissatisfied , and his adversaries rich ; his soldiers unexperienced , and theirs most expert ; as also , their remoteness from their country would make them stack all the stock of their courage upon the game ; whereas his souldiers , knowing where to retreat , would care the lesse how to fight . megistus perceiving that the waves of the king's doubts raged extreamly , intended to calm them by the oyl of his courage , whereupon accosting his majesty as he was solitary in his cabinet , he desired a commission to muster under his majesties standard , such as would make their lives their countreys bulwork , and who might catch some advantage of the unwary persians , whom either presumption or sea-sickness , might weaken beyond expectation . the king loth to hazard that ominous encounter ( for so the first alwayes is ) upon so great odds , told him , he would reserve his courage as the spurre whereby all his army might be incited to ride triumphs carreer , and that a skirmish was not a theatre large enough to megistus to display his courage upon , nor a handfull of men witnesses enow to so renowned a valour ; yet at last , confiding in megistus's courage , and afraid of the peoples dangerous commotions , he authorized his designe . megistus name was a trumpet loud enough to call together all those who longed to draw the swords of their courage out of the sheath of laziness , and to sheath them in the bowels of their countries enemies ; and now he had clewed some twelve hundred , who like a snow-ball became more bulkish the further it was rouled ; wherefore he intended in this his first addresses to agapeta , to usher himself in , with this happy opportunity , and after a profound reverence , said , madam , i come to levy new forces out of your looks , to assist me in this combate against your fathers enemies , and to have my commission sealed by the hand of your pleasure ; who dare resist when ye command ? and who would love that bloud which would not kisse the ground for your satisfaction ? i know justice will take off that vail wherewith we see her eyes ordinarily mufled up , to behold your quarrel , and will put victories garland in your hand , that ye may crown those who stand in your defence ; wherefore , madam , i am come to resign my heart to you , and to leave it under your cure , and in the hospital of your mercy ( where many thousands besides it lies ) seing its wounds forbids me to take it alongst with me , and in place of it , i shall fill my breast with a drachm of hopes which i am to expect from the scales of your ladiships favour . agapeta fearing , lest her rudenesse might unfit him for the journey , and desiring to animate him , who only by his example could animate the rest ; and who was the axletree whereon courage's wheels was then to roul , told him , that she wisht her wishes could assist him , whose valour was to assist her , and that she thought her self most fortunate , who could salary such warriors with so little expence of treasure ( her smiles being all the solde which was sought ) wherefore she entreated him to expect all the favour that a lady could indulge to him . megistus being ready to reply , was called by a gentleman , who told him , that his troups were ready to march ; so that leaving agapeta's chamber , he rendezvouzed his glorious troups , whose glory was sublimated by the presence of philarites and the martial knight , who seemed to be the diamonds that set the great price upon the golden ring of that assembly : from thence they marched about midnight , and did the next morning arrive at iris , where they lurked all night in caves , expecting the enemies landing ( whom the boisterous wind had hindred from landing till then ) which was not a tedious attendance ; for the next morning sotorus , who commanded these naval forces , fearing no resistance , because of the unexpectedness of their voyage , and the covertness of their designs ) did foot the shoar , as if he had come rather to triumph than to conquer ; and expected that victory would meet him half way to welcome him to egypt : but whilst he was shoaring his regiments , megistus giving the signal to those who were in the other two caves , commanded by philarites and the martial knight , did so terrifie by shouts the surprized persians , that they wished they had never seen egypt , since they saw nothing in it but unavoidable dangers : that which affrighted them most was some fire-works , which megistus ( well skilled in the pyromanticks ) had caused dress , whose noise and lightnings perswaded the persians , that iupiter had lent their adversaries his thunder-bolts , to punish the unjustness of their quarrel : they saw nothing because of the darknes and the smoak , but what the light of these flames discovered to them , which was nothing else but death in all her pontificals , and arrayed so variously , as that she seemed not the same every-where ; in one corner of the field valour was punishing resistance , and in another , courage was trampling under feet cowardishness ; here the soul was flying out of the body at a wounded head , and there at a wounded heart , and in both , the afflicted body was volleying the great ordnance of groans at the beloved souls departure : some sought to seek their graves in the waves , and others , fleeing death , did meet it at their boats ( which megistus did at the first encounter fire , as if by these bonefires he would have testified his gracious acceptance of their visit ) philarites did by his sword subscribe two hundred's pasports for eternity ; and the martial knight evidenced , that it was easier to overthrow troups of persians than to combat megistus alone : thus these three conquering gentlemen , wounded as fast as they could strike , and killed as fast as they could wound , the persian souls not daring to lodge any longer in their bodies , than they were by their swords summoned to remove , one stroak summing up all the minutes of their process ; and the souls themselves most willing to remove , seeing their appartements falling about their ears ; philarites making breaches in the ranks , and in the bodies also of those who stood in them , had his sword bound ( as fencers speak ) by the cryes of a young gentleman , who seeing philarites ready to strike an aged man ( whose courage was in its spring , albeit his body was in its autumn ) called , noble knight , pity the father of arethusa , as ye shall be answerable to your fair mistris ; this was the young mans mistris , whose beauty he imagined all men knew aswell as he . philarites , moved with his passion , did condonat him his life , desiring him to be debitor for it to aretina , and so secured them both as his prisoners . the fields were become a perfect landskip of terrour , and the greenest pile of grasse was scarleted by the persian bloud : but the persians fearing both what they saw , and what they saw not ( expecting no relief from the boatlesse ships ) were at last compelled to sanctuary themselves in their enemies mercy , and to become their prisoners , because they could not be their conquerours ; and albeit the egyptians would have glutted their revenge with the persian bloud , yet the noble knights barred them from that piece of inhumanity ; alleaging that seing war was only instituted to secure nations from danger , and all just wars were meerly defensive , ( for to recuperate our own , is but to defend our own , and so invasion , if it be to repeat what unjust enemies have robbed us of , is but a species of defence ; and if it be to rob others , it is no war ) that necessarily all who were killed by the hand of revenge , were rather murdered than killed ; and that to kill those whom they might save , imported that the killers feared that they durst not coap with them except they were disarmed , and so their cruelty was not only injustice , but verged likewise upon cowardishnesse ; and that in killing them , they wounded their own interest : for , thereafter all enemies would by despair heighten their courage , this barbarous custom compelling them either to fight , or dye ; and would oblige their enemies , in requital , to deny them their lives upon the like quarter : and as all men should love to save their own life , rather than to cut off their enemies ; so all men should be prone to grant quarters when but once demanded : and if war should by that means become a meer butchery , few would frequent it , and the number of cowards would become very bulkish ; for , scarce the stoutest of warriors would go , where he behoved either to gain the field , or lose his life . this discourse perswaded the egyptians to save alive nine hundred captives ( two thousand lying dead upon the place ) amongst whom , sotorus had rendred himself to the valiant philarites , and they now remained rather masters of the field , than of much spoil , and had bootied little besides the ransom of their numerous prisoners . whilst they were thus combating , a capricious mathematician , who waited upon the marshal de camp , fearing lest death should have surprised him before he minded to die , fled at the first shock , and retired to a little mount , where he observed the battel , as he used formerly to observe the stars , by the help of a telescope , which he carried in his hand in lieu of a musquet ; this gentleman perceiving megistus conquerour , posted to court ( being mounted upon a horse , which , because he was fleet , he had bought to carry him away from any danger , valuing his fleetnesse for no other reason ) hoping , in requital of his news , to have some donatives bestowed upon him ; riding in this equipage faster to court , than he would have pursued his enemies , he arrived at last at it , where he threw himself at his majesties feet , describing the combat to him after this fashion . sir , we marched from this city , as from the point a. ( demonstrating all upon a paper ) by a direct line to the citadel of iris , as the point b. whence by a spiral line , we marched to the caves of c. where we eclipsed our selves all night ; the next morning , before the sun came from the antipodes to our horizon , we marched , keeping the figure of a paralellogramum , conducted by megistus , philarites , and the martial knight , who , as three lines , made a glorious triangle , whereof megistus , as general , was the hypotenusa ; in this figure we marched to the shoar , where we encountred the persians , upon whose bodies we carved hundreds of wounds , in form of isoscoles , scalenunis , and trapezias . this discourse was interrupted by an envoy from the three knights , who acquainted his majesty of their unexpected and compleat victory : whereupon his majesties pleasant ( perceiving the kings humour fitted for mirth , and intending to twit the mathematician for his pedantry ) told , his majesty desired to imprison that persian , alluding to his not understood discourse ; which the courtiers ( whom complacence with his majesty had gladned extreamly ) speedily executed , dragging him away from the royal hall in spight of his many tears and protestations , that he was an egyptian . the victory being compleated , megistus sent to the neighbouring towns and villages , desiring all both women and children to come to the shoar , that so by a false muster , he might deter the persians from landing any more forces : so that they who were aboard of the navie , being destitute of boats and disappointed ( by that numerous , though feeble company , having expected to surprize the egyptians before they took the allarm ) did now hoise sail , leaving their hopes buried , and their companions unburied , upon the egyptian shoar . the king glad of the victory , and glader that providence had imployed these gentlemen ( whom he affected extreamly ) as agents in it , because the noblemens ambitious undiscretion was thereby checked , and that heaven seemed to authorize his inclinations , intended to welcome them with a triumphant reception ; which they fearing , directed secretly this missive to his majesty , entreating him to forbear both the honour and envy , which they knew would be linked together . sir , ovr advancement to this charge hath robbed your majesties most meriting subjects of an occasion of doing you service ; it were unjust that we should expect any other reward for our service , than the honour of being imployed : and seing your majesties subjects grudged us formerly that honour , which our birth and your majesties pleasure entitled us to , how will they now pack up a wrong which they will think wounds their interest more deeply ? be not prodigal , sir , of those honours which all gape for , and which ye may confer more deservingly hereafter upon your own subjects ; for , albeit the vastnesse of a kings treasure , and the unlimitednesse of his power , occasion that no profusion either of riches , or honours , can be accounted prodigality upon his part , yet the meannesse of the receivers deserts may make royal favours be listed among the other species of prodigality ; and the glorious beams of your favours darted upon us , will against your majesties intention attract the vapours of envie ; and possibly your majesties favour may procure ruine to those for whom ye intend triumphs . this letter the knights wrote , scanning upon what emergents had formerly occurred ; and considering how moe vessels were sunk by carrying too large a sail , than by want of ballast ; and how all men contributed thousands of wishes to destroy the greatest minions ( men being like pyrats who pursue alwayes the richest prizes , thinking the poorest sort unworthy of their pursuit ) and that high imployments are like high places , whose hight makes the hardest head somewhat giddy . the king pondering their desire , and reflecting upon the reason of their disassent , was willing to shuffle up all the projected pomp in a meer complement , which at their entry to court he delivered thus in a most obliging fashion . gentlemen , egypt , whose ramperts ye have been in this last expedition , congratulates your safe return , and her very rocks trumpets your praises , which is ecchoed by all her inhabitants . when i conferred that charge upon you , i was confident , that if the heavens had any favours in store for us , they would bestow them by your pure and mir aculous hands ; so that we all acknowledge our selves your debtors , albeit none dare be so vain as to undertake to be your paymasters . the knights making a knee-deep reverence , acknowledged themselves debtors to his majesty , who had put that opportunity in their hands , and that these applauses were the price of his countrymens bloud , who were the only root , from which all these noble actions stemmed . but we must return to recreate melancholy-aretina ( whom philarites had confirmed in her jealousie , by not saluting her at his removal from court ; which he had not omitted , but rather passed by , as an encounter which might melt his courage , and fearing that she might have kept him from imbarking himself in a quarrel , to which both his respect to the king , and the purchase of glory , prompted him beyond resistance : yet she interpreted it according to her jealous humour , not unlike a person affected with the yellow jaundice , to whom every thing appears of that colour ; or rather , like a cacochimick stomach , which transubstantiates the best of meats in its own malignant humour : for , if at at any time , love perswaded her that jealousie was a cheater ; yet even in that case love did rather distract , than recreate her ; and she being bound to the stake of jealousie , love by these pulls , did not pull her away , but rather pull her to pieces ; like a traitor bound to two horses , whose contrary motions are his funest torments : thus love and jealousie , like two twins , aguued by their discord their comfortless dame. yet in fine , aretina ( perceiving what indefatigable correspondence was kept betwixt pinasa and placeta , and how lavish placeta was in her invective discourse against philarites , whom pinasa so much adored ) resolved to fathom this design ; whereupon , enquiring diligently where they conversed most , found , that their ordinary appointments were in an arbour , in the royal garden , at five a clock every morning ; so that she at last , hit at this expedient for the discovery of this their mysterious correspondence . she caused the gardener ( who was commanded by agapeta to obey her in every thing ) enter at two a clock , taking her maid with him , and there dig a hollow in the ground , where her maid was to lye ; which he was thereafter to cover with a sheet , leaving a rent in the coverlet , whereby she might suck in new supplies of air , and to straw it over with roses and violets , as if they had been placed there to dry at the sunshine ; that place being near the arbour , she could not but hear all was spoken ; neither did the heavens disappoint her wishes , for at five a clock entered the two correspondents , who being seated within the reach of the maids hearing , placeta deduced to pinasa the whole story of aretina's misfortune , dwelling upon every point , as an infallible testimony of her own sagacity ; and in the epilogue of her discourse she demanded money to satisfie the roguish scrivener ; who , seing he sold his soul , intended to draw a considerable price for it : pinasa sucked out the honey of ●ontentment from these poysonous flowers of their discourse , and glutted her ears with so pleasing a narration : thus they fat drinking the dregs of aretina's affection , and ●dmiring somtimes their own conduct , and sometimes their successe , saying that country maids were an easie prey to such eagle spirits as were court ladies ; and that such a rich herb , as cunning , could not grow in so poor a soyl as was a retired hermitage : this discourse ended , they returned to a feast prepared for placeta , leaving both time and opportunity to aretina's maid , to return home to her mistris , fraughted with these unexpected and welcome enquiries ; where she found her mistris sitting , as if her soul had bidden her body adieu , and had left it like an appartement without an indweller , her hands crossed , as if she would in that emblem have represented the crosses of her innocent life : at her maid's entry she raised her eyes , like a person whose head being upon the block , starts up once more to see if a pardon can be expected . her maid unwilling to torture her afflicted mistris , by twisting new delays , falling on her knees , and throwing her eyes upwards , as if she would have bestowed them upon heaven , as a requital for these favours , said , madam , philarites is not unconstant , but pinasa is a cheater ; so she spun out to her the whole web of their discourse , so exactly , as that aretina by the help of what her memory furnish'd her from the letter , and from placeta's discourse , did easily piece up the whole progresse of their hellish treachery . aretina ( who would not unvail her resentments in presence of her maid ) desired the curtains might be drawn , for she intended to sleep , and commanded the door should be shut . the maid being removed , she accused her self thus for her former jealousie ; o unworthy aretina , seing thy credulity hath declared thee such ! was it not enough that thou mightest be vicious by one of those vices , which could reach its poyson only to thy self , without harbouring a vice that stained the repute of such a spotless person as philarites ? was neither his fame , nor thy experience , antidotes sufficient against that venome of jealousie ? how darest thou place his portracture in so polluted a room as thy polluted heart ? and if fate convoy him to paradise in the chariot of some glorious enterprise , there to punish thee for thy crime , and reward him for his vertue ; who shall absolve thee from that guilt which thou hast contracted ? and if he pardon thee , that will evidence his goodness , but not thy guiltlesness ; and his very smiles shall be thy continuall accusers . whilest grief was thus triumphing , love replied , that she was not so culpable as she alleaged ; for , ●●alousie was at worst but an excesse in love , and excesse is not accounted so heinous a guilt as defects were ; seing excess had all that was to be found in the vertue which it transgressed , and superadded somewhat to it : whereas the defect could frame no title to any of the least of vertues perfections . moreover , seing the greatness of the temptation , was the golden rule whereby moralists squared the smalness of the vi●e ; that in this case , the undiscoverablness of their plots min●ed exceeding the guilt of her escape . lov● in its plea alleageth also , that albeit womens breasts be ordinarily cristal-like transparant , yet she had not blazed abroad her passion , nor his crime ; but had chosen rather to sit destitute of comfort , than to receive comfort from one whom she behoved to make conscious to her griefs , and his escapes ; and how that philarites himself had been a builder in this babylon of mistakes , by not saluting her at his departure , and in wearing the livery of another lady . thus aretina loved more now than formerly ; resembling in that , a curious watch , which runneth most soundly when it is first disjoynted , and thereafter pieced up by a skilfull artist ; or the breaches of a besieged city , daubed thereafter with more strength than formerly , by the wary indwellers : thus she spent some restless hours , till sleep truced up a cessation of arme , betwixt these warring passions . after two hours sleep ( which were not able to defray so much wearinesse ) she was awaked by the deafning acclamations of a great many street-runners ; whereupon , calling her maid , she desired to know the origine of these confusions ; who told her , that the persians were beat by the two knights , and that philarites had captivated the persian general . this report was seconded by a letter from agapeta , who , to congratulat philarites success , acquainted her with all the passages of the victory . the next morning philarites ( the lungs of whose love could breath no air contentedly , but what they suckt in aretina's presence ) sent kalodulus , to learn if he might have acc●ss to aretina's chamber , which being indulged him , he came , circled in his passage by the joyfull egyptians , and being entered , and the servants removed , spoke thus , with a majestick ( and yet discomposed ) air . madam , that arm which hath been so fortunate , as to be imployed in your service , and which your interest hath strengthened to the extirpation of your enemies , comes now , by imbracing your feet , to do homage to its divine princesse : the veins of my courage were filled with no other bloud , than that of love ; neither was my sword otherwise edged , than by the whetst●ne of true affection : wherefore , madam , it is upon your head that victories garland should be placed , and it is to you that i carry these bayes of applause , which your too civil compa●riots have propined me with . sir ( said aretina ) if ye had resigned your self over to my disposal ( as ye long since professed ) surely ye were too rash in jeoparding a body which was not your own ; and i should think her much mistaken , who would set her heart in a breast , which ye expose daily to so many hazards . madam , if i knew ( replyed philarites ) that my breast were the residence of such a noble guest , doubtless , i would be carefull of it : yet , madam , i am confident that if such a heart as yours were placed in it , the gods would imploy their special providence to be a buckler to it . aretina's eye travelled alongst all the proportions of his well limb'd body , whose proportion , his close armour shewed most remarkably . but philarites eyes dwelt upon each trait of aretina's face , and upon the most negligent motions of her body , as objects proportionated enough to a mans united admiration , in whom he perceived all beauties globe mapped up in small bounds . the next morning their correspondence was somewhat discontinued by monanthropus arrivall , whom the king had , at megistus's instigation , recalled to court. the knights , at his arrival , waited upon him assiduously , and their attendance re-invited the eyes of the courtiers to behold him , as a person in whom their nation had great interest ; only sophander dreamed that his grandour was much ruffled by his presence , and it would be somewhat minced by the respect which all did bear him : neither was he much mistaken , for he became the standard under which the male contents at court listed themselves , and to whom all true egyptians made address ; and all concluded , that he was a comet appearing before sophanders destruction : yet the king vizarded his real love to monanthropus , and his real aversion from sophander , le●t the change should prove as dangerous as it was sudden ; and monanthropus imployed his friends , to desire his wellwishers to lowe somewhat , the sails of their nimious respect , till providence should calm the ocean of their misfortunes . prastus finding his hopes stifled , and his designs blasted ; and being informed of sophanders murmurings , treated with him incognito , to promove his interest ; and in requital , he should , after his conquest of egypt , be promoted to the government of it : and if that project framed not , that he should have the same charge in persia which he enjoyed at that time in egypt . this was a bait at which sophanders avarice did greedily bite , and the rather , because he found every accident prognosticated his ruine ; and that his misery wanted onely time to ripen it , wherefore he did now begin to bend all the force of his malice against the egyptian monarchy ; imploying the experience of state which he gained in their service , to do them now some egregious disservice , yet so covertly as he never seemed to question the kings affection to him . but finding , that he was not alone able to manage so bulkish a vessel as that enterprize was , he resolved to imbarque with him others , who shared equally with him in the common enmity which many bore to megistus and philarites ; but the plight anchor of his hopes , was misarites , general of the egyptian forces , who stormed unapeasably at megistus success ; thinking that no mans hands should have plucked fortunes golden apples beside his own . sophander finding misarites judgment so distempered , by that feaver of passion , thought it fittest to engage him in that quarrel , in which his judgment , if once cooled , would never have allowed him ; calling him to his chamber , after he had seen the king spend two hours in privat with the knights , and after some insinuating discourse , asked him , if he and the officers of the egyptian army had not reapt a plentifull harvest of rewards , for all the bloud they had expended in his majesties service , when strangers did partage amongst them the booty of honour , which they had foughten for ? sir , ( replied misarites ) your condition is more deplorable than ours , because your losse will be greater , we having lesse to lose than you ; and our happinesse is consistent with theirs , their aims levelling at higher offices than ours : but your eminency and they cannot stand together , seing they desire to stand upon that ground whereon ye stand now ; yet your condition is most to be pitied , because your hands have planted these ciens , whose flourishing branches umbrage this day your greatnesse , shading you from these rayes of your m●sters favour which reverberated formerly upon you ; and by their roots sucking from yours that aliment of treasure which fed you hitherto : and to conclude , that is the greatest unhappiness imaginable , to have been once happy ; and the greatness of the fall is measured from the height of the place fallen from ; and seing , sir , here is no real happinesse or unhappinesse here , but what stands in comparisons ( absolute happinesse being entailed upon the gods , and absolute unhappinesse being the portion of devils ) our misfortune will seem but a mole-hill , in regard of such a mountain as yours ; and men will be so busied in admiring your fal , that hardly they will eye ours . pardon me ( answered sophander ) your fall will be more remarkable than mine : for , it is rather a wonder to see me stand amongst so many emulators ( they being patriots , and i a stranger ; they being many , and i one ) than to see me fall ; and oft-times great oaks which are top-heavie , will fall sooner under the hand of a storm , than those of a lesser bulk : but misarites affronts will weigh more in the ballance of some mens fancies than of others ( and that is the greatest affront that the persons affronted reputes such ) and of all men none weigh affronts so heavily , as those of your profession : for , glory being your main design , your glor●●● sooner blurred than ours , and your passions ( which are alwayes afloat ) are sooner incenst than ours ; vanity ( which is necessary in souldiers ) being of all others passions , the most combustible : and seing your disaster will have moe young men and gallants to be witnesses to it , it must be more insupportable than mine , which being at a council-table , will be judged by some few wise old men , who prize not much affronts of that nature ; and as the glory of a souldier glistereth more than that of statesmen , certainly the foil must be more grievous : neither is ambition the vice of my age , old men being rather enclined to avarice , than panching to ambition ; for old men , not knowing by what means they are able to gain , if necessity urged them to it , are more greedy of it when they can attrap it , than young men whose strength gives want a defiance ; as also , they know better how hard it is to gain , and rely lesse upon the large promises of others , than young men do ; and their bodies half transubstantiate in the earth , seems to be near in kin to gold and silver , which are but cadents of the same family ; we want these sparkls of courage which kindleth ambitions fire , which not only burns in younger breasts , but turns all other humours into its own nature ; and that is the soveraign passion in you , to which all the rest must do obeysance : but why should our spirits be thus enthralled to stupidity ? and why should we sink in this gulf of misery , seing the arms of our liberty are yet loose , and the shoar of safety is so near ? where is that shoar ( quoth misarites ) where we may find a safe harbour ? if ye will follow me as your pilot ( replyed sophander ) i shall shoar you safely . i will most willingly , replyed misarites . sophander glad that he was able to complicate such a considerable person in his treasonable plot , devellopped to him the whole mysterie , and promised that if he would go a share with him in the hazard , he should likewayes have a share in the gains ; and promised to treat for him with prastus , and with sotorus , who ( being a prisoner of war there ) was commissionate for that effect . but let us now visite monanthropus and megistus , who spent their time as frugally as their adversaries , and who were countermining all their mines , and cantoning their friends and associats , so that most of their exercise was discourse , and most of their discourse was the revolutions , whereby the heavens preached perpetually the instability of humane affairs . monanthropus desirous to hear the sequel of the knights travels ( begun at his house ) entreated megistus to pursue it ; and megistus , to divert the eyes of his memory from gazing on desolations gastly colours , condescended to spin out that threed to a greater length , and commenced thus . sir , after the foundation of philarites acquaintance and mine was laid at athens , and its fabrick ( cemented by assiduous familiarity ) was raised to some height , we resolved to ramble up and down the world , carving always to our selves an adventure by our hungry swords ; wherefore , discharging our trains at athens , we desired kaledulus only to attend us : and beginning our journey towards lacedemon , we were outed of our way , by a mist which led us to a wilderness ; where we had not travelled far , when a cry or two ( sent from the lungs of affliction ) commanded our admiration to follow its tract ; we posted to it , knowing that anxieties glasse runt swiftly , and at our coming , found a young gentleman and a lady staked to a tree , looking every moment in the face as the harbinger of death , and tearing in such abundance , as that had they remained in that posture but a short time , the tears would have rotted the cords wherewith they were bound ; our compassion had scarce fastned its eyes upon them , when we were necessitated to place them elsewhere : for , two naked men , covered with nothing but with their hair ( a garment lent them by dame nature , their appear and stepmother ) not so much out of affection to them to cover their nakedness , as out of respect to the beholders , and to oblige their modesty ) did by their uneven brows ( which were to them in place of tongues ) cartel us to a combat ; their arms were two long poles , to which were fixed two shables ( neither did they offer us choice of arms ) we judging gallantry but a nicety , where necessity was the quarrel , and considering that they who were outlaws to nature , might be punished by any of her subjects , ( all men being commissionated against such common enemies ) and that they who would not kill such rascals , were guilty of the bloud that was shed by them , resolved to make use of all arms , and arm our selves with all advantages against them , whereupon philarites pulling out a pistol , sent from its barrel two balls , cloathed in deaths livery , and by them opened a salley-port to his soul to fly out of that nasty prison , wherein it had been too long captivated ; his comrads courage fell with him , and deaths horrid face represented in the mirrour of his dying friend , agasted him so , as that he was willing to ransome his life upon his knees with tears , which fear had commissionat to intercede for him ; we who thought that to kill a man before he was prepared to die , was to murder the soul aswell as the body , desired him to throw away his weapon , and he should have quarter : but he not accustomed to hear such a dialect , understood us not , so that we were forced to make a demonstration our interpreter ; he no sooner understood our mind than he disarmed himself of his weapon , throwing his body open to our mercy ; we advanced , but scarce could perceive in him the reliques of humanity , which was all mudded over with the rubbish of desuetude and cruelty , and his tongue exprest it self as if it had but freshly come to the school of the world ; whereupon philarites concluded , that seing he and his companion could understand one another , that the bruits did use possibly an ideom peculiar to themselves , aswell as these , whose expression claimed affinity to that used by them ; or , if they had no language , they behoved to read each others sentiments in the characters of thoughts , like the intuitive knowledge of angels . we untyed the naked couple , who took their life as a donative from our hands , upon whom fear had made such an impressa , as they could not believe but death had them stil in its claws . we desiring to pull up that poysonous herb by the root , fearing lest it might thereafter spread and pullulate afresh , resolved to know where he nested ; he would willingly have quit us , yet in obedience rather to fear than to us , he led us to a cantone of the wilderness , and shewed us there a hole , whereat he entred ; it seemed to be hells porch , and its very stink ( occasioned by the boyling of mans flesh ) did fortifie it sufficiently against all humane approaches ; he called forth at last his wife , and i must say he was fitly matched : for , her face was a rendevouze of all those deformities , that a petulant fancy could have excogitated , and , except in the case of an incubus , he might have defied all the world to make him a cuckold : we learned at last , by a discourse composed of semibrievs and crotchets , that she and her husband had lived there fifty years ( death having forgot that there lived any mortals in such a corner ) and that their son was killed ; we lookt in , and perceived that the hole was all pent up with wood , and that their best chear was mans flesh : so we brought them alongst with us to the next town , where those two lived whom we had released , and committed them to the publick prison . thence our inclination ( which was the compass by which we steered ) led us to lacedemon , which was then the stage whereon fortune acted all her tragedies . this nation had pilgrimaged through all governments , and seing it could not unload it self of rules heavy burden , it did , like the asse , fetch it from shoulder to shoulder , and so , contrarie to its expectation , past from evil to worse , and from worse to worst of all ; we had not marched but two dayes journey in this lunatick country , when we encountred a fellow whose eyes sparkled some of that folly which was breasted within him , and by the inorderly index of his face , we might easily know that the volumn of his thoughts could not but be confused ; his equipage was so mean , that he resembled an old oak , whose starved leaves had fallen away from the stock which was not able to al●ment them , to which the obdured earth denied the pension of its ordinary aliment ; his motions shewed , that they received no commission from a rational soul , and were like the reelings of a ship , whose rudder the careless skipper had abandoned : thus did he by his inconsiderableness render himself considerable , and made us notice him , meerly because he was not worth the noticing ; he past by us , without giving us a hat , or paying a reverence ; and glancing over his shoulder , he said , friends , think ye who shine so upon earth because of your diamonds , to shine in heaven , circled with the rays of divine splendor ? or , dream ye that heaven will suffer your pride to passe unpunished ? ye are mistaken ( replyed philarites ) for gorgiousnesse in apparrel betokeneth much humility ; for , we think , that we need such weights as these , to be put with us in the ballance of such capricious fancies as yours , else we might fear to be judged but light ; whereas ye imagine that your innate worth is able to create respect enough for you : and i pray you , seing the gods have not created these diamonds for our aliment , surely they have created them for our ornament : and we see how they have variegated the fields with flowers , and have enammeled these flowers with diverse colours , whereby our pleasure might be baited , aswell as our necessities supplyed ; neither certainly , would they have left man ( who is the most excellent amongst all the creatures ) naked of these ornaments , if they had not given him reason and fancy to be his provisors , and the whole earth to be his magazine : neither must we confine ornaments to the narrow bounds of necessity , else why tax ye not the gods likewise of superfluity , for having spangled the heavens with so many and so various stars and constellations , seing they might have supplyed their rooms by two or three suns or moons ? and sir , had not these eye-dazling creatures , the diamonds , concealed by their absence some portion of their makers glory , if they had still been intombed in the earths dark bowels . well friend ( replied he ) since i cannot convince you , who lies swadled in the cradle of your follie , and understands not these true mysteries , go read grandours epitaph in the person of ephemerus , who was not long since prince of this country , and is now hunting near-by , followed only by two servants ; whereupon he paced away , leaving us puzled in what rank of creatures he was to be placed . he being gone , philarites marked that of all mad-men , those were most fortunate , whose madness resembled most the humour of the country where they lived ; as for instance , seing the lacedemonians were ordinarily most superstitious , that therfore that madness which was allyed with most superstition ( as in that poor fellow ) was least discernable amongst them , seing the natives being inured to continual superstition , would not remark its excess so easily , as they would the excess in any other passion : and on the other hand , strangers who perceived such extravangancies , would rather list them amongst the inclinations of the place , than account them real fits of distraction . this discourse was scarce at a period , when we overhyed ephemerus , whose mean equipage and thin train overpowered our admiration ; and now our voyage seemed to us admirations ladder , in which the higher we mounted , we discovered alwayes the more ; but we concluded that our amazement was now in its zenith , and could mount no higher ; for , in him , we saw the mapps of fortune and misfortune both in one carte , and this gentleman seemed to be a skeleton , of whose bones , the state-ravens of his own faction had pickt all the flesh of honour : we associated our selves to him , to try whether those qualities which are often admired in eminent persons , be real , or if they be occasioned only by the sunshine of power ; and after some discourse we found , that he stood more obliged to his birth , than to his parts ; and that he had been heir to his fathers office , rather than to his endowments ; and that , albeit amongst bruits the young resemble the old , because there is nothing in them , which is not propagated , yet amongst rational creatures it is otherwayes ; because the soul is not kneaded of any corporeal masse ; and philosophers alleage , that oft-times the wisest fathers , having evaporated either in action or contemplation their finest spirits , beget the simplest children , who seem to be the lees of so fine stuffe . we may see , said philarites to me thereafter , that albeit in all other visible objects , the higher any body be placed , it appears so much the lesse , yet in state-preferment it is quite contrary ; for all the faculties of a person seem aggrandized by his promotion : and that in the comedy of the world , the habit of a king or prince neither improves nor impairs the real habilities of the actor . this gentleman talkt of hunting , as if it had been the onely imployment quadrating with true gentility , and that a gentleman and a hunter were but the same thing diversly exprest ; whereupon i ( willing to tilt a little in discourse with him ) alleaged , that of all exercises , it was the least subservient to our necessities , and that fencing or riding might possibly be a buckler at occasions to a mans life , and might fit the users of them to serve their country ; but that hunting was useless to its users , and destructive to the country where it was most used , by trampling of corns , and alienating the inclinations of gentlemen from their other imployments , and that it was of all recreations the most destructive to the health ; for it obliged men somtimes to ly cold a whole day , waiting for an occasion , and when they had found an occasion necessitated them to move too impetuously and ardently ; and at last the losse of their prey , did ordinarily affect them too anxiously : and subjoyned , that i conjectured that hunting was at first excogitated by princes and statesmen , to avocate factious minds from deeper projects , and to divert them from projecting any thing to the prejudice of the state. being wearied of his society , from which nothing could be reaped , we retired to the city of lacedemon : where there were so many and so contrary tides , as that it was dangerous for the strongest vessel to sail safe in it . amongst many other slaveries , the people complained much of the too frequent change of state-officers ( this commonwealth being like the moon , which never appeareth twice with the same face ) wherby the people were charged with miseries : for , those who were newly installed in their offices , did like the empty loch-leeches , suck themselves full ; and those who were not in charge , were continually plotting the extirpation of those who did officiate ; neither could they know how to govern before they were removed from the helm of government . amongst many other passages which occurred during our residence there , i cannot forget one , which was this ; an old fellow which had outlived his wit , became so witless as to fall enamoured of a young girl , who lived at our house , and now all his spirits , which age seemed to have beaten from all the other posts of his soul , retired themselves to the citadel of his fancy , and being garrisoned there , gave old age a defiance . in order to his design , he mustered all those old suits , which had been witnesses to his first nuptials , which now , because of their mustiness , were as grayhaird as himself , and piaffed daily before our windows , possest by this devil of love ; and imagining that he was , not what really he was , but what really he would have been : at last , having leagued with confidence , in a war defensive and offensive against prudence ; he entred the chamber , where the young gentlewoman was attiring her self , where having , by the help of his staff , made an antick reverence , he complemented her in these words . lady , all the time that i have spent in the world , hath been spent in remarking that there was never any so beautifull as you are ; and all these wrinckles which ye may perceive in my face , are caused by the heat of my passion ; as we see the fire contracts and furroweth the parchment . and albeit my age and your youth are of a different temper ; yet we see that things of most different , yea , and of contrary qualities , when separate ; yet do , when joyned , piece up the most excellentest compositions : and strings of the most various sounds , echoes the sweetest melody : these hairs , which seem gray , are not dyed of that colour by age , but by an accident ; and my weakness ( which was blazed lately abroad ) was not the effect of my decrepedness , but of sickness , against whom none can plead exemption : if there were any to quarrel your beauty , or to account it but second to anies else , ye should see ( fair lady ) that there is abundance of bloud barrelled up in these veins ; and that in this heart there is courage enough to hazard it in your quarrel . a young gentleman ( one of her suiters ) stepping in , and intending to twit his folly , said , fair lady , ye may believe him anent your beauty ; for , whereas others can only adduce two eyes , as witnesses to prove their opinion , he can bring four : for i remarked him yesterday in church , bestride his nose with spectacles , that by them he might perceive , what his eyes could not . the old gentleman ( like a lamp which albeit it be almost extinguished , yet when irritated by a breath of wind , will flame something more than ordinary ) breathed nothing but revenge , and would fain have honoured his sword with such an imployment ; but its sheath and it had of so long a time been inseparable companions , that it was very hard to separate them ; and rust had so glued them together , that his old arms could not pull it out . the other taking advantage of his misfortune , cried aloud , oh he hath kill'd me , he hath kill'd me ! which cry rendevouzed us all in the chamber , where we found the old gentleman dashing his sword against the walls , because of its disloyalty to its master . this affront did not wean him from the breasts of his amorous folly : and seing age was the occasion of his folly , the older he grew , he behoved necessarily to be the more foolish ; so thinking himself too far advanced in this river of passion , he resolved to swim , though with hazard , rather than to retire , though with ease . the next morning , equipaged like one whom we see presented in taliduce , by some antiquary , he presented himself at his mist●isses chamber door , where being licentiate to enter , he thanked the gods , who had arrested his sword yesterday in its sheath , lest he should have contaminated her chamber with the bloud of so base a fellow ; and continued to perswade her , that it was neither his weaknesse , nor the rustinesse of his sword , which had occasioned the difficulty to unsheath it , only he acknowledged , that after a combate which he had fought not long since , he had forgot to wipe it clean of that bloud , wherewith his adversaries wounds had besmeared it . the gentlewoman applauded to all , telling him , that his sword looked like a blade which had been actor of many tragedies , and that she remembred only to have seen one of that fashion , which her grandfather keeped as an old monument of his family . i heard , sir , ( continued the gentlewoman ) that in a combat ye had all these teeth shaken out by a blow , which we perceive ye now want ; and that another blow , whilst ye were rescuing the royal standard , left in legacy with you that infirmity , which is perceived in your march . the old man , who dreamed that all these discourses were the relations of these whose friendship he had bought , accorded to all , confirming her fictions by some circumstances ; which busk rendred these fictions yet more ridiculous . weary at last of his impertinency , she entreated him to hear her read a part of a romance , which had come to her hands lately ; but she had scarce spent half an hour in that imployment , when sleep closed those eyes , which saw but dimly when they were open , old men being like watches , which the older they are , run alwayes the faster , and must be often winded-up by sleep ; for , their infirm bodies , and weak vitals , must have more time allowed them to forge spirits , than young bodies require ; and nature , which hates all transitions from one extream to another , will inure old men , to endure death by dying often . her other suiter perceiving he was asleep , came from behind the hangings where he stood , and by a sharp knife cut the ribon wherby his breeches were tied up , and thereafter retired softly ; the old gentleman awaked , would willingly have perswaded his young mistris , that it was not sleep , but an extasie wherein he had been , and that it was occasioned by the sweetness of her voice , and vivacity of her deportment in reading . the other hearing that he was awake , came bolting in , as if he would have challenged the old man for his yesterdayes bruskness , whereupon he rising in haste , his breeches fell about his feet , leaving his thighs like two leafless and withered branches , in whose top an owl nested ; or like an egyptian mummy embalmed by art , which had once been coetanious with the first founders of the lacedemonian walls . megistus's relation was here interrupted , by a confused noise which tumbled-in at the windows ; and monanthropus looking out , perceived a multitude , whose allarmed-like gestures portended some eminent danger : here , one running did ask his fellow what the uproar meaned ? and yet posted by ; for his curiosity would not wait for an answer : there , another returned laughing , but not telling why : some through fear , others through curiosity hunted for news : thus they floated up and down the streets , raging and murmuring like waters fallen from some high cataract : at last kalodulus entring the chamber , told them , that the basis of that commotion , was a combat betwixt two persian captains , who being rivals in love , resolved to terminate their debate by the dye of a combat ; but though they wanted not courage , yet they wanted armour ( as being prisoners ) neither durst they adventure to seek any from their acquaintances in the city , lest they should have brought themselves within the compass of state-jealousie ; at last , revenge and love fornisht them this overture , that they should walk to a sword-sellers shop , and should look each upon a sword , meerly as if they intended to try them , and that there ( which was a remote corner of the city , and early in the morning ) they should make courage arbiter betwixt them : which project framed well ; for , before any could mediate betwixt them , the one had lost as much bloud as might have cooled him out of that feaver of love wherein he raged formerly , and there were sufficiently many issues opened in their bodies , at which that unnatural heat might have evaporated . let us now return to the court , which is the chequer wherein the dyce of favour alters still the game ; and where the courtiers , like so many moons , wax or wane , accordingly as the sun of royal pleasure darts its rays upon them ; all being paved with ice , whereon none can stand because of its slipperiness , unless they be frosted with fortune , and court-respect ; here all things seemed to be moulded a new , and monanthropus was now the house of the zodiack , wherein the king's fancy dwelt . for sophander was looked upon as a person whose ambition towred too high , and who intended to enthronize himself in the affections of the subjects : the king eyed him as his rival , and the best of his actions were construed to be treasonable : neither was his majesty mistaken , for sophander levelled at nothing lower than the supremacy of egypt , and he had now devoted himself to be a partisan of the persian monarchy ; and had , as best things when corrupted , become alwayes the worst ( evil being the privation of good , and consequently the more numerous the good qualities were in the good , the more numerous their privations are in the evil ) so sophander was from the best of friends , degenerated in the worst of enemies , and tasked himself now with the destruction of the egyptian nation ; in order to this design , he endeavoured to have misarites preferred to the conduct of the egyptian army , who had combined rather to mislead , than to lead them ; and had undertaken to ruine them without a persian sword . prastus encouraged by their undertakings , and by the numbers of his army , resolved to prosecute the egyptian war ; and the rather , because the body of his own state did begin to amasse noxious humours , through want of martial exercise , and was become so plethorick , that it behoved to be let bloud of by the hand of some forreign war : his army is sent to egypt under the conduct of sotorus ( who had been lately ransomed ) their landing allarmed the egyptian court , whose fears were fed by sophanders emissaries . the king commanded to rendevouze all the solded forces , who being but eight thousand strong , were alwayes upon duty , whereby the rebellion of subjects and the invasion of forreigners were easily cohibited ; a lesson which his predecessour had learned from the late insurrection : he likewise ordered the levying of twelve thousand moe , which being all bodyed together , were subjected to misarites command . megistus , philarites , and the martial knight refusing any imployment . all things thus ordered , philarites resolved to go seek a pasport from the lovely aretina , whom he thus accosted . fair lady , i am come to beg a licence to employ that heart and bloud , which is really yours , in the service of your prince , and to skreen your country from its irreconciliable enemies ; honour invites me to fight for my prince , but love entreats me not to abandon my dear princess ; yet seing loves burning-glasse can inflame at a distance , and seing my soul , where-ever i go , carries alwayes about with it the impressa of aretina , and seing i can love in the camp , but cannot be victorious in a chamber , i hope ye will not only pardon my absence , but commissionate me to be absent ; that by my absence i may gather lawrels of peace , and triumphing bays , to crown the head of my dear princess . if your heart be mine ( replied aretina ) and seing ye have gotten mine in exchange , ye must either go heartless , else stay at home and enjoy it ; for i will not render you yours : for , seing i live by it , i cannot live without it ; neither can the king desire you to hazard a womans heart , whose sex exempts them from danger ; if you be lost , i lose all : and albeit you were absent , the king will be loser but in a part . wherefore seing my losse may be greater , and my gain cannot equal his ; and seing your interest in me exceeds your interest in him , i hope ye will not rob me of that ye have once bestowed upon me . this discourse was continued by a floud of tears , whereof the least was able to quench the flames of philarites courage ; her sighes , like great ordnances , made breaches in the walls of his resolutions for her perswasions to enter ; so that like mahomets tomb , he hovered betwixt the two loadstones of love and courage : yet at last the danger of the state in general , and of her father in particular ( whose safety moved upon the hinges of their loyalty and courage ) joyned with the reiterated promises of shunning danger , prevailed with her , to permit him to risk yet that one hazard : yet her love combated her resolutions , and will and courage fell at variance ; neither were philarites honour , nor her own interest , eloquent enough to perswade her to relinquish without reluctancy , her first intention , her eyes protested against what her tongue spoke , and challenged it for transgressing that commission which her heart had given it . the trumpets sounding a march to the army , did sound a retreat from these amiable caresses , and necessitated philarites to close that dialogue , which else he had never closed till death had closed his eyes . megistus and agapeta had all this while interchanged amorous glances , but albeit their imployment was the same , the way was most different : for , megistus studied nothing more than to acquaint agapeta with his design , and agapeta studied nothing more than to skreen hers from megistus , thinking it derogatory to a princesse to love a subject : and albeit that eudoxa ceased not continually to feed the fire of agapeta's love with the faggots of megistus praise , yet agapeta smothered all these flames under the ashes of a prudential silence . megistus finding himself consumed away by this hectick feaver of a languishing love , resolved rather to die by hazarding a cure , than to languish without it ; and judging this the fittest time to ventilate his passion , resolved to let something of it fall in his discourse to agapeta : so having gone to her chamber as if he had been to bid her farewell before he initiated his journey , after he had acquit himself of the ordinary ceremonies customarily used in such addresses , and after servants were removed , he spake thus : madam , since my heart hath been so arrogant as to pretend to your love , i have resolved to expiat its crime in hazarding it against those who hate your country , that they may wound it , seing it hath wounded it self , and that they may revenge your quarrel against me , whilst i am revenging against them the quarrel of your country ; every drop of my bloud , supplicates me to be honoured in your service , and forbids me to dispute the lawfulness of the quarrel , seing ye interest your self in it . madam , albeit i be by birth a king , yet my birth cannot entitle me to your love , whose worth is a kingdom preferable to the whole globe , albeit it were all ranged under the subjection of one scepter : wherefore , madam , albeit i be a king , yet in this i accuse my self guilty of treason against the majesty of your worth , and pannels my self willingly at the bar of your pleasure . i know i was guilty even in loving you , yet seing all egypt is complicated with me in the same crime , i hope , as in other cases so in this , the number of the delinquents will procure a pardon for the crime . yet , madam , i am singularly guilty , in having avowed before you my own guilt ; which as none but i could be so arrogant as to commit , so none but ye can be so clement as to pardon . agapeta hearing that he was a prince , but not noticeing it , as if she heard it not , resolved not to glut her self with those grapes of love , untill the sunshine of time had ripened them more maturely ; yet , lest she should starve altogether his passion , she returned him this answer . sir , it is certainly the feaver of courage wherein ye now burn , which occasioneth that discomposure of spirit which ye now bewray ▪ for else megistus , who is loved by all , would never be so mad as to love agapeta , who is loved by none ; but , sir , ye may know , that i am one of the jewels of my fathers crown , and none can dispose of me , but they who can dispose of it ; so that i hope ye will not suffer your self to be so much mistaken , as to shoot at that mark : but really there is another inconvenience in being megistus's mistris , seing she who is such will make her self the rival of all those ladies , who have but once conversed with you , who doubtlesse place their happiness in the fruition of your favour ; but , sir , seing ye plead guilty , and will make me your judge , i shall , as in all other crimes , so in this , make the crime the punishment : wherefore , seing love is your gu●lt , let love be your torture . as men should shun , replyed megistus , to look on you , because of your beauty , so they should shun to converse with you , because of your eloquence : every thing which is either seen in you , or spoken by you , being a snare to entrap unworthy mortals ; who must , in spight of prudence , like flyes , flee about the candle which burns them . but , madam , my love is no infant passion ; for , it bears as old a date as since my arrival at court : and albeit the persisting so long in my guilt , be an aggravation of it ( every thought being a new crime , and every moment forging a new thought ) yet seing i have avowed my passion , i cannot but avow its birth . madam , since ye have sentenced me guilty , i beg fetters , which are the badge of guiltiness . agapeta knowing what he aimed at , gave him a bracelet of her hair , which she desired him to take , not as an approbation of his love to her , but as a reward of his loyalty to her father . megistus glad to receive it upon any terms , kissing her hand , went away , telling her , that he gloried more in that badge of her favour , than he would do in all the trophies which could be raised for him upon the ruines of the persian monarchy . the army was marched , and had left megistus , philarites and the martial knight , behind , busied in saluting their numerous friends ; their visits accomplisht , they posted after the marched troops , and in their way the martial knight , in pursuit of a discourse anent the antipathy betwixt the egyptian and persian nations , fell a chiding astrologues , because they attributed it to the variety of celestiall signs : these mad fellows ( said he ) will needs have all the watches of national inclinations set by the sun-dyall of the heavenly aspects , as if the needle of free-will were obliged to follow the touch of that adamant ; and as if the face of the firmament were like those optick chambers , on whose chamber walls one may perceive what is acted in the streets , to which their backs are turned for the time ; but seing the humours of nations varies , the heavenly aspects still continuing the same ; and seing those influences are corporeal , and so cannot affect the will which is meerly spiritual , i admire how men can fancy any influence , where there is no passibility : but why are the neighbouring countries alwayes most tainted with this natural aversion , more than the remote parts of the nations ? is it because the heavens are divided in shires as the earth is ? surely all these are dreams of capricious fancies ; and it is to small purpose that men should vex themselves by enquiring for a reason of that in the heavens , whereof the reason may with small scrutiny be found upon the earth : for we know that bordering kingdoms do alwayes war one against another ; and these wars are fathers and mothers to that antipathy ; and who would not hate these who are their successors , who have massacred their antcestors ? and for this reason is it , that in these antipathizing nations , the frontier countries hate most one another , seing the occasions of fresh quarrels makes them oft purple their fingers in one anothers bloud . and upon the contrary , the remoter nations , are ordinarily linked in confederacies ; for these nations that border on the remote frontire of the nation hated , do in odium of the interjacent nation , league with those who border upon the other frontier , so that , that friendship is cemented with the common hatred of both the averse nations ; and here mysterie of state is the heavenly aspect which causeth this contrariety . this discourse being ended before the journey , they resolved that each of them should maintain a paradox , which , being as weights added to the paices of times clock , might make it run more swiftly ; philarites being by lot destinat for the precedency , undertook thus the defence of vanity . gentlemen , before i begin to wade through this discourse , i must rid marches betwixt pride and vanity ; and i call vanity , an high estimation set by man upon his own actions , and a confidence he hath of being able to perpetrate undertakings above the ordinary reach of humane power ; and pride , that whereby one undervalueth all that is done by others , quarreling it , meerly because it was not done by himself ; and not only esteeming highly of himself absolutely ( as is done in vanity ) but also over-rating himself , when compared with others . i affirm then , that vanity is the wheels , whereby honour , courage and triumph moves : for , if vanity suggested not to man the enterprise of something extraordinary , and if these suggestions were not welcomed by generous spirits , the greatest part of new inventions had been stifled in the cradle of their first conception ; commerce had never been entertained through want of shipping ; and new discoveries , both of unknown countries , and usefull engins had never been atchieved ; and certainly , men should never rise above their own level , if they circled their undertakings within the narrow compasse of their own experience : and seing , in setting a high price upon my own worth , i magnifie the workmanship of the immortal gods , and believes undoubtedly that i am more obliged to them , than really i am ; i think my self , as to them , no more culpable , than he who acknowledgeth himself my debtor in a greater sum than truly he is , should be blamed by me : and further , seing mans misery , if sufficiently known , were sufficient to ingu●fe him in the depths of melancholy , and to ingrain it more deeply of a black colour ; certainly vanity is of excellent use , seing it confects sweetly those bitter aigrets , and skinneth over those deep wounds , which are inflicted by the hand of our natural misery . the martial knight maintained , that prodigality was no wayes to be punished by the commonwealth ; and that prodigals in reason , ought not to be interdicted , if they sowed not their monies in the furrows of forreign nations , in which case only the commonwealth was prejudged ; but that if they spent it within the territories of the commonwealth , they could not be challenged ; seing they were masters of their own , and seing the common-wealth was not endammaged , but rather advantaged ; seing their money came in the hands of frugal men ( for such are ordinarily those who fleece these sheep ) who might improve it more to the publick utility ; and if persons of vast estates deborded not in such extravagancies , they would in fine coffer up all the monies of the kingdom , so that poor artists , and others , should be totally impoverished ; ( for the superfluities of the rich , are the granaries of the poor ) and these who were once rich , might presume , knowing that they would not be licentiated to dilapidate ; and poor ( though ingenuous , and ingenious persons ) might despair , if they had not such crumbs as these to feed on : but by prodigality , treasure runs like the sea , to the water-sources of poor artists , and from them , by the frugality of others , returns back again to the ocean of noblemens treasuries ; by which circulatory motions , the fabrick of the universe is maintained in the one , and the fabrick of the state is entertained by the other . megistus maintained , that there was no adultery in the case where the husband allowed his wifes imbracements ; and that it was only the husbands dissent , which made the wifes consent be reputed adultery : for , said he , all the precepts which concern man , may be dispensed with , by man ; for , seing the great legislator hath only made these laws which terminate themselves in mans advantage , to be bulworks to him against the malice of others , it appears that where there is no wrong done to him , the law introduced in his favours ceaseth ; and as , if there had never been fear of wrong , surely the law which punisheth that wrong had never been statuted ; even so in the case where the party that only can be offended , remits the offence , there the law ceaseth , because its occasion faileth : and albeit in crimes once committed , the law-giver may pursue , albeit the party offended desist ; yet that is where the crime was once committed , and where the committer hazarded upon the fact , before he had the parties offended consent ; and so , as he contemned the law-giver , as much as he offended a private subject ; the law-giver may insist , albeit the subject desist . and , as in the case of theft , the magistrate may punish the stealer , albeit none concur with him ; yet before the theft is committed , if the person whose goods are taken , consent , there can be no theft ; even so , if the husband before the adultery allow his wifes familiarity , he cannot be said to be wronged : neither can ye obtrude here , that the wife hath chained her self to her husband by an oath , which adamantine chain , the weak hands of a husbands consent can never break ; this , i say , cannot be obtruded here : for , seing this is an oath only , and no vow , the immortal gods are not parties , but witnesses in it , ( for a vow is only where the thing promised is made meerly or mostly for their honour , which cannot be said here ) and so the person in whose favours it is made , may favour the maker so far , as to dispense with it . nay , but ( replyed megistus ) both the gods and the common-wealth , are interested in what is enjoyned by that law ( which seems to be one of those laws which was made in natures first parliament ) and are as much parties as is the husband ; for , if husbands had the keys of that law put into their hands , they would open a door by them to all wickedness , and would feed the greedy appetite of that monster , lust ; and the souls of creatures , and hearts of subjects , would be so stuffed with this base passion , that no room should be left either for vertue , or gallantry ; and the gardens of mens souls should be so overgrown with this spreading hemlock of corruption , that no ground should be found to sow in , either the roses of piety , or lillies of generosity : and albeit ye combat stoutly with the weapon of the husbands consent , yet ye shall never be able by it , to wound one who is covered with the armour of reason ; for that husband who would by the hand of his own folly raze down the ramparts of his own honour , and by the mire of his madness pollute the wel-spring of his private satisfaction , might justly be reputed mad and demented , and his consent might be accounted as ineffectual , as it is unreasonable , and so to operate no more here , than the consent of mad-men doth in law elsewhere . they were arrived by this time , at the place where the army had encamped for that night , and were welcomed by the applaudatory acclamations of the souldiery , each one esteeming them the coals by which the green wood , for their unexpert courages , behoved to be kindled ; and their enemies themselves ( who were rather rivals of their success than enemies to their vertues ) acknowledged them both the patterns and patrons of true gallantry . after they had tendred their respects to the general , they retired to their own tents ( which their servants had already stretcht out for them ) and thereafter megistus exercised a company of foot in the face of a regiment , teaching them by what he did , what they should do , and disciplinating those who dreamed formerly , that war was only a flash of artless courage , and that all its precepts might be summed up in that one , of not running away . misarites much dissatisfied , that applause should have so hugd these knights in its arms , and that all should be so much beadsmen for their success , sent a gentleman to acquaint them ( as if in a friendly way ) that the officers of the army frowned exceedingly to see their own eggs hatcht by others . megistus could easily have unridled a greater mysterie than this , and conjectured instantly that emulation was the sender of that ambassage ; whereupon they retired to their tents , but so prudently , as that none could perceive their design in retiring . where the martial knight ( to dissipat these clouds of passion which were already conglomerating in the firmament of megistus face ) undertook this subsequent relation for their divertisment . i lodged , said he , with a merchant in alexandria , whose wife thought her self the widow of a living man ; and so setled her fancy upon a pretty youth , her apprentice , upon whom she conferred those respects which she denied her husband ; to whom , albeit she could not in reason , yet she did in fancy , marry her self ; and with whom she spent those amorous hours which she could steal either from her husbands assiduous company , or the youths numerous imployments ; but when the husband was abroad in the country , then they reaped the harvest of these pleasures , which they gleaned only at other occasions , and feasted upon those amorous delicacies , which they could only use as desert at other times : but that i may abridge my story , it hapned one day that the husband was by his imployments called to the country , telling his wife that he would not return of a fortnight ; so that they had the reins of their pleasure laid upon their own necks , and thought an occasion to sin was enough to authorize them in sin ; but whilst they are in bed together at twelve a clock of the night , the husband wearied with his journey , and disappointed of his projects , returns home , and knocks at the door ; the wife conjures her gallant not to budge , whilst she was opening the door to her husband , which he condescended to , rather to satisfie her , than his own reason : the door was opened , and the kind wife caresses most affectionatly her wearied husband , telling him that it was pity the husband should toil so , in amassing means and money for their wives , who sucked the honey , albeit they brought not home the wax ; but said she , sweet-hart , providence hath led you home this night , that ye might be a target to the innocency of your importuned wife , whose honour your apprentice hath oft and most passionately assaulted ; so that in him ye keep a fox at home to devour your own hens , and this night at one a clock ( which is not now far off ) i trysted him in my chamber , resolving to intrap him ; but seing ye can manage that imployment with better success , i entreat you go to my closet , and put on my cloathes , and meet him at the door in that way which he deserves : the honest husband smiling at the conceit , undertook the conduct of that business ; and retiring himself to her closet , opened a door to the gallant to escape , who having shifted himself in his cloaths upon the top of the stairs , returned to act what the wife had promised in his name ; and he grating the chamber door , was answered by the husband ; the door was no sooner opened , than our gallant buffets the poor husband most sadly , calling him disloyall base whore , and unworthy to be wife to such a civil gentleman , as was his master ; and that it was not to satisfie his lust , but to experiment her integrity , that he had thus courted her to a parley . the master surfeited with blows , and satisfied both with his wife and servants candour , desired him to leave off to strike him , or revile his wife ; but the other continued his rage , till , as he alleaged , the wifes cryes deciphered to him his mistake ; and then imbracing his master , did , after a full information , beg pardon upon his knees for his errour : which both of them promised not only to pardon , but also to reward . megistus and philarites had that morning , been comparing the rise of their several affections to their mistrisses , and each disputed the precedence to his own ; philarites seemed to have fallen into a burning feaver , and megistus love had crept upon him like a hectick : wherefore they resolved to submit in this to the martial knight , who commanded megistus first to plead his cause , which he obeyed thus . sir , nature , which is equal and proportional in all its periods , seems to ominate a speedy death to that which hath a speedy birth ; and it is probable , that that heart of straw which flameth soon , will not flame long ; and those creatures whose nativity is ruled by the almanack of a night , or hour , may expect to meet with their climaterick the next day : whereas that passion which resembleth the elephant in its slow●paced conception , may probably resemble it likewise in its admired bulk , after that it is once conceived : and that love which like the hart , lodgeth so long in the belly of its dam , may like the hart prove long-liv'd after its arrival to the world : and those impressions which are made upon the ashes of a soon-inflamed soul , may be easily obliterated ; whereas the obdured marble of a resisting spirit , will hardly suffer ever its impressions to be effaced ; and seing love should stand upon the basis of reason , the broader that basis is , the longer love will stand ; and that soul which resisteth longest by reason , will persist longest by constancy . philarites contended thus : sir , the purest air is alwayes soonest inflamed , and enlightened by the rayes darted from the sun , and those are but foggie and misty vapours which resist its illuminations ; it betokeneth a body wet with the dull phlegm of stupidity , not to be presently heated by a vast fire : and those spirits are not powder fitted for the war of generosity , which cannot kindle at the first touch : great beauties are like the sun , which spreads its beams all in one instant ; and that is the best eye which discovereth immediatly all the excellencies which are discoverable in the objects . both parties having closed their plea , the martial knight adjudged victory to both : for ( said he ) cupid confines not himself to one way of gaming , and all his shafts may be equally good , albeit they wound not equally soon ; and the bodies may be equally resistant , albeit the darts pierce not equally deep : for , the difference may , and doth oft proceed from their being better or worse armed , either by indifferency , or inanimadvertency ; and albeit the sun be the same still , yet its heat is not still communicated after the same manner , because of the nearness or other position of the body , which should concentrate its beams . the army next morning marched , each expecting that week , once to cope with the persian forces , who besieged the citadel of iris , and were like to conquer it , because of the paucity of the defendants : misarites hoping to blunder megistus with unsuccessfulness , or else willing the persian ( whom he now adored ) should possess himself of that strength , commissionated him to march thither with two thousand foot , to try if he could by any means rescue that place , whilst he , and the remanent forces expected there the advancing troups from the remoter parts of the kingdom . megistus , accompanied with philarites and the martial knight , obeyed his order ; seeming to rate as a complement , what they knew was an injury ; and albeit he commanded them to make brick without straw , yet they shewed as great alacrity as if he had furnished them with means proportionate to such an end . the next morning , they commenced their march , and having at night fortified themselves in a neighbouring marish , they plotted thus to succour the city . the martial knight was to choose an hundred stout fellows , who were to carry burdens of provenant to the persian army , they were to drop in to the camp by two and three , as if they were coming to provision the army , but were enjoyned to value all things so highly , as that there should be but little sold til their number were compleat ; and that thereafter , those who were within should sally out upon that corner where they were lodged , with whom they should instantly joyn , and march in to the citadel , whilst the others were disputing the event with courage : this undertaking framed prosperously , and the citadel flanked with fresh souldiers , and encouraged by the conduct of the martial knight , was now impregnable . the noble knights fearing that the malice and skill of their adversaries at court might somewhat ( if not altogether ) misreport their ingenuous procedures in that expedition , ( malicious spirits being like corrupt stomacks , which can corrupt the best of viands ) resolved to narrate the whole tract of what was done in a letter to his majesty , whereof the tenour ran thus . sir , jvstice hath unsheathed her sword in your majesties quarrel , and in all probability resolves to defend you once , who hath so often defended her : the prudence of your general commanded the attempt , and the obsequiousnesse of your majesties servants under subscribing ▪ atchieved it ; seconded rather by the benignesse of your fortune , than either by our own courage , or multitude of our followers . the rescue of the citadel of iris , hath undertaken the prologue in the tragedy of the persian misfortunes , and we hope shall like an usher , hold aside the tapestry , till the succeeding rable of their misfortunes enter in at the same door . this smiling skie , promises a bright sunshine at noon : and we hope your majesty shall one day pull with satisfaction the fair fruits of victory , after these blossoms of successe are ripened , by the heat of your armies courage ; who will , we hope , allye their great valour , to your good fortune : which is both the expectation and wish of your majesties most loyal subjects , megistus , philarites . megistus addressed another letter to the divine agapeta , wherein he discoursed thus . madam , my reason ( befooled with credulity ) perswaded me whilst i lived at court , that lapse of time , and distance of place , might have effaced some of those impressions , which the diamond of passion had engraven upon she long resisting cristal of my love-fearing spirit : but i find now that i have been abused in this , by my credulity ; for i perceive that the wound is not cured by distancing it from the sword which made it ; and that love resembles an impetuous river , which swelleth the more the farther it runneth from its source ; and that albeit the weakest wit might wade through it near its fountain , yet the strongest reason is not able to ford it , when it hath run farther off . madam , every beautiful face which i see , hath some trait in it , which proves a remembrancer to me of those incomparable lines which the pencil of nature hath drawn in yours ; but they are but dull copies of such an original , and can represent it in nothing else , besides in making me infortunate , in beholding that , which i can only behold and not enjoy . i lye here , tortured by the sharp ague of passion ; sometimes scorched with the flames of love , and at other times frozen by the cold chilnesse of despair ; and as in all poysonings , so in this , i must seek the antidote from the same body , whence came the poyson . fair lady , live happy , and dart forth one ray of your happinesse , to enlighten the darkned soul of melancholie megistus . philarites vented his passion to his dear ar●tina in another letter thus . incomparable lady , if this paper had not been dampt in the floods of my tears , the flames of my zeal had burnt it to ashes ; neither can i but envie its happinesse in kissing your fair hands , a happinesse sufficient to border and limit the most unsatiable of mortals : and so being its rival , i would certainly destroy it , if it did not promise to acquaint you with the ardour of my respects to you . oh that there should be greater distance betwixt this and alexandria in ground , than there is in the mappe , that so i might see that sun , with whose shadow i must now rest satisfied ; and that i might adore that deity , by which i intend to be saved . madam , i have sacrificed all the flesh of my parched body upon the altar of love , and were it not that my soul thought that it could be serviceable to you in its present dwelling , it would leave that ruinous fabrick wherein it now remains . madam , be not so unmindfull of him , whose both happinesse and torture it is , that he is too mindfull of you ; and bestow one thought upon him , who bestowes so many upon you ; and who cannot , nor will not be happie , except in being esteemed , fair lady , your humble servant , philarites . whilst philarites was dispatching this envoy , a young gentleman desired access to megistus , which being granted him , he did with a chearfull countenance deliver his mind thus . noble sir , albeit the desperatnes of my design , might make you eye me , as either distracted or malecontent , and like one , who being in fear to drown in the gulf of despair , is content to hang by the smallest twig of comfort that he is able to grasp to ; yet the publick advancement of my nations interest , makes me over-look all such difficulties , and willing to exchange my own losse with their gain : for , i think it most reasonable , that one member should rather be cut off , than that the whole body should be endangered ; and especially such a member as is already in apparent danger of being lost : wherfore , sir , seing the enemy is to passe this night alongst a wooden bridge over the nile , hoping to attaque unexpectedly your camp , i entreat ye may suffer me to inclose my self in an arch of it , with some barrels of powder , that when such a number of them as your army is able to encounter , hath past alongst it , i may blow up the bridge , and so stop both the passage of those who are not already past , and the return of those who are gone over . sir , lest my intruding my self in this danger , and the horrour of the danger it self , should make you think it is rather treachery than affection which hounds me out to this enterprize , ye shall be pleased to know , that these ravenous physicians , who have these two years preyed upon my fat purse , and practised all their cheats upon my wasted body , have at last told me , that my cancer shall at last irrecoverably period my dayes : wherefore , sir , finding that i could not by art prolong my dayes , i resolved to do it by fame ; and to sweeten the harshness of death by the generous manner of it , that so my parents might have the breath of my praises to dry up the tears of their compassion ; and that by destroying one subject to my prince , i might preserve him two thousand ; having thus satisfied my reason , i resolved to satisfie my conscience , which is that great controller of all our actions ; whereupon i addressed me to a priest , my intimate acquaintance , who perswaded me , that it was as lawfull for the civil magistrate ( whose command he desired me to ask ) to dispose of me for the publick utility , as it was lawfull for a private person to ransom his life by the losse of a member , and that such a generous resolution was a key able to open the gates of paradise : and if it was lawful for a man to hazard his life in battel , where he could kill but two or three ; how much more lawful was it to buy the safety of many friends , and the destruction of so many enemies , with so worthlesse a farthing as my single life was ? megistus having deliberated with philarites the expediency of this overture , resolved to accept the offer : whereupon , having both thanked and encouraged the young man , having heard that the enemy was to passe alongst the bridge the next day , he went under silence of night to the bridge , and opening an arch thereof , he inclosed in it the gentleman , together with some barrels of powder , and some match ; and guarded the bridge with some souldiers , lest any should carry intelligence to the enemy of their intention : the next morning , the enemy ( according to expectation ) appeared in view , which made the two knights make a shew as if they would fight ( for they were now four thousand strong ) and having , after some resistance , abandoned the bridge , they suffered the persians to passe alongst it , three thousand of them being on this side already , megistus caused shoot some peeces of great ordnance ( which was the signal condescended upon betwixt the gentleman and him ) and which was instantly obeyed ; for , he having fired , the powder did , to the terrour of the spectators , and ruine of the passers , blow up both himself , them , and the bridge , and sent them all to heaven in a fiery chariot , their bodies convoying their souls half way , and would have entered the upper spheares with them , if heaven had not shewed its unwillingnesse to lodge such contaminated guests , as bloudy carcasses were : those who had passed over , finding themselves destitute of the assistance of their friends ( who were able to contribute nothing now but their prayers and wishes ) resolved to imbrace an honourable death , since they could not procure to themselves a long life , and to shew , that rather fate , than fearfulnesse , had occasioned their overthrow ; yet courage had its eyes so dazled with the unexpectednesse of their former disaster , that it could not see what was fittest to be done in that juncture of affairs ; and they beheld their enemies through the multiplying-glasse of fear , and as those for whom providence had displayed a banner . the knights assaulted them whilst thus perplext , and put in disorder the ill-marshalled right wing ; and as ordinarily those who draw one link of fortunes chain , will make all the rest follow it ; so this partial victory was seconded by a total , and the persians were forced rather to imploy their tongues in demanding pardon , than their swords in seeking victory , leaving the two knights both the victory and the field , as the recompence of their gallantry : these news wrought as different effect at court , as the sun doth upon the earth , when it causeth the roses smell sweetly , and the marishes stink insufferably , producing effects according to the dispositions of the bodies wrought upon : thus all the truly generous spirits at court shared with these noble gentlemen in their good fortunes : ( virtuous men honouring true generosity , as that whereby they either have already been , or hopes to be honoured ) but sophander and his faction , made the sunshine of their glory , appear as dapled with some obscure spots , and alleaged , that it was intolerable arrogance in them , who were but strangers , to place the martial knight in the citadel of iris , which being a frontier town , could not be disposed of but to a native ; and that it was the custom of egypt not to bestow frontier strengths , either as appanages upon the children of their prince , nor as governments for the use of strangers : as also , they challenged them for fighting the persians , albeit with advantage , yet without order , misarites having only commissionated them to rescue iris , and no more ; and if private persons should follow rather the dictates of their own reason , than the commands of their superiours , government were unnecessary , and ruine behoved certainly to attend such disorder : and albeit fortune should make such undertakers victorious , yet it could not justifie their undertakings ; neither could the dammage which might ensu● upon such exemplary contempt , be compensated by the advantage which might accrue from an accidental victory . amongst all their friends at court , none were so much satisfied , nor esteemed themselves so much interessed in these victories , as agapeta and aretina , who kindled bonfires of joy in their breasts , to congratulate their great success ; and albeit they could not then in modesty nor prudence cry up these noble exploits themselves , yet they respected all those who did it . sophander , who had at the council table of his own thoughts , declared himself an enemy to the royal faction , concluded now , that the only way to ruine the king , was to ruine these noble gentlemen ; knowing that those who would fell a great oak and pluck it up by the roots , behoved first to cut the earth about it : to effectuate which , he bribed a mesopotamian at court , to confess the pedigree of his prince megistus , and at last to declare to the king , that he had carried letters from him to agapeta : and now confident of this fellows perseverance in his roguish business , he addressed himself to the king the next morning thus . sir , if my being entrusted by you , the confidence i have in you , and the experience i have of you , did not imbolden me to unfold to your majestie such mysteries of state , as is that which i am presently to discourse of , i would not dare to dip in affairs of so great importance ; and seing princes have not the leisure to pry into all particulars , nor informers either the opportunity or confidence to give them immediate information of what toucheth them , i think it is prudence in princes to imploy ministers of state to learn , and duty in ministers of state to acquaint princes with what they have learned ; and since all subjects are tied by their condition , to detect what may wrong the state , or endanger the person of their prince , what a strict obligation is laid upon minions to disclose to their masters , what may ruine them and their subjects ? and albeit there be great danger in being misconstrued by their prince , yet expediency should not be disputed in those actions which are commanded by duty . sir , this gentleman , named megistus , is of a birth rather answerable to the extraordinariness of his qualities , than suitable to the meanness of his equipage ; his deportment tels , that he is a prince , and my author confirms me in it : for , i am informed by a mesapotamian ( whom i have brought alongst with me ) that he is son to the king of ethiopia , and is come to your court to court your daughter . sir , this may seem improbable : yet if we ponder the hazard he runs in travelling abroad , and the desire parents have to keep their children under their eye ( especially when he is their successour and the expectation of a whole nation ) your majesty may think that is not altogether impossible ; but sir , if ye consider the pains he is at in your service , and the perils he layeth himself open to in a forreign nation , ye may eye it as probable . and if yet further , ye examine the correspondence he keeps with your daughter ( which this fellow will assure you ) ye may justly conclude it certain . where the danger is great , the proofs needs not be most clear ( neither can we expect plenary probation in those plots which are hatched so covertly ) and the fear of a disease is enough to command its prevention : neither can there be greater danger anywhere , than here ; for , megistus being by birth , a prince ; in stature , handsom ; and by fortune , successfull ; it may be feared that your daughter will prefer his bed to that of a subject , upon whom she fears ye will bestow her : and if once he master her affection , ( which is easie where he is so accomplished , and hath so few competitors ) she will die , if she marry him not ; or your crown will be carried to a stranger , if she marry him : neither lies all the danger there ; for it is to be feared , that if he married once your daughter , either your majesty behoved to nominate her your successour , and then possibly they will rather hasten than expect your death ; or else , if ye do it not , he may secure himself in your kingdom , by the assistance of your mercenary or discontented subjects , into which two files , all the commons , and many of the nobility may be ranked . sir , i know he is your favourite , and so i may be misconstrued as being thought to to fear that he is my rival ; but , sir , i know that a prince will not stay long here to inherit your majesties favour , and so to slight his own royal inheritance at home ; sir , it is rather my affection to you , than my dislike of him , that animates me thus to inform you : wherefore , i hope your majesty will endeavor a cure , since you know the disease , and will not suffer repentance to be your first informer . this discourse some what allarmed the king , yet considering how oft sophander had betrayed his belief by such like state-cheats ; he resolved to suspend his judgment , till the matter were fully determined by mo●anthropus's advice , and knowing that sophandor and he were of different humours and contrary judgments , he knew that such contrary ingredients might make up the dose of a most solid advice ; and that his own judgment , which sophanders discourse had crooked a little to his side , might be streightened by monanth●opus's drawing it somewhat to the other ; and resolved by this means to keep the scales of court equal , by placing them each on a side ; wherefore sending for monanthropus , he laid out the whole matter before him , who returned him this answer . sir , albeit it was my interest , yet it was never my humour to detract from any of your majesties servants ; for , by ranting against their insufficiency , i behoved to challenge your simplicity in making choice of them . but , sir , i may the more freely give your majesty my advice now , that i never gave you it till it was desired ; and i think , that as in witnesses , so in advisers , those who intrude themselves , are to be suspected ; and the rather , because the person delated is of so unspotted a repute , that his very deportment is able to answer all the cavils that his enemies can object against him ; and , sir , since that accusation is only seconded by a presumption , his generous humour and singular successe ( the one whereof testifies his affection to vertue , and the other whereof testifieth the gods affection to him ) is able to fortifie him against ten thousand such weak assaults ; and the general presumption of all mens being presumed good ( the only hinge of all credit amongst men ) added to the particular presumption of his repute , is too strong a defence , especially for a defender whom justice owneth always of her client in all actions , and secondeth in all combats ; and we have a proverb , called suffragium minervae , whereby we signifie , that if any be accused and the votes of the judges be equal , the defendant is absolved , because that goddess voteth likewise the absolution of the party accused : and seing he proveth him a prince , meerly by his deportment , i may by the same argument conclude , that he will do nothing unworthy of a prince : but admit he were a prince , we cannot conclude thence , that he resides here upon that design ; for , else he had never abandoned the court , where he might enjoy the frequentation of that beautifull princess : sir , it is most unprobable that he could dream of joyning two crowns which lye at so great a distance , as lye the crowns of egypt and ethiopia ; certainly he knows that by force he could never subject egypt to him , and without force egypt would never suffer it self to be adjected to ethiopia ; by which course they would forfeit their princes presence , and be in fine possibly reduced to a province ; wherefore , sir , condemn not a prince upon so frivolous grounds , but rather re-examine your authour , to see what more truth ye are able to milk from him . this motion pleased the king exceedingly , and sending for the mesapotamian , he threatened him to professe whether what he had spoken to sophander , was truth or not , or was voluntarily informed or not ; telling him withall , that he would cause presently streatch him upon the rack , because he had heard that sophander had bought that confession from him . the poor fellow fearing that all was deciphered , and begging the king's privacy , he confessed ingenuously the progress of the whole matter , and that he never heard any inclination which his prince had for agapeta ; neither delivered he her any letters from him ; but that that lesson was dited to him from sophander's own mouth : but contrariwise , he knew , that it was concluded by megistus's father , that he should marry a neighbouring princess , whose estate was adjacent to ethiopia , and did secure it as a frontier , albeit it was but of small revenue , and she of mean parentage ; and he heard at court , that his father answered those who upbraided him for bestowing his son and gaining no allies by him , that marriage could never solder up the cracks which were in princes friendship , and that princes might be friends , but their crowns were alwayes enemies . the king satisfied with this confession , dismissed him after he had rewarded him , and enjoyned to him that he should never reveal to sophander what he had acknowledged to him . monanthropus , after he was gone , resumed his discourse , thus ; sir , those who intend to perswade too eagerly , are not unlike those , who fearing to shoot short of the●r mark , shoot often over it . i am confident , if sophander had not been distracted by envie against megistus , he would never have endeavoured to perswade your majesty , that a business of so great moment could have come to the ears of such a fellow as this ; but , sir , since his pretended reason , which was alleaged to be zeal to your service , is now found not to be the cause of his information , your majesty may perswade your self that there is some poysonous hook lurking under that pleasant bait ; and ye may justly turn the edge of your jealousie , which he hath desired you to unsheath against megistus , against himself ; and since sophander is a stranger by birth , and by inclination most avaricious , ye have reason to fear his projects , and eye narrowly the comportment of his creatures , by whose motion ye may come to know the nature of that machine which moves them . the king thanked monanthropus for his advice , and entreated he would tell him how he behoved to carry himself in a business so ticklish . your majesty ( replyed monanthropus ) must seem to believe sophander , and may to him promise , to narrow your affection , and abridge your respects to megistus , whereby ye may the more covertly discover by his advices to you , what his scope is in this his passion . after monanthropus had thus enstated megistus in the kings affection , he acquainted megistus with what had passed by this letter . sir , since unkindness is a vice , i will not requite it ; and albeit i regrate that ye should conclude me unworthy of half a sheet of paper , yet i shall rather think my self so unworthy , before i think you mistaken . your great successe hath made all men your admirers , and some your enemies ; fearing lest your noble hands should unwreath that yoke of slaverie which they have so laboriously tied upon this poor nation . sir , admire not that pirats follow alwayes the richest vessels ; for , as vertue , which reigneth in you , imployeth you as her subject , to maintain her honour ; so vice , which reigns in them , entreats them to deface yours . sophander hath informed the king , that ye are prince of ethiopia , and intended to court his daughter , and enjoy his crown ; but i have counter-informed , and his majestie is now fully assured of your innocencie , and resolveth to rely mainly upon your conduct and courage ; so , if ye intend to gain his daughter , lose not himself ; and manage your passion with more indifferencie than lovers ordinarilie do : consider that kings have long ears , and many parasits to fill them with detracting clamours ▪ sir , leave not off to be a prince , when ye begin to be a lover ; but since ye are a prince who loves , love rationally like a prince ; and let those whom ye are born to rule , see that ye can rule your self : i know love scorns to live under the tutory of reason , thinking it too severe a master , and knowing that if it had reason for its associate , all its victory would be attributed to reason ; whereas now it shews , that it can both war and triumph , not only without reasons assistance , but even against and over reason : yet , sir , seing the danger is great here , a ladies honour and crown being at stake , i hope your prudence will deal warilie , where your unwarinesse may be so prejudicial to her and you both : all the nobles of this nation will band against you , and will think this crown too large for any strangers head ; and that the throne of egypt is too easie a seat for any besides themselves : and ye will learn by the change of affection in those who pretend now to be your friends , that love is but the handmaid of interest ; and that as they love you now for their own interest , so they will prefer hereafter their own interest to your love . whatever be the carriage of others , if ye mannage these affairs prudently , ye shall find monanthropus your very humble servant . this letter came to megistus hands as he was sending away the captives to misarites , to be disposed of at his pleasure , and after he had dismist them , he did reade it , and thereafter retired to his chamber , fearing lest any of the soldiers should discover the pangs wherewith he found his soul tortured ; he did now conclude that his love-voyage would be dangerous , seing at his first lancing forth he was encountred by such storms ; and to admire the folly of men , who having received freedom as a patrimony from providence , did , like unfrugal heirs , sell their ancestors old inheritance ; their thoughts did no sooner appear , than love mustering all her forces presently , quelled them , battering them with no other ordnance than that picture of agapeta which megistus carried in his breast : could such a prize as this ( said love ) be gained without a contest ? and would ye marry a woman whose affection were not tryed by the competition of many rivals ? how should her love , or their courage be known , without opposition ? or , can things be deemed difficult when undergone for her ? ye think both her face and endowments incomparable , and they are so ; wherefore , if ye would proportion your deserts to them , shew your patience to be so too ; and think not strange , that vertue , to shew the world for their instruction an example of constancy , should , like all wise teachers , cull out you , who is one of her prime scholars , to make men admire her skill in your proficiency ; neither can she be so unjust , as not to reward your pains with lawrels : if your voyage be harsh , there is a good harbour attending you ▪ and albeit the storm be boistrous , yet if the vessel of your resolution be strong , ye need not fear : fear puts on oft-times the vizard of terrour and difficulty upon the face of our undertakings , to terrifie us , which if ye can by the hand of courage pluck off , ye will find your projects very smooth-faced : seing ye are entered into the river of difficulty , look not to the under-running streams lest your head by troubled , but look over to the shoar of contentment , upon which ye intend to set foot ; complain not of the loss of your liberty , for necessity , in things that are excellent , is to be preferred to liberty : thus we see our liberty is no wayes impaired by loving the immortal gods , nor by loving that which is good , albeit we do both the one and the other necessarily ; yea , rather we are infinitly obliged to them for necessitating us to love something , which possibly if we were left to the disposal of our free will , we might possibly relinquish ; and these same gods who have bestowed freedom upon us , do likewise excite us to love : so that seing love is of a divine extraction , it must be of a most pure essence : the gods disdaining to put their impressa upon any mettall that is not in it self excellent : and that it is the effect of some divine influence we may conclude from this , that it were impossible for nature to raise instantly such an emotion in the soul as ●●ve occasioneth , whereby it is transported beyond the ordinary limits of its ordinary strength ; yea , often produceth effects contrary to its wonted humour : so seing it makes cowards stout , and fools witty , we may infer that this is not natural ; for , naturally no cowards can be stout , nor no fools witty . having ended this melancholious contemplation , he called for philarites , who helped him alwayes to bear the burden of his grief ; and related to him the whole passage circumstantiated , as he had learned it from the letter . philarites , not a whit dismayed , told him , that at court the minds of courtiers changed fashions as oft as their cloaths : and as fortune changed oft-times her favourite , so her favourites changed oft-times their affection ; the reason whereof was not , because courtiers were of a more facile humour than others , ( for ordinarily they were men of the most pregnant spirits , with which facility can never suit ) but because their affection was never so deeply fixed , as the affection of those who lived retiredly ; for , seing they had many to bestow their affection upon , they could not bestow much of it upon all ; whereas those that live retiredly , meeting with few worthy of being beloved , fix all their love upon those few : neither was th●●ove of courtiers unlike an anchor , which albeit it be great and strong in it self , yet , if it be not deeply fixed , will be raised by the first storm ; as also , mis-informers at court were so many and so busie , and the jealousie of courtiers so great , that it was wonder how love lasted one week even in the most constant among them : and i am confident ( said he ) that providence useth the unconstancy of favour at court , as an argument to deter generous spirits from places which are ordinarily in themselves most vicious ; and albeit sophander promised upon our first appearance at court , to befriend us , yet it is one of his tenents , that a statesman should be a servant to his word , to obey it in a rational way ; but that he is not obliged to be a slave to it , in obeying it in things both against his reason and interest ; and i heard a gentleman say , that he defended ordinarily , that all state-promises were no longer obligatory , than things continued in the same way they stood when the promise was made : for , said he , i promise , because i am informed , or imagines , that the person to whom i promise is of such a temper ; so that if he be of a different or contrary temper , the condition failing , the thing conditioned cannot be sought ; and since promises are ordinarily donatives , there is reason the donator should have the priviledge of explaining his owne mind ; for , seing they to whom i promise can pretend no right to the thing promised , but because i willed it ; therfore if my will be not clear , their right is null : and seing none can be so well acquainted with my will as my self , none should be admitted to explain it but my self : and ordinarily , so many and so great inconveniences would follow upon the observancy of such promises at court , that there would be greater danger to the commonwealth in keeping them , than there could redound to any private mans conscience by the breach of them : but , sir , ( continued philarites ) think not strange that fortune should graple with you ; for it is her ordinary , never to list her self but against some noble spirit , whose conquest were worth her pains , scorning the easie victory which she might have over silly clowns : but possibly she intends to try your courage , which when she comes once to know , she will think you worthy to be her minion : she can command weak spirits , but great ones are born to command her : and since the mustering false hopes is able to make a man victorious , and the basest of men gain oftimes , because others think that their brags and threats are true ; how much more shall the best of spirits ( amongst whom ye may be ranked ) become victorious , if they but hope really that they shall conquer ? hope resembles a bridle , whose motion is able to recover the stumbling feet of our courage ; and how many armies have gained more by presages , and happy omens , than they could have done either by skill or numbers ? this is the reason why speeches are made to souldiers ; and for this audacious spirits are usually most fortunate . this discourse was interrupted by a letter presented from misarites , wherein they were ordered to return to the camp with those under their conduct ; which they were most willing to obey , knowing that the souldiery there might easily be misinformed of what was done at such a distance from them : the next morning they did begin their march , and being after two dayes arrived , they were welcomed by the acclamations of the souldiers ( but coldly entertained by the grandees , whom misarites had poysoned ) who , in spight of all misinformation , admired the rare qualities of these noble gentlemen : for , albeit it be an easie task , to defame amongst the vulgar sort , those , whose prime quality is wit ; because their wit , which should antidote all these aspersions , is not easily perceived by that sort of people ; yet it is hard to defame those whose chief part is courage , because the most ignorant cannot but see that ; and ordinarily the vulgar sort is more led by their sense than by their reason . misarites delayed alwayes to fight , pretending that it was fitter to starve than to fight the persians ; who being far from home , could not subsist long in a forreign nation : but his intention was to ruine the egyptian army by these delayes , who finding themselves near home , and overburdened with hardship , did drop away daily . nothing was acted all this time , except by skirmishes ; wherein misarites imployed all those whose courage was formidable to the persians , and whose loyalty was formidable to himself , and many of them were swept away by this means ; neither omited he to entice the knights with this point of honour , but all in vain : for they resolved to reserve themselves for archievements of lesse hazard , and more honour . misarites caused likewise mix the meal , which was sent to the army with lime and chalk ; whereby diseases became both numerous and dangerous , and the whole army began to resemble an hospital , wherein there was greater need of physicians than of field-officers : he likewise , together with sophander , perswaded the king , not to send the army their pay , assuring him that poverty was the best encouragement to fight , for it made them fight couragiously , out of a desire to gain the enemies spoil ; whereas those who were rich , were unwilling to hazard what they were assured of already , for what they were not sure to gain . sophanders drift in this , was to reserve the money for himself ; but misarites scope was meerly to turn the souldiers male-contents : neither ceased the knights covertly to make the army remark these passages , thereby to enrage them against misarites . at last , megistus trysting misarites his secretary o●e morning to his chamber , after some previous discourses , whereby he sounded his thoughts , spoke thus freely to him ; sir , it is not to discover the treason of your master , but to learn some evident proofs of it , that i sent for you this morning ; his complot with sophander and the persian is already detected ; and ye are mad who imbarques your self in such a quarrel , ye walk upon a narrow precipice , wherein there is great difficulty to stand , and certain ruine if ye fall : think not that the gods will suffer princes , who are their deputies , and who govern for them , to be circumveened by such treacherous designs ; in vain have they been at so much pains for the defence of his honour , if they abandon it now : and albeit it did thrive in your hands , yet after the game is plaid , there will be danger in your master's parting the stakes with sophander ; who will lay him aside when he findes that in peace he stands not in need of him : but albeit your master did injoy his promised preferment , who knows but he will cause cut your throat , both fearing lest you should thereafter upon some discontent divulge his cheats , or fearing that he could not safely therafter imploy you , who betrayed your prince ? wherfore if ye desire to perpetuat your happiness , and to prevent your inevitable ruine , desert that , interest , and own the interest of your nation , and i promise you in his majesties name greater preferment , than ye are to expect from your master ; neither need you stumble at this , as a breach of trust , and as a sin comitted against the affection which your master bears to you , for ye should pay the oldest debt first ; and ye were a subject to your prince , before ye were a servant to misarites ; wherefore ye should endeavour to acquit your self of your duty to his majesty , as being both of greatest importance , and of oldest standing ; neither doth your oath of fidelity , given to your master , oblige in things unlawful ; for the gods will not be witnesses in things abominable , and there is no oath whereto they are not called as witnesses ; they will not suffer a man to be bound to the stake of impiety by such sacred chains ; and since the thing sworn is unlawfull in it self , there can be no confirmation of it by oath : for , how can ye confirm that which is not ? as also , sir , all oaths are given with this proviso , that they wrong ●ot our superiours ; for , our subjection to them not being ours , we cannot dispose of it without their advice . this discourse surprized so the secretary , who entreated some time to advise ; but megistus fearing that he might detect him to his master , or at least , might dissemble with him , told him , that to relate things already done , there needed no consultation , which was only required to prevent things to come , wherefore he insisted passionatly for a present discovery ; which the other , convinced by his conscience of his errour , and considering that he had already half confessed the truth of what was doubted , by seeking some time to solve the doubt , which else had been needless ; desired megistus to swear in his majesties name , what he had promised , and that he should unriddle to him the whole mysterie ; which when megistus had done , the secretary spoke thus . sir , i cannot tell whether it be by sagacity , or divine inspiration , that ye come to know this mysterie , but it must be by either ; for those who were privy to it , were all of them so much concerned , that i am confident they would never divulge it : but , sir , you have conjectured rightly , for my master hath devoted himself to the persian service ; and one day by a compact betwixt him and the persian general , i was desired to walk out to the ●ield , where i would find a persian , of such a statu●e and garb , who would suffer himself to be taken my prisoner ; which succeeded accordingly , and whom i conducted to my master , and who was brought to his bed-chamber , upon pretext as if he would examine him privatly ; my master commanded him to prison for two dayes , but thereafter enlarged him upon his promise to stand by the egyptian quarrel , so that he walk'd up and down the army , and was countenanced by the most eminent in it ; till at last acquainted both with our strength , and knowing fully misarites mind , he made shew to go out one day in a party , but forgot to return : and yesterday there came a trumpet , under pretext of treating for some prisoners , but secretly he delivered my master some letters . megistus did send immediatly for philarites , to whom he related all that had past , and after some debates what was fittest to be done , they concluded , that they would acquaint some colonels with it , who were not of misarites his faction ; as also a young nobleman , who was the king's sisters son , and thereby had much command and following in the army : after they were all assembled , and had taken an oath of secresie , and had heard the case deduced , they resolved that same night ( because two of their regiments were upon the guard ) that the king's sisters son stirias , should take the letter , and ensure misarites , and immediately divulge the letter to the army ; but they concluded presently to acquaint the king with what had past , that he might secure sophander as they were to secure misarites , lest if they were not secured both at once , the imprisonment of the one , might advertise the other of his danger ; wherefore they wrote to his majesty this letter . sir , your eminent danger must now move your inclination to be more rigid than at other times ; and albeit sophander be your confident , yet ye must make him now your prisoner . prisons were made for traitors , and courage suiteth well with princes . he and misarites have conspired against your majestie with the persians ; we have secured the one , secure ye the other ; and let neither his reiterated protestations , nor his cunning discourses buy him off from a condign punishment . we have sent alongst misarites secretary , to whose loyalty your majestie owes the discovery of the whole plot , and who hath been as honest as his master was disloyal ; we hope your majestie will recompence the one , and punish the other : and that ye will acquaint your humble servants , who shall be preferred to misarites his charge , that so all confusion may be avoided , and the ruine of your affairs here prevented . the two knights addressed also another letter to monanthropus . after this gentleman was dispatcht , and the guards set , stirias , accompanied with the knights and the officers , went to misarites tent , and there made him prisoner : he would h●ve raised some tumult , but was prevented by stirias , who calling the other officers , shewed them and the souldiers the letter , and immediatly prevented the tumult , and arrested two or three others who were of the same cabal : this done , the guards were commanded to let none passe who might acquaint the persians with what had occurred , but to lie quiet till to morrow ; for , in the twilight they resolved to set upon the persian army , who were secure , relying upon misarites infallible affection to them : the souldiers witnessed by their looks , their joy and willingnesse to fight , weary of the insupportable fatigue of that slow-paced war. whereupon the council of war preferred all in one voice , megistus to be general in the interim , and stirias and philarites to command in vice of the other reduced officers : at midnight they marched , the sickest among them shewing himself healthfull , and the most sullen shewing himself chearfull . at two a clock in the morning , they assaulted the persians ; ilk defended trenches ; who opprest with sleep , and distracted with fear , could neither give nor receive orders ; some had their beds turned in their graves ; and others were from the imbracements of their dear friends , sent to the cold imbracements of cruel death : sotorus was , after much resistance , taken prisoner , and in his conquest ended the conquest of the field ; the general being like the heart of the army , which is the last part in the body which lodgeth life . thus ended that war so formidable to the egyptians , that they had concluded necessarily their own ruine ; and so glorious to these two knights , that they only were esteemed the wel-spring , whence flowed that large river of happinesse , whose streams fatned so all egypt . the diligence used at court was as great as what was used in the army : for , immediately upon the receipt of the above-mentioned letter , the king commanded sophander to prison , each at court contributing his assistance to his disgrace ; hoping that many small vessels might be built with the ruines of that bulkish one ; and each one endeavouring to testifie his own innocency , by the rigour of his carriage to sophander ; and now the court , which resembles ordinarily an orange tree , whereupon there is alwayes some fruit flourishing , some blossoming , and some withering ; did now resemble an aspen tree , where all the leaves trembled , rather by an innate quality , than by any outward storm ; so all trembled here , rather astonisht with the novelty of the accident , and fearing unjust informations ( which are ordinary at such occasions , of which private enquiries takes advantages , and when it is a crime even to be dilated ) rather than from a consciousness of their own guilt . a servant of monanthropus admiring the inconstancy of court favour , presented his master with these lines . how can those stand , who on the slippery ice of court are plac'd ? when by the storms of vice , or malice , they 'r attaqu'd ; o happy he , who from his cottage doth these disasters see . court is a firmament , whence stars oft fall , and courtiers are tossed like a ball in fortunes tennis-court ; and by prides racket are toss'd over all the walls of court most far . their greatness an hydropsie is , and they not with good blood , but humours swell each day . they grow so big , that vertues narrow gate forbids them entry ; then by witty fate , he who exalted was is tumbled down fates narrow stairs , stript of preferments gown . luxuriant pride shakes often their hour-glasse , and their debordings seals to them a passe , to go to endless torments , and each man adds to the yard of their disgrace , a span . who would be fixt , must grip to vertues hand : for on the legs of vice no man can stand . the court was upon this occasion remodelled , and all those who had been sophanders confidents , were either imprisoned or disgraced , as persons in whom the king could not confide ; and now monanthropus was the only minion , by whose advice , and through whose hands all things passed . the war being ended , the king , to secure himself at court , resolved to call back the army , and ordained the two knights to be received in triumph , and withall posted away a commission to megistus to command in chief : the commission being received , megistus begins his march to alexandria ; and stopped by a warrant from the king , four miles from the city , till all things should be in readinesse for his reception . the next morning they entered , all the streets being tapistred as they passed alongst , and guards standing upon both sides . after the infantry , marched megistus , with philari●es on his right hand , and stirias upon his left : in the market-place stood a scaffold , whereon was represented the parliament of the gods , before whom themis , as goddess of justice , and mars , as god of courage , did plead which of them should be preferred to welcome these worthy gentlemen ; at last mars was preferred for the armies better satisfaction ; who at their arrival delivered them this speech . my darlings cadets of my house , whose hands were made to execute the just commands of divine powers ; it 's ( my sons ) to you , that victory her lofty top doth bow ; that ye your heads may with her glorious bayes encircle , like unto a sun with rayes : ye who hold fortunes wheel by the strong hand of courage , making her swift course to stand ; iustice and courage , shrewdly did contend , which of them as ambassadors the gods should send , but seing courage , iustice doth include , ( no courage being , but where the cause is good ) therefore the gods have courage sent to greet your safe return to this most joyfull street ; and were it not to leave on earth a seed of heroes , they would surely with all speed transplant you to the heavens , there to shine amongst those other deiti●s divine . live then , brave heroes , and more praise possess , than mars rude tongue is able to expresse . after that scene was ended , there appeared an egyptian loaded with fetters , and making his approaches to the knights , entreated them to untye his fetters , which they did accordingly , and thereafter he made them this gratulatory . invincible gentlemen , this that ye have now done , is but an emblem of that ye have done formerly ; it is not so mysterious that i n●ed to explain it : our liberty is a debt which we owe you , and our thanks are the only coyn we can pay it in ; all the by-standers participates with me in the common freedom , and would return with me the common thanks , if order would permit it : our thanks and your merits are no wayes proportionable , the one being empty , and the other excellent ; but our admiration , and your deserts hold a better proportion , both being inexprimable ; they are twins both springing from the womb of your courage . live then happily , worthy princes , and inherite these praises , which ye have purchast by your blood and pains . the reception at court exceeded in splendor that of the market-place , and the rather , because agapeta and aretina were there , in whose affections the knights desired more to triumph , than in any thing else ; caring only for those honours they had received , as means to make their peerless mistrisses honour them the more : all the inventions at court was imployed in honouring the knights , and they were esteemed wittiest who pleased them best : tiltings were continually used ; for , courage being once wakened , behoved to have some exercise till it were fully re-setled ; neither could it change its pace so extreamly , as to fall from a gallop to a still standing , but behoved to retire by piece-meal : this joy was in it self great , but was thought the greater , that it was the successor of a pannick fear ; and at last the king resolved to sacrifice sophander to the honour of their solemnities : for , many thought it not fit that such a plodding head should have leave to rest upon its old shoulders , and that there could not but ensue great alterations amongst the nobles upon this late innovation ; and those who were postponed , might probably study his releasment , desiring rather he should bear sway , than their own competitors ; and expecting by his releasment , to return affairs to their old confusion ; that a living man might alwayes finde friends , but dead dogs would bite none ; that to keep him in perpetual firmance , was in it self illegal , prisons being appointed rather to reserve men for punishment , than to be a punishment it self ; and that it differed as far from punishment , as the means did from the end for which they were appointed ; or , if perpetual imprisonment was at all convenient , it was only , either where the person incarcerated was furious , and so there was fear that in executing the body , they should kill both soul and body ; or else , where the criminal was a person loved by the people , whose death would irritat them ; or else , of great following , so that their expectation of his life , or fear of his death , would justly poise all his friends undertakings , and over-awe all their insolencies : but that neither of these was to be expected by sophanders execution , whom all hated , and none loved ; and possibly , if it were continued , he might convey away out of the nation most of his estate ( which he had ever keeped in movables , as being most transportable , and so it was best to wring the spunge so long as it was full : the king resolved to execute him presently , and therefore sentenced him to be hanged in the market-place ; but the church-men petitioned his majesty , that he might be first examined by them , being one of their number ; and as being the ambassador of the immortal gods , he should not be sentenced by any mortal prince ; and that they behoved to examine first , whether what he had done were done for the glory of god , in which case there could be no crime , and to which none were judges but church-men : for , if the secular power might at pleasure cut off ecclesiastick members , it would follow that it were in his power to suffer a church to be , or not ; for so he might hang them at his pleasure : neither should ever any vice in the state , or statesmen be purged or enveighed against ; for , all such reproofs should presently be declared treason : and seing ecclesiasticks were naturally too prone to connive at vice , they should now be necessitated to do out of fear , what they did formerly but by omission and negligence . the king rejected this petition , and told them that as they cognosced upon the errours of laicks when committed against their power , so he might cognosce upon the escapes of ecclesiasticks , when committed against his ; that sophander had offended as a subject , and so behoved to behoved to be punished by his prince , and that it were safer being a shepherd than a king , if they who were ordinarily governed by some two or three factious fellows ( the best of ecclesiasticks alwayes shunning command ) should be judges competent to treason ; wherfore , seing they had their protection from him , it was fit he should challenge subjection from them , which consisted in nothing more than in this . megistus hearing that the king resolved to cause hang sophander , thought , that albeit he could not beg his life , as being a trai●or , yet that he would endeavour to mitigate the manner of his death , as being his old friend and patron ; whereupon both philarites and he entreated his majesty , that he would cause cut off his head , and not hang him , as being once honoured by himself with the title of chief minister of state ; and that it was customary amongst all nations , to punish in the least eminent way those who had been most eminent in dignity , both because the smallest punishment is greater to them , than the greatest would be to others , as also , because punishments being ordinarily inflicted , not for what was past , because that could not be re-called , but for prevention of the like by that rigour for the future ; and so seing fewer great ones would probably incurre these guilts , the law needed not punish them so severely , as it did the meaner sort , who would more frequently fall in the crimes forbidden . that maxime holds only true ( answered the king ) in those crimes which degrade not a man of his honours , as in combats and private injuries , which crimes are consistent with true honour ; but in treason and treachery , the committer declares himself unworthy of his honours , and consequently should not enjoy those priviledges due to them ; yet , to satisfie your desires , i am content his head be struck off , and his body buried . at the day appointed for his execution , all the city , yea , and the nation flocked to the market-place ; some to satisfie their inhumane revenge , ( which that circumstance of time made most unjust ) others , to remark the period of humane glory ; and a third sort , to glut their boundlesse curiosity . after some time so spent , sophander appeared upon the scaffold , in his gown and night-cap , whose age and gravity drew tears from his most inveterate enemies ; after he had setled himself a little , he gave the spectators this farewell , gentlemen , i am by providence presented here as an emblem of unconstant grandour ; i wish my case may be remarked by all , but imitated by none : i am set up as a beacon upon the rockie shoar of court-favour , that ye should not approach the place where i have splitted ; i mean not that ye should all retire your selves from court , for that were impossible , seing the nation must be governed by some ; and unlawfull , seing nature hath bestowed publick spirits upon some , that they might imploy them for the profit of all ; but i mean , that none should thrust themselves into the crowd of minions , wherein many have perished in entring , and all have perished almost before they could retire : and that all should be so wise , as to be the last who will go to sea in such storms , and the first who will retire from them : i know many are taken with our greatnesse , but they consider not our hazard ; many envie our access to our prince , but they advert not the misinformations given in to him against us ; some eye greedily our riches , but remembers not our vast expences and numerous attendants : and , on the other hand , they see the poverty of a private life , but are strangers to its contentment , and contemns its lownesse without weighing its security : thus greatnesse , like a whore , presents her self unto us fairded , whereas chast vertue appears only in her homely habite ; and , believe me , albeit ye may for a season recreate your self more ticklingly with the first , yet ye will live more contentedly with the second : o! who were lodged but one night in the breast of a grandee , to see what confusion of thoughts were there , would thereafter buy himself off from the ensnaring pleasures of that anxious life ; may ye not consider that the gods who have created all things for the use of man , have made things which are most usefull and good to be most common ? and so , seing they have ordained many to be governed , and but few to govern , we must conclude those who are governed to be happiest : for , if they had thought crowns and scepters as requisit for mans happiness , as were private estates and cottages , they could have made as many of the one as of the other , and created as many kingdoms as there were men to be kings in them ; yea , i believe that kings and courts were ordained , not to make happy those who lived in them , but to maintain the happinesse of those who lived remote from them : your sleep is not interrupted , whilst we are disquieted ; neither is your danger worth the noticeing , whilst ours is often inevitable : consider the number of our competitors , the multiplicity of our businesses , our own fears , and the princes jealousies ; and you will soon conclude , that we are like poor peasants who make and sell good wine to others , but drink little or none of it our selves . since there are so many reasons to disswade us from being ambitious , we must conclude ambition to be a cunning sophister , which can solve all those unanswerable arguments . i remember that the christians observe , that seing it tempted the angels , before they were corrupted with any other sin , it is no wonder it should tempt us who are but men , and already tainted with sin ; and that since it was the first sin , it must necessarily be the sin we have greatest inclinations ; for , seing we imbrace first ordidarily that we affect most : ambition then is the devils first-born , and so no wonder it claim precedency before all other vices ; and as ordinarily proud men of all men have alwayes the greatest train , so pride it self of all vices hath still the maniest attendants ; for , it must be waited upon by covetousness , to fill its prodigal coffers ; with revenge , to repair its imaginary affronts ; with murder , to remove all those who stand in its way ; and in fine , it is the great bellyed vice , which spanneth all the rest . gentlemen , if i were speaking this to you , incircled with my former honours , ye might imagine i enveighed against greatness , as wishing all others to flee it , that i might share alone in it ; or , if i were to live banished , ye might say that i disparaged it , because i could not retain it ; but being to dye , ye may be confident that all i say are the dictates of meer ingenuity . i am now upon the brink of my grave , and can leave you nothing in legacy but my tears and precepts ; which , if ye follow , may repair the great losse this nation hath suffered by me . farewell . thereafter he called for megistus , and craved him pardon for misinforming his majesty against him ▪ and gave him privatly some papers , wherein were some remarks , usefull for those who were to govern egypt ; and prophesied to him his future advancement ( which was thereafter ●o small encouragement to megistus ) for , said he , the soul being certainly of a divine extraction , would fore-know many strange events , if it were not ignoranced by the unproportionatness of the bodily organs to such contemplations , and when it is emancipitated from the power of the body , as in feavers , death-beds , swoonings , extasies , and womens histerick passions , we see it acteth and foreseeth things extraordinary . thereafter he recommended his friends and nephews to megistus , and megistus to the people , and loyalty to all of them ; and so had his head struck off by the executioner , and received by megistus . the next morning there was this epitaph posted upon his tomb. here restless he doth rest , who never could get earth enough , till casten in this mould . megistus sadned exceedingly , partly by the uncertain condition of mankind , partly puzled with the thoughts of sophanders prediction ; retired to his chamber , where his landlord , a witty fellow , came presently to solace him , and related to him this story , which had occurred that same day in the city . a young country gentleman , accustomed at home to whistle following the plough , to domineere amongst a great many countrey clowns , and to feed a kennel of dogs , was by his friends brought into the city to court a young citizen ; whose beauty lay in her coffers , and whose perfections were counted by thousands : yet this jet was able enough to draw straw to it , and her blacknesse did cast a curious lustre when enambled upon gold ; his friends cared not whether she had a golden mind , seing she was a golden mine ; neither looked they to her age , seing it was a golden age : to speak truth , such a statue fitted well such a worshipper . being come to the city , he was all gilded with gold : and indeed such an harsh pill had need to be so ; and ye would have sworn that his cloathes being upon him , were another iasons fleece , and himself the sheep : thus accouted , he marched up and down the city , dreaming that all persons were busied in viewing him , and pointing out his finger , asking who was that , or the other ; which a young gallant perceiving , watched till he holding out his finger to a coach , to ask what a cart was that so covered ? which his servant not hearing at first , as being a busie as his master ; he asked the second time , with his finger outstretched , what was that ? to which the other gallant , making a low congie , answered , that it was his honours finger . he admired likewise for what use served those chests that men carried about the streets ( meaning the sedans ) to which a merry bystander answered , that it was to carry gentlemens hounds and dogs , lest else they should stray , or be robbed by the courtiers ; whereupon the youth addressed himself to the bearers , and commanded them to take in his dogs ( for the other had perswaded him , that if he spoke calmly to them that they would think him blunt and silly ) at which the bearers , thinking he spoke so , only to affront them , and knowing by his garb that he was but a fresh-water citizen , reviled him most pitifully , saying that the shepherds in the country were much to blame , who suffered their sheep so to stray , and that they behoved to fleece him ; whereupon they pulled away his cloak , and had not restored it , if his servant , who went up and down crying that his honour was massacred , had not amazed many people , who caused restore him his cloak , each one swearing that what he had spoken , was spoken out of simplicity : home he went with his cloak lined with this affront ; and the next morning was admitted to see his mistris , who albeit she was not fair , yet could go fair to cheat him ; and was able to play her cards so , as that she was able to counter and beast such a gentleman ; and if they had begun the game , doubtless she had by turning up alwayes the ace , made my gentleman throw down his cards . the gentlewoman being informed of his pure wit , resolved to let him see some of hers ; whereupon she commanded her maid to put on her cloathes , and to sit in her chair , and receive the visit for her ; and withall , after the young gallant should begin to extol her beauty above all others , that she should then ask what he judged of her maid ? all things being thus ordered , she sent to entreat his friends , that none of them should come to her chamber with him the first day , because she would be too bashfull if any else were there to remark her ; to which they easily condescended . enter gentleman . the gallant the next day enters , and putting his arm about her neck , kisses his mistris loudly , fearing that else that they had imagined that he had not kissed her at all , and thereafter tumbling back confusedly , made another low reverence , where he lost misfortunately the paper upon which his compl●ments were written ) ( which he very often repeated at home to his uncle ) he entreated her to sit down in the highest chair , thinking that to be some preferment : whereto the gentlewoman wittily answered , sir , the woman should be lowest . after this debate was ended , he insisted thus . mistris , when i came first to alexandria , i thought this city the prettiest thing in the world , but now when i see you , i esteem nothing of it ; for , i think that all our country maids , may be handmaids to you ; whose beauty is as far preferable to theirs , as this city is to ours . here he stopt , hearing a horse passe by upon the street , and called for his servants to look if that was his young horse or not , and thereafter insisted thus ; madam , i believe that my father's house hath all accomplishments requisit for sweetning the harshness of a solitary life , only it wants such an accomplished lady as you are , to be mistris of all , ( and there he recounted to her what choice fields for hunting , and what excellent pasturages for h●rding , were there ) but sir , replyed she , seing we see country gentlemen leave all these rural pleasures , pretending to come to the city for converse ; and those who are in the city , leave their well deckt chambers , and sumptuous parlors , and go abroad to recreate themselves with their friends , we may infer , that society is preferable to all these ; for , when ye come to the city , ye acknowledge it is to better your spirits ; and when we go to the country , our end is only to refresh our bodies , so that the country may be thought as justly to cede to the city , as the soul is preferable to the body . o madam , but ye could make any place happy ; and happy were the son of that father who might be husband to such a compleat lady as ye are . what think you of my maid , if compared with me ( said she ) i think her a beautifull young gentlewoman ( quoth our gallant ) but no beauty when compared with you : whereupon the mistris , who had played the maid hitherto , did now sit down in her own chair , and commanding her waiting-maid to stand by her , she thundred thus the poor simple gentleman . sir , i admire the lesse what hath past , that i expected to hear what i now hear ; but i admire that men should lavish out so profusely praises of what they know not : for , sir , if we were so simple as to believe , that your heart conceived what your tongue brings forth , ye might rather wish us in bedlam than in your beds ; and if we are so wise as to discern your dissimulation , ye may conclude , that we think you as unfit to be our husbands , because of this last , as ye might judge us unworthy to be your wives because of the first ; wherefore , sir , consider for the future , that albeit women are so discreet as to connive at your dissimulation , yet they are not so ignorant , as not to know it . ye wrong our sex hugely , by thinking us so simple , and your own , by making us conclude that ye are all dissemblers : and of all vices , dissimulation is one of the worst , because it not only is evil in it self ( as being a cheat ) but likewise is an abuse of what is good , even of respect and friendship , making them bauds to your vicious cheats : sir , those strings are not well tuned , which are tuned too high ; and those praises are but flatteries , which are palpable lyes ; yet , sir , i pardon you more than others : for , as those who shoot seldom , must be pardoned when they shoot over ; so those who complement but unfrequently , must be pardoned albeit they do it imprudently . the gentleman struck dead by these thunder-bolts of wit , remained speechless , as if his soul had fled away for shame ; he essayed often to speak , but his words no sooner peeped out , but smelling this reply , they retired back to their old quarter in great disorder ; leaving their master helpless without them , who had been formerly but little holpen by them . since his own soul hath left him , said megistus , it is reason we leave him also , and so he went to bed . the third book . the next morning megistus went to to tender his respects to monanthropus , and at his entry , told him , that it was not too little , but rather too much respect , which had estranged him so from waiting upon his lordship at his chamber all this while ; and that he shunned much to be so sacrilegious , as to rob he state of those hours which would be spent in its service , if they were not mispent by such trifling visits as his were . after this they discoursed of present affairs , and after these , monanthropus entreated megistus to walk some time in the garden , and there to continue the story of the lacedemonian war , which megistus at his entreaty commenced thus . my lord , i will not trouble your attention , in making it trace all the tracts of fortunes wheel in that commonwealth , whose reelings were so many , that it appears she intended to shew the world how often she could turn in a short space ; those who stuck upon her , were in her circumgirations crusht to pieces , only those were preserved , who ▪ foreseeing her inconstancy , did leap off , exchangeing necessary ruine with a voluntary fall : and albeit their story resembles your nilus , the sources of both being unknown ; yet i shall acquaint your lordship with those mysteries which time hath now unmasked : for , albeit statesmen often gild their greatest cheats with specious pretexts , yet time at last wears out that gilding , and then all things appear in their true colours : and as from gray-haired men , so from gray-haired stories , truth is often best learned ; wherefore my lord , please to know , that lacedemon and athens were enemies as vindictive as old , till at last by the marriage of the king of lacedemons daughter , with the king of athens son , the crowns were both molten in one ; or rather the one lined with the other , ( the gods making often friendship and amity , the eldest son of such marriages ) after sophus his succession to the crown of lacedemon ( for he was an athenian born ) he enobled many in lacedemon , both fearing lest he should lose many friends , if these many pretenders losed their suits ; as also , because in making them nobles , he made them friends ; and that those who had gotten patents from him , would imploy both their estates and patents for him ; knowing that if he fell , their honour behoved to fall with him : there were others who alleaged , that he intended to make the nobility lesse powerfull , by making them more numerous ; and by dividing this great torrent of popular command in many chanels , he made it foordable for his wit , even where it was deepest : for , as it is hard to gain one of ten , so it is easie to gain one of twenty : and those plots which might easily have been concealed amongst the noblemen if they had been few , were easily learned from them when they were many ; and forreign princes , who intend to invade the countries , may easily gain one grandee , ( who being one of few , might be formidable to his own prince , and most helpfull to his enemie ) whereas it was difficult to gain many , and they were not very dangerous when they were gained : yet whatever was the reason which did instigate this wise prince to this , certain it is , that this obfuscated much the resplendent rays of honour and nobility ; for nobilities great priviledges , being preference amongst themselves , and respect from the people , their preference must be the lesse worthy , by how much the moe competitors they have ; and their respect from the people must be the ebber , that the people is obliged to divide it amongst manie : this wise prince likewise , finding what great influence the priests of that nation had upon the people , and perpending how hard ( if not impossible ) it was for a prince to gain all their affections , or retain them , when once gained ; resolved to chuse some few to govern the rest , by whom he might govern the others at his pleasure ; and to whom he might intimate his thoughts without trouble or fear of discovery ; and by whom he might antidote the factions , which he foresaw either their own pride , or the factious nobility might hatch amongst them ; as also , that thereby the sons of noblemen , and possibly his own friends , might have some void charges and offices , whereto they might pretend ; and wherein being once installed , they might evidence more loyalty to him , than strangers would do : as also , that the nobility might be counterpoised and might not share alone in all the offices of state , in whose hands they were more dangerous than in the hands of ecclesiasticks , whose revenues were not great , nor whose vassals and kinsmen were not numerous : these the other ecclesiasticks grudged infinitly , not so much because they thought their promotion illegal , as angry because they were not promoted themselves , ambition perswading the soberest amongst them , that the higher they were , they would be the nearer to heaven . many judged likewise , that he was most ill satisfied with the lacedemonian senate , which was composed ordinarily of the wittiest and turbulentest persons in the nation , and intended often to have each city choose , as their representative , some residenter , who might understand best the necessities of his town , and would nible lesse at the royal prerogative ; whereas lawyers , and others , being often commissionated by them , dipped too much in what belonged to the king , and too little in what concerned the place represented by them ; and in athens when it was tabled , whether each county and town should be licentiate to chuse any they looked upon as fittest , it was concluded by the nobles there that this choaked their interest ; for , if they should be permitted to chuse the lawyers or wits of the nation , the nobles should be topped by them in all debates , and upon all occasions . he likewise was most unsatisfied , with the dependences of the tribes of that nation upon their own families , and upon the princes thereof ; to whom the king in their affection was but second ; for he esteemed these , the storehouses of faction and nurseries of oppression ; none daring either follow the royall standard , except under their conduct ; nor daring countenance a stranger if not in bloud or affinity with them : and as that wise prince often said , these could not be properly thought his subjects , who were so much in subjection to others , nor could not imploy both their hands in upholding the throne , the one whereof was busied in paling up the prince of their own family ; and so by dividing their hearts betwixt their prince and him , they made them unserviceable for either , these seemed but dwarf discontentments , when placed beside that gyant prejudice , which was conceived against him , because of his irregular and monster-like affection to phratus his minion ; who enhanced all the royal favour , as due to none but to himself ; whose mean extraction , when collationed with his top-high preferment , seemed insufferable to those of higher birth , and lower fortunes ; but these adverted not , who seing no familiarity nor intimacy can be , betwixt those amongst whom there is no equality ; that therefore princes must advance some one above all the rest , to whom he may communicate , and in whose breasts he may pour out his greatest secrets , that so he may not be vexed alwayes , in bowing down to speak to them , or to hear what they would speak to him ; and customarily princes pile out those , whose birth cannot occasion any fears that they will entertain any nimious pretences : these favourites are the skreens which defend kings from popular malice , and the pack-horses upon whom all enmity and miscarriages are laid ; and their ruine is often the main article of pacification betwixt the king and subject ▪ who to repay their many taxations and losses , seek no other requital than their destruction ; and whom princes themselves often suffer , like spunges , to suck in treasure from the people , knowing that when they are filled by them , they will devour lesse of what pertains to the publick cash ; as also , that they may wring them when they are full , and so be thanked by the people , for retaking that treasure from the favourite , which if they had immediatly taken from themselves , they had been most bitterly exclaimed against : this gentl●man was but meanly born , and ascended to honours parlour , rather by the back-stairs of private affection , than by the publ●ck entry of merit ; and ordinarily those thrive best , for all the difficulty of agrandizing ones self at court , is at the first entry ; and commonly those who are well descended , have all the bars of difficulty laid in their way by their competing equals ; and many to pull them down , whilst they are mounting , whereas many persons mount these stairs undiscoveredly , without being once leted : yea , oft-times they imp themselves in some noblemans train , who in flying high drawes them after him : another great mean of his advancement , was his favour amongst the ladies , who are more prodigal of their encomions , to those whom they affect than are their wary husbands ; and whose sex and charms procure often both countenance and respect , to those whom they once honour with the title of their favourite ; non daring offend such , lest they should be forced to take up the cudgel of enmity against a lady ; and all being most ready to signifie their respect to these ladies in the persons of their favorite , seing most want the means of engaging themselves : from this grain of mustard-seed did grow up that large stalk , whose fruits did thereafter so bite the mouths of all the nation , and by this sparkle was kindled that great fire , which did thereafter both scorch his enemies , and warm his friends ; and whose flames were the only lights which shew courtiers the way to preferment . yet the people ceased not to cry out against him , as the canicular star , which made the influence of court so noxious ; all the dayes of his reign being their dogg-dayes ; his prodigality was called the occasion of the many taxations , and his pride the reason why all others were disgraced : which a zealous friend to his majesty did one day thus remonstrate to him . sir , it is not your own , but your favourits prodigality which uncoffereth your treasury ; for , all kings that ever reigned in lacedemon , have successively lived at the same rate that ye live , yet have their treasuries often grown fatter , whereas yours becomes daily more lean : but the reason why one king spends more than another , is , because their minions are more or lesse profuse ; for , when a king chuseth for his favourit a lame wit , which needs silver stilts to uphold him , then is the treasure impoverished ; he feareth all , and so must bribe many ; and his intelligence ( i mean not for his princes maintenance , but for his own ) must be maintained at the publick charge ; as also , the frequency of your majesties nobles at court , is one of the moths which consumes this poor nation ; for , luxury having made lean their purses in an instant , they must be privatly interlarded with publick treasure , and the carcase of some pension or monopolie , must be presently thrown to them to feed upon : neither is this the only inconvenience which ensueth upon their constant attendance at court , for they must , when there , contend with one another , whose train shall prove most sumptuous , and so like two stones knocking against one another , both must necessarily lose some of their substance ; it is at court that all their jarring● are commenced amongst themselves , and it is there that their plots are hatched against the publick interest ; and as a body whilst it is in health , is still amassing humours , which will certainly one day give life to some disease ; so your majesty may expect that their frequent meetings here , will one day occasion some war , which neither ye nor they will be able to quench ; their stay at court occasioneth the misgovernment of their estates at home ( it being the masters eye that makes the horse fat ) and what was formerly spent at home in hospitality , is now spent at court in luxury : they bring alongst with them the sons of the gentry , and these return back to their countrey fraughted with vice and vanity ; and so the mony which the poor country men buy with their sweat , must be sold for silks and spices ; and we must give forreigners things that are necessary , returning nothing but what is superfluous ; and by this your enemies war is maintained against you with your own money , and your natives unable themselves to war for you because of their e●●eminate imployments , which they now use : wherefore it is the wish of all your subjects , that you would command all your nobles home till they be called-for , and so pull from them those firebrands of vice and luxury , whereby they enflame the nation . that which heightned the popular fury , was , that he never courted their favour , holding it as a maxime , that seing that which made subjects formidable to their prince , was , their too great popularity , ( for , seing kings endeavour so much to enthronize themselves in their subjects affections , they both do and look upon all such as their rivals , who court the same affection with them ) and therefore it was reasonable to believe , that to renounce any share in the peoples affection , was the true way to ingratiate himself with the king ; intimating thereby to his prince , that his favour was the dye , from which they were to expect a good or bad game ; and no doubt but this is the surest way of subsistance : for , a grandee may subsist by the favour of the prince , without the favour of the people , but cannot subsist by the people without the favour of the prince ; with this proviso , that the prince , upon whom he depends , be not so silly as to depend upon his people ; for else it is not good to depend upon him , lest when the subject begins to open his mouth against his prince , the either timerous or facile prince , throwes his confident in their mouthes as a lump to stop it . whilst these things were upon the file , this excellent prince dyed , leaving after-ages an evident proof , that the ocean of affairs hath its own tydes , and fair gales ( which are to be expected , not commanded ) and in which interims the prince may recreate himself with his lawfull pleasures ; for , this prince was never one who lost his pleasure for his business , nor his business for his pleasure : some tainted his royal repute with cowardishness ; but since kings , except they be rash , are not tolerated to spend their own bloud , it follows , that his crime was that he was too frugal of the bloud of his subjects ; which any sound wit will interpret to be rather love than fear ; but to what purpose should he have unsheathed the sword of his courage , seing the sword of his wit conquered all his enemies ; neither is it an imputation to a physician , that he prevents all diseases so dexterously , as that he suffers not his patients to fall in any disease . many did misconstrue this worthy prince in many things , never considering , that it is as unbeseeming a subject to censure the actions of his prince , as it is ridiculous in a patient to find the pulse of his physician ; for , since princes are often acted in what they do from principles unknown to us , and have aims which we are strangers to , and seing the motives and ends of the agents , are these things which determine our actions , it follows that it is not only absurd , but even impossible for subjects to discant truly upon the actions of their princes : and since a deputy is only answerable for his carriage or miscarriage to him , by whom he is deputed ; and the gods are those who have commissionated princes , it must be undeniable that they can be arraigned before no tribunal else , but theirs ; but admit , that really they escaped at some times , and upon some occasions , that proves only they are men , and who denies that ? but if they must be condemned for that , i should desire him who hath spent his life ( though private ) without an omission , to cast the first stone at them ; and if private men who have time to deliberate what is incumbent to them to do , and few to remark what their failings are , cannot notwithstanding plead exemption from infirmities ; what may kings plead , who are over-charged with businesses , mis-informed by sycophants , and have thousands of eyes to eye the meanest of their escapes . to him succeeded anaxagius , a prince whose perfection taught the world , that all princes who had devanced him , had their goodness allyed with some imperfection when compared with his , and by which future ages may measure the perfection of his successours ; him providence sent to the world , fore-seeing that these crooked times would need such a streight patern as was his integrity : and that innocent and vertuous souls ( whom that age would abominate ) needed the patronage of such an accomplished patron : so that it seemed that providence hath casten his soul in a peculiar mould , wherein none had been formed formerly ; a person whom vertue would have chosen to be , if birth had not already made him a king ; and whose innocent life convinced all men , that greatness and goodness were not incompatible ; in his heart lodged a compleat body of accomplishednesse , only it wanted a splean ; and by him all concluded , that goodnesse as well as vice wanted not its own excess ; yet such an excess as , seing it was in him , could not be vicious : neither was this soul ill lodged ; for , as the soul was a pure diamond , so it was enchassed in a body of pure gold ; his face was both a king's face , and the face of a king ; and all the other members of his body were such , as suited well with such a face ; so that neither could the eye in his body , nor the judgment in his life challenge the least imperfection . he stept no sooner up to the royal throne , than his enemies began to belch out their malice against him ; considering , that if they perswaded not the nations of those imperfections which they alleaged he was tainted with , presently , that he would shortly refute them by his admirable integrity ; wherefore an athenian nobleman named prastus , dispersed many papers , flush of aspersions against his majesty , at least , they were after search , found to be in his cabinet : whereupon he is arraigned , and a great favourite , who was likewise his too great wel-wisher , is pickt out to be one of his ju●●●● ; who finding , that he behoved either to lose his master , or his friend , was at first mu●h perplexed ; but at last ( as the worst of inventions are alwayes the readiest ) resolved , that as his judge , he would first condemn him ; and then as his intimate , he would intercede for him : which he did effectuate , and procured him a remission for that crime , for which he formerly found him guilty . whereat a true friend to his majesty much offended , did remonstrate to the king his errour after this manner . sir , your majesty having once by law condemned prastus , if ye now absolve him , ye must condemn the law which found him guil●y : for , if he be guiltless , the law did wrong in sentencing him ; and if he be guilty , the law is wronged in your absolving him . neither admire i , to see your nobles intercede for him ; for who knows but these in this plead for their own case ? and if either they , or any of them , be already , or shall be hereafter found guilty of those crimes , with which he was charged , then they may alledge for themselves , not only what they now alledge for him , but likewise may triumph in this precedent ; so that in sealing a pardon for him , ye abrogate all the penal statutes , and layes up remissions for all that shall have the confidence but to seek them : c●●●●der , sir , that this nation is naturally factious , 〈◊〉 being commanded by nobles , who have the commons fully at their devotion , and that your absence feeds this humour in them , ( the face of a king being able either to charm subjects to a complyance , or to command them to obedience ) but what may ye expect , if they be once connived at by those who should punish them ? the law was the only mastiff which kept the house from robbers , but if his mouth be musled , what security may be expected , the law should be most rigid and best observed , where vices are most enticing , and to which we are most propense ; wherefore , seing nothing lures us so strongly as a nimious desire of liberty , and the desire of self-rule ; nothing should be so severely punished as rebellion , which is the product of both these : and if even when laws are execute against them , the numbers of such offenders are numberless , what may we expect when the law prevaricates and sideth with them ? sir , the lesse able men are to resist the wrongs done them , or to foresee them , the more grievously should the offenders be punished ; as poyson is more grievous than murther ( so that the horrour of the punishment is the best guard against these ) therefore of all treasonable plots , defaming libels should be most severely punished , because it is most difficult to detect those , and when they are detected , it is impossible almost to refute them , neither is truth , soap sufficient to wash out the spots which libels make , apprehension being enough to perswade men of what they fear . sir , after he is released , will not his enemies vaunt , that either in courage ye durst not , or in justice ye could not condemn him ? so that either ye must proclaim your self rash in the first , or a coward in the last ; and who will as judge condemn any attached hereafter as a traitor , knowing that the person so condemed by them will survive their sentence to prove their enemy ? and thinks your majesty , but prastus will endeavour to revenge this affront ? neither will he ever ponder your courtesie in pardoning him , but will rather eye the affront done in once staging him : the wound may be cured , but the cicatrice will remain ; and if the children of traitors are often secured , often banished , and often forfaulted ; because the law presumes that they will yet possibly avenge the death of their fathers : how much more may we conclude , that a peson whilst alive himself , will resent his own disaster more jealously . sir , augment not the number of your enemies , by recalling to life prastus , who is already civilly dead , and remember that ye have thorns enow in the garden of your kingdom , albeit ye plant none your self ; neither can ye expect any thanks from prastus for this act of superstitious clemency , for your favourites who have interceded for him , will reap those , and he will say , that ye declared sufficiently your malice against him in his condemnation , albeit thereafter ye declared your affection to those intercessors in his absolution ; and , sir , since the papers were found with him , certainly he must be the leading card in this fa●al game , and the ring whereupon all the other keys hung . and i fear , sir , ye must one day treat with him as your party , whom ye now pardon as your supplicant . but , sir , seing ye fear the peoples envie on the one hand , and yet dread prastus loyalty upon the other , to extricate your self from both these difficulties , keep him in prison , and in suspense , feeding him alwayes with hopes of releasment , providing his friends and dependants carry soberly ; by which means ye will secure him , and he will be an hostage to you for the good behaviour of others . the court-favourite who bestirred himself so much for prastus , was one named taurus , whose honours were the donative rather of his prince , than of his birth ; for , he was by birth but a gentleman , rather of great parts than a great fortune ; but being of a singular spirit , and accute wit , was commissionated by the athenian gentlemen to represent their grievances at court , and to reside there as their legier , to manage their employments against the nobles of their own nation , with whom they had then some debates : the courtiers ( who study alwayes mens humours as much as their business , knowing that most of men make it their business to satisfie their own humour , and that as men love not others so well as themselves , so they endeavour not so much to satisfie others as themselves ) did smell at last , that if he were created a nobleman himself , his zeal against the nobility would cease with his interest , wherefore finding , that his pulse did beat highly , they perswaded the king to enroll him amongst the peers , which promotion cooled soon that feaver of respect which he had evidenced for those who employed him , so that he wrote home to the remanent gentlemen , that since he ceased to be what he was when they commissionated him , he behoved likewise not to act now what they had entrusted to him , and that seing he was a nobleman , he hoped they would construe it to be no breach of trust , that he antagonisted not the nobilities interest : for , since we are desired onely to love our neighbours as our selves , it is presupponed that self-love will alwayes be the more prevalent ; as the square is alwayes streighter then that which is squared by it : and he thought that he did acquit himself sufficiently of his trust , in acquainting them of what had past , and in fore-warning them , that their residents charge did now stand empty . the gentlemen finding themselves thus befooled , resolved thereafter to imploy alwayes two or three , knowing that they could not then be so easily bribed . this taurus did thereafter find the king's ear alwayes very open to him ; and as he was happy in being his master 's confident , so each man thought himself happy if he could but once obtain the favour as to be his ; yet his majesty was much mistaken in this choice , for this wit was too subtile to be imployed in such subtile times , and it did afterwards prove so sharp that it cut himself ; sharp wits being like sharp razors , which should only be used by very stedfast hands ; else , if the hand vary , the razor cannot but make some gash , which was sufficiently verified in taurus : for he endeavoured so much to cheat all , and please all , that he was in fine cheated by all , and pleased none ; for , not being able to head one faction himself , he was alwayes zealouzed by both the other factions , who endeavoured both to ruine him , seing neither of them could ensure him ; for as winds that changes oft , are hated by all sailers , because they can neither serve those who are to go or come ; so these changelings are neglected by all parties , neither can they ever advance themselves , for whoever gains , they will be still losers , whereas if they did constantly adhere to any faction , they would either gain when their interest were masters , or at least they might secure themselves by their own parties capitulation ; neither are ever these changlings admitted to the cabinet-counsels of either , nor know ever more nor what the revealers fear not to divulge . he was admitted by his prince to oversee his treasure , wherein it was thought , that his prince was much misted , and wherein he himself did likewise bewray some weaknesse ; his princes errour was , that he should have promoted one whose estate was yet to be founded by the government of his cash , which was all one as if he would put his full trencher to the mercy of a hungry dog , and especially seing it was notory , that not only his necessity but even his humour poused him too much to these designs ; his own errour was , that he should have begun to reform those errours in the state , which , because of his poverty , and humour , were concluded to be inventions , hatch'd rather to enrich himself than his master : thus flourished , and thus perished taurus , whose wit occasioned both his advancement and his ruine , like one thrown down those same stairs , by which he mounted . taxes and gabels are as necessary in the politick body , as the spleen is in the natural , yet in both they engender many diseases ; private men thinking that lost which goes from their own privat coffers : and as patients often judge the moneys bestowed upon physicians ill imployed , after they find themselves re-instated in their former health , attributing their recovery more to nature than to his pains ; so subjects , when they are enstated in that peace , which the vigilancy of their prince , aided by their taxes , hath procured for them , judge their taxes superfluous : never pondring in the scales of prudence what advantage the reap by them ( which indeed the meaner sort who complain most , cannot faddom ) but ruminate still upon the losse in once paying them ; yet this natural aversion they have from them , is oft scrued up to a greater height by the bad choice of those who are by the court destinated to collect them , who being avaritious and odious persons , for those alwayes offer most for the farm of them , knowing by their rigidity to repay those vast sums , and so are still preferred ; which incites the people to abominate those taxes more than formerly , knowing that not only they go from themselves , but likewayes go to fill the purses of these detestable miscreants ; neither is the unequall distribution of these taxes a small disadvantage to the prince : for , as it grieves a man to pay any at all , so it grieves him yet more , that they should pay more than others ; so that whilst the friends and clients of some courtiers are spared , others must bear their burdens ; and so men being alwayes prone to compute their own wrongs by the arithmetick of comparisons , those who are wronged , judges their injuries so much the greater , that they see their neighbours totally exempted : for , albeit the prince may satisfie his people , in telling them the true cause of such impositions in general , or hoodwink them in forging reasons where there are none ; yet there is no court-sophister so cunning as to shew a reason why some are exempted , others not ; whereupon those who are extortioned , they exclaim first , and then are oft-times seconded by those to whom no wrong was done at all , who hope by these vociferations to get these impositions totally banished ; or else do fear , lest the case of their vexed neighbours may one day become their own , seing they have no leases of these favours more than others , and which they know to be mortal , aswell as those who indulge them ; but if people would advert how that twenty or thirty crowns a year , keep off either a forreign war , or prevents a civil , which would moulder away the half of their estates , if not prevented ; yea , and rob the wife of her husband , and the father of his children ; they would then condemn themselves , because they now condemn their prince : and it is often seen , that those nations flourish best , and conquer most , whose subjects are poorest , and whose treasures are fullest , the riches of subjects occasioning their luxury , and their luxury kindling a war ( that which is fattest kindling alwayes soonest ) whereas the riches of the publick cash are a rampart against publick invasions , and forceth strangers not to interrupt the nationall commerce , nor to abridge , but rather to enlarge their priviledges . these contemptible grievances , were the small machines which first moved that bulkish body of the popular fury in lacedemon ; not against the king , but against court-parasites , as they pretended ; the mal-contents of that nation , who were then members of the senate , taking occasion of anaxagius his present necessity , being engaged by a national consent in a forreign war , which , as it tended to the repute of lacedemon , should have in reason been prosecuted upon their charges ; some thought , that these debates might have been easily reconciled : for , many ( at least some ) of these taxes , had been granted to some of anaxagius his predecessors , for their own life-time only ; the subject thinking , that the securest way to preserve his priviledge , and the prince thinking it sufficient to satisfie his present necessity ; and considering that if his successors were able , either by love , or power , to command their people , that then he might prorogate that tax for their life-time also ; but if contrariwise , his successors would be so simple , as rather to beg , than to acclaim these taxes as due , that then they could never expect to obtain them , albeit they had been granted as appanages of the crown ; wherefore seing the senat denyed them only as due by succession , they thought , that the king might either have past altogether from the superfluous desire , to derive them to posterity , or at least might have superceded the prosecution of his royal prerogative till a more favourable occasion , wherein his treasure might be richer at home , his affairs in better order obroad , and the grievances of his people fewer ; and till he had been more surely fixt himself in his newly mounted throne , and that for the present he might have acquiesced to a personal concession of those taxes , which they could not refuse him more than to his predecessors , seing his necessities were as ( if not more ) urgent than theirs . others advised him not to passe from , but to change these taxations , in others as lucrative , and lesse odious ; such as the imposition of a tenth part of all pleas and legal pursuits , as should be found to be calumniatory , and intended to vex litigiously their honest neighbours ; which would be both profitable to the treasury , and pleasing to the subject ; both because these taxes seem alwayes most tolerable , which are least universal , and which the subjects may evite ; and which if they evite not , not the prince who is the imposer , but the subjects who are the contraveeners are to be blamed ; as also , because those taxes are for repressing of vice , and so must be in themselves good , seing they are contrary to what is evil . he was likewise desired to change all corporeally-penal statutes unto pecunial mulcts ; as the cutting off of an arm , unto so many crowns : for , by cutting off the arm , in place of satisfying the commonwealth which is offended by the crime , the common-wealth is yet more wronged by augmenting the number of her beggars ( such as those are , who being mutilated of their members , cannot employ them for to gain their bread ) and so necessitated in charity , to aliment those , who have wronged her in malice . there is also another mean , whereby this grievance of levying money by taxes may be averted , and that galling sore cured by an easier remedy ; which is , by heightning the crown rents to the true avail , whereby the king's purse may be fed with what growes upon his own ground : but the officers of state have alwayes opposed this , as an enemy to their expectations ; for , if this were used , then should not courtiers get lands , worth five hundred pounds yearly , as if they amounted not to three hundred pounds ; nor should they exchange or buy lands from the prince at so easie a rate , as now they do . princes likewise , should hear the meanest grievance of the poorest subject , against toll-masters , themselves , and not refer the cognizance of such debates to his courtiers , who being pensioners to these money-suckers , cannot but acquit themselves as favourable judges , where their interest is debateable : as also , by such delegations ; customers are encouraged to fleece the poor people , who , like sheep , dare not open their mouthes , and the prince is robbed of the right of appellations , which should be accounted one of the chief jewels of his crown : besides this , many judge it expedient that the prince should , after that such taxes are granted to him by the people , assign portions of it to those to whom he is debitor ; as to ambassadors , to merchants , to his navie , &c. whereby he may save the expenses of collectors ; as also he may obviate the importunity and avarice of courtiers , who absorbes it often in gifts and pensions , before the king receives it in to his coffers . others alledge , that the prince should compel those , who having farmed the customs have inriched themselves , hereafter to be his customers , allowing them a petty sallary , and so to inform him how he may inrich himself with his own , as they have inriched themselves with what is his ; and in my own judgement i prefer either of these wayes , to that way which hath been formerly practised by the lacedemonian senate , in deputing some of their number to distribute what is granted : for , either these will condescend through complacency or fear , to follow the current of the kings inclinations , and in that case are superfluous , or else the king and court will become their implacable enemies , in which case all become factilus . there were many other advices furnished to his majesty , but his courtiers pressed him not to suffer his royal prerogative to be so obumbrated , and that he who yeelds once ground , is alwayes followed , and is glossed to be of kin to a coward . this grievance in the state , was seconded by many grievances in the church ; the church and state being like the soul and body , whereof the one followeth alwayes the temperament of the other . pretended zeal is alwayes the step-mother of true loyalty ; and such a crime as treason would seem horrid , if it were not palliated by imaginary religion ; and many statesmen , perpending how many religions have been at first hatch't , meerly to tame wild humours , which albeit they have been known to their first founders to be the product of their own brains , yet have thereafter been by their posterity imbraced as sacred truths , and the violaters of them punished as blasphemers , do therefore conclude , that possibly , if not probably , these truths which they now profess , are come from the same mint-house , since they carry the same impressa ; and therefore are meerly subservient to their secular ends : and that seing they cheat others in making profession of their zeal for religion , when really they have none , nor cares for none , why may it not be probable , that others have after the same way , hatch'd these opinions which they and others do in a manner believe ; as also these statists see , that events ordinarily answer their expectation , and are consequential to their designs , which induceth them to believe , that providence and policy differs only as do two words : as also these two maxims , that all men have more or lesse of implicit faith which obliges them to believe what ecclesiasticks say ; and that other , that we ought not to confine religion within the narrow boundaries of reason : i say , these two induces men oft to anchor their faith upon that which is in it self most unreasonable , and stimulates men to act many things not only without asking a reason why they should do so , but even oft-times when there are many pregnant reasons tendered them why they should not do so , and when men are once engaged in these bigot quarrels , their order is both inexprimable and irresistable ; they fear not death , since they expect to be covered by the target of providence ; or , if they fall under religions standard , they are confident that their cause will canonize them ; they respect not friends , nor spare not their relations , as thinking themselves more nearly realted to the gods than to any else : and thus oft-times the gods are made the patrons of rebellion , and their temples , asyles in which the wickedest offender dare sanctuary himself . this was one of those pretended quarrels , which both the lacedemonians and athenians incensed the people by , against anaxagius ; the nobles in both nations , finding that the mufties did enhance all preferments , and were beginning to seek restitution of those church-lands which had at first been doted to pious uses , and which were thereafter , because of the debordings of churchmen , taken by the state , and bestowed upon the nobles , because else , they had never condescended that old abuses should be reformed , seing they were still disposers of those church revenues themselves before that innovation ; the nobles therefore resolved that they would pull away those mufties from about the throne , pretending religion , and intending gain ; alledging that these were innovators , and did busie themselves only in state affairs . these were the main hinges of all the lacedemonian troubles , yet they were not the sole ; for besides these may be numbred the nimious clemency of the prince , and the depraved factiousness of the subjects : as for the prince , he was a superstitious adorer of his subjects repose , and desired rather to have his own , than his subjects bloud spilt ; and albeit it was oft remonstrated to him , that the surest way to reign , was by the scepter rather of power than of love : for power and austerity was in his own hand , and depended upon none else ; whereas the scepter of love was swayed by the hand of a popular affection , which was as volatile as themselves ; and by it he was rather their slave , than their prince , and that his rigidity ( if it were a fault ) yet was but personal , and infected none besides himself ; but his clemency , was the nursery of all those enormities wherewith the land swarmed ; and seing vicious persons sinned not , more through fear of punishment , than through love to vertue , that prince who bewrayed too much clemency , did proclaim an im●unity to all vice ; and that subjects were like a top which did run the fleetlier that it was sometimes lasht ; neither could that prince expect to be obeyed , who punished not disobedience , notwithstanding of all those remonstrances made to him by his friends , and of all the dangers which were foreseen by his prying spirit ; yet he resolved st●ll , rather to be good than great , and to make the hearts of his subjects the throne whereon he would only sit ; saying , that it was the part of a subject to revenge , but of a king to pardon ; and seing the actions of predecessor kings , were the register of their successors , he resolved to learn his posterity how to pardon ; knowing that revenge and corruption would teach them to● well how to punish ; that the gods , whose vicegerents they were , gloried more in this attribute than in any else , and that the king of the bees ( which is an hierogliphick of monarchy ) wanted a sting : these were his principles , and proved his bane : and he who was mistaken in nothing else , was mistaken in this ; for , albeit the gods arrogate clemency as their special attribute , yet that is because the injuries of mortals cannot reach them ; whereas the rebellion of subjects can , and oft doth ruine princes : and the omnipotent gods can at any time easily both foresee and repair those wrongs which they have suffered , yet a king and his government may receive a wound , which none will be able to cure ; and he may , by the malice of his adversaries , be thrown into a ditch , out of which none can recover him : and albeit a prince may pardon those crimes which are committed against his own person , yet he neither can nor should pardon those crimes which are perpetrated against his government and authority ; which since it is not his property , and to which seing he is only administrator , he can no more delapidate , than a tutor can dispense with those who wrong his pupils estate . as to the perversnesse of the subject , it was also one of the cards wherewith this fatal game was played ; for , albeit at first the crime resided in few , yet did thereafter extend it self to all ; for , albeit the number of those who disaffected the royal interest in the senate was but small , yet those few vexed all , and perverted many of those who were at first but neuters , and those publick conventions are like watches , which will not go soundly if but any wheele or pi● be in disorder : for as in the natural , so in the politick body , a sore in any part is able to disquiet all the other members : thus it is here ; for those who were dissatisfied , did so by the pestiferous breath of their treasonable discourses , infect others , that they became now as numerous as they were formerly viperous ; and at last dared to ventilate those treasonable discourses even in the senate-house ; thinking that the only way to engage the remanent members in their quarrels . anaxagius challenging these discourses , and desiring the authors should be put in the claws of justice , this was refused him , so that now the cancer of jealousie did begin to spread , and one of the senators when this debate was tabled , enveighed thus against the kings suite . gentlemen , seing i am to enter the lists of this debate , i am glad i should have justice for my client , and you for my judges , not meerly because i know that ye are interested ( albeit that be likewise true ) but because i know you to be both judicious , and experienced ; judicious , whereby ye may know what is reasonable , and experienced , whereby ye may know what hath been the uncontroverted priviledge of this house ; and albeit all the lacedemonians were assembled , yet would i appeal by choice to your judgments , to whom i must necessarily now appeal , as being chosen by them to be their representatives . gentlemen , seing liberty is that by which we are differenced from beasts , it follows necessarily , that the more free men are , the more they are elevated above a brutal humour , and the more liberty they lose , the nearer they verge upon brutishnesse : how necessary must freedom be to subjects , seing without it they are rather slaves than subjects ; and of all the liberty which subjects can contend for , that of debating freely before any taxation or law be statuted ( which is our case ) is the most considerable : for , seing kings are very apt to impose and exact taxes , without the assistance of a law , surely they will be more rigid , when they will have the patronage of a law to assist their rigidity , and sein● after any statute is once made , the subject is not free to controll it , it is necessary that he have some freedom indulged him in controlling it before it be statuted ; and who dare use this freedom , when it is hedged-in on all sides by fear of treason , and of court-hatred ? whereby he will certainly risk , and may possibly lose both his life and fortune ; and albeit the marches of subject-priviledges be already narrow , yet they will be more narrow when such precipices are the marches ; for then none will dare to approach the outmost lines , fearing that fall which may prove irrecoverable ; and if it shal be licite to a king ( who may prove a tyrant , for goodnesse was never entailed uninterruptedly upon any one succession ) to challenge what is here debated freely , may he not alwayes forge some quarrel to pick out alternatly , those whom he perceiveth most able to counterpoint him , and so shall leave us like wine which cannot rellish well when the spirits are once extracted ; and albeit ye be all of you eminent , both for wit and experience , yet there are , and shall alwayes be some more eminent than others ( for albeit all run well , yet all cannot run equally ) whom if the prince who shall then reign , do remove , their absence , and the terrour injected upon other therethrough , will certainly render this judicatory altogether useless : remember , gentlemen , that ye are the hedge , planted to defend the garden of this nation from all oppressory incursions ; if ye be not pointed , and stick not near one another , enemies will either leap over , or break through , and especially where the design is , to steal away the golden apples of the subjects priviledges , and seing your antcessors , have preserved for you this freedom , as a patrimony , endeavour to derive it to your posterity ; neither do ye prove banquerouts , of what your fathers have been so parcimonious ; and as ye all endeavour to accumulate riches for them , so endeavour also to secure their priviledges , without which their estates are of small value . this discourse did stir up those sparkles of rancour , which lay formerly smothered in many of their breasts ; and they concluded , that it was both fit and just , to owne and intercede for those who were challenged ; and at last , finding , that they could not prorogate their sitting themselves , without the kings special advice and consent ; and finding that their many and great projects could not be perioded without some considerable time , they resolved to buy a lease of some years liberty to sit , with the grant of a taxation ; and the rather , because they considered , that they had most unjustly irritated his majesty already , as also , that these taxes would in fine be taken , if they were not given ; wherupon their seance is continued by the king , and the taxes are immediatly exacted by their special approbation ; yet so , that they inform the people every-where under-hand , that their assent was extorted from them , and that such a small morsel would rather sharpen than satisfie the appetites of the insatiable courtiers . now fear of being punished in some , and misinformation in others , did alienate their minds fully from their obedience ; loyalty was now accounted slavery , and the meanest act of jurisdiction , tyranny ; yet businesses were not so ripened yet , as that the leading men durst yet appear publickly , but the prologue of this tragedie was committed to the people , who in a tumultuary way were sent with extravagant petitions , sometimes against the favourits , and at other times against the mufties , the people being like the sea , which the nobles , priests , and wits , like so many winds make stormy or calme at their pleasure : in athens the women were ordinarily imployed in such expeditions , knowing that both their number and sex would plead immunitie for them from any deserved punishment . and because their simplicity like the straw could kindle soonest ; neither could they be repressed , either by harrongues or the sword , the ordinary calmers of such tempests , for as to reason they could not patient so long , as to hear it , nor ponder it so maturely , as to understand it ; neither would any man staine the lustre of his sword with the blood of a woman : yet autophilus the vice-roy in athens , was desired to punish the husbands of those irregular women , knowing that they instigated them to , or at least connived at their disorders ; either of which was a crime which merited incarceration : as also , the husbands punishment would easily tame these reasonless creatures ; or else , to lay fast some of the plodding nobles , whom they might keep as hostages for those heteroclite factions . but autophilus , as we shall hear afterwards , favoured too much their projects , to punish their courses ; for he , hating the mufties secretly , did desire both the king and them to act what might most incense the people , and so made their own actions their burriers . the first mark at which they did shoot those darts of popular fury , was on basilicus , a lacedemonian ( knowing that the way to weaken anaxagius , was to waste the bloud of his principal veins ) upon him they fastened the teeth of their envie , and it must be treason against the people , not to punish him as a traitour ; his accusation is founded upon some excerpts gotten from one of his majesties secretaries ; but what needs proofs , where death is once decreed ? his majesties rigidity , which could never be exerced against his enemies , must be now burrier to his friends , like an unaturall heat in the body which can consume it self , but cannot consume the meat which should rather be consumed by it . when any thing falls to pieces , it is surely near ruine ; and when a nation doth by faction become two , it will probably at last become none at all : wherefore when the nobility doth like an hair , begin to branch it self ; the king , like a skilfull barber , should crop it in that place , for certainly the hair it self cannot then grow longer : factions are those state-convulsions , which can hardly be cured except they be soon adverted to , and after the ring-leaders of factions have once engaged many innocent subjects in their quarrel , it is both difficult and dangerous to repress them ; and they being the roof under which many poor innocents have retired , ye cannot pull down the roof without smooring those who are under it . another great inconvenience in factions ( as there is nothing convenient in them ) is , that where the standard is once erected , all the criminal and discontented persons run to it , and must be both received and protected , both to requite their kindness , and to invite others , so that these prove not only the sanctuaries , but even the encouragers of malefactors ; and as that person cannot but be concluded distracted , who dashes his one hand or foot against the other ; so , that state must be thought demented , wherein the one half clashes against the other ; lacedem●n and athens joyntly , were both disjoynted now by factions in their church , some adhering to their old rites and ceremonies , whereupon they were called saturnists ; others were perswaded to imbrace the new , were named iovists ; worshiping iupiter , because they conceived him most rational , albeit not so old as saturn , and who influenced most strongly upon princes ; these last , were both more zealous , and more numberous , and did at last impropriate to themselves all the offices of the nations , whereupon many flocked to them , making religion a mine , out of which they expected to dig gold in abundance . in the state of athens there were likewise two factions , who like two twins strugling in the womb of the commonwealth , tortured vehemently their miserable mother ; the one faction was led by autophilus , a man of a profound prudence , and who had even from his youth suckt the breasts of state-education , and had so familiarized himself with its mysteries , that they were become now no wayes mystical to him ; but whose misfortune it was , that his fortune could rise no higher , except it had disputed preference with the royal throne ; and that is the unhappiness of those happily born subjects , that naturally ambition elevates them alwayes above their own level , and yet their present state admits of no higher to which they can pretend , without rivalling their prince . so ordinarily the eminentest of subjects , are born either to be fools or traitors ; from which they can hardly be diverted , except some forreign imployment abroad , or formidable prince at home , either feed or starve that genial humour : this made many alledge , that autophilus did in thoughts design himself to be prince of lacedemon , intending to marry anaxagius neece , and by inveighing against the queen , to get all her children declared bastards ; and his sisters other children declared rebels , by engaging them in a war against the nation : but these projects were so improbable , and so treasonable , that none could assent thereto , but were rather construed to be forged by his enemies , than to be his own , either wishes or hopes . the other faction was founded by phanosebus , a man of a deep reach , and one who might have shared in the highest imployment , if he could but have expected it patiently ; but he , like many others , did spill , by drawing violently to him , what he might have had entire , if he had waited till it had been bestowed upon him willingly : many characterized him to be a man of more wit than vertue , and of more cunning than of either , many followed him ( as was said ) meerly because they hated the other ; so that he stood more engaged to the others miscarriages , than he did to his own abilities : those who adhered to him , were such as could signifie nothing without him , and yet who with his assistance were successfull enough , yea , and too much ; like ciphers , which without a figure signifie nothing , yet when joyned to a figure makes the figure signifie more than it could do alone : some in the body of this faction acted the mouth , and were fitted for nothing else ; others the hands , to execute what they had commanded ; and some the feet , to run where any thing was to be acted , till at last these many parts got adjoyned to them a nose , which , because of its bignesse , overshadowed the face , and made the rest seem terrible ; which , as is rela●●● in lacedemon , did thereafter fall by the pox ; yet possibly these are but jealousies , and not proofs which can be adduced against him . both these factions fomented the increase of the iovist faction , and were but like small rivers running in to swell up that ocean : for , albeit they differed in their aims , yet seing they aimed both at the ruine of the saturnists , they concurred in that who could concur in nothing else ; like two travellers , who albeit their dwellings , or homes , be far separated , do ride together whilst the way is the same ; yet the iovists favoured more phanosebus faction , both because they were most favoured by them , as also because they jealoused autophilus to be too subtile . amongst the phanosebists there was one oranthus , a gentleman whom hundreds of years cannot parallel , as if nature needed so much time to bring forth such an elephantine vertue , and whereof a nation could lodge but one , as if it were not able to bear two such great burdens of worth ; this gentleman was in affection a iovist , and persisted so , but hated in the end the phanosebists , as persons whose interests was their god , and whose godlinesse was their gain : for , finding whom they intended to share the provinces amongst themselves , under pretext of regulating abuses , and preventing insurrections , did forsake them , because he found that they had forsaken their duty , and refusing their proffers , refused them also his assistance ; thinking it treason rather than reason , to assist them who resisted their prince , and persisted in their rebellion : yet did he alwayes love the iovist interests , albeit he hated some of their darlings , and relinquished not their party , albeit he relinquished their persons ; wherefore finding his danger both imminent and eminent , he posted to anaxagius , and was by him commissionated to command his army in athens ; but before he went thither , he assembled his friends , and disclosed thus to them all the mysteries that had past . gentlemen , state-designs are like herbs , which cannot be known at their first starting-up ; and errours may be pardoned , if they be not continued ; especially , where the pretexts are so specious , and the dissimulation so deep : this is both our case , and our misfortune , and i may say our misfortunate case ; we have been nose-led by some , whose ends have been to end our loyalty , and to plot the ruine of him who hath kept them and this nation from ruine ever hitherto ; they pretend piety , but who can be so childish as to think that these would open so liberally both their veins and purses for that in publick , for which they would not open their very mouths in private ? and how can we think that those who would not bestow scarce a crown in charity , or an hour in prayer , clemency , and pardoning of others , which are the essentials of religion , will bestow all their time and estates for the maintenance of what is but ceremonial . gentlemen , let us not give suck to these bastard projects , nor credit to these improbable discourses , but let us both condemn and resist these intentions , let us pay our prince the tribute of respect , and respect such as will become his tributaries ; they have not yet monopolized the affection of the nation , let us endeavour to get them disaffected , and let our swords cut the knot of such plots : the design is somewhat practicable , because the people cannot always be cheated ; for time will decipher cheats , and such vast projects cannot be prosecuted without vast expences , and many will weary of paying those who are traytors , who would never weary to be traytors themselves ; for certainly , all men have , as they are men , some inclinations of being loyal and honest ; and if they unpath themselves from it , it is to follow the tract of some golden or gilded vice ; which if they misse , they will presently return : and it is impossible that where all seek , that all can find , especially where there is so little to be found by any , and where the grandees will endeavour to enhance all : they are likewise divided , and the one may help to destroy the other , whilst we are endeavouring to destroy both . anaxagius , against whom they war , is so good , and his cause so just , that it were an offence against the immortal gods to think that they will not favour him , and blesse it ; and albeit they be numerous , and we few , yet let us not be discouraged ; for desperat and unjust exploits flourish alwayes most first , whilst the actors have not time nor conveniency to reflect upon what they are doing ; but at last when that fervour is abated , their honesty will encrease ; our cause is honourable , seing it is in defence of him who is the source of honour , and we shall finde our recompence payed us , both by our consciences and our king ; after-ages shall admire our memories , and erect memorials of our loyalty ; and what we do by our swords , shall be done over again by the pens of learned historians . but to what purpose shall i enlarge my self , seing i know you to be gentlemen , whose ancestors have been the ramperts of this nation , and loyal subjects to their prince ? is it possible that ye are heirs to all their estates , and to none of their worth ? or , may ye expect obedience from your yeomen , who will not defer it to your prince , to whom ye are tyed by many oaths , whereas they are tyed by none to you ? and under whom your predecessours have lived hundreds of years , whereas theirs have lived under you but since yesterday ; can ye be so rigid exacters from others , who are so bad payers your selves ? let us then hazard our lives before they be taken from us ; or at least , lest we live to say , that we have lived too long , as having out-lived the freedom of our nation , and security of our prince ? all admired , and the most part allowed this discourse , and condescended to list themselves amongst his followers , and to run the common hazard with him , knowing that the hazard could be but either small , or at least glorious , where the conducter was both so skilfull and so generous . this good cause was followed with good success ; for , the athenians considering , that the raising of an army was requisite , if not necessary , seing that which is unnatural cannot be maintained without violence , and thinking , that the only way to make themselves formidable to their prince ( those capitulations being most favourable which are written with the point of the sword ) and most fit , seing it would remunerate their friends and dependances , as being a mean to afford them salaries and employments , did raise a numerous army well equipped : for horse-courses which had been alwayes much frequented , both out of pleasure and policy in that nation , had stored them with excellent horses : and surely that nation is happy , where trains consist most in gallant men and able horses , which may serve aswell in war as in peace ; rather than in laquies , who are both roguish and undiscreet ; and in coaches , which are both expensive , effeminate and useless ; and which habituate men so , that they can neither ride , nor suffer themselves to be exposed to the fa●igues of wind or rain : that nation was likew●se well armed , each mans house being an arsenal , and each arsenal able to arm numbers of men ; which some keeped for pleasure , but the most part for intestine discords ; for to be neighbours , and to be at variance , were alwayes joyned : peace having thus prepared the materials , it was easie for war to arm it self , which did afterwards like the prodigal , spend totally that great stock which its predecessor had laid up for it . neither was their courage wanting more than arms ; for none was so niggard of his life , as to spare it at this occasion : yet this chariot of war had other wheels besides that of courage ; for , young men went out of gallantry , old men out of zeal , and both out of avarice ; knowing that lacedemon , where they were to march , was a rich meadow , where they might all feed abundantly , leaving their host nothing but their leanness to pay their reckoning ; so that they seemed like bees to go out of their barren hive , to suck honey from the flowers of the neighbouring gardens ; this was the golden whistle wherewith their cunning huntsmen called these grayhounds to the prey ; and it is oft the greatness of the prize which makes the goodnesse of the cause . after these were all marched , oranthus entereth the athenian bounds , backt by none but by the royal commission , which made his cause good , but not his party strong ; yet at last some from all corners flocked to him , the royal standard being an orator eloquent enough , to perswade those who could hear with loyal ears , and who reverenced not their estates as their king , thinking gold the prince of hearts as it is of mettals : it was reported by some , that the iovists had placed domestick priests in each family , for the service of their houshold gods , to remark mens actions , and to convince themselves , or at least to tutor the wives , by whom they might thereafter know the husbands ; and that this restrained somewhat the confluencing of the subjects to or●nthus : but these were rather personall prejudices , than true conjectures . others alledged , that oranthus pride deterred others from joyning with him , as being a person , who as he was in worth equalled by none , so who in pride surpassed all : but that likewise was a mistake , for what was called in him pride , was really prudence ; for he considered prudently , that those who kept a distance with all , will be tempted to reveal their secrets to none , and will have time and convenience to canvasse fully what is fittest to be done upon every emergent ; however , if this was his fault , he was happy in being tainted with no other fault but this ; and his excess in his carriage to his equals , was compensed with the moderation used by him to his inferiours ; for , as they branded him with the one , so they could not but allow him the other : it was admirable how a body inured to much ease , could endure so much trouble : for , in spight of his former custom , he accustomed himself to dispense with what pleasure he enjoyed formerly , shewing the world , that as his spirit was of gold , so his body was of brasse , and it appeared that he had changed his body as well as his opinion ; or rather , that his body resolved rather to suffer the hardest of hardships , before it would suffer so rare a soul as his was to change its dwelling , and quit its imbracements ; grasse was his best bed , stones his ordinary pillows , and the heavens his continual cannopy ; his drink was water , and his diet opportunity ; his counsellors few , and his enemies many , and yet it appeared that providence kept those from him , meerly to shew that without these he could conquer , and that oranthns alone was strong enough for these many . the senate of athens resolved to fight him before he became stronger , whereupon they dispatch'd some forces under the conduct of phanosebus , who was no sooner seen than vanquish'd ; as if he had come not to fight , but to render only , he himself whose leggs was armed with swiftness , did run as if he had pawned his life against death , who should run fastest : after this many followed the conquerour who would not have followed oranthus , and seing fortune came to encamp with him , many came to incamp with fortune . it was thought folly in phanosebus , whose strength lay mainly in his wit , to hazard in those imployments , where rather strength than wit was requisite ; for , as some said , it was an unbeseeming a statesman to act the souldier , as it was to a physician to practise in law , and especially where the adversaries valour was redoubled , and that by so doing he wronged himself without wronging his enemies ; for thereafter many said , that he was neither stout nor fortunate : whereas if he had stayed at home , he might have salved his repute in both , and might have kept himself as a reserve , making his friends , after they should have been often beat without him , hope that they should conquer when he went alongst with them ; and seing fortune is half play-maker in all humane actions , it is a great disadvantage for a great undertaker to be thought misfortunate : but surely his motive was , that he feared lest oranthus should flourish too much , and that it would be too late resisting him when he would become both more skilful , and more famous . this victory was seconded by many others , so that he conquered as oft as he fought ; yea , rather he could not fight without conquering ; all his actions were maturely deliberated , and speedily executed , and so could not be but successfull : his army consisted partly of natives , partly of forreigners , the one whereof did emulate the other in courage , and so could not both but act gallantly , seing gallantry was their motive : the forreigners behoved to fight , knowing that else they had not any where else to ●refuge themselves , in having neither their own homes , nor the houses of their friends to shelter them , and would not flee because they knew not where . the natives were assured of the gallows , if they ensured not themselves by their courage ; and their quarter was no pardon , but a respit from death ; not a preserving them from the sword , but a reserving them for the block , that so ignominy might be put upon themselves , and terrour left upon their wel-wishers . many of that nation exclaimed against the cruelty used by his souldiers , and their other exorbitances ; but these adverted not when his army wanted pay , and so he was necessitated to allow them plunder ; neither should they have so exclaimed against him upon that account , seing their relenting in coming in to him did oblige him to imploy strangers , whose enormities were the only crime of his well-disciplined army : neither was it strange to see those who were starved in the hils and deserts , eating oft nothing but roots , and drinking nothing but water , drink and feed somewhat liberally when they came where they might have it , and even exerce some cruelty towards those who caused those their many miseries ; however , a general may govern men , yet cannot he make men , not alter their inclinations● and as they relate at athens , never general 〈◊〉 so reconcile different humours , nor govern so prudently rash and impudent souldiers , as he did ; his army was divided in factions , and opposed by factions , yet did salve the inconveniency of the one , and guard wise against the inconveniency of the other , making himself an arbiter when they were at variance amongst themselves , and a target when they were assaulted by their enemies . the phanosebeans and the autophilists , were vying all this while for precedency , the clergy and cities adhering to the phanosebeans , many of both being stipendiated by him , the nobility and gentry following autophilus ; their main aim being to repress the mufties , thinking to stop there ; but it is hard for any who tumbles down the hill of vice , to stop till he have once run down to its root ; for vice is none of those manageable horses who can be stopped in the midst of their carrier ; and since man is naturally so depraved , as that he cannot abstain from what is ill ; what may we expect of him when his depraved humour is fortified by these depraved habits ? and many have gone aside from their way , intending presently to return , who having once strayed , were never able to return to it ; and the immortal gods deal most justly with mortal men in this : for , to think that men can be good at pleasure ( much more then , to think that he is able to exchange vice for vertue in an instant ) is to exalt man upon the pinacle of arrogances temple ; and if the event answered the expectation , besides the original depravednesse of mans humour , man should likewise be invited both to be wicked , and to continue in his wickedness by this happie and succes●full encouragement ; neither should goodnesse be taken as a donative from heaven , but should be esteemed such a flower is might grow in the baddest soil upon earth . albeit then the autophilists intended not to spin out the threed of their opposition to their prince to such a length as the phanosebeans did ▪ yet , being once engaged , the hatred they bore some privatly-well-affected persons , and their desire to overreach the phanosebeans , did oblige them both to act and suffer what did really run crosse to their humour . yet in spig●● of all endeavours used by the autophilists , the other faction were the darlings of the iovist clergie , which cletus , brother to autophilus , perceiving , he resolved to defeat them with their own weapons , and to pretend as much zeal as the others could ; whereupon knowing , that all extraordinary changes must be effectuated by extraordinary means , he alledgeth that he is pang'd by his conscience for his but luke-warm affection to the iovist faction ; and sending for some of their grandees , he entreated them to suffer him to appear in sackcloth before the altars , to hear sacrifice offered there for himself to atone this sin ; they thinking his remorse to be heart-deep , agree to the motion ; so that clitus is now admitted to prostrate himself before the altar , in the presence of many thousands , whom the extraordinarinesse of the action , as a bell , had called hither , where with all pomp and solemnity imaginable , he is absolved from that crime ; and is permitted to harrangue the by-standers , whose hearts , like good ground ; were soon softned by those showres of tears , which deluged from his eyes , and were perswaded that he was now , because of his piety , incantonized amongst the gods , so that now the iovists ( glad to bridle the one faction with the fear of the other , and willing that they should emulate one another , hoping thereby to aggrandize their own respect ) did carress both almost equally . phanosebus would never imbrace any charge himself from the senate , knowing that thereby he would be obliged to appear always himself , and to subscrive papers , wherein the actings of these times should be preserved , and reserved as monuments of their madnesse : as also he should be necessitated thereby to remain alwayes at athens , and should want the conveniency of retiring himself at inconvenient occasions , but he caused prefer these , who being his creatures , he was confident would be at his devotion . at last ora●tbus , oppressed by their numbers , and deserted by his money-less souldiers , becomes their prisoner ; betrayed by an ignominious rascal , who sold that pricelesse gentleman to the athenian senate , buying with his price perpetual infamy to himself and his posterity ; and is by them condemned to be hanged publickly , and his legs and arms to be fixt upon publick poles : who being brought to the scaffold , delivered this speech . gentlemen , i regrate not so much my own fall , as i do the fall of the royal standard , and that mine enemies should use my ruine as an argument to prove the goodnesse of their quarrel : i know they deck my death with their inhumane triumphs , to make death seem the more terrible to me , and my cause seem the more undesirable to others : but as for me , seing the cause for which i suffer is just , the more i suffer , the more the immortal gods and my kind prince are my debtors ; and the more remarkable they make it , the more famous shall it prove to posterity . i have alwayes esteemed them happy who lye upon the brinks of times impetu●●s river , remarking how it glides away swiftly , bubling up bells here and 〈◊〉 ( whereof the greatest are alwayes the least durable ) and dissolving them instantly , whereof two or three somtimes joyn together and shortly ruine each other ; and in other places , foaming through rage and spight , 〈◊〉 some rock or stone retards its violent course ; but unhappy are th●se who delights too much to swim in it , and as it were by way of compliment , to run alongst with its streams : yet seing happinesse consists in action , and since it is unnatural in any man , to be a willing ( or at least an idle spectator of his countries miseries ( for to be idle , is in some wayes to be willing in things commanded by duty ) i admire him most who acts most for it , and who , like the bees , will sting him who intends either to remove or to wrong their hive , i am condem●ed as guilty of treason , because i obeyed my prince , against whom treason only can be committed ; and seeing it had been treason if i had disobeyed , how can my obedience make me a traitor ? i am accounted cr●el , but can truly be no more reputed such , than he who endeavours with rebukes and lashes to reduce a run●agate and runaway servant to the obedience of his kind and condescending master : neither i hope shall others be frighted by these my sufferings , s●ing misfortun 's balls can●●t hit alwayes the same mark ; and i hope others shall be admitted to build that pallace to which we have only served as quarriers ; and albeit they should meet death either in the camp , or up●● a scaffold , why should that terrifie them ? seing to die so is to die in the arms of honour ▪ after which they may expect to have a monument of fame erected for them : whereas those who put the hour-glasse of their life in the trembling hand of fear , will oft-times have it broken un●xpectedly , by a fall both dishonourable and irrecoverable . this discourse being ended , the executioner first hanged , and then quartered him ; and the very scaffold , dyed with his blood , seemed to blush at the cruelty of his judges ; all condemning their cruelty , and admiring his courage , so that sampson-like ( as christians use to say ) he overcame moe at his death than he did in his life : teaching statesmen never to execute publickly , those who are loved generally ; and thus was extinguished by the puddle of faction and malice , that lamp which was kindled by the hand of providence . anaxagius affairs in lacedemon were by this time wholly ruined ; for , the specious pretext of liberty being displayed as a banner by the senate , all the commons rendezvouzed themselves under it ; and albeit their consciences , and experience did therafter inform them sufficiently of their errour , yet fear of being punished , obliged them to continue in their crime , telling them in the ear , that albeit their cause was bad , yet their danger was inevitable . anaxagius own servants likewise did sing their own parts in this treasonable song ; for they ( as they pretended , when challenged by their friends ) fore-seeing their masters ruine , which they were not able to resist , resolved rather to stand without him , than fall with him ; like those who having sailed long in a pretty ship , finding that she is like to split , do break away a piece off her , whereon they may come ashoare in safety . but it is no wonder to see the devil , who cheated the judgement before the commission of the sin , cheat the conscience after it is once committed ; and by such impious sophistry , defend his cheats against the just accusations of piety and duty . these miscreants did pick nightly his majesties pockets , and send doubles of his letters to his enemies , whereby both his plots were discovered , his friends laid open to his enemies malice , and likewise his own repute hugely tashed ; for , some finding their correspondence with him , and only known ( as they thought ) to him , thus revealed ; concluded that he beho●ved himself to be the revealer : and certainly , ●his scarred even his most loyal friends from corresponding with him , who albeit they durst ●ot harbour such disparaging thoughts of him ●s that was , yet shunned to throw themselves 〈◊〉 that snare , wherein they saw others both ●atched and murdered . another cardinal errour in anaxagius , was , that upon the tumults and insolencies of the ●●ulgar sort in the city of lacedemon , he re●●quished the city , fearing that these fat●l ●omets did animate some signal alteration : but by his flight , he rather encreased their jealousie , than evited their clamourous malice , which was so swift-footed as to pursue him where●ever he went ; for , in his absence the author● of these seditions , did not now fear to be revealed , nor , when revealed , to be so sharp●● punished as formerly : whereas if he had stayed at lacedemon , his generous and modest ●●portment would have refuted most of thes● malicious and groundlesse discourses whic● were now openly ventilated against him ; th● city likewise finding , that he misconstrue● them so far , as to think himself not secur● whilst amongst them , did now joyn with th● senate , cordially advancing them money , wher● by both army and navie was maintained , an● whereby those who followed anaxagius wer● entised to cantone themselves in the senat● faction ; neither could the senate comman● the navie without the navie from whom 〈◊〉 its materials could only be expected . where●upon a gentleman said to his majesty one mor●ning , that a king was like the heart , whic● when it is by any unnatural motion remove● from its wonted seat , that certainly its dissolution must ensue shortly . it is likewise firmly believed by many in th● nation , that the senate fearing lest the k●● of egypt , brother to their queen , should se●● some auxiliary forces against them , did by their ambassadors buy with considerable sums sophander's friendship , representing likewise covertly , that such a war would pick his masters purse , leaving little or nothing to his friends and favourites , who otherwise might expect largely ; and that it was the interest of egypt , to see lacedemon in such a hubbub . they likewise treated with the common-wealth of corinth , to advance them arms , promising that they should have liberty of fishing in their seas , without any toll : a priviledge which the corinthians feared anaxagius would both question and recall . the sun of anaxagius power was beginning to set , the nobles , of whom his army consisted mostly in lacedemon , were , like flies , returning in the cool of the evening ; and many attributed his ruine to their military disorders , and unskilfulness : for , each of them behoved to be preferred to some command in the army , which occasioned , that those who had followed martial imployments abroad formerly , were constrained to sue for imployments from the senate ; as also the jars and emulations which were amongst themselves , destroyed the common unity , and made the souldiery fear , that the house which had so many rents , would one ●●y fall ; and that those would prove in end wisest , who retired soonest : but contrariwise the senate governed their army most prudently , preferring experienced souldiers to the most eminent charges , and proveanting them most opportunely upon all occasions ; for , having the city at their devotion , it did suppediate them both with money , pitch , cordage , and other materials for their fleet , and by the assistance of the fleet they victualled their army in all places : whereas anaxagius army destitute of such necessaries , were constrained to prey upon the country , and thereby lost totally their affections . the senate likewise doted their army with all priviledges imagi●able ; for they licensed the apprentices of all cities , and of all trades , to serve in their army , and there to fulfil those years for which they were bound to their masters ; as also they recompensed with offices in the state all such as had merited well of the state in the army , and received their lame souldiers in hospitals , and pensioned some others who were more eminent , and erected tombs for those who were killed in their service ; punishing severely all who either openly or covertly promoted or favoured anaxagius interest . the senate weary at last of being either authors or spectators of these bloudy conflicts , which hapned daily betwixt anaxagius armies and theirs , resolved to patch up these differences , and to seek now by treaty what they formerly would have extorted by war ; perceiving that they expended more treasure in the pursuit of their priviledges , than they could gain by them , albeit granted : and that anaxagius successors would re-assume what anaxagius would be obliged now to concede ; which the army perceiving , and concluding that their gain would be hereby totally drained ; for the intended peace behoved to infer a disbanding of their forces : and albeit an act of amnesty would lull them asleep in a promised security , yet old quarrels would be one day wakened by the malice of those , whose friends and kinsmen they have cut down ; or by the avarice of courtiers , who would endeavour to render them criminal , because their estates were opulent : wherefore they concluded , that it was fit to possess themselves of anaxagius person , that so a peace should not be concluded but at their pleasur● , or at least if it were concluded , that it should be to their advantage ; and that any courtesie should be conferred upon him , might be taken as a donative bestowed by them . these were the pretexts which autarchus , general of the lacedemonian forces , used , to induce his souldiers to an assent in this particular , but his thoughts levelled at another mark ; for he was at this time laying the foundations of his future greatness , a structure which his subtility and boldness did afterwards rear to an unspeakable height . autophilus did now finde by the designs broached , that he and his adherents would be smothered under the ruine of anaxagius government , if it did once fall ; and that those merculiasts ( for so were they termed who owned the army , because they worshipped mercury ) intended to pluck up the branches of nobility , with the root of monarchy , did now condemn his first projects as disloyal in themselves , and , as prejudicial to his own subsistance ; whereupon he addresseth himself to anaxagius , and gets a commission from him to levy thirty thousand men in athens , which he effectuated accordingly ; for , his faction , which was numerous in it self , was swelled up greater by the concourse of those who affectionated oranthus ; and who found that phanosebus would have massacred them , if they had not refuged themselves at this altar . but both the one and the other were animated by the horrid usage which their prince did meet with from the mercurialists : those who had been loyal formerly continuing so still ; and those who had been disloyal , thinking their zeal for him now , the only way to deprecate his wrath , and satisfie their own consciences . this army marches , carrying alongst with it both all the warriours and warlike furniture of the nation ; and , as providence had taugh● that nation formerly , that few , assisted by it , might beat many ; so it taught them now , that many , when resisted by it , might be beat by few ; teaching in both , that it useth numbers rather as a shadow than a sword , imploying sometimes those , lest ordinary means should altogether be neglected , and vanquishing often without these , lest ordinary means should be too much relyed upon ; and least , in both , divine patience should be omitted . but these proved like the witches , who can do ill , but cannot do good ; and albeit they had raised the devil of rebellion , yet could they never lay him again , the heavens disdaining that any of its infant projects should de nursed by those who were once its enemies . phanosebus had all this while opposed this design , not but that he wished the releasment and enlargement of his prince ; but hating that he should be released by the autophilists , esteeming every thing lawfull or unlawfull , accordingly as it could advance or rebute that interest . wherefore after the autophilists were marched , he levyes some inconsiderable persons , who had lyen at home , like some chaff in the corner of a barn , after the wheat is all carried away . these were with much cunning trysted to the fields , not out of any intention to fight ( for if they had dreamed of that , they had never moved ) but as if it had been only to recreate themselves ; yet then they were once mustered , they mustered all their courage in their faces , which they were necessitated to do , because their hearts refused to lodge such an unruly guest ; and seing their breasts were already filled with golden hopes , they judged it folly to fill them with thoughts of steel : thus they resolved to conquer all , because they saw none to be conquered ; and cartelled by their eyes all who would swear that they had neither arms nor courage : here stood one in arms , complaining that his iron coat was too stiffe ; and besides him stood his fellow , whose armour was armed with rust , which desired to be left at home to recruit the plough as formerly , pleading exemption , as not being betwixt sixty and sixteen , and so not obliged to go to the fields , but by twenty years older than both ; telling him how they had fifty years since hindered his fathers flight , who because thereof had vowed never to bring them abroad again : and withall that the bearing armour was too weighty an imployment for a clown , but whilst they are thus busied , an old wife , or rather one so old as that it could not be known whither she was a wife ; complained to a captain , that her son had stollen away from her , a thing wherein her hens hatched their eggs , which he called a steel-cap , and which was at that present upon his head ; which the young captain slighted , calling her old hagg , and telling her that they were vexed in defending her and such others from their enemies : whereat she became inraged , and commanding her old hands by a young heart , pulls him from his saddle , from which the least pull could easily have invited him , the saddle it self disdaining to serve such a childish master : the field wherein they mustered appeared a comedy , wherein cowards acted gallantry ; but that gallantry was defectively monstruous , because it wanted hands , yet they seemed basilisks , who could kill with their eyes , which seemed granades , from which they did shoot thousands of murdering looks , their mouthes were the arsenals where they kept all their arms , yet their safety lodged in their legs , which had proven their trusty friends in many other occasions : when they were all thus convocated , the trumpet breathes them out a march , but , alas , their unexperienced horses begun to dance at such musick ( where those danced best who had learned least ) and did instantly send their masters to the ground , as if they wished them to dance there also , seing they could not dance on horseback : their commanders thought , that they had lighted to kisse hands with the ground their old acquaintance , with which these clowns had spent most of their time ; but alas , they , poor creatures , did lie there , perswaded by fear , that they had been overthrown by their enemies , and like assaulted travellours , who throw away to the robbers their purses before they should be violently taken from them , were breathing out their souls willingly to death , fearing lest it would open another passage than their mouth to facilitate their esc●pe . but amongst those many , who were all remarkable , there was one whom fear had marked for its own head-quarter ; this fellow had gotten from his wife a linen bag , with some raw flesh , which had sealed its impressa in bloud upon the outside of the bag ; which the coward perceiving in this twilight of fear , imagined that it had been tinctured with his own bloud , which occasioned his present death : here lay one opening his eyes , and presently closing them again , fearing , lest fear should wound them , if they were not armed with his eye-lids : only in this playing the gallant , that he could not endure to see either himself , or his friends wronged : over him crosse-wayes , did lie another , crossed extreamly by his own timer●usnesse , crying . misericorde , misericorde , imagining firmly , that his enemies was searching i● his bowels where his life was hid : not 〈◊〉 from them was a third , who had covered his face with a mask of paleness , desiring not to be known , and hoping that none could expect to find life , where no bloud was to be seen , and had given order to his looks , to tell those who had searcht for his life , that it was gone to the other world to complain of their hard usage ▪ yet at last , time perswaded them to believe thei● eyes , witnesses , which they had formerly declined as suspect ; so that now they re-assembled themselves , like 〈◊〉 who had formerly fled from a shower , 〈◊〉 met , did conclude that trumpets were unlawfull instruments , and as being musick , were to be abominated , as contrary to the rites of their church ; and determined also , that they would to convocate them use a bell , a conceit which as it suited wel with their ecclesiastick ceremonies , so fit for such a flock of sheep : but the great debat● was , what they should carry in their standard yet at last they agreed to carry a sheep in it , to testifie the innocency of their cause , with 〈◊〉 bell about its neck : but to testifie that thei● innocency was armed , they were perswade● by their general to give the sheep horns ; al things thus prepared , they take their horses , and are advised by him to make them observe lent , in not giving them flesh for fourty dayes , as a punishment for dismounting their masters : and now these bastard sons of mars , upon whom he had bestowed rodomantade words and looks ; being ready to march , they , by the help of a stone , mount their weak horses , being sadled with straw , and bridled with hair , and seemed at every step to have wagered , whether their horses did rise higher from the ground , or they from their saddles ; resembling a young gentleman , who at his first setting to sea , is deserted by his feet , and tossed by the merciless waves , looking on horseback like patients on a close-stool : thus ●●●●grech fruit were flourishing in their march , tumbled up and down by their unskilfulness in horsmanship , like the young bud of tender branches by a gentle gale of northern wind ; the more the horses vaulted , the nearer they clapt their spurs to them , but the poor beasts who understood no more such imbracements , than their beastly masters did understand the art of horsemanship , did , by kicking and flinging , show their displeasure : whereupon a witty fellow told some of them , that it was no wonder that their irrational beasts could not abide to be spurred cruelly by their masters , seing the masters themselves could not endure ( though rational ) to be spurred gently to their duty by their prince : which observe touched them so nearly , that they vowed never to fight any till that fellow were removed ; which behoved to be obeyed , albeit their general entreated them to permit him to stay , to learn them how to sit on horseback : which was refused , whereof the gentleman seemed very glad , fearing that if ever they did engage with their enemies , they should either leave him , else he behoved to leave his courage . but before i leave this discourse , i must tell you a pretty jest of a gentleman , who being appointed an officer in the army , was as dejected thereat as if they had condemned him to fight , albeit in the justest of quarrels , a punishment which he judged too great for any crime ; yet home he comes , and imparts the whole matter to his wife , who entreats him not to accept it , telling him how unfit he was for that charge , having fewed out his courage to his tenants , and that his complexion was so sweet , that he would not abide to stand where blood was shed . notwithstanding whereof , he entreated her to let him see a calf killed , which she denyed him , swearing that it would make such a noise , that few were so stout as not to tremble at it ; but that to experiment his courage , she was willing to let him see a chicken murdered ; yet , to satisfie his desire , he behoved to see a calf killed : so the poor beast ( i mean the calf ) was brought to the utter court , where the gentleman stood beholding it , and there seeing the knife in its throat , and hearing the poor beast bellow so sadly , the compassionate gentleman , seemed to die for comradship with it . by this time the athenian army in lacedemon , under the conduct of autophilus , was advanced as far as the heart of the country , but their discipline was as bad as their courage was great : for , some by drinking , others by plundering , lost both the affection of the lacedemonians , and their own senses , which seemed to leave them , because they were so disorderly masters , who , to satisfie their pleasures , drowned them at all occasions , and thinking anaxagius sufficiently obliged by them , if they drank his health ; and surely he had been so , if they had thirsted as much for blood as for wine , and imployed their hands as well as their cups , bestowing that health in his quarrel , which they debauched in the tavern , and which ominated to the lacedemonians their extirpation , and deterred them from joyning with them ; they intended not to fight that season , expecting that anaxagius wel-wishers would adjoyn themselves as limbe● to their body : they marched slowly , and at a great distance one b●igade from another , pr●tending that they would not over-charge the country by their vast numbers : but as this was their mistake , so it proved their bane ; for autarchus hearing of this sol●cism in discipline , falls upon them unexpectedly , and routs them before they heard that he was upon his march : sending the one half running back to tell the other half that they were beat ; so that report routed more than he , albeit he routed all those who came in his way , and they were scattered like sheep pursu●d by a lion , and abandoned by their shepherd , thinking their capitulation good enough if their life was pardoned ; yet those who were together , fought so generously , as that they evidenced sufficiently , that it was rather want of officers than of courage which made their companions fl●e : those who fought , were commanded by o●e milet●● , a gentleman of a well tempered courage , whose prodigal hands did deal death liberally , and wounds freely , till his veins denied him b●oud , and his arms strength , both challenging him for having already banque●rupted too much of his stock , and thus overpowered by ●ultitudes , and fainting through exces● , he becomes their prisoner ; who judged themselves happy when become masters of that sword , which had mastered them so oft formerly , and were overjoyed to see it in their own hands , which they feared so much whilst it was in his . we may perceive by this defeat , how nimious confidence is alwayes waited upon by tragick disasters , and how the gods disappoint those who appoint for themselves boundlesse honours , which they assure themselves so of , as that they think that fate cannot rob them of them ; and it is just that prudence minde them who will not minde it , and thinks it derogatory to their valour to fight under its colours , scorning deliberation as superfluous , where the conquest is certain , and thinking it cowardise to doubt , where courage concludes the project infallible : this is that vice which makes youth madness , and one statesman worth twenty souldiers , and causeth the look of a wise man conquer more than the sword of a fool ; and he who wears not his sword in the sheath of prudence , but keeps it alwayes naked , will doubtless one day cut himself by it ; and will , when conquered , be hung up as a trophee of deliberations true worth , in fames immortal temple . prudence is courage's eye , without which it is blinde , and so may be easily overcome by what is weaker , and will stumble where there is no difficulty ; this was partly the cause of their total ruine , for they wen● rather to triumph than to fight ; but because they did not fight , they lost the triumph . autarchus who had long been hovering , whether to aspire to the chief ( if not the sole command ) of the nations , did now resolve to set up for it : for , he found that all the old factions had weakned one another , and would still continue so , and that by picking quarrels against the members of the lacedemonian senate he had expunged those who were most loy●● 〈◊〉 anaxagius , installing some of his favourites in their vice , only he found the army planted with many who favoured excessively the senate , as being members in both , and so tyed too narrowly his actings , and informed too opportunely anent what passed there ; to remedy which , he entreats the senate to advert how dangerous it was for the nation , to suffer any person to command in both , whereby he might one day command both , and how superfluous it was , seing one enhanced the salaries and imployments which might entertain many , especially now when they stood in need of many servants , and stood in fear of some few masters ; as also , that their charge in both was neglected by their retaining both : in order to which the senate declares , that no person shall be member of both senate and army ; which made many choose rather to abandon their offices in the army , than in the senate , hoping that the army should be soon disbanded , and finding that its members were already hated by the people , and might probably be punished by the prince ; and that from the senate they might expect a civil imployment more lucrative , and of lesse danger ; and that the army were but servants to the senate , whose members they might cashier at pleasure , and who could never know the mysteries of what was commanded ; 〈◊〉 autarchus became sole arbitrator of the whole army . there was one thing yet wanting to settle him , which was an association with the athenians ; wherefore he goes in person thither , as if he went to root up the remainders of the autophilist faction ; but his intent truly was , to ensure the phanosebeans to his interest , whom he knew would close with him upon his own terms , to have the autophilists destroyed , whereas he feared that after autophilus were once destroyed , and his faction extinguished , they would not so willingly associate with him , and here the event answered his expectation ; for , at his coming to athens , and his meeting with phanosebus , they after some previous treaty , agreed in these articles ; that autophilus who was then prisoner in lacedemon , should be beheaded ; and that phanosebus , in requital of this , should destroy all who opposed the lacedemonian senate in athens ; and that none should be admitted to any publick office in athens who had served in that war , except such as the senate of lacedemon should approve : this they did , fearing lest else each nobleman should bring in his friends , which those athenians who were there could scarce hinder . this treaty ended , autarchus stayes with them till all uproars were setled , all suspect persons secured , and all the judicatories filled with those of phanosebus faction , and in testimony of their respects to him , they court him , feast him , and present him with some rich jewels . after autarchus return to lacedemon , he endeavours to weaken the country musters , pretending that they were too obsequious to the nobility , and those too much devoted to anaxagius ; and albeit the continual custom of lacedemon might plead for their continuance , they being only at first instituted , and since continued to supply the want of armies , could not be now either necessary , or convenient , where the senate were served by a dutifull and potent army : by which means , he obtains from the senate , that these should be discharged ; yet whilst this was a doing , he causeth prorogate the treaties betwixt the king and senate , purposly that he might afford anaxagius well-wishers some hope , and so keep them quiet , till his own faction were well feathered , that they might flee abroad upon their own wings . yet the carreer of his ambition stops not here , but he prevails with the senate , threatning some , and alluring others , to execute autophilus ; and thereafter his fury flies at so high a pitch as to stage anaxagius , and after some formalities of process , o horror , or something more horrible than horror ! they condemn him as a traitour , and even those who were traitors to him ; and as in all furious and desperate exploits , this is no sooner intended than executed . that fatall day being come wherein wickedness was to shew to the world its masterpiece , the army is made to approach near the city , and those whose humour was known to be barbarous , and whose crimes were by themselves judged unpardonable , were chosen to be upon the guard , where about ten a clock anaxagius comes forth upon a scaffold , which was all covered and hung with black , wearing majesty in his looks , albeit they had devested him of its robes ; his very face might have vindicated him from more probable crimes than those they could charge him with , and it seemed that he came rather to take up , than to lay down a crown : after he had setled himself a little and beckened for silence , he gave the by-standers this farewell . amongst the many miseries wherewith miserable mans life is chequered , it is none of the least , that man should be mans torturer : but amongst those afflictions which spring to men from one anothers malice , those are most insupportable , which are caused by near relations , seing it is a double affliction both to themselves afflicted , and to be afflicted by friends , from whom else they might expect some assistance ; and what stranger will not condemn him as horridly guilty , to whom his relations are willing to be bourriers ? it is not the fear of death ( for my life hath not been so sweet of a long time , that my death needs to prove bitter ) no , it is the fear of what disorders will ensue upon my death which thus appales me ; neither would i grieve , if i judged that the one might prevent the other : but why should i not grieve , when i see that the one will occasion the other ? and seing i fear that these leeches will find the blo●● of a king so fat and sweet , that it will 〈…〉 them to suck out greedily that of the 〈◊〉 for , since neither the priviledge of my person , nor the justnesse of my cause , was able to restrain the hand of injustice from stretching it self out against me , what subject ( in none of whom either of these is to be found in a more eminent way ) can expect exemption ? or , if he be exeemed , he owes that more to his fortune , than his innocence ; and what a misery is it to live , where both life and fortune depends upon a may be ? and to live where vertue can neither expect preferment , nor evite punishment , the one being now the price of perjury , and the other the effect of hazard : as for my crime , it is such , as the worst of kings cannot be guilty of , seing it can only be admitted against kings : and so , seing not any one person can be both accuser and defender , no king can be accounted a traitour . it is true , some lawyers do alleage , that a king , selling his kingdom to a stranger , or betraying it to an enemy , commits treason ; but the reason in both these , is , because after he hath sold his crown , or willing by treachery to convey it to another , he ceaseth of his own consent to be king , and so being a private person , may be guilty of that publick crime ; but to sit upon the bench of ●ustice , and there ma●ked with the ●●●●ard of law , is condemn a king , is a pr●●tice never hitherto attempted by the worst of men , and so must be judged most horrid ; for , if it had not been so , sure some one of those many traitors ( who have been both many and malicious in all ages ) would have excogitated this expeciency , to varnish the ●glin●sse of their crime : for there is no evil which is judged practical by hellish persons , but histories swarm with instances of it , only this the worst of men have deferred to perpetrate , as being the worst of actions , till iustice should in the end become so old and weak , as that it was not able to defend it self against even the highest of injuries : and as to those who were my iudges , they had either no power ; else if they had any , they derived it from me : for , if they condemned me as members of the lacedemonian senate , then they derived their authority from me , who only did establish it , and it was in obedience to my command , that the respective counties elected them to be their representatives : and consequently , when i was staged by them , they annulled their own authority , even then when they exerced it against me : but if they pannelled me not , as commissionated by that senate , how could they be said to represent the lacedemonian state , more than any other did ; and so they judged me , without being constituted iudges themselves : but no wonder to see those who neglect the main , slight likewise particulars . as for me , i pardon these wrongs they have done me , judging it the prerogative of a king to pardon , whereas it is the part of a subject only to revenge ; which since it argues parity , suits ill with royal majesty . neither value i any injury they can do me ; for , seing they make me exchange earth for heaven , misery for infinite felicity , i account their wrongs , favours , but i grieve for those grievous wrongs which i fear will be exercised to you wards ; for , seing happinesse consisteth in being vertuous , and since patience is one of the cardinal vertues , i can in being patient without their permission make my self happy in spight of their malice ; for surely , since the gods will remunerate men according to the pains taken in their service ( a piece of justice which the most unjust among men could hardly decline ) certainly , there is no vertue can expect a greater reward than patience , seing there is no vertue which toils so much for it : neither is there any vertue which is not acted in acting patience ; for , in not grieving too much , we act temperance ; in resisting the assaults of rage , we evidence true fortitude ; and in submitting to the heavenly powers , we manifest our justice : but my soul is troubled , at the trouble which i fear is a preparing against you ; and as the preservation of your priviledges was my main care whilst i lived ( esteeming the repose of the subject the only patrimony of the prince ) so now , nothing vexes me more at my death , than to foresee how these miscreants will glut their malice with your bloud , and their avarice with your estates ; for , how can these love other mens children , who have murthered their own father ? and how can they fear murder , who are guilty of parritide ? yet be not totally discouraged ; for certain●y , those who cannot suffer a superiour in the beginning , will not in the end suffer a competitor ; and this scepter which they have screwed out of my hand , will prove a bone , for which these mastiffs will one day fight amongst themselves ; and after that this land hath raged in this feaver of rebellion for some space , it will at last recall its banished judgment , and judge it expedient to call home its banished prince : and i am confident , that this disaster shall prove to my family but like a potion of physick , which may procure some sicknesse at first , but will perpetuate its health for the future ; for when ye ponder how ye owe the conquest of your sweet country to the courage of my antcestors , who without them durst never have attempted it ; and how ye owe your pure religion to their zeal , without whom none of you would have dared its reformation ; as likewise , how hundreds , yea , thousands of years , joyned to the experience of your antcestors , may be adduced as witnesses to depone in its favours , when ye advert how your taxes and gabels will augment , and your iustice diminish daily ; when you see your streets dyed with bloud , and your faces with paleness , oppression your legislatour , and pride and violence the executors of these laws , then your consciences will upbrade you with your defection , and torture you for your injustice . after this discourse was ended , the executioner ( acknowledging the wickednesse of his imployment by the masking of his face ) did end his unparallel'd life . pity it was , to behold how pity by its iron mace of sorrow broke the hearts of the beholders ; for not a face there was scarleted by one drop of bloud , as if all their bloud had been transubstantiate in water , to suppeditate tears to their prodigal eyes , which stood like clouds , first darkned with sorrow , and thereafter distilling in showres of tears , which did trickle down , as if they would bury themselves also in that ground wherein his princely body was to be intombed ; neither was those eyes judged fit to behold heaven , who had not first washen themselves with tears shed for him ▪ or if any weeped not , it was , because they resembled those vessels which are so full , that they can drop none ; or else , because their souls sick of an appoplexy of grief , had forfaulted all its senses and faculties ; but amongst many others , there was one , whom grief had enraged , and whom rage had so grieved , that retiring to his chamber , he quivered out these dolfull notes . o distracted heart ! why borrowest thou not wings from dispair to flee after thy peerlesse prince ? if thou stay in the dark dungeon of my cloudy breast , thou shalt be fed with sorrow and drowned with tears . o supernal powers ! ( if i may call you powers who suffer your selves to be overpowered by injustice ) must we term you both good , and gods , seing ye permit such innocent souls to be ballated upon earth by violence and oppression ? is it not enough , that ye should send us a barren and heavie age of iron , but that ye must likewise edge it with steel , that it may the better cut to pieces our grieved souls ? was not the treasure of mans misery great enough before , but that ye behoved to augment it with their new coined afflictions ? o earth ! why swallow ye not such miscreants ? is it , because ye fear to contaminate your pure bowels with such contagious carcasses ? if so , vomit up your flames of fire , to cleanse your surface of that pest . o heavens , ye are most wronged ! wherefore the punishment belongs to you ; scorn ye to be bourriers to such vile persons : if so , commissionate frogs and serpents to devour them . o pluto , why recallest thou not thy brethren ? and hell , why suffer ye your vice-gerents alwayes to roam abroad ? is it because ye fear that they would extinguish your flames with their fruitless tears ? or is it , because ye fear that they would deserve your scepter better than your self , as being more expert in the art of wickednesse than ye are ? or , intend ye that they live upon earth to the end they may imbitter the lives of those who are in it ? with that he rises all in fury and cryes , vp lacedemon , arm thy self with rage , and all those miscreants banish from the stage ; lest neighbouring nations , with the finger of scorn , point out that rose that chang'd is in a thorn. after this he would have killed himself , but prudence whispered him iu the ear , that it was fitter to live and see the fatal period of those regicides ; to which resolution he acquiesced , washing his hands in innocencie with his streams of tears . the heavens likewise gloomed at what past , and phoebus looking sullen and posting by , seemed to bestow no more light upon lacedemon than he glanced to them over his shoulder , disdaining to look streight to those , who were not streight themselves , and the clouds keeping up their rain , darkned the face of heaven , either unwilling to fatten the earth , which was by its fruits to fatten those traitours ; or fearing to let its drops fall in a country where kings were murthered ; the air likewise ( each attome whereof seemed swell'd with rage ) because so grosse , as that the grossest lungs could not breath it , nor the sharpest eye pierce it . thus nature seemed to clothe all her houshold in mourning for the losse of her dearest darling , and she became enraged at these villains , for breaking that tableau which she had distinated as a remembrance of her exquisit skill to all ages . theopemptus , eldest son to anaxagius , succeeded to him , a gentleman of a noble spirit , and well limb'd eloquence , who knew well by the bridle of cunning , to govern the fierce monster of popular fury , and whose genius ( quadrant-like ) was able to measure the height of the highest imployment to which it was applyed , and who by the art of patience , could make the rarest flowers of vertue and generosity , grow in the cold and barren soil of affliction , which did continually yeeld so abundantly the seeds of precepts and example , as that thereby in short time he stored therewith the gardens both of court and country , which was formerly judged impossible , because of the largeness of the one , and weediness of the other : yet providence judged fit to enamel this golden spirit with the black colour of adversity , giving him an opportunity thereby to evidence , that chance did not share with him in his vertue , but that he could be vertuous , not only without the assistance , but even in spight of the resistance of that blind ( though ordinary ) helper : or , if chance played ever in his game , it was because it knew none could be a loser who was associated to such a gamester : and so , that to which all thers were debtors , was a debtor to him , who thought it more princely to give , than to receive . the synod had pained themselves oft , to draw him to be their leader , thinking it easie to perswade a young prince to be an absolute king , and fore-seeing that he would be very helpfull to them , seing the sons presence would impatron their defection from the father ; and seing the father behoved either to condescend to their overtures , fearing lest the people might uphold the crown upon his tender head , which was not yet strong enough to bear it ; else , if that framed not according to their wishes , they might keep the son , as an hostage for the fathers obedience , intending to cut him off how soon the father cut off their hopes : these were the endeavours of wicked autarchus , who as he was wicked in this , so was blind in not perceiving that providence perceived his bloudy designs . the mercurialists , who had a long time pedled under the jovists , did now begin to trade for themselves , these were persons whose zeal was so hot , as that it burnt their charity , and whose charity was so cold as that it did frieze their natural affection , interesting themselves in all businesses , and busying themselves with all interests ; who sighed not so much out of piety ( albeit that was pretended ) as because they saw their faction crossed , or themselves not advanced ; and whose tears gushed out , fearing that if they stayed within , they should be contaminated by their pestiferous breasts , which the dullest of men might by the breath of their words know to be infected : these had in their hearts abjured their prince , and perjured themselves ( perjuring themselves in so far as they had abjured their prince ) and by tolerating all sects , and slagitious persons , had almost possessed all the offices of the army ; and who were perswaded to desert the jovist faction , when they resolved to desert their prince , knowing that these two justled one against the other , whereupon they proclaim immunity to all crimes , providing the criminals be willing to associate with them in the crime of treason , when any thing was to be agitated in the senate , they sent abroad those members who were of the jovist faction , imploying them either in levying men or monies in the country , or in transactions of small importance up and down the city , and under pretext of guarding the senate ; they placed alwayes guards of their own cabel ( for all the souldiers followed their principles , as those which licensed them most to satisfie their own irrational appetites ) and by that means hindred all the senators , who were not of their judgment , from entring to give their judgments in subjects debatable ; and this cheat they used when anaxagius was declared by the senate guilty of treason , as we related formerly ; yea , at that time they caused some of the guards call them out of the house , pretending some particulars with them , whom when they came they pulled away , not suffering them to enter till the debate was ended , and hurrying away others to prison , alledging an order from the senate for what they did , which none durst challenge , seing they dared once to alledge it : but after anaxagius death , all the jovist faction removed themselves , abhorring by their presence to authorise such illegal actings : as also cyrus generall of the army , resigned his batton , finding that autarchus endeavoured both to defame and ruine him in the army . meetings amongst subjects have alwayes been esteemed unmeet by the prince , as being the nests wherein the cockatrices of rebellion are oft hatcht ; and seing in them treasonable projects are oft , at least may be easily ventilated , the prince hath reason to advert to them , and may justly prohibite them : for , since they resemble incorporations , they should aswell as those be authorized by his permission , but especially such conventicles as dare not admit light to be a member ; wherfore law justly presumes that to be done illegally which is done secretly : for , if the actors might avow publickly their meetings , it is not probable that they would be at the pains to hunt for privacies , especially , seing ambition prompts the least vain amongst men , to act what they think allowable before witnesses : in these conventicles all the cheats of that faction were hatched ; for , whilst they perswaded men that they were sacrificing at these times to the immortal gods , they were really but borrowing the seal of devotion , that they might affix it to the forged writs of their own capricious and rebellious fancies , and were afterwards inhibited by autarchus , when sole governour ; who knowing best by what means he had cheated the people himself , knew best how to close those back-passages upon others ; and who by condemning it in others , acknowledge it damnable in himself . the athenians perceived now their errour , in believing the lacedemonian senate ; and phanosebus did now conclude , that since autophilus and oranthus were removed , he would monopolize his princes affection ; wherefore he moves the senate of athens to send to corinth , where their prince lived in exile , to bring him home , which is done instantly , and theopemptus is brought home privatly , lest the lacedemonian fleet should have ensnared him at sea : but all who had served oranthus , or stuck by autophilus , were banished from court , and theopemptus is necessitated to submit to all the determinations of the phanosebean faction , who vex him daily with new suits , and fill his court with new favourites , whose clownishnesse dissatisfied his noble and courtly spirit ; and whose ignorance tortured his accute wit and vast experience : all affairs were chewed by the rotten teeth of these dolts , who determined all things in their private conclaves before they came to the council-table , studying rather how to crosse , than how to serve their prince ; yet shunned that wise prince , either to offend them , or to seem to be offended at them ; for albeit he was so judicious , as to discern their follies , yet was he so prudent as to dissemble his resentments , knowing that cheats are like flowers and herbs , which are best discerned when they flourish most , and most hated when best discerned . the lacedemonian senate , hearing that the athenians had refuged theopemptus , resolved to send an army against them , under the conduct of autarchus , who assured the senate that he was confident of many friends there , and their factiousness would prove his intimate well wisher ; as also , that it was surest game to fight theopemptus in athens , lest if he marched into lacedemon , his army might prove like a ball of snow , which the further it rouls , grows alwayes the greater ; and that possibly the command of a king , joyned to his diligence , might piece up those differences , which did like wedges , for the present , cleave assunder that rent nation . besides these , autarchus design was , to engage further the lacedemonian senate in that rebellious quarrel , and to imbrew so their hands in the bloud-royal , as that no capitulation might be able to wash it off ; and by this new imployment , to acquire new respect to himself from the army , and to render the army necessary in the commonwealth , fearing lest they should come to want respect , if they come once to want imployment . he marcheth to athens with a well equipaged and long-experienced army ; having exact intelligence from his army of all that passed there . the phanosebeans who only commanded both church and state , made head against him , but their army was so misgovern'd by a committee from whom they received all their orders , that autarchus needed none to conquer them besides their own unskilfulness and confusion . sometimes in matters of greatest expedition , they could not be convocated , and when they were assembled , their opinions fought each one against another , whilst all should have imployed themselves in fighting against the common enemy : thus they continued to distract that poor nation by their distracted fancies , till at last autarchus falls upon their camp privately , and cuts them ▪ all to pieces . that old army being beat , a new army is ordered to be levied ; and now cletus who succeeded to his brother autophilus , gains to his party , some of those who owned phan●sebus interest formerly , and by their assistance obtains ( after many and long debates at the council-table ) that all those who had followed autophilus and oranthus faction , should be re-admitted to their old charge , and admitted in others then vacant , alledging , that else the counties who were much enclined their way , would never engage cordially in his majesties quarrel ; for , who would be so mad as to fight in that army , where they feared their own commanders more than their enemies ; or , who would strengthen that army by new levies , who would be imployed to assist their inveterate enemies at home , after they were once victorious abroad ? adding , that who could hinder any man to quench that fire which was burning his own house ? or , who could hinder a son to defend his mother ? the phanosebeans finding themselves beat from all these bulwa●ks , did at last retire ( as their custom was ) to the citadel of religion , alledging that their consciences could not allow them to associat themselves to those , whose sins would prove like so many bosome enemies ; and that to contract friendship with such , was to declare war against the immortal gods : yet theopemptus had so cunningly insinuated himself with the jovist priests , that the greatest and wisest part of them , did not only tolerate , but likewise approve that association , by which the phanosebeans became enraged , and devoted themselves to the lacedemonian faction , albeit many thought that phanosebus self continued loyal . cletus ( a singularly well accomplisht gentleman ) became by this means theopemptus darling , and promotes exceedingly their new levies , so that in a short space an excellent army is drawn to the fields ; yet they were so wearied by delayes , and starved with hunger by the phanosebean officers , that many dropt away , being near home , and many were affamished ; occasions of fighting were neglected , and the loyallest persons sent upon desperat exploits : which theopemptus perceiving , and fearing that the continuance of this evil should prove an irremediable evil in the end , resolved to march to lacedemon , having assurance from some , and well-grounded hopes from others in that nation , that they would assist him : but at his entry , the athenians , who wanted pay , and feared both the tediousness of the journy , and treachery of their officers , did like northern ice , drop away before the southern sun , and were at last overtaken by autarchus ( to whom those fresh forces whom he left behind did joyn incontinently ) and so did dissipate that poor handfull , whom the tediousness of the journey had left alive ; yet in spight of all enquiry , providence so mudded the eyes of those who enquired after him , that he escaped their hands , and blows a gentle gale out of its mouth , which conveys him over to corinth . autarchus hoises up now the sails of his ambition , which were instantly ●illed with the smiling gales of success , and placing confidence at the helm , steers streight for the haven of supremacie . he marries his daughters to the most eminent officers of the army , and diggs deeply in the secrets of the wives , that he might learn the secrets of the husbands : he bribes the astrologues to foretel his conquests , making his wishes the heavenly houses by which they foretold his successe , and instigates a great many enthusiastick persons to prophesie his happiness , authorizing themselves by revelations , by which means he animates his own , and terrifies his adversaries , wringing new pay and priviledges to the army from the senate , by which he both fortifies the army , and brings a masse of odium upon the senate . the door whereby he was to enter supremacies parlour , was now bolted by no other bar , than by his jealousie of anarchus interest in the army ; who in all this war being his colleague , he feared he might become his competitor ; wherefore he perswaded him , to suit for the government of the isle of patmos , and perswaded him , that if he would lay down his charge in the lacedemonian army , that he would procure it for him from the lacedemonian senate ; for in the present scarsity of offices , none could enjoy two at once , especially of two so eminent as those were : anarchus imbraces the proffer , choosing rather to be first in the army of patmos , then second in the army of lacedemon , and demits his charge , which he no sooner demits , than the senate by autarchus instigation , presently accepts , and therafter slights him ; whereupon he is constrained to retire home , byting his lip because he had condescended to that unfortunate transaction . the stage being thus cleared of all incumbrances , autarchus begins to act his chief scene , and endeavoureth to irritate the army against the senate ; which he might the more easily effectuate , by reason that the senate did now begin to discover his roguery , and the armies tyranny , and were endeavouring to reduce some of their regiments , and affront some of their officers ; which autarchus adverting to , ordered all the nearest lying regiments to march up unexpectedly to the city ; and coming one morning to the court of the palace where the senate did then sit , he closes the gate , lest any of the number should escape ; and turning him to the souldiery , opening his mind thus to them . fellow souldiers , your bleeding wounds and wounded bodies , deserve better requital from this senate than frowns or threats ; and albeit ye be not actually in service against their enemies , yet that is no more a reason why ye should not be paid and cherished as formerly , than a mariner who hath served his master in a storm at sea , should be shaken off and refused maintenance when he comes a shoar : ye have abandoned your houses , and renounced your trades , that ye might make their army your house , and their service your trade : and must these , in whose hands ye have put the sword , take your swords from you , and ruine you after that ye have ruined their enemies ? what may this nation expect from these masters , who refuse maintenance to the best and loyallest of their servants ? and seing they disoblige us so much , who have so much obliged them , what shall the rest of the nation expect , who have never obliged them at all ? and may we not see that their quarrel against us , is our just pay , which otherwise they might coffer up themselves ? what shall the world say of us , if that after we have banisht monarchy , we establish tyranny ? and to counterpoise the antiquity of the former government , should not we endeavour to evidence as much wisdom and moderation in this , which we are to establish , as the former could alledge antiquity or prescription ? remember that courage and prudence have so strict an alliance , that valour without prudence , is no valour , but rather temerity : wherefore if ye shew not prudence after these many victories , wherewith fame hath crowned you as with so many lawrels , your former victories will be attributed either to blind chance , or to your enemies imprudence ; and how can ye be termed prudent , if ye suffer your selves to be trampled upon by the feet of tyranny ? wherefore make the world witnesses of your gallantry , in refusing to serve those , who could neither prize nor reward your services , and settle in your own persons that government which ye have suffered so much for . all condescended to this overture , and autarchus dismisses that ignorant rabble , who had formerly by his assistance thrown out those worthy patriots , who had been their former colleagues , and by this means , he who had been in appearence so much an enemy to arbitrary government in the person of theopemptus , became an affecter of it in his own ; and was declared by the army governour of lacedemon and athens in this interim ; promising to render up his power to the first senate which should be legally conveened , by the authority of the people ; proclamations are immediatly issued out , to remonstrate to the people the reasons of raising the senate , and of establishing the government for the interim in the person of autarchus : but both these actions were so black that they could receive no other tincture , and the faces of their cheats so large that no vizard could be found big enough to cover them . autarchus endeavours to retain by cheats , that power which he had gotten by force ; and because he perceived that the church had been an occasion of many great alterations in the state formerly , by reason that the ecclesiasticks debated every thing , and retarded most of what was resolved by the state ; he therefore resolves to moddel such an ecclesiastick government , as might wholly be subordinate to the civil ; for which cause amongst those many religions which were at that time professed in lacedemon , he chooses one , which allow no publick conventions amongst ecclesiasticks ; which being once setled , he sets himself to crush the faction of theopemptus , which he doth by inhibiting all publick conventions , wherein mutinies might be hatched , such as horse-matches , feastivals , &c. he carresses some of all factions , shewing thereby that all might , if they pleased bring favour ; and supports the weakest faction , that so it might by his assistance counterpoise the other , knowing that by these , all joynt insurrections would be retarded , and that the one in odium of the other , would unseale one anothers mysteries , and countermine one anothers projects : he disarmed the people , whereby he both disabled them to act any thing to his prejudice for the present , and weaned their spirits from all martial imployments for the future ; and likewise filling his own arsenal richly , he made himself seem terrible to all that wisht his ruine . being thus secured against foreign incursions , he endeavours to secure himself against intestine broils ; lest else he might prove like to one of those theeves , who leaves their own door open whilst they go abroad to steal from their neighbours ; to obviate which , he imploys the most eminent amongst the officers , as counsellor● of state ; both , lest they should repine at his being the sole arbitrator in all affairs , and tha● they might bear an equal share in the odium o● what was done by him to displease the people ; yet lest they should twist themselves too far in the government , he appointed alwayes some festival dayes of worship for the gods , wherewith to busie them , whilst he himself is busied in dispatching matters of the greatest moment ; and lest those who were governours of cities , and countries , should insinuate themselves too far in the affection either of soldiers or countrymen , he transplanted them oft from one place to another ; and to prevent the idleness of the soldiers , ( which might have given them both leisure and opportunity to fall by th' ears amongst themselves ) as also to have some pretext to levie moneys from the people ( which poor people he fleeced like a sheep at his pleasure ) he warred continually against some neighbouring prince , buying to himself repute with the bloud of the souldiers , and money of the people . amongst his many other state-sophismes , this was one most remarkable , because oft reiterated . when autarchus had notice given him by his spies , of any royallist who had more avarice than money , and who could be no longer honest , than he was rich ; he presently sent for them , and after he had convinced them , that he was master of their life and fortunes ; and of their ●olly in adhering so pertinaciously to theopemptus faction , he proffered them considerable sums to owne his interest ; and to seem to draw a faction for theopemptus , pretending commissions for that effect , and getting a great many hands to subscrive some remonstrance , and especially the hands of those whom he suspected to be loyal , or knew to be rich : which being gotten , that he should acquaint him with the rendevouze appointed , or suffer himself and the papers to be apprehended by some of the souldiery : by which means he rid himself of the most eminent , and enriched his treasury by the alledged treason of his most considerable enemies , and made his own wit to be admired , and brought his adversaries to that passe , that they could not trust one another . another stratagem which he used to ensnare that generous prince , was this : he had notice given him of one called asebus , whose poverty behoved to have some bone to gnaw upon , albeit he should have drawn it out of the devil● side ; him autarchus sent for , hearing that he was an agent for the royal faction , and after many allurements ( it being easie to perswade where avarice opens the ear , and necessity play● the oratour ) he prevails with him to go to theopemptus , and carry alongst with him six thousand crowns , and assure him of the like sum yearly , in pension from some friends in lacedemon ( whose purses loyal compassion had opened ) theopemptus desires to know their names ; but asebus pretended that he was sworn not to tell that , wherewith he rests satisfied ; but perswades himself that the senders were his friends , and that asebus was a confident of theirs , else they had never trusted him , and a friend of his , else he had never undertaken the imployment ; and thus he acquaints him with all his designs , which the other no sooner know than he reveals them to autarchus . yet the gods ( who are not idle spectators , but just judges of mens knavery ) deciphers h●m at last ; for having one day seen some dispatches which were sent to lacedemon by theopemptus , he acquaints autarchus , who apprehends and executes the gentlemen who were entrusted : whereat theopemptus extreamly enraged , accuses a nobleman , who had only seen those letters besides asebus , the nobleman vindicates himself , but not being believed by his prince , he runs in fury to asebus his cabinet , and there finding some letters of correspondence from autarchus to him , he causeth him to be presently apprehended . amidst these triumphs , triumphing death cuts his treacherous dayes , and hurries him to eternal torment , who tormented others here ; and thus died the most hatefull tyrant who ever lived , leaving behind him a son , in whose simplicity the gods punished the fathers cheating prudence ; this was that ephemerus of whom i spoke formerly , who being nominated by his father his successor , was admitted by the souldiery , not so much out of any respect they bore him , as fearing that if the charge were declared vacant , emulation should cut the throat of their quiet . it was thought that ephemerus ( finding his own insufficiency ) resolved to recal theopemptus , but his design was choaked by timorousness , fearing least the army perceiving his design , should ruine him , and disappoint his project : others thought , that his enemies used only this , as an argument to perswade the army to relinquish him , as they did afterwards . however , he was induced by some who favoured the royal faction , especially by monus general of the athenian forces , to convocate a senate , whereby they expected to establish monarchy . anarchus all this while , like a boyling liquor could not contain himself in a private condition , without running over , and like the children , chose rather to be burnt in the sunshine of a publick imployment , tha● stay in the shade of privacy ; wherefore he deals with some officers to recall him , and entering in a confederacy among themselves , they deal with morus general of the lacedemonian forces , to concur with them in perswading ephemerus to set the senate a packing ; which morus ( poor fool ) assents to , and whereof ephemerus is simply perswaded , the one induced by the glory of governing the army , who was to govern all ; and the other terrified by fear , concluding that the army would assume by force , what was denyed in favour . thus we see glory makes men too credulous , because it ponders danger too little ; and fear makes men too credulous , because it ponders danger too much ; the one not seeing what is , and the other seeing more than is : which are the two ordinary diseases both in the eyes of body and mind . and as in things corporeal , so also in spiritual productions , we see monsters both in defect and excesse engendred ; prudence missing its mark in the one , as nature misseth hers in the other : for , as hot-spurr'd ambition will not suffer prudence to stand to hear its errand ; so leaden-footed fear suffers the occasion to slip before it brings prudence up to the place where it should act ; and as one who runneth can never see any object which he posts by exactly ; so one may dull his sight after such a fashion in looking too long upon one object , that he may come to see nothing , because he hath looked too much : and premeditation is like the fire , whose flames shew equally little light at first when it is kindled , and at last when it hath burnt too long . but ephemerus was hugely misted by his own folly in this ( fear being alwayes like a mist , which makes the object appear greater than it is ) for , seing there are only two wayes , either to acquire or retain supremacy , the one by a pretended authority , such as the senate was ; and the other by irresistable force , such as the army was : and since he was confident that anarchus had debauch'd the army from his obedience , he should never have abandoned the senate . neither did morus evidence lesse folly in colluding with anarchus , for he might have seen ( if the eyes of his reason had been open ) that since anarchus was able to dissolve the senate by the assistance of the army , that he might in time by their assistance ruine him far more easily , who was but a single person ; and seing many of those who commanded , had been under anarchus his charge , when they were morus his competitors and equals , he might have concluded that they would far more willingly obey an old master , than one but late equal ; as also , that the souldiery who had been victorious under his conduct ( and so were confident of his courage and prudence ) would more cordially follow him than any else ; and by autarchus eying him as his competitor , morus might have feared to take him in to be his colleague . no sooner is the senate dissolved , than the army establishes that old senate which autarchus had at first dissolved ; for seing they found that the nation could not be satisfied without a senate , they resolved to establish that wherein many of themselves were members , and whom because of their paucity they might easily command . yet many judged that they recalled these fools , not out of any affection , but meerly because they were not able themselves to settle their own differences in so short a time ; which conjecture was approven by the event : for , these officers of the army , finding that the senate consulted them not in all particulars , nor called them to fill up the vacant places which were many amongst them , did endeavour to re-assume that power with which they had invested those ingrate fellows formerly ; who look'd upon their restorers , as if they had only been their servants , which they perceiving , ordered the casheering of these daring officers , and especially of morus and anarchus ; but being hated by the people , as those leeches who had suckt the bloud royal , and as those burriers who had strangled the tranquillity of the nation , and being jealoused by the army , as the persons who endeavoured to wrest the power out of their hands , they were turned out by anarchus , and the whole power was retained by the army ; who resolved to subject themselves to none , and to make all subjects to them : hereupon monus , whom the late senate eying as a royallist , had called to bear charge in lacedemon , intending really to have laid him fast by the heels , did refuse alwayes , pretending that he was bound by promise to the army of athens , not to remove thence till they were compleatly satisfied of their arrears ; whereby he found a pretext to excuse his stay ( seing he knew that they could not advance so much money ) and endeared himself to the souldiery , and did fully engage them to him ; and now perceiving , that the commonwealth would one day perish by their convulsion fits of schism , to which it was so subject ; and knowing by its change of colour , that it did begin to faint , resolved to lay hold on this occasion , and to purge away these malignant humours out of the body of the state , whilst they were thus commoved ; wherefore he declareth war against the council , because they had banisht the senate ; yet covertly he hated the senate as much as them , but resolved by helping the weakest , and by ruining the army , to re-establish theopemptus : for effectuating whereof he cashiers instantly all such in his army , as he feared did encline too much to anarchus , and morgages all his plate and jewels for money to pay his army , making the athenians advance the superplus ; for they were perswaded , that if anarchus gained , that all their goods should be confiscated , and their lives , if not endangered , at least imbittered : as also , he advances one degree all his officers , obliging them to fight for their own dignities , if they would not in his quarrel . many judged monus a fool in this attempt , like those who seeing only the first draughts of a pencile , though never so curious , yet thinks the face deformed , whereas the skilful painter himself , or any exquisit artist , knows that it will prove well : for , he considered wisely , that all the senates faction , and which was more , all the royal faction , would owne him , and that possibly he might gain some of theirs ( expecting pardons for their crimes ) but that doubtlesse they could never debauch any of his ; that the cash being in the senates hands , and at their disposal ( none being in a capacity to levie money except a senate ) and the cash being the breasts by whose milk the army was kept alive ; he knew they could not long subsist without it ; likewise he found by his well founded intelligence , that dispair was arming all men , in all the corners of the nation . yet to encourage his souldiers , he convocats all the nobility of athens , and communicats to the wittiest amongst them , his design , to re-establish monarchy , and desired them not to startle at any publick protestations to the contrary , which necessity might wring from him ; and desires them to be ready waiting his call , and for that effect he fills up all the vacant places in his army with athenians , and author●zes the rest to wear arms as formerly . but the mercurialists in athens endeavoured to oppose his designs , alleaging that he desired a convocation of the nobility , only to ensnare them , and laboured to impede the payment of those taxes which he required , pretending that anarchus would cause them be payed over again , and not only so , but would likewise impute the first payment of them to the nation , as an unpardonable crime : by this means they thought to have hindered the payment of the souldiers , and without that , they knew that monus could not subsist ; as also they endeavoured to set the nobility and citizens by the ears , alleag●ng that the nobility laboured to cry down usury , and to necessitate their creditors to accept lands for their money , which would ruine trade . but such was the zeal of the nation , for the re-establishment of theopemptus , and such was their affection to monus , that these fanaticks gained nothing by all their pains but ignominy to themselves , and a curse to their posterity : anarchus army hearing that the athenians were all in arms covertly , and fearing ambushes in a country where they were both unaquainted , and hated ; and knowing that anarchus wanted money to pay their arrears , whereas monus had paid those who served him , they refuse to advance to athens , whereas it was thought , that if he had advanced immediately , that most of the souldiery enclining his way , that they had deserted monus and followed him . whilst anarchus is upon his march from athens , the senate is setled in safety at lacedemon , by some officers , whom the council had disobliged , and whom the senate had bribed with promises of future preferment ; which necessitated anarchus to return ; but in his return , all his souldiers either dropped away privatly , or revolted openly ; which for●ed him to make his capitulation , but robbed him of the means of capitulating handsomly : monus follows , and marches straight to lacedemon , and in his march , is welcomed by the applauses of the people , and addresses of the gentry , and found an unanimous desire in all men to have theopemptus called home . at his entry to lacedemon , he is carressed by the senate at first , yet afterwards they conjecture that he byasseth theopemptus way ; wherefore to try him , and to make him odious to the people , they imploy him in razing down the gates of the city ; which he obeyes , fearing to be discovered too soon ; but obeyes so wittily , as that he makes the odium rebound upon themselves ; malice being a ball , which , if thrown violently , bolts up presently upon the thrower ; and in stead of making the city his enemies , he gains them to be his friends ; whereat the senate shewes themselves dissatisfied , fearing that such an honest servant would never satisfie such roguish masters . monus resolves joyntly with the city , to procure the re-admission of those , who being colleagues with their present senators , were excluded because of their adherance to anaxagius ; which he effectuates happily , and thereby puts a bridle in the head of that unruly beast the senate : yet , albeit those who were re-entred were the more numerous , the old members so perplext them by debates , and so oft discovered their secrets , that they brake up the present senate , and called a new one . in this senate theopemptus is called home ; not limited by conditions , as some desired ; for how could subjects give law to a king ? and possibly these conditions would have been by the next ensuing senate , declared t●reason , and the treaters declared traitors , but absolutely each endeavouring who should strengthen his prerogative most . at his proclamation the people kindled innumerable bonfires , as if by them they intended to purge the air of these nations , which had been polluted with blasphemy against the gods , and rebellion against the king formerly ; or else , as if they intended to bury in these graves , and burn to ashes those cares , wherewith they had been formerly afflicted ; their flames mounted so high , that one might have thought that they intended to carry news of those solemnities to heaven ; and the smoke covered the t●owns pend-ways , lest heaven should have discerned the extravagancies whereof the inhabitants were guilty ; for gravity was banished as an enemy to their duty , and madnesse was judged true loyalty ; the trumpets were ecchoed by the vociferations of the people , and those vociferations seemed to obey the summons of the trumpets ; the bells likewise kept a part with the singing multitude , so that both bells and people did both sing and dance all at once ; and the air no sooner received these news , but it dispersed them to all the corners of the city , and ears of the citizens ; it being no crime to be in this a ●ale-bearer ; and the bullets did flee out of the cannons , as if they intended to meet him half way : wine was sent in abundance to the earth , that it might drink his majesties health also , and the glasses capreoled in the air , for joy to hear his name : some danced through the fire , knowing that the wine had so much m●dified them , that they needed not fear burning ; and others had bonfires kindled in their faces by the wine which they had drunk . and as theopemptus was remembred , so monus was not forgot , some admiring his loyalty , some his prudence , and many both : for , he finding that the army was the ramparts which defended the late tyrannie , did macerate it as much as was possible : for the old senate by his connivance , did levie their county bands , which served as a counterpoise to the armies weight ; those officers who shewed themselves dissatisfied , were reduced , and their regiments disbanded : but lest the souldiery should repine and mutiny , they were instantly received into the county bands ; and those regiments which were continued , were either given to loyal persons , or those who were disloyal were gained by a certain expectation of pardon , and future imployment ; for which cause it was surmised , that theopemptus intended for his own safety , to keep a standing army , whom he was to pay ; as also , the senate caused rumour , that they were to apprehend such persons as they jealoused , whereupon if they were guilty , they presently either fled , or drew a faction , in both which cases they afforded certain proofs of their knavery , and furnish'd the senate the means to ruine them . and because their presence over-awed alwayes the senate , it was ordered , that the city bands should guard the city , and the army should remove from it , so that the venom being once removed from the heart , the cure of the body was thereby much facilitated ; the companies likewise of every regiment , were dispersed into all the corners of the country , under pretext of preventing insurrections ; but really their design was to impede their mutinies , and to make them the more conquerable , if they should dare to oppose that royal design , some of them were sent unto athens , because the revolution was to begin in lacedemon ; and others were sent to assist forreign allies , at the suggested request of their ambassadors . all things being thus prepared , theopemptus enters the city of lacedemon , in the greatest pomp that loyalty , or luxury could invent : above him at the gates stood clouds , as they seemed , which rained down wines of all sorts , and at each side of the gates stood a large glass , the one whereof afforded a perspective of a country , where all the trees were dismantled of their leaves , and all the flowers blasted by the winde ; wherein widows were bathing their starving babes in their compassionate tears , and where tax-masters were beating the peasants , who declared upon their knees , that they could not pay their taxes : in the other glass was to be seen , a pleasant spring in the ruffe of its pride , and a prince sighting against a tyrant with one hand , and sowing gold and money with the other . these and many other expressions of joy were presented to him , whose recital might be as tedious as the view was pleasant . at the same gate stood all the senators and citizens in robes , amongst whom one delivered his majesty this harangue . most gracious soveraign , albeit your return hath effaced these sad impressions which our miseries had engraven upon our spirits , yet duty hath reserved an idea of them , that by comparing them with the happy condition wherein we are like to live under your government , we may find what a vast difference there is betwixt monarchy and anarchy , betwixt slavery and subjection : we know now what a silly carcass a body is without a head , and what a madnesse it is for a body to brain its head against the rocks of danger and rebellion . your majesty is our head , and nature teacheth all men to guard that , even with the hazard of their other members ; and physicians prescribe moe maxims for its conservation , and moe medicaments for its cure , than for the cure of any part beside . ye may be confident , sir , that we who have had our purses robbed so oft by tyrants , will not now refuse some part of them to our lawfull prince ; and who should command the childrens purses more freely than the father ? our refusing to defray your necessary charges , may procure to us national affronts , and lose us our forreign interests : and herein consists our mutual happiness , that as our nation hath a prince who will require lesse than they would willingly contribute , so our prince hath now a people , who upon all honourable emergents will cordially contribute more than he will demand . and we who have been flung in heaps , that tyrants might over our bellies and upon our shoulders mount their unjustly acquired thrones , will doubtlesse willingly lend our hands to help our born prince to ascend that throne , which his birth , and our prescribed consent , hath built for him ; and as a company of merchants who are linked together in one society , cannot be accounted the lesse rich , that their gold lies not in their private coffers , but in the common cash ; so subjects are not to be lookt upon as the lesse powerful , that their strength lies in the hands of their prince . princes desire only to be powerfull , either to restrain the insolencies of forreigners , or to suppress the insurrections of mutinous subjects ; so that seing we are protected by the first , and but justly corrected by the last , we can never in justice repine at the powerfulnesse of our prince . sir , seing man desires to sway dominions scepter , and hates to stoop to the shrine of anothers power , doubtlesse they had never willingly subjected themselves to monarchy , if they had not been convinced by their reason , of its signal advantages . it is that government which preventeth the emulation of competitors , which concealeth what is to be acted , and is able to remedy those evils which delay might make insuperable : neither of which advantages can be expected , or hath ever been perceived in a commonwealth : and as amongst figures the pyramide stands most firmly ; so amongst governments , monarchy ( which in the geometry of policy , may be called the pyramide ) is of all others the most sure-footed : whereas that round figure , the commonwealth , is globe-like always rolling ; and as it is reasonable , that the gods should govern men , because they are more rational than men , and that man should goven bruits , because he is more rational than those ; so amongst men , it is rational and just , that because some are more ingenious than others , and one yet more ingenious than these some ; that therefore those few ( such as are nobles ) should govern the rest of the people ; and that one monarch should govern those few nobles . neither is it fit , that those who understand once the mysteries of state-affairs , and who have their intelligence setled once with forreign princes and ministers of state , should then be removed ( as we see is , yea and must be done in commonwealths ) for that were to remove one from a trade when he hath past his apprentisage , and if these be not removed , they will prove monarchs at last ; so that in shunning one , we shall have many ; and those many , because of their factions and treacheries ( for all can neither be honest nor concordant ) shall be more insupportable , and lesse usefull than that one . sir , our rambling to and fro , tasting all governments , evidences our folly , but addeth to your glory ; for none can alleage now that it is only your birth , which hath entitled your majesty to these crowns , which is the ordinary opprobrie wherewith other princes are upbraided ; no sir , for now the hand of our reason hath subscribed your election ; and if there be any thing more desirable in elective monarchy , than there is in hereditary , your majesty may justly pretend to both ; we have nothing to excuse our defection , but over-powering necessity , so that we may be compared to a stone which violence may take from its place , and throw up in the air , but its natural inclination will draw it presently to its former center ; for no sooner did occasion acquaint us with the possibility of your majesties return , but immediatly our acclamations and bonfires joyned hand in hand to testifie the ardour of our desires , and height of our zeal for your re-establishment : and for the future , our chearfull obedience shall attone our former obstinacy , for which we shall ever stand in the sackcloath of repentance : and since all good is desirable , and is desirable , because it is good ; the more desired any thing is , the better it may be judged to be ; and i am confident , never nation desired more passionatly , nor expressed more vehemently their desires than we at this time , whereby we have according to our small abilities , witnessed what high thoughts and great expectations we have of your majesties incomparable goodness : and as both our wishes and expectations of your goodness are great , we hope your majesties endeavours to satisfie both , will be as great as either : and that since injustice hath made our former tyrants abominable , that ye will by justice make your reign amiable ; remember , sir , that as the contests and litigiousness of private persons , together with the desire to have them terminated , was the first motive which invited men to bow to monarchy ; so it will be now , that which will endear monarchy to all . remember , sir , that all your noble ornaments are badges of that noble vertue ; your scepter is given you , to shew your legislative power , your sword is given you to punish those who disobey it , and your crown as a reward for acting in obedience to it . that is the vertue which moralists esteem so much , that they think it can have excess ; a quality which is attributed to no other vertue , besides these that are divine ; such as the love of god , and such others . your courts of justice are the stomack of your kingdom , which first digests truth and equity , and then diffuseth it to the remotest parts of that politick body ; but , sir , if the stomach be corrupted by depraved or flegmatick humours , what a languishing condition will the body be redacted to ? as to war against neighbouring states , and such like martial imployments ; they are not necessary , but as they defend justice ; and may justly be compared to a hedge about a garden , which bears no fruit themselves , but defends these trees which do bear ; whereas justice is that fruit-tree which bears the golden apples of peace , plenty and vertue , and under whose shade your subjects may rest securely . all we can do is , to submit to your decrees , and to pray to the eternal and omnipotent gods , to accumulate your majesty with all prosperity and happiness . the nation did now begin to look like a body reconvalescing after a feaver , which grows more fat than it was formerly , and like a woman brought to bed , did forget its former miseries : and i remember that being in a barg● of pleasure , which was covered with gold and cristal ; after we were weary with musick , we fell a discoursing of the poverty of these nations ; for seing the mines did every year cast a golden fleece , and seing forreigners had never forraged the country , it was strange to see such an ebb of treasure , where there used formerly to be so many spring-tydes of wealth : to this another gentleman answered , that in all nations , there was much of the substance of gold lost in gildings , laces , and embroideries much treasured up by misers , and lost by thei● unexpected deaths ; that fires in towns , and shipwrack and sights at sea , sunk much of it ; and that the low value which was daily put upon it , lower than formerly , made it seem more scarce . but besides these , there were some reasons peculiar to this same nation ; such as its being cashed up by those who hid it , fearing to be called rich , and fearing publick borrowings ( which was the ordinary practice of those rebels ) or , because those who borrowed , payed but small usery for it , and bankrupted often with it , so that the danger was great , and the profit small : as also the money formerly was in noblemens hands , who because of other exigences were alwayes using it ; whereas those wretches who had it now , did lay it in coffers , living rather conform to their low births than their rich fortunes ; likewise neighboring nations by raising the value of it , drew it to them ; neither did any coin passe here , but what carried the impressa of the nation , which made no nation send in money to it . after this discourse , we did begin to debate , whether in these times wherein the country swarmed with traitors , a kinsman or friend could in reason intercede for his friend or kinsman who was a rebel ? which one philanax alleaged was unlawfull ; for else ( said he ) man being naturally enclined to rebellion , ( sparkling ambition flying naturally upwards ) if the fear of punishment did not deter them , their numbers should increase immeasurably ; and who would fear , if friends would interceed for them , and if intercession could ransom them ? and what rebel wants some friend or kinsman ? but rather loyal persons should be ashamed of such relations . likewise men are born subjects to their prince , aswell as kinsmen to their relations , and so nature requires subjection to their prince , as much as affection to their friends : and as for friends , there can be no friendship where there is no vertue , and there can be no vertue where there is no loyalty , and much perjury ; and seing a kinsmans intercession may make him guilty of all the blood that a spared traitor may spill , thereafter no man can be obliged to interceed for a traitor , though a friend , no more than he can be obliged to comit murder upon his accompt . and since it is problematick in law , whether a father ought to dilate his son , who hatcheth rebellion , or shelter him after it is once committed , doubtless it will determine , that a friend ( whose relation is remoter than that of a father ) should not interceed ( seing to interceed is to shelter ) for a notorious rebel . my lord , this discourse hath ( i fear ) rather racked your patience , than satisfied your judgment , except your patience be as great as my discourse hath been tedious , which is morally impossible , your soul being a vessell , which can hold no more than is measured by the true standart of vertue . yet i expect your lordships pardon , since the excrescency of my narration flows from a conceit which i have , that i can never serve your lordship enough ; and this makes me desire , that if i be any wayes criminable , my crime may be too much service . the fourth book . the hard-hearted ice had now dissolved it self in tears , through rage to see it self conquered by its enemy the sun , who advancing to his former height , from which that rebel , winter , had degraded him , was sending forth his beams in troops , to subdue winters auxiliaries ; and in that sweet moneth of may , wherein the earth , as a badge of her gratefulness to the summer , begins to put on its livery ; and when the air layes aside that vail of thick mist , wherein it lapped it self during the coldnesse of the winter . in a sweet morning of that sweet season , the two ladies , agapeta and aretina , who had lien together the last night ( resolving to overtake the sun in bed ) did rise very early , leaving their waiting-maids lying in morpheus imbraces , who was begetting on them that bastard babe called laziness ; and so were necessitated to play the hand-maid to each other , which was notwithstanding no great task , seing their cloathes seemed most willing to hing upon them , as if they knew how much they were honoured by being theirs . yet the ladies were no sooner entered the garden , than they perceived the sun walking in the heavens , who had risen that morning sooner than formerly , to view that pleasant prospect which the earth afforded him ; and , like an indulgent father , seemed to rejoyce , to see those lillies and roses , which were the off-spring of his own rayes . at the corner of a hedge they encountred megistus and philarites , who were signetting that sweet air , with the yet more sweet names of their matchless mistrisses . philarites would willingly have tendered his respects to them , but his heart , which did climb up his throat , as if it would have propined it self to aretina , had already stopt the passage : which megistus perceiving , and bowing , as if he would have by that posture , shewed the ladies how much he esteemed himself below them : fair ladies , said he , if our attendance upon you might suit with your diet and quiet , we should court the imployment with thousands of wishes , and acquit our selves of it with all possible endeavours . gentlemen , replied agapeta , seing we cannot meliorate you by our society , we dare not vex you by such fruitlesse attendance , neither is there any thing in such a barren imployment , whereby ye could advantage your already accomplisht spirits , except in evidencing the strength of your patience , in vanquishing without anxiety the importunacy and impertinencies of two , rather innocent than well accomplisht ladies . accomplishments , said megistus , were very imprudent if they choosed not to lodge in such rare bodies as yours are ; for , i am confident they may travel the world over , before they finde any such other receptacles ; and as for us , seing nature glories of you as of her master-pieces , the best of men , and much more we , may be vain of the title of your servants ; an honour rather to be wished than merited . gentlemen , answered aretina , if nature had intended to glory in our shapes , she would have made us megistus and philarites , whose praises are so large and numerous , that no mouth is large enough to contain them , but all mouths run over of them ; and to express whose praises , duty endeavours to make each tongue eloquent . incomparable ladies , said philarites , we have acted nothing since our arrival here , but what we have acted as your servants , so that if men admire us , it is because we are persons upon whom ye are pleased to lay your commands ( attributing that to desert , which is the meer effect of favour ) and so by telling us that we are admired , ye remember us of those vast obligations which we owe you . well , sir , replied aretina , since ye have disarmed my tongue of complement , and hath turned the edge of my own weapon against me , it were high time to yeeld , to which i am the rather willing , that i know that all that i can yeeld to you , is yours by merit formerly ; for since we owe our lives to you , and since all that a man hath he will give for his life , it is clear , that ye may challenge as yours , all that we could bestow as our own . agapeta desired them to end these complements , and that each of them would remark something in that garden , where every thing was remarkable , and that i may begin , look how the flourish peeps out of its green palace , to behold this sweet moneth , and to smell that excellent perfume , wherewith the sun hath poudered the heads of the undergrowing hills . aretina remarked how time had borrowed youth from an old apple-tree , to lend it to a young cherry-tree which grew not far from it , whose coat was so long worn , that it was now all in rags ; see ye not ( continued she ) how it hath stood so long that it is now weary , and would willingly lie down , if the carefull gardener had not provided a staff for its age to lean upon ? and yet in spight of age , ye see how its fruits do flourish , ripening alwayes as the tree grows old , and bringing seeds in their bosome wherewith to plenish the earth after they are gone , and the tree fallen . observe , fair ladies , said megistus , how these red roses blush , and these tulips grow pale , through anger to see their beauty so outstript by yours , and how these cherries , albeit they be but hard hearted creatures , yet understand their duty so well as bow downwards to do you obeisance , and would willingly throw themselvs at your feet , if their stalks did not hinder them ; and how yonder pond hath drawn your picture , and placed it in its bosome , presenting it to you when ye approach , to indicate the high value it sets upon your beauty , and concealing it when ye are gone , fearing lest any should rob it . philarites recommended to them , to advert , how the gods had cleared the sky purposely that morning , that they might have the fuller view of them ; and how the grass propi●e● their shoes with their pearly drops , which seemed to kiss their feet in token of subjection . this gave them occasion to laugh at one anothers pretty conceits , wherein their wanton inventions seemed to sport themselves . after this , they went to repose themselves a little in an arbour , where all the branches had laid their heads together , to resist the scorching sun , and to shelter those who refuged under its protection , and whose walls like strainers , did separate the light from the heat , keeping out the one , and letting in the other ; refuting thereby the opinion of some philosophers , who opinion that light is nothing but fire dilated , and that fire is nothing but light contracted . megistus and agapeta stayed a little behind , both that they might the more freely entertain one another , and that they might give philarites the conveniency of entertaining aretina , who finding that none eyed him , threw up his eyes , as if he durst not fix them upon aretina , and passionatly sighed up these few words . o heavens , what favour have i done you , that ye should lend me this hand ? or rather , wherein have i offended you , that ye should , as a punishment , crown my soul in this ocean of joy ? can i , miserable philarites , be so happy , as to find an occasion of evidencing to aretina , how that his happiness depends solely upon her ? whereto aretina smiling , replyed , can passion conquer unconquerable philarites ? or , is it philarites pleasure , to act the personage of an enamorato , to testifie how exquisit he is , not only in real vertue , but even in apparent passion ? philarites would have proceeded further , but was interrupted by the cryes of one who came running to him , and who look'd like one who had propined his wit to love for his mistris sake , thinking all donatives besides , unworthy presents for so divine a passion ; his flaming zeal which had stayed within so long as there was any thing unconsumed for it to feed upon , did now flash abroad at his nostrils , and by its smoak had obfuscated his native colour : his eyes by their rolling and continual motion , witnessed that they missed the object , whereon they desired to fix their rayes ; and the variety of his motions , shew the lightness of the body which was moved , his words were cut to pieces by his inconsiderate irresolution , and the torrent of his discourse resembled a river , which the broader it grows , grows always the shallower ; such was the heat of his passion , that it made him tear off all his cloaths , and his looks and thoughts strove , which should change oftest . this was the miserable moragapus , who was enamoured of a young lady called calista , who gave him a very kindly requittal of his love , which an alexandrian gallant , who was his rival , perceiving , perswaded him that calista had deserted him , and had bestowed her affection upon another ; whereupon moragapus , who lived then in the country , desires to return to the city , but was impeded by his father , who conjectured his errand , and who protested withall , that as he had fettered himself by love , so he should be fettered by chains , if he turned not proselyte to a fathers entreaties . this made moragapus melancholy , and his melancholy did dictate to him some expressions , which enraged his father , so that he hermitaged him in a chamber , denying him company , which was the sole cure of his sick fancy , and diversion , which was the only probable mean to recover him out of his frantick love : this restraint did fully fling him over the rock of distraction , upon whose edge he stood formerly ( passion resembling those spiritfull horses , who stir most and are maddest , when the bridle is most straitly held by the rider ; and men resembling oft fine cloathes , which corrupt most when they are kept closest ; and the will is of the nature of these things , which spill by being packed up in too narrow bounds ) and thereafter he became so demented , that whereas they kept him formerly under restraint for prevention , they were obliged to do it now , through necessity : at last the mercilesse fire having one night seized upon his fathers house , he was brought out , and amidst the confusions wherein all were involved at that time , he escapes their hands , and comes streight to alexandria , and finding the garden door open , he enters , and apprehends aretina to have been calista , whereupon he runs to her , and flings himself at her feet , quivering out the irregular notes of his ill tune'd passion ; leaping from sentence to sentence , and sometimes running over one sentence twice , till aretina , sorry to see this tyranny of madnesse , assured him , that calista was in another corner of the garden , which information posts him away , ( his light body being easily blown away by the least puft of perswasion ) and accidentally he spieth calista walking upon the brink of a deep pond , which was hemmed in with marble , he no sooner spies her , but he runns to her , and she no sooner spies him , but that terrified with the unexpectednesse of the sight , ( for it had been concealed from her ) and fearing some outrage , she offered to step back , but her gown feltring her feet , trips up her heels , so that she falls in the pond , her weight and haste carrying her to the bottom : but the water , which seemed to glory that so rich a pearl was to be found there , did throw her body presently up again , as if it intended to shew that she was in its possession ; yet albeit the water shew her , she could shew no appearance of life , for death ( that rather tyrant than conquerour ) who like a rigid creditor , exacts of us that last debt oftimes before the ordinary term of payment ) had possest it self of all the chief forts of her soul , and had displayed his ordinary standard , paleness , in her face , to shew that the place was conquered : at her fall , the water did flee circular-wise from her body , fearing to be accessory to the murder of so choice a person , and look'd drumely at so tragick a misfortune ; yet she might have escaped , if the thrice infortunate moragapus had not leapt in after her , and there by strugling to save her , had not drowned both himself and her . the knights and ladies who knew nothing of this sad occurrant , were sitting all this while in the arbor ; and megistus was remarking from moragapus looks ( wherein all might have read his distraction ) how much they were to blame , who blamed phisiognomy , as an art both artless and uncertain : for , said he , seing the dullest amongst men , may perceive by that fellows looks , his madness ; certainly others of more prying spirits , and a more frequent observation , may come to discern the nature of less observable looks , for there is not so great a disproportion , betwixt those evidently known looks , and others that are less discernable , than there is betwixt an artlesse observation , and a serious and experimental remark ; for as an unexperienced clown , can see nothing in the face of heaven , albeit a skilfull astrologue can prognostick from it , what weather is to be expected ; so a skilfull phisiognomist may perceive , what is undiscernable by the eye of a skillesse guesser : and we see , that different tempers have different faces , the melancholians looks , differing for from those of a flegmatician ; and so , since these temperaments are natural , we may conclude , that the difference of those looks which are proper to them , must be likewise natural , and if natural , why not discoverable by art ? seing it is natural to man , to know all natures operations : for , albeit there be many provinces in the globe of learning , which are yet unknown ( mans laziness restraining him from such new adventures ) yet the needle of reason being observed , we may come to coast natures greatest difficulties . we see likewise that a mans looks , changes as his thoughts , which argues clearly , that there is some connexion and dependance betwixt the thoughts and looks : for , our bodies do resemble a lanthorn , wherein that divine light , the soul , is placed ; and our faces are the horn through which may be easily perceived , whether the within shining light be in it self clear , or not ; and it would appear very suitable to divine providence , that ingenuity should wear some badge whereby it may be known , and being known may be respected ; whereas roguery , wearing its own colours , may be found out , and so evited , lest else honest men should be cheated upon all occasions by soulless knaves . your sex is much obliged to this poor fellow , said agapeta , for he hath vindicated you of that aspersion wherewith generally all men are tainted , which is , that all their passion is but simulate ; wherefore , sir , i could wish to hear from you , whether men can be really enamoured of such ugly faces at all , and whether they can be so deeply taken with the best , as to become distracted through missing them ? madam , replyed megistus , providence seems for ornament , to have filled the gallery of this world with faces strangely different ; yet , on the other hand , when we consider , how the most exquisit pencile is not able to draw two faces in nothing unlike , we may judge , that this variety hath been rather the effect of chance , than pains ; and if we consider what a great variety of thoughts are to be found in the world , there being some dependance betwixt thoughts and faces , we need not admire the difference of faces : for , mans face being patched up of so many traits and colours ; and the eye ( which influenceth hugely upon the looks , the face changing according to the difference of the eye , as a picture doth by the several positions of an optick glasse ) being so varying in it self , it is rather a wonder , to see how two faces should be found any-wayes like , than that two faces should be so dislike ; wherefore , nature having produced all men and women to be coupled together , and nothing being so able to couple them as affection , it hath given several inclinations to men and women , whereby they are in a manner constrained to love those different faces ; for , man being naturally incompleat , needs a fellow-helper to accomplish him ; and as every piece will not serve to accomplish and fill up the vacant room of what is wanting , neither is it enough that it be either greater , or of better stuff , so it is not sufficient , to make a man love a woman , that she is of nobler extraction , richer , or wittier than her whom he loves : no , that is not sufficient , for it is likewise requisit , that she be exactly adapted to his fancy ; for , if all men loved only those who were wise , rich , or noble ; there being many women who can pretend to neither , there should be many who behoved for ever to live unmarried , and albeit a man may think that he could marry any of many hundreds whom he sees , yet he is in that mistaken ; not unlike an artisan who takes up several pieces , thinking them fit enough to fill a void , which when he applies he finds most unfit . and the difference of the eyes which look , makes the difference oft of what is looked upon ; for as in a plain glasse , that object seems great which is lessened much by a concave mirrour ; so some eyes judge that beautifull , which others account ugly ; and if reason were imployed as the only proxenet , yet we should see as much of this variety in the love of faces , as we see there is in the love of opinions ; and as there is no opinion so absurd but it will still find a patron ; so there should be no face so ugly , but it should find a lover : and seing there would be such different choices , even albeit reason were umpire ; what may we expect from fancy , whose acts being but simple apprehensions , must be more different than the acts of the judgment , which never traces in any path except where reason is its guide . and as to the other question , which your ladyship proposed , whether loves storms may blow so furiously , as to shatter our reason , and may appear so terrible as to fright us out of our wits : i believe certainly , madam , that it may ; for , as a person may over-reach himself so , to the effect that he may grasp that which is placed in a high place above him , that he may disjoynt his body thereby ; so the soul of man may endeavour so to reach up the hand of desire , that it may disjoynt it self by its nimious attempt ; and a mans reason may flie for shame to see it self so disappointed , as that what it desired most to enjoy , should be enjoyed by another : and as the body may weary it self so , in hunting and traversing to and fro , as that it may by that immoderat travel , fall in some uncurable disease ; so , the soul may by too anxious cares run it self in some insuperable distemper ; neither can i blame altogether such a generous wit , as scorns to out-live its own felicity , and who desires to understand nothing , after he understands that his mistris disaffections him ; for then , the wit which formerly served him as an ornamen● , will then serve him only as a torturer . and such a lover may appositly be compared to one who draws a cord , or any thing else to him , with such vehemency , that if it break , he must undoubtedly fall ; and his wits may be said to leave their old residence , that they may by roaving up and down , try if they can find her whom they so much admire , and adore so intensly ; yet , madam , albeit i revere passionatly that divine vertue , love , i cannot notwithstanding , but hate that species of it , which being nursed by avarice , languishes thereafter in discontentment ( and no wonder that such foul milk should occasion an ill tempered complexion ) neither can i comprehend how true lovers can be soldered together by gold , a mettal which the gods seems to have hid in the bowels of the earth , lest our avarice should have taken notice of it ; must that dross which carries only the impressa of some monarch , be preferred to the rich mettal of true love ? which bears the effigies of the immortal gods , and which is only forged in heavens mint-house , whence nothing that is impure proceeds , and where nothing that is pure is lacking : and must the suns bastard be preferred to that celestial off-spring ? are venus chains become weaker than formerly through too much usage ? or hath the suns continued influence , refined gold to a greater excellency than it was of in the dayes of our predecessors ? can avarice , which ingendreth murders , rapines , thefts , and rebellion , be the parent of so divine and heroick vertues ? or can that which cannot incite a man to the acts of generation , be the basis of that whereby all true generation is warranted ? as also there is much imprudence in this choice , for gold having made a man dispense with the tenderness , lameness , or uncomliness of a wife , she brings him forth such children , as that their ugly shapes , and crabbed humours , makes him ashamed to term himself their father ; and who needs more money to patch up those imperfections in each of them when they are to be matched , than he received by his match with their mother ? beside what treasure he must squander daily amongst physicians and apothecaries ( from whom they must buy a lease of their life ) to maintain that ruinous fabrick which totters from the first day it was founded ; neither need i swell up this sum of their fathers miseries , with either his inward frettings , which must be as numerous as are the views which he hath , either of his deformed wife , or formless children : or the outward opprobries , wherewith he hears both her and them daily aspersed , by jeering neighbours and railing adversaries , who are glad to find something whereon to fix the teeth of their envie ; who will not miss to upbraid him with his avarice , and them with their defects ; and albeit there be no infallibility , yet there is much probability in that conjecture , that such as is the body , such must be the soul , nature having like a wise merchant , bestowed the finest cases upon the richest jewels or watches . there are lkewise another race of cupids bastards , who love assoon as they are acquaint , and these love oft times because they are not well acquaint ; they love oft , before they try one anothers tempers , and so joyn oft with those of contrary tempers , and this being as opposit in their humours , as fire , water , and the other elements , they agree oft as these assimbolick elements do , the one extinguishing the other , and the one devouring the other ; and as the conjunction of these can never parentate any production , so their copulations are oft barren , and never very fruitfull . neither do the inconveniencies which accress from hence sist in their personal prejudice only , but turns also to the prejudice of many others , for of these two who are so unfitly matched ; the one might have been a good wife , if she had marryed another husband , and so it occasions that others misfortune ; and the other might have proven a good husband , if he had married another wife ; and so that match hath occasioned that other womans prejudice . wherefore seing willing rashness marreth so many marriages , i admire why judges and legislators should by constrained inconsideratness occasion moe ; for , if a fantastick youth , demented by a fond passion , do promise marriage to a woman , they oblige him to marry her , albeit ●e neither understand what is the strength of a promise , nor the nature of marriage , a thing in it self not so reasonable as legal ; and yet , if straitly examined , will scarce be found legal : for , if the consent or promise of a mad man , or a fool , will not oblige him to a performance , why should they who are both mad and fond , either through love , or lust , be so straitned ? and that they are either ideots , or furious , may be conjectured by the effects , ( which are the means whereby in all cases such persons are dig●osced ) for if they were not such , they would never throw themselves away upon such bargains , nor sell themselves and their liberties at the rate of one hours pleasure ; and if we may justly account him distracted , who sells an opulent fortune for a toy , how much more may we conclude him such , who exchanges his liberty , which is by far more excellent than his fortune , for that which is much worse than a toy ? and if the law rescinds bargains , where the buyer is cheated in a half , why should they confirm this , wherein he is cheated in all , and where he gains nothing but discontentment , which is worse than nothing ? and if we will turn over the records either of history or experience , we will learn there , what murders , rapins , and massacres have budded from this same root , which this same promise springs from , even from distracted love , whose slames burns oft reason to ashes , and contagins all the faculties of him with whom it resides ; and if the law obliges not him , who hath tied himself by a causeless paction , albeit of the smallest importance ; how can it tie him to perform a promise which hath no cause , or if it hath any , is such a cause , as is abominable and filthy , and so rather invaliditats than corroborats the thing promised ; and i am confident , that the expectation of a promise , induces many to whore , who otherwise would continue chaste ( many being content to sell their chastity who would never bestow it freely ) and it is most sacrilegious to see that divine contract , which should be only celebrated in the temples of the immortal gods , celebrated in bordels and whorish beds . this discourse ended , agapeta entreated the knights to remove a little , to prevent misconstruction ; for , said she , our tender repute may be easily wounded , except it be armed with caution , and our favours which we bestow upon you as strangers , will be certainly envyed , except they be palliated by prudence : the knights , in obedience to their desire , removed presently , leaving the ladies to their private entertainment , and congratulating their own indicible happiness : but philarites was scarce arrived at his chamber , when a letter was presented to him by a gentleman , whose joy could scarce suffer him to deliver it . philarites as impatient to know what was in it , as fearfull that it was to recall him home , broke it open , and trembling did read it thus . dear son , your silence and absence have founded an opinion of your death in the minds of all my nobles , who now cantone themselves in factions , hoping either to snatch the crown from my old head whilst i yet live , or at least to vie for it immediatly after my death . great mens ambition is never so fast asleep , but that the least touch from the hand of occasion is able to awake it , and when it begins once to stir , neither the respect which they bear to their prince , nor the thundrings of an accusing conscience , are able to terrifie that fearless monster : the fear of your death , and of their rage , do like two ropes , drag me to my grave ; and how can the weak natural heat of an old heart resist the coldness of age , when joyned with that of melancholy ? and when an old man is laid upon the death-bed of grief , his speech will surely be laid shortly . wherefore , son , if ye have not forgot your duty , aswell as your country , return home immediatly after the receipt hereof , and relive both your father , and your crown , whose languishing condition requires your assistance ; for my weak hands are no longer to sway such a scepter , nor my old head ●able to support a crown , which care and rebellion hath made weightier than it was formerly . this fatal letter did put philarites resolution to a bay , his fathers condition , and his own affection divided equally the forces of his mind betwixt them ; his fathers condition required a cure , and yet his affection to aretina would not suffer him to be the physician : knowing that whilst he endeavoured to recover his lost crown , he hazarded the losse of aretina , who was dearer than his crown to him . to unkernel which doubt , he sends for megistus , who perswaded him , presently to obey his father ; for , said he , will ye hazard aretina's crown by your lingring ? or , would ye wish to marry her , except ye had a crown to bestow upon her ? or think ye , that she will mind him who minds not his own businesse ? sir , love requires that ye should ensure your ladies kingdom , nature requires that ye should assist your old father , justice requires that ye should punish traitors , and gallantry requires that ye should rather follow , than flee dangers . let not your valour be like the physician , who can cure others , but not himself : and whilst those who know you not , talk of your courage and conduct , let not your subjects , who know you , smile at your esseminate cowardishnesse . this discourse determined the question , betwixt philarites affection and his courage : so leaving megistus , he march'd streight to aretina's chamber , where finding her alone , ( monan●hropus being gone to the country ) he enters , waited on only by a chearful countenance , and after a low obeisance made , he thus expresseth himself to her : incomparable aretina , my fathers commands , and the necessities of my nation , rather drives , than takes me away from this place : neither is it so much to ensure a crown , as it is to ensure your crown , that i undertake this pilgrimage . if i wanted natural affection , i were unworthy to be your servant ; and if i wanted a crown , i were unworthy to be your husband : wherefore i come to beg your permission to return home , to satisfie the one , and to fix the other ; hoping in my absence , to testifie my constancy , and by my speedy return , to witness what a high value i put upon your presence , in which i taste the choicest of contentments , and without which all things besides seems but tastless to the palate of my pleasure . aretina surprized , but not dejected at what she heard , did , much to his satisfaction , deceive his expectation ; returning him this sweet answer . philarites , vertue and i are not at such odds , as that ye must displease the one , to obey the other ; no ▪ philarites , i am confident the gods will prove a target to defend you , whilest ye prove the sword of your family : my sex makes me fearfull , yet my experience makes me confident of the unalterableness of your affection ; and i know you to be too generous in every thing else , to prove base in that , wherein the basest of men prove often generous . wherefore go , invincible philarites , victory waits for you ; only , remember your friends , when either your leisure , or pleasure , can steal an hour from your more weighty imployments , and with that she imbraceth him , and intreats him instantly to be gone : for , said she , a womans courage should be tryed , not tempted , and if ye would wish me to pers●vere , take from me by your speedy removal , the means of repenting . philarites was confounded by this command ; for albeit she gave him leave to go , yet she did that with so much grace , that it invited him once yet to stay wholly . but whilst he was thus debating what was fittest to be done , she fell upon an expedient her self , of taking at her own hands what she desired from him ; for stepping in to her closet , and closing the door , she left him alone , obliged in civility to depart her chamber . yet in retiring , she glanced over her shoulder , and then , only one tear broke the pr̄ison of her fair eyes , prest out by the multitude of those other tears which stood behind it ; but no sooner was she entered , but that unruly crowd forced themselves a passage , and as a volley of small shot , discharged themselves in honour of philarites intended voyage : who rather dissembling than quenching his passion , went to agapeta's chamber , accompanied by megistus , to tender his respects to her , for his majesty was then gone abroad ; to whom , immediatly upon his return , he addressed himself , and by whom he was dismist with many extraordinary testimonies of his singular affection to him , ordering his guards to wait upon him to the utmost confines of egypt , and all the ordnance to send their shot a piece of the way with him : he ordered likewise by the lord chamberlain , that his master of ceremonies , should carry to him some jewels , and that the kings jeweller should carry to him some plate ( for these were the formalities of all those nations ) all which he refused , accepting only from the hands of agapeta ( to whom the king entrusted that particular , hoping by the quality of the giver to oblege him to accept the gift ) his majesties portrait , richly deckt with inestimable jewels , which he accepted , telling her , that he thought himself much honoured , by having the means when he pleased of coming in his majesties presence : and so he departed alexandria , all who met him , proffering him their attendance ; but he , acknowledging their courtesie , told them , that his business with megistus required some retiredness : and thus they two rode out together , followed only by kalodulus , whom megistus commanded to wait upon philarites , and prest him further to accept of his attendance , alleadging , that he could not now abandon him in difficulties apparently greater , and certainly such as related to him more nearly , than those wherein they had been formerly joyntly engaged ; but philarites declined it most resolutely : for , said he , our affairs here requires that one of us should be present , and my pressures at home are not yet come to that maturity , but that i alone may suppress them , so that since your presence is necessary in the one , and would be superfluous in the other , i will entreat your stay ; and if these weeds wax higher , i will then , and not till then , entreat your absence ; and will in this play the wise general , who keeps the choice of his forces as a reserve , till the latter end of the day . whereupon , locking themselves in one anothers arms , they shewed more compassion than could be expect●d from men of such a vast courage , bold mens veins and eyes being filled with bloud , whereas those of compassionat men are filled with tears , for those objects which move the one to compassion , move the other to revenge ; we see ordinarily that steel cannot be softned , nor can the fiery flint be hollowed by the falling drops of water , as the softer stones are : yet sometimes sorrow , which cannot beget revenge , nor ease it self that way , breaks out in compassion , and when the heat of affection tempers the steel of courage , it becomes plyable at pleasure . after this philarites ships in , and by the help of the complacent winds ( who whistled like a waggoner to move the ship to run more swiftly ) in a short space , takes leave of megistu● long-tracing eyes , who stood upon the shoar both sorrowfull , and glad of his so ready passage . after a fortnights journey , he arrives in thracia , and writes to evander his father , to provide coaches , suits , and attenders for him , and shortly enters bizantium the capital city of thracia , and passeth alongst all its streets , with a cavalcade of all the nobility and gentry of the nation , who , conscious to their own guilt , and fearing that it would be revealed by some of their colleagues , each laboureth by his discovery to prevent the rest of the complot : and thus , every one fearing to speak to his neighbour of a combination , they acquiesce to what philarites commanded ; yet he , desirous , like a good physician , that that ulcer should ripen , that so it might break , and purge the body of some pestilential humours , suffereth some to be dissatisfied , who running to their arms , flocked to one philenus , a thracian nobleman , whom he had immediatly upon his return secured , and whom he caused the jaylor suffer now to escape , who rendevouzed shortly six thousand men ; for he expected , if not to gain the field by fighting , yet at least , to ensure his life and estate by capitulation ; to which effect , he writes presently to philarites , promising to draw all under his command to his highness obedience , upon the security of his life and fortune : this philarites no sooner received , but he dispatches copies of it to his agents in philenus armie , who disseminate amongst the soldiery philenus treachery , who used them only as means to gain his own , and not their peace , which so alienated the hearts of his dependers from him , that they quit him peice-meal ; whereof philarites ( who with two regiments of horse waited this occasion ) being ascertained , falls upon him and his confederates , and suffers few of them to escape ; which catastrophe of these bold rebels brought the nation to its former obedience . let us again glance a little at aretina ; upon whom ophni duke of iris had look'd through the prospect of respect ; which usually aggrandizes all things that are represented by it ; which dye had tinctured so all his thoughts , as that neither the soap of pains , nor the fullers earth of reason , were able to return them to their former colour : love being like pitch , which no sooner touches than it sticks ; and which when it once sticks , can hardly be removed : wherfore finding that this barbed arrow which cupid had stuck in him , could not be drawn back , without leaving its head in the wound , he resolves to drive it forward , and resolves either to lose himself , or to gain her ; seing without her , he concluded himself fit for nothing : and albeit the vastness of her fortunes ( being only heir to a potent duke ) were golden mountains , over which his meaner condition ( being low in his estate ) could scarce scramble ; and which being past , the difficulties were not yet all overcome , for she was yet fortified by her fathers honours , and her own beauty ; to batter all which ramperts , he could bring no other engyns , besides those of importunity , patience , and confidence : but alas , poor ophni , the fort of her affection is strongly manned by the high thoughts she hath of philarites , and is provisioned daily by the perswasions and cunning of megistus and agapeta , and all the avennues of her servants and familiars are already blocked up with gold ( cemented with civility ) by philarites during his last residence at court ; and as to thy pains , these small ordnance will never reach her , love being like to these shapes which are casten in a mould , which if they be not rightly moulded at the very first , can never ( or at least hardly ) be helpt by any future endeavours ; and the wild fancy is of the nature of all other untamed beasts , which must be taken at a start , else can hardly be laid hold upon . he endeavours by company , to conjure away these hopgoblin fancies , but all in vain ; for , albeit whilst he is with his friends it leaves him , yet no sooner leaves he them , but instantly it returns to him ; for albeit a melancholian may , like an ill-going clock , have the index of his humour put right by the hand of a friend , or of company , yet the in-works of his soul being distempered by that corrupt rust , he will presently run wrong as formerly . finding no solacement here , he wanders in woods and groves ( the ordinary galleries of such enamorato's ) but there he is more distempered than formerly ; for those fancies which could not follow him foot for foot in the crowd of court , finds now room to walk side for side with him ; for meditation being but a digested representation of what species and ideas were hudled up in the memory formerly , it can do nothing else , but make a more of what was but a much formerly : and so , if it find a man to have much prudence , or piety , it will make him to have more of both ; whereas if it find him to have much impiety , or passion , it will screw them up to a greater height : and hence springs that proverb , that a solitary person must be either a saint or a devil ; for , it being an extraordinary custom , it must argue an extraordinary genius ; and albeit meditation be a mirrour wherein one may see himself represented without errour or flattery , yet it is such a mirrour as is the sea , which if troubled , can represent no object whatsoever : even so , if meditation be tossed with the storms of passion , its surface can represent nothing but horrour . and man being sociable naturally , as we see by all the faculties of his soul , and number of his senses , which were useless , if he were cloistred up in an hermitage : for , why was the tongue given him , but to express to others his own thoughts , and to answer theirs ? why his ears , but to hear others , &c. doubtless therefore his retiredness must be supernatural ; and so either angelical , or diabolick . and the gods by distributing some perfections to one , some to another , have necessitated us either not to aim at any further accomplishment , or if we do , to learn it from one another ; and how can that be done but in society ? as also , in heaven we shall be fully happy ; and yet there shall be there no hermitages , but we shall cleave together ; which evidences , that hermitage and happiness roul not upon the same axletree . but neither could ophni sing a requiem to his passion here , for his love presents to him the disparity of their fortunes , and this starts avarice ; his love muster● to him all those who may pretend to be his rivals , and that starts up his envie , or at least , a passion less vertuous than emulation : his love terrifies him with the numbers of her fathers honours , and that puffs up his ambition . and thus hounded by all these raging passions , he knows not where to run , nor how to shelter : he tumbles down upon the ground , as if like an itchy horse , he meant to ease himself by rubbing with it ; and immediately starting up , with his arms crost , he pawes with his foot , as if he intended to beat the earth , because it could not relieve him ; but finding the earth could not help him , he throws up his eyes to heaven ( an ordinary posture even amongst disconsolat atheists , fore-ordained by providence to prove their dependance upon supernal powers ) thinking that the other goddesses had taken her up there , to be their colleague . after this he turns to the by-running streams , but they glide away so swiftly , as that they will not stay to hear him ; and the fishes , as if it were in derision , leaps up , to shew him what a priceless thing is freedom . the inhospital air likewise , to aggrege his misfortunes , no sooner receives his doleances , but each part of it , as if it were weary of them , posts them away immediatly to another part yet remoter , and at last refuses flatly to carry them any further : he vexes to see the crows , like frugal masters of families , build their nests , and feed their young ones ; and to see those organists of heaven , the chanting larks , from their natural cage the firmament , quiver out their melodious notes , the air opening it self willingly to receive such a pleasant harmonie : and all these free from court care , and afflicting affection ; whereas he , who brags of being created the master of all these , hath his head toiled with the cares of his family , and his breast burnt with the flames of love . at last , being refused shelter by all these , he addresses himself to that bold undertaker , confidence ; who perswades him to return to court , and promised to make way for him . i am ( said confidence ) that skilfull physician , who hath recovered thousands of patients , after that others have condemned them to die ; i am that bold warriour who hath oft recruited desperat armies ; and by my hands have gallant and overweening ladies been thrown in the arms , of by them despised gentlemen . goutish fear is never able to overtake his prey , and he stands so long hearkning to reason , that the bird is flown before he come to the nest ; i strike so oft that i must kill at sometime ; and i rally so suddenly , that i can never be beaten , or if i be beat , none dares twit me , lest i fall foul on them also . and i pray you ( continued confidence ) as a ladies favour is the greatest prize in the world , so her refusal is one of the smallest affronts : for , since all men confesse that none can sufficiently merit a ladies favour , what wrong is done , or what affront is received in not obtaining what was not merited ; and seing a womans choice is attributed to her fancy , what wise man will esteem you a whit the worse , that her fancy conceited that ye were worse than ye are ? he may be a good archer who misses his mark once , and an excellent merchant who loses one adventure : choice things are like diamonds of the rock , to gain which , pains are required ; neither is the lame hands of fear , fit to dig in the mine of golden love . fear is a cold humour , and so extinguisheth these divine fires , whereas courage is an oyl fit to conserve it . she loves you possibly , albeit she proclaims it not ; and there may be fire in that which seems only an hard flint ; she intends like all other women , to set a price upon her affection by the difficulty of obtaining it , and will have the race to be long , ●eing the prize is great ; she will have you to ●ause the world take notice of her worth ; and ●elf-love , and vanity must needs have that come●y of courtship entertained , because they are so ●ickled by it . and it is reason , that she should have some time to try his humour , to whom she ●ntends to subject hers at all times . when we buy that which is of any value , a slight view will not satisfie us ; neither would ye your self bestow your childe without a most strict enquiry what his qualities and estate were upon whom ye bestowed her . to extricate himself from these jarring debates , he sends for an old priest who was monanthro●us intimate acquaintance , and had likewise served his own father formerly , and communicates his design to him , and entreats him to deal with monanthropus , which the priest undertakes , and represents so cunningly to monanthropus lady , that he gains by her mediation her husbands consent ; with this proviso , that ophni should bestow his daughters estate upon her eldest son , who should carry her name and a●ms , and that the second should have the dutchy of iris. to which ophni agrees , since the honour of his own family was not in the least obfuscated thereby , which was to be maintained intire , in the person of his second son . this being agreed to , betwixt ophni and the parents , they begin to sound the daughters inclinations , and her mother presses first , that she should marry , that the estate might be entailed upon her ; whereas if she who was her mother , dyed , her father might marry a second wife , and so settle the estate upon her children . aretina seems not to heed that discourse only she said she would consult with time ( ● counsellour whom experience had made wise ) and that many young ladies had been accounted famous , for living chast● , but never any for marrying too soon ; that the bearers were oft-times broken by pulling fruit too soon ; and that she would rather live without a husband , than marry without singular affection ; for , seing a conjugate life was hedged in with so many thorny difficulties , and attended by so many dangers to those of her sex , she resolved never to marry , til● she found one for whom she would be willing to hazard dangers , and encounter difficulties . at last the mother thinking that her daughter was like those who wil never bargain til they see their merchant ; or like those merchants , who wil never sell freely till they see money ; proposed to her a match with ophni duke of ●ris ( having formerly commanded her nurse and maids to speak of him with all respect possible ) wherat aretina smiling told her , that such a big tree as a duke , was not fit to be engrafted upon any other root ; meaning ●●at he would never relinquish his own family , ●o maintain the honour of any's else . what , said ●onaria , if he bestow the estate which comes with you upon your eldest son , and his own up●n his second son ? really , replyed aretina , i would not marry one , who honoured so little ●is ancient family , to which he owes all the difference , which there is between him and his ser●ant , and for whose support his predecessors have ●oiled so much : for as a man should , and doth ●ove his father more tenderly than his prince ; so 〈◊〉 man should love his old heritage better than his country : and i should hate him , who betrayed his country to pleasure a mistris . ophni had always hitherto with much instance ●nd a superstitious observance payed his respects ●o aretina , speaking with his eyes what his mouth durst not ; but at last finding that darts thrown at so great a distance could wound but ●ightly , imboldned by her parents assistance , he expresses thus his passion to her one morning . madam , it appears that nature , like all artisans , becomes daily the more skilfull , and that in shaping ●thers she hath been studying how to shape you , and hath also as they do , reserved the choicest of her stuff till she was fully assured of her own skill . since therefore every thing that is new excites admiration , and since every ●hing that is ex●raordinary is new , i hope , incomparable lady ▪ that ye will pardon those who adore with respect , ●hat nature hath made matchless by her skill , and since she shews more art than formerly , why should not we a●●mire more than formerly ? as for me , madam , i a●●knowledge that admiration invited me to know , and th● knowledge engendred love ; but oh ! better to have co●●tinued ignorant , than to have become arrogant : for sin● love intends a conjunction , it must make a parity ; and is arogance to wish that love should make a parity , whe●● nature hath made such an imparity . yet , madam , suff●● me to respect you , since respect hath imbosomed in it 〈◊〉 subordination ; and be confident , that my desires sh●● never advance beyond the skreen of a profound respec●● till it be ushered-in further by your irresistable com●mands , or at least connived at by your permission . aretina shunned to use any eloquence in he● answers to him , but rather in discourse , gesture● and all her other actions , endeavoured to reclai●● him from his passion by a feigned shew of imper●fection ; but all in vain , for his disease had con●tinued too long to be now cured , neither was h● so blinded by his passion , but that he saw he● dissimulation : which because it argued so much wit , did engage his affection more deeply tha● formerly . her father continues to press her , but she declines the match , protesting that albeit she had no inclinations for any else , yet she had a● aversion from ophni ; and to marry her to him ▪ were to tye an eagle to a stone , or make a fish flie● in the air : for that was as much contrary to he● humour , as these actions were contrary to theirs . aretina finding her fathers perseverance in 〈◊〉 wherein she intended to shew so much ob●●acy , acquainted agapeta with it , who revea●● it to megistus , and disswaded her likewise 〈◊〉 it ; and one day it was megistus good for●e to have an occasion to flout ophni ; for at marriage of one of the officers of the crown , ●●re was a solemnity to be used of running at ●●e tilt , wherefore megistus feigns himself in●sposed a day before , but at the day appointed 〈◊〉 mounts himself in a blue armour , over-spread ●ith the ivie and the vine twisted together ; in 〈◊〉 shield for a device , he carried two hands ●●asping one sword , and defending one heart ; ●●e word was , if against one , against both . ●fter that the kings nephew had run his course ●gainst the martial knight ( who was now retur●ed to court ) and had almost broken his heart ●ith rage , because he could not break a spear ●ith success in presence of agapeta , whom all ●he nation did destinate for his mistris ; ophni ●ppeared next , who longed to give proof of his ●itherto unexperimented valour before aretina ; ●is armour was painted over with a green field , ●herein some fruits and flowers were beginning ●o flourish , but lookt as if blasted with a cold ●●ost , and their leaves engrailed or beaten with ●ail ; in his shield he bore cupid , piercing a fla●ning heart , and yet trampling upon it ; the word was , too cruel to be a god . against him appeared megistus , who had but presently entered th● field ; carrying upon the top of his spear aret●na's picture , which made ophni presently t● single him out of the croud to be his antagonist 〈◊〉 but the other sent a trumpet to meet him , an● desired to know if he carried her picture also which ophni presently produced ; whereupo● both the pictures were delivered to the judges to be given to the conqueror . this done , they begin their carreer , and at the first encounte● breaks both their staves , with equal success ; an● then drawing their swords , they bestow many blows very freely , but courage was not able to defray ophni's charges in contesting after tha● fashion with megistus ; and albeit ophni fough● for a mistris , and megistus only for a friend , ye● there was greater disparity betwixt the champions , than there was betwixt the quarrels . yet even in the quarrel , megistus had the advantage ; for albeit he fought not for his mistris , yet he fought before his mistris , from whom no vizard could disguise him ; neither desired he to be so disguised , but that she should know him ; wherefore enraged to see an apprentice so resist him , he ramasses his courage , and by an irresistible blow , bears ophni to the ground , so bruised that he was scarce able to recruit himself ; and thereafter rides to the judges , who deliver him both the pictures . whilst all the eyes of the company are fixt upon megistus , some enquiring after his name ; others admiring his courage ; and none daring yet to appear against him . the kings nephew vanquish'd by grief , aswell as by the martial knight , falls a swouning ( shame contracting the heart , and denying the body a fresh supply of spirits ; as its opposit , confidence , dilatats it , and sends it fresh supplies flushly ) which withdraws ●ll mens admiration from megistus , each running to recover the other , giving megistus leave to re●●re secretly to his bed without being noticed . the tilting ended , ophni retires to his chamber , distracted with rage , and confounded with shame , trembling by the chilness of the one , and burning by the heat of the other ; cursing providence for the niggardly allowance of strength it had bestowed upon him ; and his own heart , for daring to engage in a quarrel which it was not able to maintain . yet monanthropus and his lady , who valued not much such trifling affronts , did prosecute their former intention , but with very bad success : for aretina , who could never remember philarites but with affection , could never remember ophni but with disdain : neither could her affection taste any more satisfaction in his society , than a stomach which is full already of excellent entertainment , is able to rellish an ordinary dish which is set before it . which at last ophni perceiving , he resolved to undermine , what he could not storm , and plots this project . monanthropus had now retired to hsi own country-house , for a fortnight , where ophni goes to give him a visit , after that he had first hired a pirat , who frequented those coasts , to go and lye before the house secretly . at his coming there he deals with aretina's nurse ( whom only of all her servants his bribes , and her mothers commands , had gained to his faction ) to tryste aretina down to the shoar one morning very early , where she was no sooner come , than the pirat who waited behind a rock with fourteen men , falls upon her , and her nurse , and maids , and makes them prisoners ; which ophni at some distance perceiving , comes running to them , with his sword drawn , as if he would have rescued her , and begins to combat with the pirat , whereupon he who held aretina , holding a sword to her breast , swore that he should kill her , if he yeelded not : this seemed so to prevail with him ( joyned to the cryes of her hellish nurse , who knew all the mysterie ) that he submits , and becomes their prisoner , and are all carried a shipboard , aretina's maid only excepted ; whom ophni had ordered , that she should be suffered to escape , both fearing that she favoured too much philarites , as also , that she might inform monanthropus , that ophni was not accessory to the plot , but rather testified much courage in fighting , and much affection in rather yeelding , than that she should have suffered by his resistance . at their entry a ship-board , the pirat testified very much respect to aretina , protesting that he had no design in her surprisal , but only to oblige her father thereby to mediate his peace with the king : for which reason likewise , he thought himself most fortunate , in having intrapped ophni , whose friends at court might be very stedable to him : wherefore he permitted them for their mutual solacement to stay all day long in one cabine , allowing each of them a several cabine at night . but all these opportunities , albeit seconded with much importunity , both from ophni , and the old nurse , could not pull aretina's ear so low , as to hear what they pres●ed in relation to that match ; she seemed to undervalue those dangers , which would doubtless have seemed terrible to others ; for , as she said one day to the master , high spirits were like high mountains , whose tops being abvoe the cloudy firmament , were no wayes troubled with the storms and tempests which molest the valeyes ; ●nd that great minds were like great bodies , which scarce the greatest windes could move out of their places ; these discourses astonisht the ●yrate , and rendered ophni yet more desperate ●hen formerly ; finding that neither fear nor love , necessity nor affection , were able to effectuate his design ; for when he spoke to her of his passion , she told him that neither the present place , nor her present humour could permit her to treat of such matters ; which required calmness of spirit , and the assistance of friends , of both which she was destitute at that present ; as also , that she was confident , the world would misconstruct that love , whose birth-place was a prison ; and would blame that choice , which was made when there was none else present to be chosen . these endeavours were unexpectedly blasted by an accident , which manifested how much the divine powers affected that match , betwixt philarites and aretina , which they themselves had at first made . for aretina one morning , alledging that she was indisposed , entreated the pirate to set her ashoar to take the air , and the rather , because she heard that the coast whereupon they failed was the coast of thracia , where she knew her dear philarites residenced for the time . to which the pirate , at the entreaty of ophni , after some reluctancy , condescended , knowing that the adjacent land was a meer wood and desert , where no surprisal was to be feared ; and suffered ophni to go alongst with her , in company with himself and twelve others of his train , well armed ; and after they had sent one to view the shoar , who returned , assuring them that all was secure : they came ashoar themselves , and for their recreation went up to a pleasant wood , where the thickness of the trees afforded them a pleasant shade . they were but immediatly seated , when the clashing of armour near the shoar , invited their curiosity to try who were the combatants , and so starting up , they perceived two knights , disputing with equal courage , a quarrel wherein their fury made ophni believe that they were much interessed . ophni who never used to be an idle spectator of such disputes , girding himself in the pirats armour , after he had past his parole to return a ship-board ( lest else his complot with the pirate might have been discovered ) he runs down to them , offering to be umpire betwixt them : but they were so busied with their contest , that they had neither time , nor desire to imbrace or thank him for his proffer . at last the knight with the black feathers called to the other , to leave off their groundless combat , assuring him , that aretina was the only lady living , for whom he carried any affection ; and that albeit he had spared to strike at him hitherto , endeavouring only his own defence , yet hereafter he was to expect no further favour : and as to arethusa he disclaimed any interest in her , besides what all others of her sex and endowments might justly challenge . the other ( who because of his mask ) was only to be designed by his bucquet of white and red feathers , throwing immediatly down his sword , lighted from his horse , and craved the other pardon ; protesting , that next to arethusa , he would honour him above all the world . whilst they are thus imbracing one another , ophni who raged to hear aretina owned by any besides himself , cryes , sir , whatever you are who wears the black feathers , you must satisfie justice for daring pretend to aretinas favour , and before ye depart from this place , my sword shall punish such unpardonable arrogance , and with that drawing upon him , he forced the knight with the black feathers to depute his sword to answer for him , and in sharper terms than ophni expected ; for at the second blow , ophni's armour suffered the black feathered knights sword to enter at a breach , which his strength had made for it , near the heart , out of which , in a very short time the life issued out , waited upon by a floud of blood , running away , as it seemed , from the merciless hand of pale death . the pirat and his attenders perceiving ophni engaged , had hitherto keeped back , fearing to rob him by their assistance , of a victory which might possibly endear him to aretina , but now seeing him fall at his enemies feet , did run down to revenge a death , which with so much grief they resented : the two knights did joyntly encounter them with so much courage and resolution , that four of these pirats were killed before either of the knights had received one wound , and whilst the knight with the black feathers was dispatching another , two gentlemen who missing their master the black knight in the morning , had traced him thither , came galloping up , one whereof struck the head from a fellow who was drawing a blow to strike his master . the other knight likewise had by killing the master pirat , perswaded the other two to flee to their boat ; but they were easily overtaken by these two gentlemen , who were on hors-back , from whom they begged their lives upon their knees , which was granted them , and so they were brought back to the two knights ; the one whereof , and who wore the black feathers , was the generous philarites , who stood disarming ophni , whose head-piece he no sooner took off , than he knew him to be his intimate friend the duke of iris , to whose civilities he had been so much addebted during his residence at the court of egypt : it astonisht him to see the duke in that place , and it grieved him to consider that his sword should have put him in that condition : and albeit he remembred how the quarrel was for aretina , yet friendship provoked him to a compassionat resentment , and to deck the mournfull hearse of the duke of iris with pearly tears ; albeit he could not but hate the lover of aretina : but whilst philarites eyes were writing in tears ophni's epitaph , aretina ( whom her two keepers had abandoned ) not knowing who these knights were , had flung her self at his feet ; but no sooner raised she her eyes , nor threw he down his , but the rayes which were darted from either , seemed to know one another at their first approach , and posted as it were back to acquaint the body from whom they were sent , what a strange encounter they had met with . philarites no sooner perceived that this was the divine aretina , than presently raising her with both his hands , he throws himself at her feet , who was lying at his formerly , and with an accent which spoke passion , he thus expresses himself . peerless aretina , it is a crime to doubt who thou art , seing none resembles thee ; or , how can he forget thee , who minds nothing besides thee ? for the meanest of those hundred curious traits ( which are but mean when compared with what we see not ) is able to convince the dullest amongst men , that ye are doubtlesse aretina ; and the only thing which disswades me from believing it , is , that my destiny hath been so hard formerly , that i can hardly now believe that it would permit aretina to land in a place where philarites might be serviceable to her . here aretina interrupted him , saying , that he was injurious to the most and ever just gods , in alledging that they favoured not a person of his high deserts ; neither were his petty afflictions to be listed amongst real misfortunes : for as the earths off-spring is ripened by the cold and dark nights , aswell as by the hot and bright sunshines ; even so , generous minds are accomplisht oft-times as much ( if not more ) by their misfortunes , aswell as by their success : wherfore use moderatly this occasion , which ye seem so to value , and lose not by your insolence that affection in thracia , which your modesty & patience gained in egypt . after this , she entreated him to lead her to some retired house , where she might recreate her weather-beaten body ; which sickness formerly , and joy now both had , and did infeeble extreamly ; for our life being a lamp , it cannot no more be said to burn well , when by the nimious heat of joy it is all on a fire ; then when cold melancholy seems to extinguish its flames . by this time the other knight , who was the renowned aristobulus had come up , and after his surprisal ( occasioned by the extraordinariness of aretina's beauty ) was somewhat over-past , he accoasted her thus . madam , i hope ye will pardon me for calling in question what you are ; for my heart , as a subject to the divine arethusa , hath taken oaths of supremacy and alleagiance , whereby it is bound to acknowledge none her equal , either in beauty or endowments ; wherefore , madam , i wish ye were no mortal , lest your being such should tempt me to commit treason against her beauty , by forcing me to acknowledge that it is but second to yours . arethusa's beauty ( replied aretina ) is so much noted and admired by all who have but heard the smallest catalogue of beauties recited , that it 's rather a jest than a complement , to place such an ordinary face as mine in one file with hers , to whom it were a disparagement , to say that my face and hers had any traits that were common to both ; the one having nothing , and the other wanting nothing , which the proudest amongst men can esteem praise-worthy . after this they retired to an house of pleasure , which philarites father had caused build for himself , whilst he was young ; and which philarites self had caused repair and replenish , wherein he did often solace himself with the rememberance of her whom he now enjoyed ; after their arrival , aretina fetcht a short walk about that sweet place ; which lurked in the bosom of a wood , fearing ( as it were ) to be discerned by any , upon the brink of a shallow river , to whose bottom the weakest eye might easily travel ; and whose streams mumured as they past by , because they were not suffered to stay longer in so sweet a place ; and where the hand of accident , had carved in the surface of the over-topping rocks , thousands of various shapes and figures , to recreate a melancholy fancy , and which , like a stone book , seemed full of apprehensive memento's . here philarites used oft to read , as he imagined , the story of his love . something represented to him aretina , something agapeta , and something his kind friend megistus . at other times he thought them emblems of his love , and at a third time , he thought them horoscopes of his good or ill fortune , accordingly as he himself was for the time affected . after this they entered a chamber , wherin pleasure had made parade of all her richest furnitur , and here , whilst the supper was a preparing , and arist●bulus was gone to sleep after his long watching , occasioned by his torturing jealousie ; aretina leaning upon a window ( in at which the vine and orange trees seemed to peep , as if they desired to admire the sumptuousness of the room ) entreated to hear a brief relation of his adventures since his departure from egypt . madam ( replyed philarites ) my journey was rather pleasant than memorable : for after that a gentle gale had civilly convoyed me over to lacedemon , as if i had been related to neptunes family . i landed at ●pis , where i did meet a great many officious servants , some whereof carried my boots , and others my spurrs , and i believe some were so willing to testifie their respects to me , that they would have carried my purse also , if i would have suffered them : at supper my landlord came to taste my wine , and alleadging it was not good enough , desired the drawer to fetch some out of another tun , which liked him not neither , wherefore he desired ( after he had chided him ) that he should bring some of another colour ; but finding that my servant grumbled ( which was really to see so much wine forced upon us by a cheat ) he rose himself from the table , and as if my servant had been offended at the badnesse of the wine , he said that he himself should go fetch some better , and albeit my servant entreated him to stay , telling him that he was mistaken , yet he would needs go , craving us still pardon for his drawers mistake : so down he goes , and brings up that same wine which had been presented to us formerly in a flaggon , and fearing lest my servant should discern that it was but little more than half full , he did out of civility to my lordship , fill it himself ; and pouring it in a glass , coloured somewhat like the wine , to conceal its sophistication , he holds it up to the candle , sweating that it was a lovely wine , but that it had ripened no where so well that year as it did the last . his discourse all the time of supper , was in praise of the egyptian nobility , whose generosity and liberality he commended much , without mentioning any other vertue . after supper , he caused remove my clogbag out of my servants chamber ( as my servant told me afterwards ) telling the chamberlain , that albeit he served a nobleman , yet he knew by his looks and deportment , that he was a gentleman , and so it was not fit so to embarass his chamber ; but to morrow he made us pay for that chamber also , alledging that if it had been void , he might have had a guest for it , but if that occasion had not offered , we should not have payed for it . thereafter when i askt why there were so many cheaters in that town ? they told me , that all frontier towns were so : for being accustomed with strangers , whom they prefumed ignorant of all prices , they extortioned them at their pleasure . the next morning i took horse , and having dined at elpis , i strayed in the afternoon , and could find no house , till at last the dark clouds clad in the nights livery , did usher their melancholy mistris into our hemisphere , and told me , that after that darknesse did set its guard , strangers were not permitted to passe . wherefore i retired to a castle , which i saw afar off ; and by the time i came to it , the charitable heaven had set forth its lanthorn the moon to shew passengers the road : and as i entered at the gate , i saw a poor fellow helping an old bridle at the moon-shine : my servant thinking it had been the hostler , called to him to hold the horses : but at last came one of the servants , who hanging out the sign of a , please your worship to that poor fellow , gave us to understand that he was a knight , he advances to us , and told us that we were out of the road ; for thesbone the next village was but two leagues off , where we would be very well accommodated ; but kalodulus assured me that it was three , and entreated me to stay : wherefore i at last perceiving that this was the master of the house ( who stood helping his bridle at the moonshine to save a candle ) i told him , that i behoved to stay that night . this made him reply , that he could not accommodate me , for all his furniture was transported to his other house . at this reply , his son who was an ideot , cryed out , ha , ha , father , devil another house have ye . this put the father out of countenance , but he desired us not to notice what he said . at last , overcome by our importunity , he rather suffered than invited us to advance , and welcomed us as an old miser welcomes death , when the physician assures him that he cannot live : but all the sport was , to see with what a troubled countenance , the lady was brought to bed of a consent to let us stay ; meer necessity supplying the part of a midwife to that hard and painfull birth . after we entred the house ( which seemed because of the infrequency of the indwellers , like a body without a 〈◊〉 ) the knight with a discourse of the poverty of the nation , and of the greatness of the taxes , joyning to this , that large houses , such as his , were monuments of the builders folly ; for besides the money spent both in building and maintaining them , they did likewise invite strangers to lodge , and enemies to garison in it . whilst we were thus passing time , i heard my lady scold at her servant , for suffering all the beer to run out , by pulling the spigget out of the barrel , and thereupon coming in to us in a chafe , she ex●used her own misfortune ; but she told us that we should have a drink of whey , which was very wholsom in that hot season ; as also , we should have sack to correct its coldness : so the sack is brought in a great bottle , and all is filled out in a big glasse , and given to the lady , who drinks to me , but when i intreated her to taste it a little better , she told me , that albeit that sack was not hot in the mouth , yet it was very hot in the stomack , and that the physicians had forbidden her husband to drink any more than two spoonfulls of it ; but i no sooner got it in my hand , than i drank it off : foreseeing that i was in a place , where all the year was a continued lent , wherefore i resolved to make drink aliment , albeit philosophers and physicians both call that much in question . at supper we had some pulse , egs , and pease , but no flesh ; for , as the lady said , she could hardly in conscience suffer a poor pullet to be murdered to satisfie her appetite . truly wife , added her husband , that is good philosophy ; for flesh is not thought natural food for man : for we see that children ( in whom nature is not adulterated by custom ) love fruit better than flesh ; as also , if it were natural , we might eat it as nature hath provided it ; but now we see that we roast , seeth , and fry it , else it cannot be eaten : as also , nature hath bestowed long and small teeth upon those beasts , and long beaks upon those fowls , which most devour flesh for their aliment ; whereas it hath given man teeth long and broad . physicians also esteem it not so wholsome as other meats are , for it being before concoction , equal to our flesh , it is by concoction sublimated above it , and so not fit to feed us : and we find that when it corrupts ( for all of it cannot become aliment ) that it is of all putrefactions the most hatefull ; for bread , roots , and such like things , albeit they putrifie , yet stink not ; but flesh , when corrupted , stinks extreamly . after supper , we went to bed , without having any drink put in our offer , to excuse which , the knight alleadged , that he heard that it was the custom of our country , for the egyptians used to say by way of proverb , that he who goeth to bed thirsty , riseth wholsome ; for thereby defluxions were occasioned . the next morning the knight appeared in an old sattin doublet , having a little piece taffata hanging down from it , to perswade us that it was lined with it , but i perceived that it was only doubled with green linen . he wore likewise silk stockens , but exceedingly shattered by age , to conceal which he had folded them all in degrees . after i rose , i went to the garden , where my lady was gathering nettles to make broth for us ; i perceived she wanted her stockens and shoes , which she thought was concealed by the length of her gown ; whereupon ( to revenge my self upon her for my bad entertainment ) i took her hand and walked alongst a place with her full of nettles , which , as i perceived by her countenance , did burn her feet ; yet durst she not complain , fearing to discover thereby her own nakedness . after my departure from this , my stomach had almost expired , leaving me nothing but hunger in legacy ; a debt so urgent , that i behoved to ride to a neighbouring village to satisfie it : but whilst i was in my way to it , the angry heavens , sighed wind , and weeped rain for the suns absence , which some troubled clouds had imprisoned all that morning ; i over-hyed a fellow , whose gray hairs , rather than grave garb , informed me that he was ancient ; he was riding in a pair of spanish leather boots , which the excessive rain had mollified so , that they seemed to become tender-hearted at the heavens weeping condition ; his head had been well poudered , and by the rains assistance had made excellent morter ; yet all the morter which was there , could hardly have patched up those cracks which i perceived thereafter to be in his brain : his cassock was of black satin , which was so hospital as not to refuse the rain lodging ; thus he rode and bathed all at once . after we had ridden half a mile together , he asked if i had ever heard of a physician called nisus , who lived in that country , whose skill had kept so many alive , that the inhabitants complained that the place was become too populous . i who perceived , or at least conjectured by his habit , that he was of that faculty himself , told him that i had oft heard of him ; and that it was reported that he could defend the weakest body against the strongest assaults of death , and that he could chase out deaths ordinary avantcurriers , melancholy and sickness , albeit they were once entred ; and that the great-grand-children of ancient families had conspired against him , for starving so their wearied expectations , for none dyed ( as i heard , except some few sextons , whom want of imployment had quite famished ; truly ( continued i ) i would ride forty miles to see him . good sir , replied my companion , ye extoled him too much ; but such as he is , sir , he is your servant , for i am the man : at which i seemed so overjoyed , that grasping him kindly ( though rudely ) in my arms , i pulled him quite from his horse ; and thereafter , craving him pardon , i helpt him up again . after a miles march , his horse did begin to weary , and at last became so uncivil , as to refuse to bear his master company ; whereupon the doctor lights down , and taking up his foot , he endeavours to find his pulse , which he swore was a caprezant , and that he behoved to cause give him a clyster ; but ( ah misfortune ) whilst he is musing upon the disease , the horse , weary of standing upon three feet , kicks his lordship into a ditch which stood near by , whence we could hardly pull out : when we had pulled him out , kalodulus sayes to him , truly , sir , it appears ye dive deep in any thing wherein ye once enter ; but i admire why ye carry with you such a horse , except it be that because ye are a physician , ye cannot want a skelleton for your anatomy . after he was re-mounted , he entertained me with a description of a lady in nisbena , whom he loved dearly , describing all the parts of her body , as if he had been anatomizing ; and to conclude all , he took a letter out of his pocket , which he had directed to her , and whereof he bestowed upon me this copie afterwards . fairest of all created creatures , yea , fairer than diana and all her nymphs , albeit they were chopt in one ; the harmony of your well-agreeing colours , makes my pulses dance to their musick ; and your beauty , like a great gale , hath so filled the sails of my desires , that it hath driven me out of the harbour of ease , into the ocean of love. a surfet of your disdain , hath ( as all cold things do ) easten me in a feaver of rage : your answer to this letter must be the crisis , by which i am to prognostick my death , or recovery ; but i hope , lady , that ye will not murder him , who hath saved so many , and who hath been born to s●ve mankind . ye may perceive the strength of my love , which makes me so eloquent that i 〈…〉 mercury if he were a woman ; and albeit ye undervalue my plethorick eloquence , yet all our ladies here are struck by it in a le●ha●gie of admiration . o my pret●y lovely thing , love him who loves thee best of all things , and send a receipt for this disease to your sick nilus . we arrived that night at lacedemon , where at supper i did meet a young gentleman , whose grave asp●ct did conc●l●at respect to what he was to speak ; after supper i invited him to my chamber , and there i did enqui●e how affairs byassed in that nation , and who was the axletr●e upon whom that large orb of court did roul ; after this we digressed from courtiers , to court-imployments , whereupon he thus charactered to me the emptiness of that so much desired trade . sir , my experience hath pilgrimaged through most , and my meditation through all those follies wherwith our reason is ensnared , and whereby our happiness is betrayed ; yet amongst them all i perceive that none hath gained so many proselytes , as court-vanity : there it is that men run to ruine in coach , and flee with feathers to folly ; and i am confident , that if men took as much pains to gain favour in heaven , as they do ●o ingratiat themselves at court , that they could no● miss to be canonized as the most eminent in the kalender of saints . that is the butt at which all men level the arrows of their affections , and that is the idol which all men worship . wherefore , sir , at my first arrival at court , i endeavoured to find out the reason why in the circle of humane happinesse , court was made the only center , to which all the other pleasures , like so many lines , tended , and in which they were all terminated ; but i must acknowledge , sir , that without borrowing the eyes of those who so much admire it , i shall never be able to see in it that satisfaction and amiableness , which they so much dote upon : but to make your judgment judge , i shall relate to you the trade which i conceive most of them drives . all night they wrestle with their giant , fears and cares , til at last , necessary , with much difficul●y , draws the curtain of rather slumber than sleep before their wearied eyes : but yet their judgment no sooner leaves off , than their fancy begins to work ; and as they thought whilst awake , so now whilst asleep they dream of competitors , and enemies ; of mis-informations , and challenges ; and after some time their eye lids start up in spight of sleep , and then their minds are presented afresh with a large inventory of by-pastaffronts , and future fears , all written with the black ink of disquietness . and thus they toss and tumble , where a poor country-man would find much refreshment ; sometimes upon one side , sometimes upon another , their souls ( which only in this , are masters of , and command their bodies ) drawing the bodies after them , and making them toss and turn , as they are tossed themselves . after that the sun hath sent its rayes to salute them in its name , then they must sleep , because sleep is then unnatural : the morning being thus spent , they spend ( or rather mispend ) the forenoon , betwixt a comb and a mirrour , consulting now and then their pages , whether they be well drest or not . and now they ask whether the king be gone a hunting , or not ? ( his motion being the only science which they study ) and if not , they post to court , putting that complement upon his majestie , that for haste to wait upon him , they dispense with their matines . and there , like democritus atomes , they wander up and down in the sphere of chance , and possibly stand in some antichamber , like those pictures which the cunning needle hath depenciled in the curious hangings ; meditating upon nothing but how to make some grandee take notice of them , or how to pay an earth-deep reverence to any whom they know to be a court-darling . at dinner they surfet one day , and are starved another , their purses being like the damme of an ill-going mill , which must be clused up two dayes to make it go the third ; there , if they meet with any country gentleman , they tax him for being unfashionable in his cloathes , and rural in his deportment , thinking thereby to disarm him of his confidence , that thereafter they may foil him at pleasure . and really , sir , i perceive that they mould their fashions and modes of new every year , not so much to pleasure their vagrant fancies , as to make courtship an art which one must be alwayes learning : for , if these stood alwayes fixt upon the same center , a gentleman who had spent a year at court , and then had retired to the sweet bosom of a melancholy life , might know as much as they , but now they in this , ( and in this only ) must learn something from the nothing-besides-knowing courtier . this done , they proceed to discourse of affairs of state , dropping a word or two of some mysterious forreign transaction , and stopping there , as if they would not decipher so great a project ; and shake their head , as if they could prognostick the event , of that whereof they know not the cause . wherefore , sir , i will recount to you a jest , put lately at this court upon one of these state-mountebanks , by a country-gentleman , who coming one morning to visit the courtier , he asks what news ? none , sayes the gentleman , save only that thrastus , one of the thracian nobles , is dead ; which they say is an irreparable losse to our king. thrastus dead , replyed the other , the gods forbid , for he was one of our intimate friends , and with that he fetches a turn or two , folding his hands , and testifying much grief ; wherupon the gentleman turning to one of the by-standers , tells him in his ear , with a smile , that in conscience he never heard of any such person : after dinner is ended , they return to court , carrying alongst with them their country friends , and in their way salutes hundreds of persons , whom they scarce know , pretending that these are their special good acquaintances : and if the king smile ( though his smile be occasioned by some inward thought ) they will swear it was upon them ; or if he call them , though meerly by accident , and desire them to do any thing of the meanest concernment , they will pretend that it was a w●ighty particular which he did communicate to them . after this manner they mis-spend much of that little time which providence hath not given , but lent them ; making their bodies their souls , and their pleasures their paradise , till at last , after they have acted the personage of youth in this comedy of court , age dismantles them of all those ornaments and perfections , which made them formerly be accounted gallants , and then they are turned off without any reward , besides the hatefull name of an old courtier . oh then happy he who impales himself within the circuit of a country cottage , suffering his thoughts to travel all over the large orb of the creation ; and when they return loaded with the spoil of solid knowledge , feasts them with home-bred morality ; there none compets with them , neither are they opprest by any , their time is not trifled away by idlings , nor their humour violented by debauch'd persons ; how much then are we obliged to court , which like a boil in the body politick , draws to it all those malignant humours , which else might hugely annoy all the other members ? but i admire what pleasure can the country be debarred from , whereof the court participates ; for , whilst the species of all these soul-delighting pleasures , are in the eye , they are no pleasures , ( else brutes might t●ste that true sweetnesse ) and when they are from the eye conv●yed to the inward faculties ; then they differ nothing from pleasures meerly imagined ; so that a country-man , may under the shade of some great oak , or upon the bri●k of some murmuring river , tast as much pleasure , in envisaging or viewing his own contemplated happiness , as a courtier can in eying the real objects of court delights . there are some who ( like the whales ) never leave the ocean of pleasure and publick imployments , till they be wounded by the darts of affronts , or discontentment ; and then they run ashoar upon a private life , but , like ships beat into a harbour , stay no longer there than the boistering storms arrests them in it . these are not the true disciples of sacred prudence , else the same experience which sent them thither , would retain them in it , and their life and their resolution , should have the same period . philarites was interrupted here by a troop of gentlemen , all masked , who entering the hall , made such a noise , that philarites was thereby invited to visite these unacquainted guests ; but no sooner did they see him , than rushing on him , they advertised him , that he was their prisoner , and thereafter carrying aretina alongst with them , together with aristobulus , whom they found asleep , they march down to the shoar , whence by their shallops they were carried a ship-board . finis . here is continued the history of aretina , which was too abruptly ended in the former page . the sun seemed to decline , that he might bath his scorching , and scorched beames in the cool ocean : and hespe●us was beginning to rendesvouze his sparkling spangles , in the azure heavens : when these incomparable prisoners , philarites , aretina and aristobulus were brought aboard of that pirat-ship : the melancholy aretina had nothing to consolat her in her disconsolat captivity , except the presence of her dear philarites , whose danger notwithstanding did imperfectionat extreamly the sweetness of his presence , which jealousie was transubstantiat in despair by the captains placing each of them in distinct cabines , leaving only melancholy for their attender , and a keeper for their train . aretina had scarce envisaged their avantcurriers of fear , and breathed up her first sighs : when the captain entering her cabin , entreated her to come forth to observe something that was very remarkable ; aretina knowing that it was folly to disobey the entreaties of these who may at pleasure command , obeyed 〈◊〉 : but alas , poor lady ! no sooner did the 〈…〉 fourty torches , handed up by as many 〈◊〉 souldiers , discover to her tearbe-dimed eyes the deck of their ship , then with it , it discovered likewise to her , fettered philarites , who expected patiently the bitterest insults of his enemies rage . aretina starting back , had almost deluged her soul in tears , and evaporated her life in sighes , had not philarites by this discourse arested that inundating passion . madam , ( said he ) albeit death be the greatest of changes , yet shall it never be able to change the greatness of my affection to you ; neither is there any thing in this the archest of terrours , which afflicts me besides the thoughts of leaving your favours unrequired , and your person unguarded , yet , madam , i hope that the unexpectedness of this fatality , will pardon the first , and that the omnipotent justice of the never good relinquishing gods , who have arsenalled thousands of thunder bolts in the clouds , to execute their just commands , will never suffer the last to be opprest : for , albeit some complementary athiests , thinks it a disparagement to the al-disposing dieties , to eye and pre-decree the meanest of actions , yet it were a great ebness of faith , to believe that they would relinquish a person , for whose satisfaction , and to celebrate whose praises all the rest of the world seems ( next to that of the immortal gods ) to have onely been created : but should i fear misfortunes , seing , ye ( divine princess ) can by bedewing my hearse with one tear , make me accomplishedly happy . and seing i die regrateing my separation from you , let me die regrated by you , and erect for me a monument in your precious remembrance . this discourse had almost entranced the passionately compassionate aretina , when her father monanthropus ( who had all this time been an undiscovered witness to what had past ) touched with the affliction of his daughter , and sufficiently convinced of her affection to philarites , which he could never formerly believe ; issued out , and imbracing her , entreated her not to fear the event of a fatherly experiment . megistus did at the same time unvizard his face , and running to philarites , hugged him in his arms . whilst one of the souldiers did unty him , immediately thereafter they entered the cabine ; and having shut the door , monanthropus relates to them ( whilst they were yet astonished with amazement ) how that megistus had ploted that supprisall , to convince him of the mutuall affection that they caryed to each other ; and thereafter turning him to philarites , he assured him that he esteemed his daughter happy , in being noticed , and much more in being loved by a person of such eminent qualities , but that he was sorry that he was able to bestow no better requital upon him ; to whose valour he owed first his life , and next the rescue of his daughter , who only made his life and estate desirable to him . philarites interrupted him here , with this reply , sir , albeit i had as really engaged by my services the immortal gods , as ye in complement acknowledge that i have engaged you , yet could not the treasure of their unexhaustible al-sufficiencie , remunerat me with any thing more acceptable then aretina ; so that , sir , if you will authorize my pretentions to serve her , you shall thereby put me above the power of desiring any new addition to my present happiness , to whose hight , fate shall not be able to add the least measure . after this , imbraceing megistus , the gods ( said he ) fearing that man who placeth all vertue in advantage , would never put a true estimate upon friendship , if it were not seconded by reall advantages , do oft afford friends occasions of succouring each other in their mutual extreamities ; neither have i time , nor you modesty , to hear me catalogue your favours , which i shall alwayes esteem as such , as that none but you could bestow them ; and as oft as my pulse beats minuts , my heart shall coine thankfull resentments of them . thus did these overjoyed lovers , and generous friends , both admire , and congratulate each others happinesse ; thanking fate for her complacency , in leaving them nothing to seek now , but the continuation of what she had bestowed already , and unbridling their own passions with an indicible satisfaction , yet such a satisfaction , as that albeit it was compleat for the present , did notwithstanding receive a new accomplishment from the apprehension of the future ; and albeit love possess 't intirly all the corners of their breast ; yet were they repleat with friendship like a tunn , which albeit it be full of burnt coals , will never the less hold its just measure of water . neither did the intensness of their friendship , cool , in the least , the heat of their love , but both like two hands , did by their mutual heat excite mutual order in each other . philarites glad to have these nobles in a place which he was born to command , entreated they would do him the honour to go ashoar , to recreat their incommodat bodies , against whom the sea , and season had us'd so much rigor . and to this they presently condiscended , and went ashoar at that same place from which they were carried ; but whilst they were walking through the forrest , which verged upon the ocean , the clashing of armour not far from the beaten path , did awak the courage of the three generous knights , and importuned them to ride hitherwards : at their arrival upon the place , they perceived a gentleman , whose armour was windowed with breaches , and whose blood was removing from its shattered lodging ; beside him lay two of his servants slain ; against him fought only one , who , to their admiration , was covered with philarites armour , which the bearers sword ( seconded by much skill ) had so well defended , as that they had as yet suffered but little in the quarrel ; they were scarce advanced his length , when he had disarmed his adversary to whom he thus spoke . sir , these who fight without a quarrel , fight oft without success ; neither are the gods so idle spectators of humane actions , as to suffer courage to be the sole arbiter of such conflicts : your civil inquiry might have probably gained you a friend , whereas your rudeness hath lost you your sword , and your want of discretion , hath put you now upon the discretion of your enemy . noble sir , ( replyed the other ) your armour occasioned both my inconsideratness , and my mistake ; for they induced me to believe that you were philarites , against whom my revenge was only levelled . you are not much mistaken in this quarrel , answered the other , albeit ye be mistaken in the person ; for our quarrel shall still be one , though our persons be different . upon this , philarites presently started out , and calling aloud to him who was the conqueror , hold , noble sir , ( said he ) least ye pluck from that philarites , for whom ye pretend so much friendship ; the occasion of punishing one of his own disloyal subjects , who breaths by his clemency , that life which he would so willingly hazard against him ; he shew him formerly by continuing his life , how little he feared his malice , and now by condiscending to fight him , he will evidence how little he dreads his courage . this discourse surprised both the vanquished , and vanquisher ; but megistus and philarites were as much surprised , as either of the other two ; when he who had spoken so affectionately by throwing off his cask , shew them the face of the martial knight ; who having come to thracia in pursuit of the pyrate , and for the defence of aretina , had accidentally fallen upon the before-mentioned house of pleasure , which because he had lost his own armour , he had taken alongst with him that morning , and because of them had been pursued by this gentleman , whom he had now disarmed , who was osiris , general of that rebellious army which opposed the interest of their native prince : the king of thracia , after these three old and intimate acquaintances had witnessed to each other their kynd resentments of former favours . osiris ashamed of his ingratitude , and fearing punishment , humbled himself upon his knees before philarites , and made him this confession . generous prince , albeit the immense number , and unpardonable qualities of my crimes , might detract from the truth of what i am to say , yet believe , sir , that my conscience sick now with repentance , will freely vomite up these noxious humors by which it was formerly so much distempered : it is not , sir , that i intend to buy with this confession the continuance of my life , which because it is so spotted with errours , will be persecuted by legions of divine punishments ; i rather abhorre then desire it , no sir , it is the sence of duty , presented to my judgement by a dying temper , which wrings it from me , wherefore , sir , i shall unbury to you a mistery , wherin your repose is much interessed ; and by which , if i cannot wipe off my former rogueries ; yet at least , i shall evite the commission of new crimes . sir , many of your nobles ( of whom i shall deliver yow a particular list ) have combined amongst themselves , to levy an army , hoping that i should have , according to my undertaking , either killed you privately , or have brought you to them as a prisoner , in order to this design . i have waited at yonr house of pleasure till this morning , at which time , perceiving this gentleman in your armour ; i followed him expecting to have had you at my devotion , but providence , whose decrees are unrepealable , hath ordered it otherwise . our rendesvouze is to be six dayes hence , so that , sir , ye may prevent the disorders which we have projected . aristobulus had all this time darted such looks at the martiall knight , as evidenced sufficiently his rage against him ; but at last , when that impostume of rage broke , it blustered forth this envennomed matter , base menaleon , dares fate declair war against the immortal gods , by shouldering up an interest , which is so much their enemie : and shall the feet of thy cowardishness , be still so swift as to carry thee away from their and my just revenge : no , no , thou must resolve to quite that life , which thy want of courage endeares to thee above thy repute ; and i will rather resolve to pudle my sword in the blood of a traytour , then suffer thy treason to remain unpunished . the martiall knight convinced that philarites and megistus knew his courage ; resolved to shew them his patience , and so returned this answer . my innocency ( aristobulus ) needed not the patronage of my sword ; if ye had as much patience , as i have courage ; yet seeing ye will choose no other umpires , but our swords . assure your self , that my courage is not so fast a sleep , as that it needs such clamorous opprobries to awake it : nor is my sword so fixt in its sheath , as that it needs such shrewd pulls to pluck it out . come , come , experiment that gallantrie which ye so call in question ; and receive a just punishment from him , who was once willing to pardon your escapes . they were brisling up their despight , ready to exchange their noble lives : when philarites ( whose common friendship to both made him an enemie to both their . resolutions ) lodged aristobulus in his armes ; intreating megistus to keep fast the martiall knight , aristobulus screwing himself out of philarites embraces , and finding that his revenge behoved to be differred till another occasion : bolted away , leaving the martiall knight this adiew . dregg thy worthless life , through these disasters , which the just gods are preparing for thee ; and live fears martyre , till occasion suffers thee to relaps within my power . philarites rode after him , hoping to reconcile them , but all in vain , for aristobulus horse carried him away . philarites was because of this discourse , and at the intercession of the martiall knight , induced to pardon osiris ; and returning to monanthropus , and aretina , ( who were much satisfied with the sight of the martial knight ) it was resolved , that osiris should be left at the house of pleasure , both as an hostage of what he had promised , as also to ease him because of his desperate wounds . and that philarites should endeavour before the six dayes were expired to ensure the bonte-sense of that irreconcilable faction . affairs thus ordered , philarites entreats them to go alongst with him to visite the sweetest hermitage in the world ; wherein they might see a gentleman , who being a stranger , entreated my father ( said he ) to gratifie him with some retired valley , wherin he might cloister up himself for the residue of his life ; whereupon this valley was given him , in which he hath at his own expence built a house , orchard and garden : which the universe cannot equall ; here hath he lived these fifteen years by past , tutured by the rigidest austeritie , humane nature is able to endure ; by this time they were advanced as far as the avenues of the house , where , betwixt two files of well ranged trees , coasting upon the water , they perceived a gentleman , walking the pace of a funerall ; followed by two pages in a mourning liverie ; his face mantled with melancholy , resembled a rich cloth of gold , concealed under a black tirfanie , where the coruscant splendor did but scarsly p●ep out . his cheeks stood like empty palaces , where those noble guests , beautie , and vivacitie , had lodged formerly ; and his whole body resembled an house of pleasure , appropriated to be a charnell house . they no sooner perceived him , than they lighted down , and after the first salutes , megistus thus bespoke him . sir , it is not to divert , but to divertise you , that we come to profer you our attendance ; wherefore if ye apprehend , that our society suits evil , either with your leasure , or pleasure , we beg that ye would congediate us instantly . gentlemen , ( replyed the melancholy knight ) ye may easily perceive , that my hard destiny hath placed melancholies all destroying sword , at the door of joyes paradice , to forbid me a free entrie : and albeit it change the kinds of my torture , yet it never changes the desire , and designe it hath to torture me . yet company is a torture which seems more unsupportable to me than any other ; because i am sensible , that others there suffer with me ; yee are now in a place , wherein yee can observe nothing that is worthy , besides the unvaluable worth of him who bestowed the use of the place upon me . this pleasant valley , which was mantled with a pleasantly pyled grass , was garlanded every where by nature , with curious flowers ; in its middle did run a sweet river , which by its frequent windings , shew how unwilling it was to leave so sweet a valley ; one of its bancks was twifed with orange , figg , and other pleasant trees . whose fruit hang down , as if they seemed desirous to fall in the lap of their grandmother the earth . from this , they went in to a well proportioned chappell , whose floor being white marble , was indented in the middle with many deaths , heads , don couriously in black . it was hung round with dead mens skuls , in each whereof stood a great waxe-taper , which brunt continually , from the middle of the roofe did hing a hearse of cipress , all deckt with faded flowers , under it stood the statue of a young lady , in white marble likewise , wherein the artist had been so happy , as that it seemed twains with her whom it represented ; at the one end was placed an altar , all in black velvet ( with which all the room was tapistred ) all spangled with wormes , tears , and bleeding hearts wrought in golden embroidery . it was then the hour , wherein he used to celebrate the obsequies of his dead lady : wherefore he entreated aretina , and the other knights to share with him in his devotions , which when they had yeelded to , there entered two gentlewomen in deep mourning , with two lutes ; who were consorted in their singing by two priests ; all choise voices , the organ likewise helped them to tremble out these lugubrious lines ; since she is gone , why stay i here ? seing we were one , and she my dear , my halfless soul must sure be lame ; this bell doth tole , that it may blame my leaden motion to that sacred place , where with devotion , i her raying face may still admire , with eyes voided of sorrow , from whom the sun so clear , yet further light might borrow . but sure , the gods will not admit that i , should so near sit to such a dietie . let her then live , whilst sadned i , must ever grive , and never dye . he had all this time kneeled before her statue , and prosused so his tears , as that he seemed to wash the place whereon her statue stood . devotions ended , they dined ; and after dinner he conducted them to a park , where under stately oaks , and tale firres , did run a great many dear , whose heads were so well branched , that they seemed to glory in being natures cuckolds , the lyon , leopard , and tygre likewise ( tamed as it were by the dejectedly magestick looks of their master ) grazed contendedly . from this they entered a garden , where all the figures were cut out in deaths-heads , and hemmed in with dead-mens bones : in one corner of this garden was a walk , guarded upon both sides by cipress-trees , each whereof was topped by a skull ; at the one end stood a tombe , and at the other a grave ; here aretina begged of him the story of that peerless lady , whose death he so devoutely bemoaned : to which he returned this answer . madam , that question renewes to me these convulsion-fits of dispare , by which my tortured soul is so much distempered , and rackles that sore , which is incurable , though the gods themselves were my physitians ; for i mourn for what is past ; and since it is impossible , that the preterit should be recalled ; it is impossible that my wound should be cured : yet , madam , lest i should seem not to prefer to my private repose , the satisfaction of one who is so farr in affinity with her , as to be of her sex and qualitie . i shall relate to you that tragick history , which embiters to me the legend of my life . whilst lacedemon grovelled under the feet of fate , burriured by the hand of its own patriots ; a knight called lacetus , married a lady who shortly dying , left one daughter , whose beauty and parts , made her fully equivalle numbers of other children ; and who , because of her features , as well as of her oneness , was every way singular : it appears that the excelcellency of this one , encouraged him to marry that he might beget moe , so that before his widowes bed had left the impression of his first lady , he gives it that of a second ; who after his young daughter had creeped up to the years of marriage , seing that she extenuated her beauty , and fearing that she might extenuate her sons fortune , she treated her with all these rigours that a step-humour could suggerate to her : blunting her confidence , and narrowing her expence , so that her fathers house did appear a prison to her . a young gentleman who lived in the same countie , and was there much admired both for the greatness of his parts , and goodness of his humour ; regrating this downweighed condition , frequents much lacetus house , and goes oft a hunting with him ; hoping to gain pisetas affection ▪ ( for so was the daughter called ) neither failed he in his project , for importunity and opportunity , did in end engage piseta to him . which ipsetus ( this was the gentlemans name ) managed so discretly , as that none could bottome the mistery ; at last press'd by piseta , that he would relive her from that servitude , under which he truckled : and desirous to enjoy so peerless a mistress , he suits for her at her fathers hands , who deferred his answer till he should const●●t his oraculous wife ; who disswaded him from the match , and endeavoured to affront the gentlem●n ; and after many delayes which ●he 〈◊〉 continually , her rage at last lanced 〈◊〉 self ●o far , 〈◊〉 to cause threaten him : whereupon 〈…〉 conflicts , resolves to 〈…〉 ●●●tained piseta's consent and 〈◊〉 ▪ never either to love or marry and person else ▪ which he desired she might se●● with a sacred oath : not that he jealoused the stabilitie of her faith , but to secure himself against these doubts , and future jealousies , which is too anxious , love might suggest to him . ipsetus is no sooner gone , then that pernicious step-mother , whom the custom of doing mischief , had made bold to execute , and the intense desire to 〈◊〉 this poor lady , had made cunning to contrive all that her hellish-heart could invent ; did now with more cruelty and less fear then formerly , continue to afflict poor piseta . but amongst her other projects , this ensuing prank was the blow which was hardest to be warded ; because it disarmed her of her fathers protection ; which she sconced her self alwayes with formerly . she writes a letter , as directed from one , noretus , a pedling merchant of lacedemon : wherein he thanked her for the encouragement she gave him to continue in his affection , and regrated with her , her fathers and step-mothers rigour . this letter she sewed in a pin-cushion , which a dying lady had bestowed upon her , and which because of that , she had alwayes kept very diligently . this being done , she addresses her self to her husband , and there with tear-bedabled eyes , she condoles his daughters folly ; which did so prostitute her affection , and might possibly prostrate her body to such mean persons as noretus was , and acquainted him how she had received letters from him ; and as she was informed by one of her maids , was coverted up in her pin-cushion : wherefore , she resolved to seek presently the pin-cushion before himself . piseta is sent for , from whom her step-mother seeks it ; whereat piseta , sorry that her step-mother should seek that , which she behoved to refuse ; denies modestly with a blush to give it . her father perceiving that she both blushed and denyed it , flings away immediately to her chamber ; and taking it away with him , rips it up , and finds the letter , which soothed all that was told him . when he had collationed this with noretus , giving his daughter some gloves and ribbons , ( which the honest gentleman had given out of his affection to the family which had alwayes imployed him ) all is concluded infallibly ; this so inflamed him , that those flames of rage brunt his fatherly affection to ashes ; and armed him with the cruellest of resolutions against her : wherupon calling for her , he first chid , and then beat her ; so that scarce so much life was left her , as to resent the miseries under which she lay loaded . but after that her hard destiny had lent her further strength , that it might sport it self yet longer with her afflictions , she teared away her year like dayes , in regrating the sadness of her misfortunes , till at last like a too young branch , she yeelds under the unsupportableness of her burden ; and resolves to leave her fathers house , which her step-mothers malice had enchanted : and to sanctuary her self in some unknown corner , where at least none should upbraid her with the disproportionatedness of her condition to her birth : having thus packt up these jewels which her mother had delivered to her nurse to be given her , she steals away one morning to lacedemon ; but being wearied with such foot journeys , she retires into a meddow , a mile from the city , where after half an hours stay , she perceives a lady with her waiting maid come in a hackney coach , to breath in some country-air . after they had taken a walk or two , piseta accoasts the lady , and laying out his condition to her , entreated her ladiships charity in promoting her to some service ; the other who was a baud , glad of such a servant accepted her in her own service , assuring her that she should be tasked with nothing that was difficult : so that both being willing , she takes her in coach with her , and alots her a chamber very well equipaged , and the next morning cloathes her in a new gown , and all other necessaries . that night i ( whose youth clustred forth continually new grapes of wickedness ) came in to ravell away my time and moneys in that mother city , and recoursed immediately to the house of that old baud , where i used to feast my lust at all occasions ; at my entrie she rejoyced ( as she said ) at my good fortune ; for she was able to give me the fairest and sweetest maid she had ever eyed ; but told me , that i behoved to double her salary : i who thought gold but money , when imployed to such uses , pactioned with her for a double fee : whereupon she brought me in to piseta's chamber , and retiring , lockt the door behind her . piseta was imploying her time and needle very industriously , when my approach startled her : i must acknowledge that never any was so admiration-beaten as i was , at the first sight of that divine beauty ; but when i began to carresse her , she entreated me to be more reserved , and the more i pressed her , the more she recoiled : at last , longing to enjoy so desirable an object , i asked , why dwelt she here , being of so coy an humour . i came here to serve my mistress , but not to suffer such uncivil addresses ( replyed piseta ) which suits as ill with your discretion , as they do with my modesty : this answer touched my very soul , and finding that chance rather then resolution had guided me hither , i informed her , how she was in a mistake ; whereupon , poor lady , falling upon her knees , she begged from my sword , an issue to her endless troubles ; and told me her birth , and the occasion of her coming there ; with such speats of tears , as were able to hurrie away before them , the strongest bancks of obstinat perversness , and with so pathetick expressions , as were eloquent enough to enforce the greatest of cowards , to unsheath his sword in her quarrell . i found by her relation , that she was the same person whom i was to go in suit of , and acquainted her with my name and style , which did much encourage her . lady ( said i to her ) if i shall extricat you out of this danger , and re-enstate you in your former liberty , will you condiscend to marry me , to which after some reluctancie she at last condescended ; upon which i went to that old baud , and menaced her with the discovery of her wickedness , if she dismist not that young lady , whom she had so betrayed , and withall satisfied her for what expence she could alleadge she was at , and brought her to mine own house , where i waited upon her without offering the least indignity to her person , till our love was , authorized by marriage . but alas , this summer of joy lasted not long ; for a fourthnight after our marriage , a pilgrim did one morning desire to speake with piseta , whose devotion made this suit very acceptable . when she came in view , the pilgrim after a profound reverence thus occoasts her ; madam , my misfortune must sure be unavoidable , when notwithstanding , both of the number and zeal of my services , and in spight of your own vertuous inclination , it hath carryed you to forfeit your engagment to me , and because that my happiness , and your honour , were insolvably twisted together , to enrigide you so far against me , as that ye were content rather to risk your own repute , then to suffer the integrity of my happiness : if i shed not my blood in your quarrell , it was because ye wanted daring enimies , and if ye were kept from the knowledge of what i suffered for you , it was out of fear to make you suffer with me ; but that i was racked continually by your disasters , the gods who are now my punishers , may in that be my witness . but alas , madam , i had offended too much these just dieties , to expect such promotions from them , and they were too intimatly knowing to your condour , to suffer ; that match to be made in heaven : neither would i ( if i were not weary of this life ) remember the gods , by re-iterating my complaints , how i was guilty of so boundless presumption , which deserves as many chastisements as there dwells thunderbolts in the clouds to punish it withall ; yet , madam , as one who reposes all his weight upon one thing , must needs fall if that fail him , so seing i only lived to do you service , i must now die since my services are rebuted , and with that pulling a dagger out of his sleeve , he sent it to his own heart , to acquaint it that he behoved to die : piseta convinced that this was her dear ipsetus , and reflecting upon her own ingratitude , retired immediately to her chamber , and there uncloathing her self , she went to bed , and calling for me , immediatly she expressed her self thus to me . it must be an unsupportable burden of grief ( dear husband ) which your al-curing presence is not able to alleviat , and since i am criminell , both in slighting my oath , and in murthering the lovely ipsetus , why shou'd i yet commit another crime in endeavouring to evite the punishment ? and since i was not so vertuous , as to take example by others , i should be now so vertuous , as to desire others to take example by me . my own conscience hath sentenced me guilty of death ; why should not then my own grief execute that so just a sentence ? and why should i by prolonging my life , leave my self a possibilty of being yet more vitious ? no , no , dear husband , the gods are too just , to suffer me to live to betray you , who hath betrayed him whom i loved once as well as you . and since the bonds of promise were not , they have reason to try , if the bonds of death be strong enough to fetter me . neither could they suffer that your progeny should have been contagioned by the vitions leprosie of such a mother , or that your liberty of matching one to your vertues , should have been forbidden you by the valueless life of the worthiless piseta . these words epilogued her life , and made me a lifeless witness , of her tear-creating death , leaving me nothing but as much grief in legacie , as my never idle eyes shall be able to pay , although they imploy the whole stock of my moisture , for acquitting me of that obligation . finis . notes, typically marginal, from the original text notes for div a -e a rose is the arms of lacedemon . the antiquity of the royal line of scotland farther cleared and defended, against the exceptions lately offer'd by dr. stillingfleet, in his vindication of the bishop of st. asaph by sir george mackenzie ... mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the antiquity of the royal line of scotland farther cleared and defended, against the exceptions lately offer'd by dr. stillingfleet, in his vindication of the bishop of st. asaph by sir george mackenzie ... mackenzie, george, sir, - . [ ], , [ ] p. : folded geneal. table printed for joseph hindmarsh ..., london : . "licensed, nov. , . ro. l'estrange" advertisements: p. [ ]-[ ] at end. reproduction of original in library of congress. marginal notes. imperfect: geneal. table lacking on film. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng stillingfleet, edward, - . -- origines britannicæ. o'flaherty, roderic, - . -- ogygia. scotland -- history -- to . scotland -- kings and rulers. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - judith siefring sampled and proofread - judith siefring text and markup reviewed and edited - pfs batch review (qc) and xml conversion the antiquity of the royal line of scotland farther cleared and defended , against the exceptions lately offer'd by dr. stillingfleet , in his vindication of the bishop of st. asaph . by sir george mackenzie , his majesty's advocate for the kingdom of scotland . licensed , nov. . . ro. l'estrange . london , printed for ioseph hindmarsh , at the golden-ball against the royal exchange . . to the king . sir , it is not my practice to plead any thing for your majesty with zeal , untill i find it a matter of some importance ; and my self likewise convinced that i cannot answer my own arguments : by this rule , when i first saw the bishop of st. asaph's book , i took some pains to persuade my self , that it contain'd nothing prejudicial to that right of precedency , which is due to your royal race , as the most ancient monarchy which we know . but finding that there was no way to secure this precedency to the royal family , against those consequences which necessarily arose from his positions ; i thought it my duty , at that time , to answer his lordship's book , as i do now dr. stillingfleet's : especially , since they , in overturning the ancient settlement of the royal line in scotland , destroy one of the great foundations , whereby your majesty's grandfather , your father , and your last parliament , have farther engag'd , and encourag'd the loyalty of this your . ancient kingdom : wherefore , sir , these reverend divines will now , i hope , hold me excus'd , in regard that i pleaded first for them , with my self , before i pleaded against them , for your majesty : and if i could have found any man to have satisfied me , as to the inconveniences arising to the crown in these points , i had never printed that book in defence of the royal family , and of my native country . but , now humbly to satisfy your majesty as to the dangerousness of these positions ( even supposing the authours innocent of any ill design , as i am apt to think they are ) and to convince them , how impartial i am upon any national account ; i beg leave to mind your sacred majesty , that some of our own historians having erred with as little ill design as they , touching the succession of king robert the second ; an argument was drawn from it , in favour of bastards , and was much boasted of by the enemies of the true royal line , and thereupon , i did , to the satisfaction of all indifferent men , refute our own historians in that point , as , i hope , i do now these gentlemen in the points controverted . scarce any thing , sir , can be thought inconsiderable , wherein a crown is concern'd ; or any consequence so remote , but should be adverted to , in a season when a long rebellion has so far debaucht the inclinations of too many of your majesty's subjects : but certainly , nothing can be thought inconsiderable , which kings and parliaments have judg'd so usefull for establishing the precedence of the sovereign , and for confirming the affection and loyalty of the subject . and the doctor 's way of telling us , ( in place of all other defence ) that the irish carry up the royal line within six degrees of japhet , and so we shorten it , is not serious enough in a subject we ought to treat of with veneration ; since the doctor , in the same book , does but make himself merry with offlahertie , the assertor of this pretended antiquity . sir , the agreement of men of different professions , almost at the same time , against the royal line , is very remarkable ; some endeavouring by their swords to cut it short at that end which lay next to them ; whilst others , by their pens , have undertaken what derogates from its glory , by lopping off its remoter end ; which i 'm sure lay far out of their way : and i wish , that as your majesty has most successfully defeated the one , by your victorious arms ; so i may be so happy , in your prudent reign , as to contribute somewhat to disappoint the other , by what i have said in vindication of its antiquity . sir , the dutifull inclination i have to serve your majesty , is , i confess , much heightned , by the royal obligations you have been pleased to lay upon our nation ; not onely in your gratious protection of it , but in the glory you have added to that royal family , under which we have been so long happy . your majesty owes your success ( next to that mercifull and miraculous providence which still attends your sacred person and family to your own wise conduct , and to the great iustice of your cause ; and not to your councils or servants , though it is your majesty's goodness to be as kind to them as if you did . and therefore , sir , i am so far from valuing my self , upon any success i may , or can pretend to have , in pleading for your majesty , either in print , or at the bar ; that i shall still ascribe whatever advantages i may gain that way , to the iustice of your majesty's cause , without arrogating any part of it to my own skill or eloquence . and now your majesty having by your own royal influence , and the prudence of your proper conduct , overturn'd in so short a time all the designs of a rebellion , so deeply rooted ; and by your gentleness and clemency overcome the obstinacy of your most inveterate enemies , which is by far the more wonderfull victory , thereby contracting into one year the glories of a long reign : i can never have the vanity to imagine , your majesty should yet any way need the mean assistence of , sir , your majesty's most dutifull loyal and obedient subject and servant , george mackenzie . the contents . chap. i. the king's advocat in duty bound to defend the antiquity of the royal line . this debate , as it was unnecessarily started , so it 's unwarrantably continued . the authour's answers to buchanan's jus regni clear'd , and defended . chap. ii. that the scots were placed here before the tear . chap. iii. what the bishop of st. asaph and dr. stillingfleet say against our histories , from fergus the first , examined . chap. iv. our authours vindicated in the accounts they give of the genealogy of our kings . chap. v. the irish genealogy of our kings compared with the accounts given by the chronicle of melross , and both compared with the genealogies contained in our histories ; with a full proof , that our historians are to be preferred to the irish annals as to this point : ogygia examin'd . the antiquity of the royal line of scotland farther cleared and defended , against the exceptions lately offered by dr. stillingfleet , in his vindication of the bishop of st. asaph . chap. i. king iames , having in his basilicon doron , p. . founded his royal prerogative upon king fergus's having made himself king and lord , as well of the whole lands , as of the inhabitants of scotland ; and king charles the first , having in a letter to his parliament , an. . founded that kindness , which he expected from the scots , upon this ; that they and their predecessours were sworn to maintain that race of their kings which he now represented , after descents : i leave it to all indifferent men , if i , as king's advocate , was not in duty oblig'd to answer a book written by the reverend and learned bishop of st. asaph , to prove that king fergus , and posteriour kings were merely fabulous and idle inventions , since that assertion did not onely give the lye flatly to two of our most just and learned kings , but overturned the foundations on which they had built the duty and kindness of their subjects : and since precedency is one of the chief glories of the crown , and that for this , not onely kings , but subjects fight and debate ; how could i suffer this right and privilege of our crown to be stoln from it by this assertion ; which did expresly subtract about years from their antiquity ; and , in consequence , lessen'd it by other ? for we can produce no evidences for these also , which may not be quarrel'd , if our adversaries be allow'd to reject what is here controverted ; consequentially to which , ubbo emmius , magnified by the doctor , has brought down their antiquity to kenneth the third : and since nothing can be answered to these grounds , which i may conclude , because dr. stillingfleet has answered nothing to them , nor to the many reasons whereby i prov'd that episcopacy was no otherways concerned in this debate , than in as far as it was made a pretext for the more secure opposing our monarchy : i admire how dr. stillingfleet could adventure to continue the debate , especially after a whole parliament of zealous episcopal members , ( and wherein there did sit bishops ) had unanimously , after many of them had read , and all had heard of the bishop's book , thought of new again , this antiquity a solid and necessary basis for their loyalty . all that the doctor answers , is , that our kings are still ancient by the irish race , and so were kings in another place : but he should have consider'd , that the conquest of an ancient kingdom brings not to the conquerour the antiquity of those he conquers ; and our kings succeed onely to the irish by the scotish kings now controverted ; and if he rejects ours for want of sufficient proofs , he must by a stronger consequence reject the proofs ▪ that can be produced for them , and he does so indeed with much scorn and gayety ; nor can he prove our kings to be descended from fergus the second , if he allow not my proofs for fergus the first ; nay , which is more , i have proved the descent of fergus the second , from the irish , in their way , to be impossible , and all the authours for this opinion to have contradicted one another : so that these two loyal divines toil much to prove their king to be , not onely not the most ancient , but one of the last kings in christendom ; and are angry at me , though the king's advocate , for daring to say , that this was a king of lese majesty : by which i meant onely then , a lessening and wronging of the majesty of our common kings , though i qualified this rhetorical expression , by adding , that i was sure the learned bishop of st. asaph had written this with a design rather to gratifie his order , and countrey , than industriously to injure our kings or us ; and thus , in that matter , i have been gentler than my employment could well allow , or my present treatment does require . the doctor being resolv'd to found every thing upon his own authority , knowing of little other help , tells us , that such as are to write in matters of antiquity , should be extraordinarily vers'd in the best authours , and should have a deep judgment , able to compare them together ; and this being the preface of his own origines britannicae , may be , i am afraid , so constru'd , as if he would have us take his own word for his being a most learned and judicious antiquary and critick , for else he would not have undertaken this sublime and hard task ; as also he tells us by the same art , that it was not every advocate us'd to plead eloquently at the bar , and who took citations at second-hand , who could manage so weighty matters ; making it thus great insolency in me to grapple with him in our own history , which , a scotchman , and in the latin authours , which a civilian should understand best of all others ; for this debate requires little other learning beside these , and the reading of some few passages in others , which i have read in the authours themselves with as great attention as the doctor , without taking any of my citations at second-hand , or using them without considering first their full import , and remotest consequences , as several learned men here can prove , and will better and more convincingly appear from this debate it self ; in which , beside the main positions , i hope to prove that either the doctor has not understood so well , or at least has not used them so ingenuously as i have done . to reflect somewhat on me , and much on our historians , without contributing any thing else to the present debate , save what may arise from the weakning our credibility , the doctor asserts that i should have in my answer to buchanan's ius regni , deny'd that any respect was due to arguments brought from our histories , to prove his republican principles , and i should have decry'd our histories as fabulous , and invented merely to sustain those principles . to which my answer is , that i should be glad to find dr. stillingfleet as firm a friend to the power and interest of kings , as i have been , though i think he gives no great evidence of it , in urging unnecessarily all buchanan's popular arguments , with the same exactness that those do who wish them to prevail ; but none can-lessen the esteem of the book here in question , without reflecting upon the famous university of oxford , whose testimony i have subjoyn'd to this , and which i think the next to that of a good conscience . but to the point : i must remember our readers , that buchanan having urged against the absolute power of our kings , that they were limited by a contract betwixt king fergus and the people ; my answers were , that first this contract was deny'd , and a history may be true , though some points be foisted in upon design , else few histories are true ; and this is dr. heylin's doctrine as well as mine . ( . ) that fordon , whom they call our first historian , now extant , did expresly say , that fergus constituit se regem ; and this is clear also by the book of pasley , and i have clear'd that it could not be otherways ; and if boethius , has onely copied fordon , and buchanan , boethius ( as our adversaries contend ) they must be all regulated by fordon's loyalty . ( . ) that if boethius be urg'd against us ; we must consider all he says , and if so , we will find that he derives the monarchy from gathelus , and he was king without contract , before fergus , whose reign i assert not there , though i use it justly against such as object that tradition as argumentum ad hominem . ( . ) these limitations being found inconsistent with the safety of king and people ( as indeed all limitations are ) they were repeal'd by express laws in the reign of king kenneth the third , and by many and clear posteriour statutes , founded upon sad ▪ experience : and if such limitations could be introduc'd , they could be abrogated , by express consent , and so our kings are now freed from them . ( . ) i clear that these expressions crept into our histories by the humour which most churchmen were in at that time , of having kings depend on the church , and so not absolute ; in which our historians are less guilty than those of other nations , whom in friendship i will not now name . and as to the instance brought from our histories , to prove that the people depos'd kings ; that concluded onely that the people were rebels , but not that our kings were limited ; but to have deny'd our histories , in as far as they prov'd this , it concerned me to have denyed them till kenneth the third's time , which had been very ridiculous , according to the bishop of st. asaph's own opinion , and had justly defamed my book amongst my own countreymen . and how should we acknowledge this to be a peculiar guilt in our historians , except we deny the truth of all english histories since william the conquerour's time : because they mention limitations extorted from their kings ; murthers committed upon many of them ; and the right of election to be stated in the people , as i have prov'd in a letter to dr. stillingfleet , unfit to be exposed to publick view for the same reasons , that i think the doctor should have supprest that undutifull dis-respectfull part of his debate , against our historians who deserve much less to be taxt than his own friends , for their ill founded conceptions of the rights of monarchs in those days ; and to reform which , i have been somewhat more instrumental than the doctor . but such injurious and national excursions as this , seem to prove to conviction , more partiality than consideration in the doctor , though otherways an honest and learned man in cold bloud . but to shew that he is not a dis-interessed critick , i must observe , that he ingenuously confesses that he ow'd so much service to so worthy and excellent a friend as the bishop of st. asaph ; for though he adds , that if my arguments would hold good , they would also overthrow several things in his late book , yet this is but a mere pretext , for nothing in my book relates any way to any part of that subject which he treats upon , except in the second and fifth chapters wherein he takes also my book expressly to task in the same points . and therefore i conclude that if he , though a church-man , thought himself concerned in honour to own his friend , albeit an aggressour ; i as a king's advocate may be more justly allow'd to own our kings when attacked unjustly , and unnecessarily , by their own subjects , and beneficiaries ; and though it may be instanced , that the antiquity of the royal-line has been controverted in other nations , yet it cannot be instanced that this has been done by subjects , after their kings and parliaments have seriously founded the loyalty of the nation upon that antiquity , and the kings have asserted that antiquity under their own hands , upon so solemn occasions , which is our case , and where the antiquity it self is not absolutely fabulous ; but on the contrary , is in it self so reasonable , and is warranted by the testimonies of contemporary historians , and allowed by the most judicious criticks . chap. ii. that the scots were placed here before the year . now without either vanity or levity , or any distracting digressions , i must put the reader in mind that in my book i did onely undertake to prove against the bishop of st. asaph , that the scots did settle in britain before the year . and after i had prov'd this sufficiently , by the clear and positive testimonies which i adduced , and had made it appear by some of the same testimonies , that we settled here before iulius caesar's time ; and particularly that reuda , one of our kings , was expressly acknowledged by beda , one of the authours i cite ; i proceeded to prove that our historians are to be believed as to king fergus , there being onely a hundred and thirty years betwixt these two kings . as to which , our historians being many , and men of reputation , they ought to be believed , they having narrated nothing that is improbable , and having declared that they were sufficiently warranted so to write , by the records delivered to them by authority out of our ancient monasteries then extant ; and that oral tradition , universally received of a whole nation , is a great fortification of so short a step as a hundred and thirty years . and in the last part of my book , i clear against archbishop usher , and the bishop of st. asaph , that this countrey was called scotland , and we scots , before the year , a position they were driven to maintain in defence of their former paradox . dr. stillingfleet , without taking notice of these points which i treated separately in the method now mentioned , would more cunningly than ingenuously , make his reader believe that i have undertaken by every citation and reason to prove the truth of all the parts of our history from fergus downward : and therefore when i adduce a citation for proving that we were settled here before the year ; or that this countrey was called scotland before the year : he asks , where is there mention in these citations , of fergus ? and takes no care to consider my citations , with relation to the particular points for which they are produced , as in my * citation of scaliger , concerning the scotobrigantes , and in my † citation of claudian , &c. to return then to my first method , for the readers fuller conviction , i must put him in mind that i did prove the first of these positions , viz. that we were setled in scotland before the year . ( . ) by the authority of the british historians within the isle , ( . ) by the roman historians , who could not but know us well , because that nation fought long with us , ( . ) by ecclesiastick writers and historians , who prove that the scots were acknowledged to have been a christian nation here before that time , and therefore behov'd to have been setled here , ( . ) i fortifie these citations by most clear reasons , ( . ) because the import of some of these authorities is controverted , i appeal to the best historians and criticks , as the most competent judges betwixt the reverend prelate and my self ; and these i hope will be found to have asserted the truth of this my position , and the justness of my citations . the first citations i used were from gildas and beda , the most ancient and esteemed of all the english writers : and i did begin with beda , because he transcribes and explains gildas ; and i shall repeat the argument as i stated it in my first book . the venerable beda , though a saxon himself , and so an enemy to us , having written an exact chronology according to the periods of time , does in his first chap. de priscis incolis , tell us , that god was praised in five languages in this isle ; that of the english , britons , scots , picts and latines ; and then proceeds to tell that the britons were the first possessours , and possest the south parts ; after which , came the picts to the northern parts , and the scots under reuda thereafter made a third nation in that part belonging to the picts , getting the western part of scotland , north from the picts called dumbriton or alcluith , and he inculcates their fixing here by three several , but concurring expressions . . progressi ex hiberniâ , they left ireland . . sedes vindicârunt in britanniâ , they setled in britain . . in britanniâ , britonibus & pictis gentem tertiam addiderunt ; they added a third nation to the britons and picts , and that this was very ancient , is clear ; for he fixes them in britain in that chapter , wherein he treats de priscis incolis : and having thus setled the scots and picts , in his first chapter with the britons , he proceeds in the second chapter , to setle the fourth nation , viz , the latines or romans , beginning with these words : but this britain was unknown , and not entred upon by the romans , till julius caesar's time . and having described the wars betwixt these three nations and the roman emperours , in a due gradation marking every period of time , through the reign of their consecutive emperours : and how at last the romans had abandoned the island , and aetius the roman consul had refused the petition of the miserable britons , so often defeated by the scots and picts : he in the fourteenth chapter relates , how the britons upon deep consultation brought in the saxons , and from thence continues the saxon history . the second argument i brought from beda , was from the th . cap. l. . eccl. hist. where he says , that severus built a wall to defend against the other unconquer'd nations , and in the . cap. he tells that britain was vexed by the scots and picts ; two over-sea or transmarine nations : and thereafter , as if he had been afraid , that this word transmarine might have been mistaken , he adds , that they were not called transmarine , because they lived and were setled out of britain , but because they were separated from that part of britain by the two seas which did almost meet . and in this he agrees exactly with tacitus , who in the life of agricola says , that there being a wall built betwixt these two seas , the roman enemies were closed up as in an isle . to these arguments the learned doctor answers first that beda , in the beginning of his history , doth set down the five nations that inhabited britain , and so if the scots and picts be ancient , the romans and saxons must be ancient inhabitants too in his sense : for they are likewise reckoned before the war with the romans , his business being to give an account of the present inhabitants , and not merely of the ancient . to which i reply , that this is a mere imposing upon the reader : for beda , when he names the five nations , speaks of them in relation to the present languages wherein god was praised within the isle , but when he speaks of the old inhabitants , he speaks onely of the britons , picts and scots ; and the reason why he sets not down the particular time wherein these fixed in the isles , as he does when he speaks of the romans and saxons , is because he knew the one but the other was so ancient , that the exact time of their first settlement was not known ; for certainly a chronologue would not have omitted that if he had known it . for speaking of the romans settlement , he condescends upon the particular year : but when he speaks of the settlement of the scots and picts , he onely saith [ ut fertur ] as they say , a word which he could not have used here , had it not been in matters of the remotest antiquity . and if so , certainly they must be much more ancient than the . and the inquisitive beda was not able to reach so far back in the year . wanting the helps of the old manuscripts in our monasteries , which onely could tell him the exact time , and so he was forced to rest in the general remark of our being fixed here time out of mind even before his own age which was so near to the . that his own father might have told him precisely when we setled , if we had not setled here till then . the doctor 's second answer is , that beda does not at all intimate that the scots were in britain before the romans and saxons . to which it is replyed , that beda is a chronologue , and is carefull of the notation of time where he knows it : and therefore it seems still to me and has done so to such as understand well chronology , as sure a demonstration as that science can allow , that the scots being named as one of the three ancient nations inhabiting this isle , and their actions against the britons and romans , being narrated before the saxons are said to have entred , that therefore their settlement must be the elder , though it be not said in express terms , and if any account of kings , or memorable actions , were set down by a chronologue , without adding the years , these things behov'd to be considered ancient , according to the order wherein they are exprest ; especially in this case , since the * defeat of the britons by the scots and picts is made the cause of bringing in the saxons ; and the cause must necessarily precede the effect . in fortification of all which , we must mind , that this will agree better with the following citations , which clear , that the scots settled here before the year ; at which time the saxons entred , and that they were here before the romans , is likewise clear : for after they are marked to be setled in this isle , * britain is said to be unknown to the romans . and as the romans are acknowledged to have been here before the saxons , and so to be set down by beda before them ; why should not the scots be likewise acknowledged to have been setled here before the romans , since their settlement is first mentioned ? the doctor 's third answer is , * that though severus's wall was acknowledged to be built against the unconquer'd nations beyond it ; yet it is not said , that the scots and picts were these unconquer'd nations , else the controversie had been ended : but on the contrary , dion , by whom we may understand beda's meaning , tells us , that these nations were the maeatae and caledonii : to which it is reply'd , that beda , in his first chapter , mentions onely the scots and picts , as setled here with the britons : in the second he brings in the romans , and gives an account of their progress under iulius caesar : in the third under claudius : in the fourth under marcus antoninus : in the fifth , under severus , he mentions the building of the wall to secure the roman conquest against the unconquer'd nations . after which , in the th , he recapitulates the war betwixt the britons and romans , against these unconquer'd nations , whom afterwards he still calls scots and picts . and again , he mentions the scots and picts , as the onely invaders of this wall , built against those nations whom he called unconquer'd , without speaking of the maeatae or caledonii : so that from beda it is clear , that these unconquer'd nations were the scots and picts ; and therefore , by dr. stillingfleet's own confession , the controversie is at an end . and these moeatoe and caledonii were in effect the scots and picts , considered as highlanders and lowlanders : for bochart canaan , l. . . tells us , that camdenus rectè deducit galedonios à britannico caled , quod durum sonat ; duri enim & asperi erant incolae , & terra etiam tota horridis & confragosis montibus attollitur . caledoniis opponuntur moeatoe , camd. de britannia septentrionali , p. . incoloe ol●m in myatas & caledonios distincti erant , id est , in campestres & montanos . idem , p. . decheumeath , i. e. planities ad austrum . and he derives caled and meath , from hebrew and arabick of the same signification . and this farther appears by comparing dion cassius cited by the doctor , with claudian ; for dion onely says , britannorum duo sunt proesertim genera , caledonii & maeatoe : nam coeterorum nomina ad hos ferè referuntur . incolunt moeatae juxta eum murum , qui insulam in duas partes dividit ; caledonii post illos sunt . and claudian tells us who were these against whom the wall was built . venit & extremis legio proetenta britannis , quae scoto dat fraena truci , ferróque notatas . perlegit exanimes picto moriente figuras . from which i observe , that the moeatoe were in effect the picts , who dwelt in the low countrey nearest the wall , and that the caledonii were the scots who then lived in the hills . so that dion is so far from proving that the wall was not built against the scots and picts , that he agreeth with the other authours cited here and elsewhere , who all concur to prove , that the wall was built against the scots and picts . and the doctor might as well conclude , that our actions done here this day , are not done by the scots , because our histories speak oft-times of the highlanders and lowlanders , which are the maeatoe and caledonii . and i do conclude , that either the doctor is not a man to parallel authours with authours , or else he is not of that candour i did formerly take dr. stilling fleet to be . the doctor 's fourth answer is , that when beda makes the scots a transmarine nation , as dwelling beyond the friths , and not out of britain ; this is onely said in his own defence ; because in his first chapter he had setled them in britain : and no more respect should be had to this , than if a scotish writer in beda's time had spoken of the transmarine saxons , using the words of an authour who lived before their coming into britain , and then should explain himself that he does not mean the german saxons , but these who lived in britain beyond the two friths : would this prove that the saxons lived here before iulius coesar's time ? all this i confess is a piece of odd reasoning : for certainly we must either deny all authority and reason , or confess that beda , who was so ancient an authour , and liv'd so near to gildas's time , and to our countrey , behoved to know whether the scots liv'd in ireland or not : and it is not to be thought , that beda would have written so distinctly and positively such a great and palpable lye , merely to maintain his own assertion : and therefore his acknowledgment , that we were setled here beyond the friths , and not in ireland , proves sufficiently quod erat probandum ; and it seems to me a descension below the gravity of so great a doctor , to sport himself over and over upon the empty criticism of my calling this a demonstration ; neither is it any wonder , that the doctor is angry at me when i cite beda : for both the bishop of * st. asaph and † he , treat beda so , because what he writes makes for us . to gildas's authority it is answered by the ‖ doctor , that by these seas must not be understood the friths of forth and clyde , but the sea betwixt ireland and scotland ; because that gildas speaks still of them as carrying away their prey beyond seas ; and the passage over the frith behoved to be as large as that over the seas , being miles in some places ; whereas the passage betwixt scotland and ireland , is , in some places , but miles . to this it is reply'd , that the friths are called mare scoticum , both by our laws and the english writers : and to these i now add their own * luddus . his words are , bernicia verò à tissa ad mare scoticum , quod nunc frith vocant . to which the doctor neither has , nor can make any answer . and so the word trans mare is not impropriated when it is applyed to our mare scoticum : and though in some places the frith of clyde be so broad at the very entry to the ocean , where it is rather sea than river , yet many parts betwixt scotland and ireland are much broader than the broadest part of the friths . and the scots in their corroughs did not pass at the broadest part , but near the wall at dunbritton , where they were nearest the picts , and it is not a mile broad there , and is little broader for a long tract of the river under it ; and the broadest part of it is exceedingly more calm and passable than the irish sea ; the one being but a river and within land , and the other being a strait of the wide and open northern ocean , where the sea , by how much it is straitned , becomes the more turbulent . and therefore when claudian expresses our invasions and flights , he does it by oars . fregit hyperboreas remis audacibus undas . but that of the saxons by sails . — venturum saxona ventis . which presupposes sails . nor were the corroughs mention'd by coesar ( l. . de bello civili ) cited by the doctor , made for seas , but rivers , as is clear by the words , nec pontes perfici possent ; and these militésque his navibus flumen transportat . edit . variorum . & . it does not therefore appear probable , or reasonable , that a whole fleet should be made by poor pilferers of such stuff fit to carry an army , with its prey , over so turbulent a sea , and in the winter time , they having fought and pillaged all the summer , and the prey being then ordinarily either cows or horses , there being little else to be plundered ; and if they had passed at cantyre , which is that narrow place , they behov'd to have travell'd likewise over a whole tract of ground , and two other seas , before they had come to the frith of clyde , and the britons countrey . and beda explaining gildas's own words , tells us , that they ceas'd not to drive preys from the britons ; and agere praedam , to drive a prey , is what can onely be done by land , and so could not have been done in corroughs . nor is that driving by corroughs ever called a piracy , as it would have , if it had been from one island to another . but the carrying of beasts over a river is consistent enough with the driving a prey , though that this , in the doctor 's sense , infers an impropriety in the words , as well as a contradiction to common sense . whereas it is in the last place , urg'd , that a wall against the scots and picts had been ridiculous , if the scots could have come against the britons by sea. it is replyed , that the doctor ( not knowing the geography of the place so well as we , who have seen it ) does not consider that this argument proves rather against himself ; for if the scots had dwelt in ireland , which is almost to the south from dunbritton , it had been ridiculous to have built a wall against them from east to west : for against these incursions from ireland by sea in corroughs , it should have been built along the mouth and coast of clyde , from south to north , and the doctor will allow me at least to call this a demonstration ; it being a thing that may be seen . but the true reason why the wall was built , is very obvious , viz. because the incursions were made by the scots and picts , who were not formidable except when united , and they had no passage for an army when united , but over the wall : whereas any injury they could doe in their corroughs over the frith was very inconsiderable , and could have been easily stopt ; and so the wall was still usefull against conquest , thoughnot against piracy . and to conclude ; all this is most consistent with beda's sense of transmarine , but not with the doctor 's : and therefore we should rather believe the venerable beda speaking of things very near his own time , when they are very probable , than a paradox , broacht lately , far distant from these times , and defended now by our too partial adversaries : especially since beda shall be prov'd to agree thus , not onely better with common sense , but with all the authorities of the roman authours and criticks . and i must still mind my readers , that received histories are not to be overturned without infallible proofs brought against them . but who can be a more favourable judge for the doctor , than the saxon and so his own countrey-man , albertus crantzius ? or who can better understand the time of the saxons descent , and the history of beda , than he who is himself the famous saxon historian ? he * then tells us , that in the year the saxons were first invited here , but he says , let us write from a higher rise . and so he proceeds to tell how the picts setled here , and he adds , that within a very little after them , the scots , resolving not to stay in ireland , sailed sometime into scotland ; and being for a little time resisted by the picts , * both nations setled in that part , which is of very old called scotland . after which , he proceeds to † settle the romans , and to relate our wars with them , and he gives an account that the wall built by severus , was against the scots and picts , without mentioning , either the maeatae or the caledonii . from which it is clear , that crantzius not onely makes our settlement much elder , than that of the saxons , and that we were here before them by way of settlement ; and not by way of incursion ; but also expressly acknowledges , that our settlement was very near as old as the picts , who are beyond all dispute own'd to have been here long before iulius caesar's time . and ( which is very remarkable ) he cites none of our historians for confirming his opinion , and cites onely beda , whom he interprets , and understands as we do , and as indeed all th world does , except our prejudiced adversaries . it is also objected by the doctor , that gildas * tells us , that the scots and picts two transmarine nations , did first invade the britons , under maximus , which was long after caesar's time . to which it is answered , that gildas there designs not to speak of the first invasion of the scots and picts , upon the britons , but onely of the first of the three vastations made by them : for the scots and picts did often invade the britons formerly , as is clear by eumenius and others , yet they were never able to waste their lands , untill that maximus disarm'd the britons altogether , as gildas relates . and after this , gildas sets down the other two vastations , and names them all , under the express numbers of first , second and third vastations . ( . ) it is most clear by this passage , that the scots who made this vastation , liv'd not in ireland but in scotland , beyond the wall and friths ; for gildas calls both the scots and picts , transmarine , without distinction . and certainly the picts lived not in ireland at that time , and therefore neither did the scots : and consequently , beda did most justly interpret the word transmarine to be ; not because they liv'd without britain , but beyond the friths , and beda intimates that that was the common acceptation of the word transmarine , which is imported in the phrase , transmarinas autem non dicimus , &c. because it's 〈◊〉 by the bishop and the doctor , that gildas can onely mean in all these passages , the irish residing in ireland ; since he says * the irish returned home ; and where could the home of the irish be , but in ireland ? i think fit to refer the reader to the seventh section of my former book ; where i have fully prov'd , that by the irish , in these citations , is meant the irish inhabiting scotland , and which i shall again more fully vindicate in the fourth chapter of this book , from the objections urged in this new answer . i urged also in my book , many authorities to prove , that it was the general opinion , even of the english historians , that we were setled here , even before iulius caesar's time , to which the doctor returns no answer . and this having proved my position by authorities within the isle , i 'll now pass to the foreign authours . against the citation urged from eumenius in his panegyrick to constantius , the doctor does very little else but repeat what the bishop had said , and i had 〈…〉 ly refuted ; and seeing he can make none but such inconsiderable additions , i wonder to find that argument renewed , unless the doctor thinks that his authority is greater than the bishop of st. asaph's , for i have already observed , that the comparison is strong enough in buchanan's sense , which is all that is requisite . and i wonder to hear him say , that it was not a greater advantage , and more for constantius's honour , that he did beat the britons after they had been long trained up to fight , even by the romans , than when they were altogether rude , and had never seen any enemies but picts and irish in iulius caesar's time : for as common reason teacheth us , that they could not but considerably improve , in near four hundred years time of frequent wars ; so the bishop of st. asaph tells us , * that , to the end they might more easily resist the scots and picts , the romans taught them the art of war , and furnisht them with arms ; which is sufficient to sustain the strength of the oratour's comparison , when he asserts , that constantius's victory over the britons was greater than that of caesar's : and albeit the next paragraph mentioneth other advantages , yet it does not follow , that these advantages were not very considerable , and these advantages are no part of the former comparison , but make a new paragraph , and are a new heightning of constantius's victory , from other grounds , ( . ) i could never see how it could be truly said by the oratour , that the britons were used to fight against the irish and picts , if by the irish be not meant there , the scots : for as i have prov'd that we were called irish in those ages , so i desire to know where the britons were used to fight against any other irish save those , who inhabited britain ? nor do the irish pretend that ever there were any wars between the britons and them , save onely in egbert's time , which was many years after caesar ; and even this is but a conjecture of a late authour , usher and flahartie do adduce no more ancient authour for it . and so that cannot verifie the oratour's saying , that they were accustomed to fight against the irish in caesar's time . it is also very considerable , that the picts here are joyned , as used to fight joyntly against the britons , for it can never be instanced that the picts joyned with any against the britons , save with us . and it is indeed incredible , that the scots should be accustomed to fight from caesar's time to constantius's , and to the year , ( which must at least include about six hundred years , allowing onely one hundred years to verifie that word ) and yet never settle where they fought , venturing their lives for the defence of other mens lands for a prey , which could be of very little use to be plundered in those days , there being little to be taken save cattel , which could have been hardly transported in corroughs over such boisterous seas , ( . ) the doctor tells us , that britannicum , and not britannum is the adjective , or at least that this authour useth onely britannicum for the adjective ; and so soli britanni were not good grammar , if constructed in the genitive . but to this i reply , that the doctor adverts not that i have prov'd by citations , which he answers not , that britannum is an adjective and so soli britanni , good grammar in the genitive , and there is nothing more ordinary for oratours than to vary their phrase , using sometime one way of expressing , and sometime another , variety in such cases giving both delight and ornament : nor can i see why , if this had been ill grammar , cambden would not have carped at it , as he did not ; or how scaliger would not have taken notice of it , he having decided for us , after buchanan had put this construction on this expression : for though scaliger doth not expressly take notice of the construction , yet after he had fully considered the debate betwixt buchanan and luddus ( wherein this was one chief argument ) he decides for buchanan , which upon the matter is a clear approbation of buchanan's construction . this is all i contended for , by citing scaliger ; onely the citation of him on tibullus is wrong printed , for that of his on eusebius . and that this is a clear consequence drawn from scaliger in his notes on eusebius , is undeniable . and if so , then certainly the opinion of scaliger and buchanan , with cambden's acquiescence , is much to be preferred to our prejudiced enemies , whose learning does not lye so much that way . the argument from the pointing adduced by the doctor , in puteanus's edition of eumenius is not onely contrary to that of stephanus and plantin , which i have cited ; but even from that way of pointing , there is no advantage to the doctor . for to sustain the words soli britanni to be nominative , there should have been a comma after soli britanni : for as they now run , et soli britanni pictis modo , & hibernis assueta hostibus , they cannot be constructed otherwise than thus , natio rudis & assueta hostibus , pictis & hibernis , soli britanni : and if soli britanni likewise had been nominative , the oratour to make good grammar , should rather have said natio rudis , & soli britanni assueti , ( and not assueta ) pictis & hibernis . but abstracting from both the pointing and the grammar , it is undeniable from this place , that this ancient roman oratour did in the days of constantius before the year . consider our colony as accustomed to fight against the britons , and as a distinct people joyned in this war with the picts , which cannot be applyed to any other nation but to us . and therefore cambden and usher , more reasonably fly to another subterfuge , viz. that eumenius spoke according to the conception of that age , wherein he lived ; and it is undeniable , that that age considered onely us , and the picts , as fighting against the britons , and as two nations fixt here . but this answer is also very ridiculous ; for if our antiquity had not been very considerable in eumenius's days , the oratour would not have exposed himself so far , as to found the comparison upon a palpable lye , where he might have been traced ; and so i confess if such kind of answers as these be allowed , no nation can prove its antiquity . but agreeably to all these objections , this citation proves at least , that the * bishop of st. asaph's position , that the scots were not at all in britain , neither by incursion , nor by any other way , till the year . is inconsistent with this roman authour , as well as our story , and the general belief of rome at that time . the next authour whom i did cite , was latinus pacatius , who , in his panegyrick to theodosius upon his victory in britain , complements him for having reduc'd the scots to their own marishes ; which shews , that the scots had their own marishes in britain before the year . to which the doctor answereth nothing . and from the same authours calling ( in another place ) the same marishes , the marishes of the caledonians , i infer , that these marishes were in britain , and not in ireland ; and that the scots were called caledonians . and thereafter i adduce valerius flaccus and martial , to prove our antiquity . to all which , the doctor answers nothing , but that the caledonians were britons , without answering my citations , which i have adduc'd to prove this . and as to the criticks whom i cite for us , * he says very wisely and profoundly , that we are not to follow modern writers in their improprieties . this answer , so injurious to all the learned world , he also returns to my proving from lipsius , bergier and others , that galgacus was a scot. and when from tacitus himself i prove , that he must necessarily have been a scot , for the irish kings never came to fight in britain . he could not be a briton , because he was speaking to those who had never been under the roman slavery . and tacitus tells that he was a king of a nation unknown , and but newly discovered , whereas the romans formerly knew the britons . neither was he ever pretended to be a pict , nor is he in the genealogy of their kings . to all this the doctor answers nothing . all then that is answer'd to my testimony from tacitus , is , that those who fought under galgacus , were britons , and not scots , as appears by galgacus's speech to them , wherein he says , that they are the noblest of the britons , and fight to recover the liberty of the britons : and if tacitus had known that they came out of ireland , he had told it ; nor could that irish king who was with agricola , have omitted to inform him of this . to which i reply ; that agricola wrote not this relation himself , but it is written by tacitus , who had it from agricola , and so cannot be exact , being but the relation of a relation ; and probably agricola knew more of it from that irish king. but there is enough in tacitus to prove , that we were setled in britain at that time , and were of spanish extraction from ireland , which was all that irish king could inform . for it is clear , ( . ) that those who fought under galgacus were caledonians , and past not under the general name of britons ; for galgacus exhorts them , to shew by their valour , * what brave men caledonia had separated from the rest ; and though they were britons , yet that proves not that they were not caledonian britons , ( . ) galgacus tells , that they were yet † unconquer'd and untoucht , which is not applicable to the old britons , for they were conquer'd before that time ; but is so far peculiar to the picts and us , that we are still called indomitae gentes . ( . ) tacitus describes two different people in britain , one big and white , which shewed them of a german extraction ; another black in hair and face , said to be of a spanish extraction . and can any thing agree better with our histories , and the description of the picts , who are said to have come from germany , and of us who are said to be a colony of spaniards , that rested for some time in ireland ? and tacitus's saying , that it could hardly be known then , whether these nations were * originally britons , or strangers , shews , that we were there very anciently ; which is also clear'd by beda , and confirms what he and eumenius say . and immediately after tacitus , we are known under the names of scots and picts ; and the ablest criticks , who have compared histories , call galgacus expresly , king of the scots ; whose interpretation , because that is their trade , and they are disinterested , must be prefer'd to the doctor 's ; and i add now to lipsius , bergier and others , whom the doctor acknowledges to prove that galgacus was a scot , keppingius , who , though he doubts of some of our antiquities , places amongst these things , which are certain , that in agricola's time , galgacus , king of scotland , fought bravely to retain his liberty : and farnabius , a learned and judicious english critick , in his commentary upon martial , lib. spectaculorum , epigram . . l. . who on these words , nuda caledonio sic pectora praebuit urso . saith , the ursus caledonius is è scotia . and on these words , lib. . epigram . . quinte caledonios ovidi visure britannos . he interpreteth caledonios britannos to be scotos , conform to his exposition of the foresaid words . [ nuda caledonio , &c. ] schrevelius also , in his edition of martial , cum not is variorum , is altogether of farnaby's mind , and useth his very words in his commentary upon the two fore-cited places . i will finish this period with gretius , who , speaking of our barclay , calls him gente caledonius , &c. and with scaliger the father , who , in his exercitations against cardan , declares the ursi caledonii to be ursi scotici : which authours , and many others , have prevail'd with church-hill , in his divi britannici , to differ from our doctor , in confessing that the caledonii were the scots . by the same magisterialness , with which he contemn'd lipsius , and the other criticks , in the former citation , he does also condemn the authority of scaliger , and salmasius , in my urging the citations of scotobrigantes , in seneca , and of the scoticae primae , in spartian . but however i must beg leave , notwithstanding this , to consider , those two ancient authours , seneca and spartian , to be sufficient proofs of our antiquity , till the doctor 's friends can prove to me that he is a greater critick , and as impartial in this case as scaliger and salmasius are . but however , the doctor answers not the reasons i adduced , for proving these their criticisms to be most just : and these are abstract from all authority , and i recommend the reading of them to any impartial judge . claudian may be justly called by us , the scotish poet , as beda is the scotish antiquary : for claudian's whole poem is , in effect , a continued confirmation of our history . for he having written a panegyrick to honorius , and in it magnifying theodosius his grandfather , he describes all along his fighting with the scots , which sigonius calculates to be in the year . as isackson on this year observes . and i refer my reader to my former book , as to these passages cited by me , none of which passages can be applied to the scots in ireland , with whom theodosius never fought , but onely to the scots in britain , with whom it is certain he did fight , many monuments whereof are extant in that part of our countrey called ierna . but the doctor says , though this were granted , yet it would fall much short of alexander , or iulius caesar's time : and what then ? for i never intended that this should prove either , but onely that we were elder than the . but ( says he ) there appears no demonstration . more wonderfull still ! for i called it no demonstration , though i think it weighs as much as any thing in the doctor 's book . and i take notice onely of this raillery , and sophistical way of answering , to detect the two great engines which the reverend doctor useth all along in his book . that which he answers here speciously is , that by ierna , is meant ireland by the poet , and does he not mention the scots moving all ierne ? — totam cum scotus iernen movit , & infesto spumavit remige tethys . and is it not poetical ( says the doctor ) to say he mov'd all a little part of scotland ? to which my replies are , that first scotland was called ireland in these days , as i have prov'd in the seventh section of my former book , and shall prove more fully in the fourth chapter of this . onely at present i shall add , the * english polychronicon , which expresly tells us so , prior to fordon . ( . ) did theodosius conquer ireland , or persue them over to ireland ? and does any authour call ireland , [ glacialis ierne ? ] so then when a name is proper to two places , which of the two is meant , should be determined by the action which is said to be done in the place . and how agrees this with beda's telling , that we were setled here long before that time , and were not transmarine ? or with latinus pacatius , who says , that claudius , before that time , triumph'd over britain , and reduc'd the scots ad suas paludes ? and where have the irish any monuments and histories of these victories , as we have ? ( . ) does not iuvenal expresly make us , iuverna , which is the same thing with ierna ? — arma quidem ultra littora juvernae promovimus . which cannot be applied to ireland , because the romans never went thither , much less went they beyond it ; and the adding — et modo captas orcadas , & minimâ contentos nocte britannos . does not all agree with ireland : for it is neither joyn'd to , nor is it near the orcades , nor has it so short nights as we have . but ( . ) the name of ierna was not confin'd to the little conntrey of stratherne , but was extended to all the northern highlands , as far as innerness , and so the raillery of [ moving all a certain little part ] is insipid : nor is there any thing more ordinary than to give the denomination of a part of a countrey to the whole ; and thus , when it is said , the king beat the hollanders ; by this , is meant , the whole netherlands , though holland be onely a part : and this figure is so frequent in all the latin poets , that it were a mark of ones ignorance either to deny it , or insist on it . thus petronius arbiter expresses the defeat given by caesar to aphranius in spain , per funer a gentis iberae , though iberia be but a little part of spain , so called from the river iberus , because the battel was fought there ; which holds in every circumstance with our case , wherein the poet describes the trouble of all scotland , by ierna , because the battel was fought there , though ierna be onely a part of scotland , called from a river of that name . and all scotland , by the same poet , and to this day , is called caledonia , though caledonia be but a small part of it about dunkeld . and though i should grant that by ierne here was meant ireland , yet that cannot make against our being setled here before that time ; for it is very reasonable to think , that the irish , hearing that the romans had penetrated so far into scotland , as to have defeated so many of these as came originally from ireland , they would have sent over men to assist us ; especially knowing that it might be their lot , next : even as if the french should beat and ruine the scots now setled in ireland , our whole countrey would certainly be in a commotion , and we would send over men to their assistence , as we did in the late wars . i confirm'd this citation of claudian , by that of sidonius apollinaris , which is likewise an original proof of our antiquity . to which the doctor answers , that sidonius distinguishes the caledonian britons from the scots and picts ; this is , indeed , just such another , as if , because i call my self , in latin , scoto-britannus , i should distinguish my self from the scots and britons . but i would fain know who were these caledonian britons , who were different both from the scots and picts ; for after he has named the caledonian britons , in general , he specifies afterwards both the sc t s and picts . there is no answer made to the testimonies from hegesippus , ammianus marcellinus , nor orosius : and therefore i now proceed to the ecclesiastick writers cited . after i had made it very probable that this nation received , very early , the christian faith , because the christians , who were persecuted by the romans , would fly hither to us who had never submitted to the roman tyranny : i cited , in general , for our nations being converted under the reign of king donald , baronius , as the standard of ecclesiastick history amongst the papists , and the magdeburgick centuries among the protestants . and it is strange , if they , being disinterested , and having the help of their respective parties , should fail in so remarkable a matter as that of the conversion of a whole nation . nor can baronius be thought interested , because he would design to make our first mission flow from pope victor , and our first bishop to be sent from pope celestine : for it was all one to baronius , as making as much for the court of rome , that our first bishop came from any posteriour pope . and if our single and interested adversaries ( though so mightily extolled by one another , ) should be preferred to these authours , and as infallible as they would fain be thought , there is indeed an end of all controversie . but i am sure the rejecting of all authorities , i have cited , and which are not so much as controverted , will not take with the indifferent world , and that satisfies me . but however , beside the authorities of these great men , let us consider the grounds upon which they are founded , and which i have considered as well in all the editions of baronius i could find , as the doctor could have done , though the doctor in his wonted way magisterially says , that it seems i never looked into him . i am used in my employment to be contradicted , which makes me look exactly to my citations . and whereas the doctor tells , that what baronius says , relates to the conversion of the scots , and not to their antiquity , this is very ill reasoned : for it baronius concludes , that we were a distinct christian nation from the irish ; and had a church distinct from theirs long before the year . it must necessarily follow , that in baronius sense , we were a nation settled here long before the year . prosper does expresly say , that palladius was sent to the scots believing in christ , to be their first bishop , ordain'd by pope celestine . this mission is acknowledged to be in the year . and consequently there were scots before that time , believing in christ , so nationally , as to need a bishop . the controversie then is , whether these scots , to whom palladius was sent , were the scots in ireland , or the scots in britain for these reasons . ( . ) because beda says so in those chapters , wherein he speaks onely of us , and not of the irish , and dr. stillingfleet onely repeats here what i have formerly refuted . and beda could not but understand best of any man the conversion of a nation , to which he was so near a neighbour , to a church , in which he is accounted so eminent an historian and teacher . ( . ) the universal tradition of the christian church , and of ours in particular , makes palladius our first bishop , and our monasteries and church-men could not but carefully transmit such a point as that to us ; especially in an age wherein learning and letters were freqeent enough to be usefull , in remembring so extraordinary a point . and st. patrick is acknowledged by the irish themselves , to be their first bishop , which could not be if palladius had been before him so that the doctor here is forced to ove 〈…〉 all history and tradition , to establish his own . ( . ) the same prosper does elsewhere say , that palladius being ordain'd bishop for the scots , whilst he studied to preserve the roman isle , catholick , he made the barbarous , christian. and that our countrey was called an isle , is acknowledged by all writers , after the building of the wall. but i now farther evince this point by hadrianus valesius , an authour much commended by the doctor himself , who , lib. . rer. francicar . pag. . ad annum . has this most clear and unanswerable passage . sic igitur britanniae provincias quinque quae romanis paruerant , angli occupavere . reliqua picti scotique incolebant : et cum antea ut prosper docet , pars britanniae imperio romano subjecta , romana insula , pars à pictis , & scotis habitata , barbara insula appellaretur , omnis britannia barbara insula facta est . with whom agree petavius & car. sigon . de imper. occident . p. . so that dr. stillingfleet does unwarrantably turn this our argument into an objection . and the matters of fact narrated , being onely applicable to scotland , as i have said , and as is clear , by the best interpreters that must determine the case betwixt the irish and us. ( . ) baronius and the magdeburgick centuries make palladius our first bishop and the mission to be to us : and though they be not allowed by the doctor to be absolute judges , yet certainly they must be allow'd to be the best interpreters , and baronius expresly says , una omnium cum prospero est sententia , &c. that all others were of this opinion . the learned bishop of st. asaph , and dr. stilling sleet , to overturn this undeniable point , have invented a new hypothesis of palladius , having been first sent to ireland , but that his mission being unsuccessfull , he came back and died in the confines of the picts , and then the same pope celestine , sent st. patrick ; which hypothesis i may now think is fully overturned , since dr. stilling fleet answers nothing to the many absurdities and inconsistencies which i urged against it ; and to which i onely now add that since the bishop confesses that he dares not deny , that there were several conversions made before palladius in ireland about the year , it is strange that palladius should have met with so much opposition , as to make him so soon despair , that he returned notwithstanding his zeal , and st. patrick posted from france to rome , and from thence to ireland within less than a year : and so palladius is onely called the first bishop in nomination , and st. patrick the first in success . rare reasoning , rare despairing , rare posting , and rare distinctions to over-turn the universal traditions and histories of all the nations concerned ! upon which account the bishop of st. asaph * doth very ingenuously confess , that this doth not consist well with our hypothesis , nor with prosper's own words . and all this is founded upon nennius , as the doctor † acknowledges , and the ‖ bishop of st. asaph , and yet they confess that he is but a fabulous authour , and cites prosper most falsly , saying that palladius missus est ad scotos in christum convertendos , and upon a notation of time falsly imputed to baloeus , which i formerly urged , and is not answer'd . and the doctor in the forecited d . chapter , p. . would have us believe that prosper contradicts himself in making the scots to be converted by palladius , and yet to have been christians before his time , which are inconsistent . but he knows better things , for there were christians here before palladius : for he was sent to be the first bishop which presupposes christians already converted , and a church ready to be established ; and he being sent also to convert us from the pelagian heresie , as baronius petavius and others observe , it must necessarily follow that we were a church before that time , and remarkable too , for having a heresie ( which is an errour long , and obstinately maintain'd ) spread amongst us , and consequently we must necessarily have been a nation long before that time . but all men must be ignorant , and inconsistent , when they make against the doctor , and he cannot answer them . and why doth the doctor lay the stress of this * objection upon prosper : if he be such an authour as is not consistent with himself , as the † doctor says ? and therefore i may be allowed to say that prosper's testimony is for us . i must beg the doctor 's leave to say , that the learned dr. hammond differs not from me in the point here controverted ; for i have proved clearly from him , that we were christians long before the year . by dr. stillingfleet's own confession , pag. . praef . for if we were converted before the year , we were setled before that year . but so it is , that dr. hammond confesses , we were converted before celestine's time , and that palladius was sent to our scotia , and not to ireland ; to which dr. stillingfleet makes no solid answer at all . and where the doctor says , that i concealed dr. hammond's asserting that we received the first rudiments of the christian faith from the britains , in rejecting the roman customs ; it is answered , that whether we received christianity from the greek or romish church , or whether our conversion was rude or perfect , is not here controverted ; but whether we received it before palladius's mission : and that we were christians before his time , is clear from dr. hammond's own express words . and though i relate our conversion by pope victor , as the common opinion , yet i am so little tyed to that opinion , that i also , from beda , relate our agreement as to easter and other points , with the greek church , in contradiction to that of rome ; and from which , archbishop spotswood did , before dr. hammond , think that our conversion was from the grecian church . to conclude this whole point , concerning palladius , i am sure it s very irreconcileable , that dr. stillingfleet should acknowledge that the bishop of st. asaph mis-cited baloeus , for proving that palladius dyed anno . ( upon which , his whole hypothesis depends ) and yet that he should positively assert , that the bishop's onely fault was , that he was too exact in that hypothesis . the next ecclesiastick authour i did cite was tertullian , who about the year . says * that the british nations that could not be subdued by the romans , yet willingly yielded their necks to the yoke of christ. to this the doctor onely answers , that this must be understood of the moeatoe and caledonii . but this is inconsistent with baronius's applying that passage to us : and that sense is not so much for the honour of the christian religion , these being but sub-divisions of a nation . but since this passage of the conquer'd nations in britain , and that i have proved unanswerably by beda , that the picts and we were these unconquered nations , it necessarily follows , that this passage is onely applicable to us . the doctor answers st. ierome transiently , applying likewise what is said there of the scots , to the scots in ireland , without giving any special answers to the citations . but i have so fully refuted this in my book , that it needs no reply . but if the reader please , he may likewise consider st. ierome , where , speaking of pelagius , he says , * his extraction was from the scotish nation in the neighbourhood of britain . and though some contend that pelagius was a briton , none ever contended that he was an irish man , and the neighbourhood of the britons cannot be extended so properly to ireland , as to us . but whether briton or scot , yet it is clear from this citation , as well as from the former , that in ierome's opinion there was a scotish nation living then in britain , and that this was the common opinion of the age , else so good an authour would not have written so . to the citation from epiphanius , nothing is answered . i confirmed all these citations by several reasons , which are not so subject to quibbling as citations are ; for these are founded on common sense , and therefore the doctor answers little or nothing unto them . but i hope the reader will duly weigh them . but how can it be imagined that the irish would have sent no colonies to settle , till after the . year of god , they having been time out of mind , acknowledged to have been setled in ireland , and being a very broody people , and having no wars ( whereas the design of colonies is to dis-burthen the nation by foreign settlements ) or that they would not have assumed to themselves the glory and advantage of these wars ? or that the scots here would have fought for the picts above six hundred years together , without setling in the countrey , which they conquered , contrary to the custome of all other nations , who made incursions ? or how can it be imagined that the romans would not have resented against the irish , all their inrodes , if they had been made from ireland ? or that the picts could have subsisted without the scots , the romans and britons staying all the year within the isle , and the scots going home always in the winter ? or if they had not been setled among the picts , till the saxons were setled among the britons , how is it imaginable , that the picts would have invited them to setle then , when they had seen how the britons were ruined by their auxiliaries ? or why would the picts have invited them to setle among them , when the picts were become more numerous , by the generations of six hundred years , and after that they themselves were straitned in their possessions by the irruptions of the saxons ; a new nation who had gained all betwixt the two walls , which was , in effect , the far better half of what they possest ? and since the scots and picts were still joyned in all the actions that were performed , and are spoken of still in the same way , and phrase , how should we think the one was setled , and the other not ? and that no mortal historian , or other , should have observed this , till luddu's time ? all these reasons supporting one another , and joyned to our citations , should be at least allowed to maintain the authority of so many historians and histories , in possession of belief . having thus established my own position , by authorities and reasons , i appealed in this difference betwixt interested countries , to the dis-interested judgment of the greatest criticks and historians , and all whom i have cited are acknowledged to be on our side , as i have formerly cleared in the respective citations . to which nothing is answered , but that we must not believe them ( being modern writers ) in their improprieties : an answer indeed , not worthy of so undertaking an antiquary . that we must not believe antiquaries in their own art , nor dis-interested authours in differences between interested nations . but since scaliger is the onely critick , who is alledged not to be positive for us , i here insert his own words . in tibullum , lib. . te manet invictus ? invictus sane adhuc eo tempore . nam hactenus ne caesar quidem illos subjugavit . primus caesarum , claudius de illis triumphavit : cujus rei amplissimum testimonium habes in catalect . meorum lib. . nempe elegantissimos versus à quodam ejus temporis poeta scriptos quos inde petas licet . sed & seneca , in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , idem testatur in choricis anapoestis , & coeruleos scotobrigantes , pro quo ineptissimè hodie editur scutabrigantas . quare & scoti hanc gentis suoe antiquitatem mihi debent , qui primus illum locum emendavi , quum ipsi hactenus gentis suoe testem claudiano antiquiorem non haberent . and in eusebium n. . . et caerulei scotobrigantes , ut olim feliciter à nobis emendatum esse asserimus : adversantur tamen quidam , in quibus boni , malique ; docti , indocti ; aiunt scotos ante tempora senescentis , imperii notos non fuisse . utinam demonstrationem attulissent quâ nobis jugulum peterent . ante constantini tempora , inquiunt , notum scotorum nomen non erat . acutum sane telum , nisi plumbeum esset . burgundiones & longobardi , decrepitâ oetate imperii coeperunt notescere . qui eorum meminerunt , de vetustissimis velleius , & ptolomaeus , extant hodie . si periissent , ut multi alii , ideo longobardos tunc primum , quum in italiam irruperunt , burgundiones quum viennensem & secundam narbonensem occuparunt , esse , & vocari , coepisse diceremus — qui igitur ex hiberniâ in britanniam ferocissimi trajecerunt , non esse coeperunt , nisi postquam in britanniâ fuerunt ? quid stultius ? quid ineptius ? sed eorum nulla mentio apud ptolomaeum & cornelium tacitum , atqui nec burgundionum , longobardorum , anglorum & gothorum , apud plinium , strabonem , melam , alios . quam indignoe sunt hoe velitationes liberalibus ingeniis ? — postquam per multum tractum temporis septentrionalem oram britanniae excursionibus & latrociniis vexassent , tandem ab antonino pio in ordinem redacti , finibus suis sese continuerunt . from which i argue thus , scaliger there concludes , that we were one of the nations against whom claudius fought , and that we were never subdu'd till then . for claudius never fought against the irish ; and the scots here spoken of by scaliger , must be those whose antiquity scaliger did formerly prove out of seneca : for he says , * the scots owe to him the antiquity of their nation . but so it is , that the irish living in ireland , do not owe the antiquity of their nation to him : for it is not deny'd on either side , that they were much more ancient ; and i am sure the irish were not called scots , in scaliger's time . and both this passage of tibullus , and that of seneca , joining the scots to the britons , must certainly be interpreted onely of the scots in britain , according to usber's own rule . the passage likewise cited by me out of eusebius , ad m. m. l. x. does also prove , that scaliger thought us elder than the declension of the roman empire , as is now alledged , for he speaks there of that nation , of whom he had formerly spoken out of seneca . but so it is , we were these scots , and not the irish : and it was never controverted ; but the irish was a nation long before that time , as i said formerly : and consequently , scaliger contemns very justly those authours , who deny , that we were a nation before constantine's time , because no authours spoke of us till then : for , says he , the longobards and burgundians were established nations long before they were known by these names . and the nation of which scaliger speaks , is that nation quae trajecit ex hiberniâ in britanniam : and it were ridiculous to apply this to the scots in ireland , or deny that scaliger thought we setled here while the roman empire flourished . scaliger also there says , that after we had troubled britain by incursions , we were at last forc'd to contain our selves within our own bounds . which shews , ( . ) that we had made incursions long before antoninus's time , which was about years after christ , contrary to what the bishop of st. asaph saith . ( . ) antoninus forced us to contain our selves within our own bounds , and therefore we had bounds and marches of our own , before that time , and so we were setled long before . and all this agrees with eumenius and pacatius , and proves that what they write relates to us . ( . ) pausanias , ( whom scaliger there cites ) tells us , that antoninus took much land from them ; ergo , they had land before that time , for that land could not be in ireland , for antoninus never took land from the irish. and whoever these brigantes were , yet scaliger there makes us the brigantes , and the question there is onely concerning scaliger's opinion of us . nor am i concerned at his calling us brigantes : for i can prove that brigantes signifies not robbers , but highlanders , from the word briga , which signifies an hill. and i receive kindly the apology made by the doctor for the bishop , that his lordship called us not robbers , but onely produced a testimony from gildas , whom i excuse for abusing us , he being of that nation which was over-run by us ; and probably our spoiling of them might be the ground of his quarrel . the doctor likewise argues against my citations from favin and paulus aemilius , as speaking onely of an alliance betwixt achaius and charles the great , and nothing as to fergus , nor the succession of kings for . years before christ's nativity : but , alas ! how trivial is this reflexion ! for i never adduced these authours for proving directly , that part of our history relating to fergus ; but did justly argue , that we must have been setled here much earlier than the year . because about the year . we were a very considerable nation , and entered into a league with charles the great , which these authours do fully prove . and i likewise produced this citation , to shew how unwarrantably the bishop of st. asaph confined us to some few countries now erected into the earldom of argyle . as to sigonius , i shall set down some citations which formerly i forgot to place on the margin . but it is strange that the doctor could not find them , though he uses not to search much for what makes against him , his words are , * eodem anno ( qui fuit post christum ) julianus apud parisios hibernans , scotos , pictósque britannos incursantes audiens , lupicinum magistrum armorum in britanniam destinavit . and in another place he says , anno verò christi . britanni namque à pictis & scotis ( qui pictis adjuncti partem insulae ad aquilonem tenebant ) desperato romanorum auxilio ad anglo-saxones germaniae populos confugerunt . from which citations , it is undeniable that sigonius thought that we were possest of the northern part of this isle before the year . and that at that time we were joyned with the picts , in possessing the same . i cited also selden's clear authority , to which nothing is answered . and when i said in the first impression of my book , that all historians had own'd our history ; i meant all who wrote before luddus , and camden , which i still believe to be true . and yet to prevent quibbling , i ordered the expunging of the word [ all , ] in the second impression , before i knew of any censures but my own . and now the doctor produceth onely two , who wrote since their time , and are not of such weight as these cited by me . and if ubbo emmius had considered what i now produce , he had at least acknowledged our history before the year , whereas he does not so much as allow our history till after the year , which , even the bishop of st. asaph will think ridiculous , and which being after the french league is redargued by unquestionable proofs , neither is boxhornius special , and has been misled by usher . thus , i hope , i have again overturned the bishop of st. asaph's two chief positions relating to us , viz. that there were no scots in britain at all , before the year , which is expresly contrary to what is said by eumenius , tertullian , latinus , pacatius , seneca , spartan and beda ; and that other position , viz. that we were onely here by way of incursion , from the year . till the year . which was all that i did chiefly undertake , and for which , though i needed not to have produced arguments , but onely answered his citations , ( for according to dr. stillingfleet's own position , a received history is not to be overturned , but by very convincing proofs ) yet because i found that neither the bishop nor the doctor could bring any proofs to overturn our history , i have likewise proved , the truth of it as to these periods of time , by authorities which i may modestly say very learned men have thought unanswerable , and which the doctor 's answers ( being so insufficient after the assistance he has got ) shew to be so . chap. iii. what the bishop of st. asaph and dr. stillingfleet say against our histories , from fergus the first , examined . though i was not obliged to maintain our history beyond the year . that being sufficient to overturn the two positions laid down by the bishop , yet i think it fit and reasonable for me to examine also , what our two learned adversaries say against our histories in general , even as to these dark times , in which , neither our neighbours nor we can get such a sequel and chain of authours , as these i have produced to prove our being here before the year . let us then remember ( . ) that we are onely obliged to produce historical , not mathematical , nor legal proofs . ( . ) that we are onely maintaining our origine to be from a neighbour nation , and very near to the age of letters , and that there is nothing in this our origine , either vain or fabulous , we neither deriving our selves from aegyptians , grecians nor trojans , nor contradicting even in these first dawnings of our history , the uncontroverted tract of foreign historians : and so all these long digressions , which the doctor , to shew his own learning , produces , concerning berosus , manetho , suffridus and others , and particularly of their rejecting their own fabulous descent from brutus , is absolutely impertinent ; there being nothing that can be alledged in our history to contradict foreign historians , which i have not taken off in my first book , without any answer made to it . and though there should be some errours in the tract of a history , yet the whole history for that must not be rejected , else no english historian should be believed more than ours , we seeing in our own age , matters of fact , especially relating to our own countrey , very much mis-represented , to say no worse at this time ; and i desire to know what warrant luddus , ou first adversary , had for asserting the descent from brutus , and for his promising to prove it ; and yet this authour passes for a great critick , and camden states the debate betwixt buchanan and him , as the debate betwixt a great antiquary and a great poet : well decided indeed , and this is a great proof of camden's being an impartial antiquary , and since most of the old english historians who wrote their general history , tell of this descent from brutus , we may controvert in the same way the truth , even of their latter histories ; because they are founded on their old histories which assert brutus , and so contradict the whole tract of the roman story as ours do not . ( . ) the bishop and the doctor do both wrong us , very much , in observing , that all our neighbour nations have thrown out the old and fabulous beginnings of their history , but that we still retain our ancient fables , for any man that reads our history will see that most of our historians have omitted the old irish fables of gathelus and scota , and all that long line from iaphet to fergus the first , narrated lately again by ogygia , and much used by our reverend critick dr. stillingfleet in this answer against us . it is acknowledged by the doctor himself , that boethius and ioannes major do very ingenuously pass from many later things , because they smell of that fabulous age , but the doctor does charitably make these to be the effects , not of sincerity , but of craft : so nothing can stand in judgment before such criticks . the first thing i say then for our historians , is , that what they say from rheuda's time , is not onely made probable , but is undeniably proved by beda and eumenius , who do clear that we were here before iulius caesar's time ; and if we were , certainly we had kings , nor did the genius of our nation ever encline to a common-wealth as others have done : rheuda is made a scotish king by beda , galgacus by tacitus , donald by baronius and the ecclesiastick historians , and all this before the year . from rheuda then to fergus the first , are but by our computation years , and to what purpose should so many honest men have conspired , and a whole nation have concurred so zealously , to maintain a lye ; so little usefull , as the lengthning our antiquity , for so short a time as years ? and though there were nothing for it but oral tradition , why might it not be received for so short a period ? and since a father might have told this to his son , in an age wherein men lived so long , and especially as to the descent of a nation , and the race of kings , of which men are very carefull : to fortifie which , i adduced livius saying , per ea tempora rarae literae fuere , una custodia fldelis memoriae rerum gestarum , & quod etiamsi quae in commentariis pontificum aliisque publicis privatisque erant monumentis , incensâ urbe , pleraeque periere . but because there is a debate betwixt the doctor and me , concerning the translation of these words , i urge from common sense , that oral tradition was to be livius's best authority , in the beginning of his history , and in many things afterwards ; for though , after several years , the romans were exact in preserving their history by keeping publick and distinct records , which the doctor does needlesly prove , since it was never controverted ; yet certainly in those things which he narrated before the building of rome he could have no warrant but tradition . ( . ) after the building of rome , it 's not to be imagin'd , that a nation onely given to wars , would for many years fall upon the exact keeping of records . ( . ) these records might possibly bear the names of magistrates , which is all that is proved , and in a monarchy could have been preserved without these , as to their kings : for i will undertake there are few here but know who reigned these years by-past among us , though they can neither read nor write : and though private magistrates might be forgot , yet hardly kings , and very memorable actions could be so : and i dare say , that in our own , and in most of the considerable families like ours , not onely the succession , but the chief accidents which befell the family are remembred for two or three hundred years by many hundreds in the family , though there be no written history of such families ; so far does interest and affection prompt and help memory and tradition to supply letters . ( . ) though these records might have preserved names of magistrates and treaties , with the conditions thereof , yet what were the occasions of war , the considerable exploits and strategemes done in them , and many other such matters of fact , could onely be preserved by tradition ; for these were never recorded in any nation , and could have no warrant save oral tradition , without mentioning the harangues , and such like historical matters : so that livie , as well as boethius must have wanted flesh to fill nerves to support it , and colour to adorn this history . ( . ) since the city , and most of these records were burnt , we have as great reason to doubt of their history as of ours ; for albeit we cannot now produce the warrants of them after vastations as remarkable as their burning was , yet we have others who say they saw such books , even as dionysius halicarnassius cites antiochus syracusanus , for whose history no more is said by the said dionysius , but that he took his history out of ancient and undoubted words , and he is but one authour who says so of himself ; whereas we have many historians , who say that they with their own eyes saw the records , out of which they took the things they have . these things being premised , i renew the argument which i proposed in my first book for proving the truth of our histories . thus , these histories must be believed , and are sufficiently instructed , in which the historians who writ them had sufficient warrants , for what they wrote , and we have fiv● or six historians , men of untainted reputation , who when they wrote their histories , declare that they wrote the same from authentick records and warrants , which , being a matter of fact , is sufficiently proved from the testimony of so many honest witnesses , who declared they saw good warrants for what they wrote : and if this be controverted , what can be true in humane affairs ; or why should we believe livius , iosephus or others , since the authours which they cite are not now extant ? this is all the subject can allow , and what the learned bishop pearson and heylin think not onely sufficient , but all that is possible to be done in such cases , the one , proving by my method and arguments , that st. ignatius's epistles are genuine , and the other , that there was such a king in england as lucius ; and that he introduced into it the christian religion , in which the doctor agrees with him , against the bishop of st. asaph , and i hope our authours will at least give a deference to the opinion of two such emnent english divines . the laws also of all nations allow , that when papers are lost , the tenour of them may be proved , providing a probable way of losing of them to be instructed , which the lawyers of all nations call casus amissionis . but so it is , we assign two remarkable occasions and sufficient reasons , to instruct this casus amissionis . the first in the reign of edward the first , who industriously did take away our records . which in the process before the pope , we offered to prove by most famous witnesses in presence also of the said king , who , by his not contradicting , did acknowledge this matter of fact. the second in the time of our reformation , in which , the blind zeal of some , and the interested avarice of others , prevailed with them to destroy the records of our monasteries . and so far are these accidents true , not onely in history , but in our sad experience , that we want in matter of private right , what might have been furnisht us both from our records , and monasteries : and so it were ridicuous to think , that we abstracted those vouchers upon design ; especially seeing long after that , and till luddus time , no nation , nor authour , ever controverted our history ; and i challenge the doctor to produce any such authour , as certainly they would have done , if the matters of fact had been either ridiculous in themselves , or inconsistent with the tract of other histories . of this fundamental argument the doctor takes no notice , and makes no answer to it ; but i , to fortifie this argument , having insisted upon the probability of what our historians relate , and the reputation of the relaters , he runs out in an answer to both these , to which i shall make a reply : but i conceive nothing can take off the strength of my argument , except he either prove , that there could have been no such warrants , and that what is related is in it self inconsistent with the history of other nations , or that he had produced to us good authours contemporary with these things which he denies , and we assert , and had shewed that these authours deny these transactions , or deliver things inconsistent with them ; neiof which he has done , nor can doe . the first general ground insisted on by the doctor , is , that we have no historians who wrote in the time in which the things related were alledged to have been acted ; to which it is answered , as formerly , that an authour writing from sufficient records , is as much to be believed as if he had lived in the time ; and that is our case : and i again renew my query , if the doctor thinks that dr. burnet's book of the history of the reformation , should not be believed in the next age though the warrants of it were burnt , which is very possible ; and had it not been great folly , and impudence , in five or six honest men to have separately written , that they and each of them had the said records , when they wrote from them ? and though the doctor insinuates that this has been formerly done by one or two which he cites , yet there were not many concurring there , as here ; and it is a very different thing , for one authour to say that he wrote from such a record , a particular passage , in which none was concerned , and for many worthy men to say in their epistles to their kings and nation , that what they wrote was true from the records which they had given them from monasteries and other publick records , and to appeal to them as then extant : and certainly many would be very desirous to see these records in the time of the writing these histories , especially seeing the first historians who appear in print have both rivals , and enemies , as well as curious criticks , and the monasteries themselves , and the keepers of the pretended records , could not but have known the forgery , if any such had been . or durst so many ingenious men , though they had been careless of their conscience , have trusted their reputation in so nice and quick-sighted an age , as that , wherein all of them wrote , to the discretion of so many who could have discover'd the cheat ? nor do we find , even from what the doctor himself writes , that the single testimony of these who pretend to have written from records , is rejected , except where what they say is redargued , as inconsistent with other uncontroverted histories , and authours ; or narrate things , in themselves incredible , as is evident from the instances of humbald , geoffery , annius and others : so that to reject our histories , lest the world should be obliged to believe these , is no solid , nor just way of reasoning . but the bishop himself , to shun this , did with a greater shew of reason urge that our historians were but to be accounted as one , since they followed one another in a file : but i did fully take off this , by proving that each of them saw some few of these records , and warrants , a part ; and that they differed enough , to shew that they were in no conspiracy : and this i hold as acknowledged , since the doctor returns no answer to it . that there could be no sufficient warrants for our history , from the annals of our monasteries , is contended , because the monasteries themselves are much later than fergus the first , who is to be proved by these annals . but to this it is answered , that iona and abercorn , are monasteries acknowledged by beda , as long prior to beda's time ; and though the monasteries were later , yet they might have records as old as fergus , for this is very probable in it self , and consequently ought to be believed , since it is proved by famous witnesses . and whereas it is answered , that bare probability is not sufficient to sustain a history , but the annals themselves out of which it is taken must be produced : my return to this is , that if bare probability were onelyproposed , the answer is good , but it is not so when i say the thing is probable of it self , and is actually proved by witnesses beyond all exception . and whereas , to overturn this , it is contended from the irish annals , that fergus , whom we call the second , was our first king. to this i need say no more , but that i proved in my former book , that all the accounts which the irish gave of our entry into this kingdom , are inconsistent , and contradictory one to another , and to which the doctor has made no answer , and therefore they are not to be believed in themselves ; but much less are they to be believed when contrary to the annals of all our monasteries , attested by famous witnesses who saw them , and in a matter in which we were more concerned than they : and so it is probable we would have been more carefull to preserve it's memory , ( . ) i have proved in the first chapter , not onely by the assertions of our own historians , but by all the historians who speak of us , both without , and within the isle ; that we had kings long before fergus the second , and that we had even christian kings ; and it is almost impossible , that our monasteries could have been mistaken in that , or at least that they would not have condescended , who was the other christian king , if donald was not : and at least , our adversaries should be put to prove who was our first christian king , or acquiesce in him whom we assign . and it is also very strange , that not onely we , but the romish church it self should be mistaken ; they being very positive in concurring with us , whereas no other nation nor church condescends , as i have said , upon any other first christian king , or authours to prove it . and to conclude this period , i must say that it is wonderfull , that positive witnesses , that say they saw old annals , fortified by their histories both at home and abroad , pagan and christian , should be less believed than the ballads and traditions of another nation , who have none of these advantages : that beda should be of less credit than iocelin , and legends , in which i dare say the bishop and doctor believe but very little , if any thing at all , save this ; and why are not the legends of st. congall and st. brendan , who mention the settlement of st. fergus the first , as good as iocelin , and others , produced to prove that fergus the second was our first king ; especially seeing they likewise concur with beda in his rheuda ? whereas the other contradict him , and that our histories which have rejected gathelus and simon brek , because that too great antiquity is improbable , should be overturned by those who positively own a lineal , well proved descent from iaphet , and condescend upon days , and months , and that our historians which are many , and very much esteemed over all europe , should be overturned by the authority of rhimes , and rags of history , which no man adventured to form into any body whatsoever , till of late some specimen is given , in which , amongst other rare marks of veracity , our league with france was alledged to have been made with their kings ; as if france understood as little their own leagues , as they would have rome to understand their own conversion ; or that all the nations of europe should have been mistaken , as to this palpable point . i reflect not on the publishers of the manuscript of the abbacy of melros , printed at oxford ; for i honour every thing that comes from that learn'd society , in a special manner ; but it is no reflexion on them , to say that we have another , much fuller , in what makes for scotland , though it could not be so exact as the other monasteries , since it was ofttimes of old , under the saxons , who would certainly lessen what relates to us ; and thus the fault lay in the copy , and not in the publishers , for the authour of that manuscript calls beda our countreyman , so he must have been then our enemy ; but however it begins not with alpin , as the doctor alledges , though i mention that , because he is not mentioned in the oxford edition : for it declares , that it is to continue where the reverend beda left , and so is a proof of our nation , and history , from that time , and the differences of that from ours shall be printed , and i have at present printed these few . and though buchanan had the books of pluscardin and pasley , yet it does not follow that therefore the best and most part of the books of our monasteries were not carried to rome , or destroyed , and so cannot be recovered from rome ; and how can it be imagin'd , that those who burnt all our magnificent churches , would have spar'd a few books , written by monks , and which were so little esteem'd in those times amongst our zealots ? the doctor , in proving there was no such authour as veremund , forgets that i have prov'd by two famous witnesses , a lord of the session , and a principal of a college , ( both learned , and devout men , much esteem'd abroad where they travell'd ) that they had seen the book ; and here is no bare probability . and i hope it is uncontroverted , that the depositions of two witnesses cannot be taken away by probabilities ; nor can it be alledged that chambres followed boethius's faith in this , for he says he had it , and he cites many things material out of veremund , nor does the learned doctor pearson prove any other way the truth of st. ignatius's epistles , than by producing the testimonies of origin and others , who have cited passages out of those letters , as letters written by st. ignatius , though none of these authours liv'd in the age with st. ignatius ; and so they did not legally prove that these letters were written by him which are not in boethius . but however , let us a little examine the doctor 's probabilities . the first is , that many have forg'd authours , as annius : good ! ergo , these two learned men did it ; à posse ad esse non valet consequentia . ( . ) we have nam'd other authours , who are not now extant : ergo , veremund never was : good again ! and if fordon had been lost , or elphinstoun , whom we have not yet seen , such authours had been both denied , and so had that learned manuscript written by craig , which we have but lately recovered . ( . ) fordon cites not veremund , though he cites many others ; this is such another consequence , as if i should argue against the doctor , that boethius cites not fordon ; ergo , fordon never was . but i chuse rather to argue thus ; the bishop and doctor both think that boethius did onely transcribe fordon , and yet he never cited him , which they think he did , that he might have the honour of being thought our first general historian himself : and yet it is prov'd , there was such a book as fordon , then extant ; and therefore i conclude , by the same reason , that fordon transcribed much of veremund , and therefore conceal'd his authour . ( . ) bishop elphinstoun mentions him not ; but to this i answer , that the manuscript is not ours , and so may be gelt ; but i conceive , by the doctor 's epitome of it , that it is it self but an abridgment of fordon , and therefore he mentions not veremund , because fordon had not mentioned him , and it was very ordinary in those days , to write epitomes of fordon , some whereof are extant with us , and boethius tells us that elphinstoun never wrote an history , but onely prepar'd some materials for one ; and if he wrote a history , here is again another historian , who being a devout and learned bishop , must be thought not to have written without sufficient warrants . though then probabilities could overturn the deposition of witnesses , yet these have no weight , but what the doctor 's authority gives them . and though it were prov'd , that baker , baloeus , and the other english historians whom i cite , had not seen veremund , yet surely they thought it not onely probable , but certain , that there was such an authour . against fordon it is urg'd , that he mentions not our first kings from fergus the first ; to fergus the second ; and that he confesses he knew not how long any of these kings after fergus reign'd ; and from this also it is concluded that we have no manuscripts to instruct the same . nam , says he , ad plenum scripta non reperimus , to which it is answered , that this is a great argument of his ingenuity , for if he could have written without sufficient warrants , why could he not have made up this , as well as the rest ? but the true reason is ; that the warrants did then lie in the monastery , especially at icolmekill , where veremund's history was likewise kept . and it is clear , by boethius's dedication to the king , that he thanked his majesty for ordering that these should be delivered to him : and if the doctor should at present write such another dedication to the king , thanking him for letting him have the use of the alexandrian mss. of the bible out of his bibliotheque , could any man afterwards think that there were no such mss ? and that the warrants of the histories us'd so to be kept , as not to be got without publick authority , is clear by the custome of nations acknowledg'd by the doctor out of livy , and asserted by me in my first book . as to our nation , from paulus iovius , who was not interested in us , and consequently , it was no wonder that fordon , who was but a mean priest , could not have veremund and the other warrants which were necessary for filling up the history of our kings , between the two fergusses , which boethius himself could not recover without the king's command , the treasurer's assistance , and his own great expence and labour : and i know not whether it would not have been a greater villany and folly in him , to have asserted all this , if it had not been true , himself and all persons interested being alive , or a proof of fordon's ingenuity , in not filling up what was deficient through want of the warrants . against boethius , it is urg'd by the doctor , that he could not have had veremund , and other sufficient warrants from icolmekill , as is pretended , because his history is printed in the year . and he had not these records from icolmekill , till the year . so that the history could not be compil'd , printed and revis'd in a year . to which it is answered , that hector boethius is acknowledg'd to have had a better invention , than to have forg'd so improbable a falsity , especially in a thing he might have contriv'd as he pleas'd , and in which the honour of the nation was not concern'd , and as to which , the king , treasurer and monks of icolmekill could have controll'd him ; but this is easily reconcil'd , without a miracle , for certainly boethius was writing his history long before he got these records , and doing what he could , as fordon had done , without them before ; and having at last got them , after the third message , tertio nuncio , which shews he was writing before , he might have easily added from the beginning through the whole book , what was to be expected from veremund , and others , and which , i dare say , the laborious dr. stillingfleet could have done in a month , and there was time enough from the beginning of . to the end of . ( as we may well enough suppose ) being near two years to have done all this ; and this was a far less miracle than for the bishop and doctor to have sent palladius from rome to ireland , to preach there long enough to have a sufficient proof of the irish being obstinate , and to despair of success , to return , and to die in a countrey of the picts all in one year : and st. patrick , who was not then present , but was in france , to have got the news of this death , to have formed the resolution , and to have gone to rome , and prevail'd with the pope to ordain him , and all this in the small space betwixt the th of december , and the th of april following : at which time the pope died ; whose preceding sickness could not but have retarded that affair . i admire the doctor , for insisting on the printer's mistake , not mine , in calling turgot , archbishop of saint andrews , for i call him , p. . edition the first , bishop of st. andrews , and so the calling him archbishop afterwards could not have been ignorance in me , and the printers thought all bishops of st. andrews must be archbishops ; and by the mistake of the same kind , without any observation , martial is made to have liv'd in augustus's time , whereas i plac'd him in domitian's , and sent a copy so corrected , in print , to the bishop of st. asaph , and the half of our own printed copies are right in this , but in the second edition , i expung'd these , and some other literal faults , before i knew that the doctor or any else was to write an answer : and , i am glad the doctor is so fashionable a gentleman , as to understand martial better than i do : nor would i have insisted on the mistakes about fordon , and dempster , if these had not been material to my purpose , whereof the one is not yet answered , and the other not at all notic'd by the doctor . i urg'd upon this head also , that the sacred history was for many hundreds of years preserv'd by oral tradition : for though the iews and we acknowledge , that the scripture was penn'd by divine inspiration , yet in arguing against pagans , we must make this probable by other arguments . and the doctor , in his origines sacrae , ( which book i esteem very much ) uses the same common places with me , and amongst other things tells us , that men lived so long in those days that they were able to transmit historical relations with much more certainty than now . and iosephus , for proving the sacred history against appion , cites foreign authours that are all lost now , and yet we believe there were such historians . and albeit afterwards the priests did preserve their histories with great exactness , yet that way of preserving history by records , took not place for many ages . and though our monasteries are not to be compared with their priesthood , yet they were sufficient , especially in these sincerer times , to preserve our histories . and though what they preserv'd is not to be believ'd with a divine belief , yet they ought to have an historical one allowed them , especially since they are fortified by the probability of what they preserv'd , and the concurrence of as much roman history , as france or spain can pretend to . nor are the citations from our old laws to be contemn'd : for these at least might have been preserved by practice , as lycurgus's laws . and it is undeniable that skene , our famous register and antiquary , did within these years declare , he had old manuscripts bearing these our old laws , though they are now lost , without weakning our esteem or observance of them , and he has printed many of them . and though historians might have adventur'd to print some historical passages without sufficient warrant , yet neither they , nor our register , durst have adventur'd to print laws , nor would our governours have suffered this , without sufficient warrants . and we must be believ'd in what concerns us , and us onely . nor does it follow that because the laws of alexander the third were lost ; therefore the macalpin laws might not have been preserv'd , they being the foundations of the rights and successions of our kings . and therefore , as they were preserv'd with more care by us , they should have been attack'd with less zeal by the doctor , for his monarch's sake , whose partiality i tax in this , and not his disloyalty . and to conclude this period , in opposition to the doctor , i do think that the most fundamental of all laws were in all nations preserv'd by mere tradition , and are not written to this very day , save when some accident forces it , as in our late statute for the succession . which position , since able lawyers must acknowledge , i do not contend for it with a divine , who seems here to be out of his sphere , and more dogmatical than his profession will well allow . but why may not our laws be as old as about years ; since selden and church-hill tells us , that there are laws yet extant in london , older than any the romans had ? and the doctor 's raillery , that probably these laws were in another chest at icolmekill with the mss. which boeth says fergus brought from the sacking of rome in the time of alaric , to be contemn'd : for as great criticks , as the doctor , believe this to be true , as one may see by morhosius's learn'd book de patavinitate livianâ . from this received principle also i conclude justly , that since lycurgus's laws , and the old laws of other nations have been preserv'd , most of them without writing , and by mere tradition , why may not the same tradition be trusted for the names , and for some general and probable actions of our kings for years , viz. from rheuda , to fergus the first ? or why might not our monasteries have received these traditions from such as lived nearer these times than gildas did , to the first planting of christianity in britain ? and yet his , and other ecclesiastick traditions , are generally receiv'd , and acknowledg'd , and founded on , by our severe doctor , and churchmen ought to be tender of them , because without these , fanaticks and sectarians might press them very much . another ground whereby i endeavoured to render it probable that there were such warrants as these declar'd to have been seen by our historians , was , that what they declar'd was probable , and ordinary , for our countrey , and other northern countries , as ireland , and domestick historians call'd sanachies , and bards , who as poets preserv'd their histories . this varaeus observes in ireland , and powell in wales . * bardi custodiebant etiam nobilium insignia & genealogias . and in these were probably the memory of the names of our kings , and their considerable actions preserv'd . nor can it be imagin'd , that a family can rise without getting their lands from some kings ; nor could they have done considerable actions , except in their service : and so in remembring their own genealogies and actions , could not omit to record those of their kings . and livie , in the place cited , † tells us , that the histories of private families were us'd as the warrants of the general history , and those luddus does cry up as the warrants he us'd . nor does buchanan decry them , except in opposition to luddus his using them as proofs of these positions onely , that are inconsistent with the roman contemporary , and other histories . and in so far i acknowledge they ought not to be received ; but that cannot be alledged against us . i urg'd also that it was very probable , that we had ancient written histories ; because we had the druids amongst us who were priests under paganism , and they are acknowledged by caesar to have had the use of letters . and though caesar does observe that they were averse from consigning to letters the mysteries of their religion , yet it does not follow that therefore they us'd them not , in preserving the memory of their kings and memorable actions . the one proceeded from a design to keep their mysteries from being subjected to an examination , which they knew these principles could not bear ; and to conciliate a veneration to their religion from the ignorance of the admirers , as varaeus also confesses * . but without the other , letters had been altogether useless : for in what could they have employed them , if not in this ? and since caesar † is positive , that they us'd the graecian letters , in privatis publicisque rationibus , what can be meant by publicae rationes , save their historical account of things ? and this seems the more probable , that many of our towns and ports especially , have greek names . and to the doctor 's difficulty how the druids could have preserv'd their chronology in these ancient times , i answer from pliny , who tells , that they numbred time by the course of the moon , and not of the sun * : which proves , that very anciently they used chronology . nor does it follow , that because some of the druids are said to have oppos'd the conversion of their people to christianity , therefore others of them were not zealous for their conversion : even as though the ancient philosophers were generally severe opposers of the settlement of christianity , yet many of them , when converted , were eminent lights in their time . and therefore i may conclude , that since it is very probable , that our predecessours would be curious to preserve the names of their first kings , and the way of their first settlement : and since they had letters wherein these might have been preserved : therefore it is probable that they were accordingly preserved . and that these traditions and records , as well as the histories of private families relating these were consigned to the custody of the monasteries with us , as elsewhere . so that since four or five worthy historians declare , they saw these each a-part , their testimonies concurring in a probable matter of fact must be as sufficient , as if the warrants were yet extant ; for since these would prove and satisfy in a legal trial , much more ought they to be allowed in an historical one , quod erat probandum . chap. iv. our authours vindicated in the accounts they give of the genealogy of our kings . the doctor being convinced from these undeniable proofs , that neither fordon , nor boethius did forge the ancient genealogy of our kings , which the bishop of st. asaph did positively assert , but that they had warrants and authorities before their times ; he falls upon a new device , and contends that boethius did insert many things contrary to the account of the genealogy preceding him . for as to the particular genealogy from fergus the first to fergus the second , he hath no account of this from fordon , who hath ( as the doctor says ) professed , that he could find nothing particular concerning them ; though he cites several chronicles ; and though fordon mentions an old high land gentleman , a genealogist , who gives an account of the first line betwixt the two ferguses ; yet the genealogy by him given differs from that , which is owned by boeth and buchanan , both in the number , and in the names of our kings . and this is alledged to have been done of purpose , to put in regents not owned by the genealogists , and to support the law of incapacity , and that he might get mention made of reutha , galdus , caratacus and donald . and the genealogist thus having extended the first line , doth as much shorten the second line , betwixt fergus the second and alexander the third ; whereof the doctor endeavours to give particular instances . so that the modern historians had added more kings in the race from fergus the second to alexander the third , than are contained in the genealogy betwixt fergus the first and fergus the second . and , upon the matter , the genealogist hath made no more kings in both races , than the historians make in the last race from fergus the second . and therefore the doctor is as culpable in shortning the royal line , as the bishop of st. asaph . he adds also , that fordon mentions another genealogy of st. david , made at the time of his death , which ought not to be attributed to baldredus , but to cardinal walter wardlaw , which exactly agrees with that of the highlander , except in the spelling of some few names , from fergus the second upwards , to fergus the first . but the latter part of the genealogy from st. david to fergus the second , being corrupted before fordon's time , he would not have it stand in record against his history , but cut it off with an &c. from david to fergus ; which caution he forgot , when he did specially insert the highlander's genealogy from alexander the third , to fergus the second . this is the meaning , as near as i can understand , of the doctor 's words , being in themselves somewhat perplexed . but the doctor takes notice of a third genealogy in fordon , which supplies , in some measure , the defects of that of king david , and it is the succession of kenneth , the first monarch of scotland ; and there he takes notice of the difference betwixt the genealogy and our historians . for he acknowledgeth that he doth agree with the highland genealogy , except that it hath dongare the son of donald braick , which the highlander doth omit , and makes onely ten kings betwixt fergus and kenneth , whereas our historians make twenty eight . in answer to this objection , i shall follow the method of the highland genealogist , which proceeds ascending from alexander the third , and the nature of the objection it self , which insists most upon the difference in the genealogist from our historians as to the second line , there being no objection made as to the first , except as to some small difference in the names ; and the onely considerable difference is betwixt finnanus and caratacus , which will easily be cleared in answer to the objection against the second line . and though the race and line be the same with fergus downwards ; yet with the doctor we shall make an imaginary distinction of first and second race : and first ; as i applaud the doctor , who hath better thoughts of fordon ( than the bishop had , who asserted him to have dreamed the history of our kings ) that he was so cautious , as not to set down the accounts that were imparted to him otherwise than in his sleep , because he could not give a full account of them ; so i must likewise vindicate boeth , who in his history hath neither differed from , nor contradicted fordon , nor any other of these mentioned genealogies . for as to fordon , though he gives not a particular account of the names , times and actions of all the kings betwixt the ferguses , yet he doth not profess , that he could find nothing in particular concerning them , as appears by the words cited by the doctor himself ; sed & horum sigillatim distinguere tempora principatuum ad praesens omittimus , nam ad plenum scripta non reperimus . for here he tells the full number of our kings , and five more , which may be true by taking in of fergus's father and grand-father , and some other three collaterals omitted by other historians ; and that they reigned in the isle , and not in ireland . onely he forbears at present to distinguish the time of their reigns , not having then gotten a full account of them , which he seems thereby to insinuate he expected before he finished his book , wherein he was prevented by death . but as he left materials for the last and great part of his book , so he might have increased the first part of his book in distinguishing these particular reigns . but it is likely , these authours he cites , viz. legenda brendani , congalli , grossum caput , and the several chronica , had nothing concerning these kings ; or that fordon himself had found nothing particular concerning them , when he knew so well their genealogy , both upon the occasion of the death of st. david , and the coronation of king alexander ? and as he gives the account of the most considerable persons , as fergus , reuther , eugenius ; so he distinguisheth their times , and tells how long the whole kings reigned , and gives disticks containing the periods of their reigns : albion in terris rex primus germine scotus illorum turmis rubri tulit arma leonis fergusius fulvo ferchard rugientis in arvo , christum trecentis tricenis praefuit annis . and in the place cited by the doctor , he asserts , that the forty five kings were ejusdem generis & gentis , and fergus's return is set down : ad natale solum properat relevare jacentes , rex fessos regni cespite sospes adit : intrepidus propria pandens vexilla leonis , terruit occursu quem fera nulla ferox . ocyus advenit , fuerat quae turbine diro subdita plebs x quater & tribus haec congaudens patrio [ regi servire , parata ad libertatem quicquid in orbe volat . and again , fergusius universas regni regiones , cis citraque vadum scoticum à patribus ab antiquo possessas , de muro lapideo , viz. & inchgaell ad insulas orcadas sub sua composuit ditione . doth the doctor think , that this was to profess , that he could find nothing concerning them ? and that after him , boeth could make no distinct and particular account of that succession , unless he feigned them for some partial end ? but to come to the highland genealogist , there is no difference betwixt him and our historians : for though his number be fewer than that in our records and histories , yet the reason is , because our historians mention all that did reign , whether by right or by usurpation , or whether in the direct or collateral line ; the genealogist doth ascend from alexander the third from son to father in the direct line , considering that line onely , whereof that king was descended , amongst whom some were never kings . the genealogist begins , alexander the son of alexander , the son of william , the son of henry , the son of david . here the doctor objects , that malcolm the fourth the maiden mentioned by our historians , is omitted , and henry placed for him . but this was very reasonable : for st. david had onely one son henry earl of northumberland , who died before his father : and so was never king , but left three sons ; malcolm the fourth , who succeeded his grand-father , and was called maiden ; he never married , and he had for his successour william his second brother , grand-father to king alexander , in whom also the race of that brother failed . and then from david earl of huntingtoun , the third brother by the families of bruce and stuart , the royal race is continued in a direct line till king iames the seventh , who now reigns . so then , if the genealogist had said , that william was son to his brother malcolm the maiden , and not son to henry his father , instead of agreeing with our histories , he had both contradicted them and common sense and reason . the doctor next complains , that betwixt malcolm , canmore and st. david four of our kings are omitted , and , we say , very justly for the same reason : for donald the seventh was malcolm's brother , and duncan his bastard son , none of whom had right to reign . and though malcolm had two elder sons , edgar and alexander the first , who did successively reign , yet they having no children of their own , the succession did devolve upon st. david the youngest son. the third objection is , that betwixt duncan , and malcolm canmore the historians put machaboeus , whom the genealogist omits , and very reasonably : for he was a collateral by dovada second daughter to malcolm the second , and usurped the succession before malcolm canmore , who was son of duncan . and was great grand-child to malcolm the second by his eldest daughter beatrix , whom the genealogist inserts , though she was never a queen , because by her the succession was continued . the doctor 's fourth and main objection is , that betwixt malcolm the second , and kenneth the son of alpin , the genealogist inserts none , whereas our historians insert thirteen ; viz. donald the fifth , constantine second , ethus sirnamed alipes , gregory the great , donald the sixth , constantine the third . malcolm the first , indulphus , duffus , culenus , kenneth the third , constantine the fourth , grimus . here indeed i acknowledge the doctor hath discovered an errour ; but i think it must be of the writer , or at worst in the highland genealogist his memory or expressions . and it is very happy , that it hath fallen out in this place , otherwise fordon as well as boeth might be suspected of partiality , or that they inserted these kings to serve their own ends : for even the doctor 's worthy antiquaries ubbo emmius and boxhornius , who have deserved so well of him , because they are most injuriously extravagant ; as to the antiquity of our kings , do admit the truth of this genealogy , after kenneth who subdued the picts . there are four indeed here omitted in the direct line ; constantine the second son to kenneth the second , donald the sixth , malcolm the first , kenneth the third , malcolm the second's father : besides nine collateral , viz. donald the fifth brother to kenneth the second , ethus alipes , constantine the second's brother , gregory son to dongallus , constantine the third son to ethus , indulphus constantine the third his son , duffus , malcolm the first his eldest son , culenus , indulphus his son , constantine the fourth culenus his son , and grimus , duffus his son , who were all collateral to malcolm the second . i shall give a very probable account of the mistake of the genealogist in this place . we see that it is twice kenneth and malcolm ; kenneth the second and malcolm the first , and kenneth the third , who was father to malcolm the second . the transcriber hath thought , he had transcribed the first kenneth and malcolm , and constantine , and donald that were betwixt them , and so hath omitted them , and proceeded to kenneth the third , who was father to malcolm the second . as in reading or writing , if two lines begin with one word , the reader or writer ordinarily omitteth one of the lines by mistake . and as this was no design in fordon , so it could not be ignorance : for he describes particularly all those omitted kings , and there is also a particular genealogy of them subjoyn'd to the end of fordon's book in the genealogy of king iames the second . and if any man make a history of persons , and draw out a summary of their genealogy , if there be any difference , the summary must be regulated by the history , and not the history by the summary . the doctor 's fifth objection is , that betwixt alpin and achaius the historians put convallus and dongallus ; and very reasonably , because convallus was fergus's third son , and dongallus was solvathius's son , and so collateral , to shew the exactness of our historians , as well in the collateral , as in the direct line . the degree of proximity of every person is proved by our historians from kenneth the second till fergus the second . the next objection is , the difference betwixt the genealogist and our historians , from king othabin son of aydan , whom fordon calls ethodius bind , and our historians , eugenius ( a grand difference indeed ) and achaius the second son of etfin , who was son of eugenius the seventh , who was son of findan who was never king , son of eugenius the fifth , son of dongard never king , second son to donald braik , second son to eugenius bin : for here there is both difference of kings , and many omitted . it is true , that here there is the like errour committed in transcribing with the former : for the genealogist , betwixt eugenius the seventh , ( whom he calls ethac ) and donald braik , he omits dongard , eugenius the fifth ; and fordon's genealogy of kenneth the great , to fergus the second , mentions dongard , but omits eugenius and findan . which errour of the writer seems to have proceeded , because there are two of the name of eugenius so near together , that he thought , when he wrote eugenius , he had written all that had preceded eugenius the seventh , and did the more easily forget dongard and findan , because they were not so well known , as never having been kings . but the mistake cannot be interpreted to be a design , seeing there is no advantage in it , and it is in omitting and not in adding any that never were of the right line , and falls happily out , where our antiquity is not questioned by any but by ubbo emmius , and boxhornius . for even iocelin and st. asaph do acknowledge the scots to have been setled under aydan mentioned by beda , as the father of this ethodius bind . and the doctor himself does settle this scepticism concerning the original of the settlement of the scots in britain under aydan , in the beginning of the seventh century ; but is uncertain , if , or how much longer before that time . and it could not be ignorance in fordon , who describes all the particular reigns of these kings . and in the opinion of boeth , findan is not omitted ; for he makes eugenius the seventh not to be grand-child to eugenius the fifth by findan , but immediately son to eugenius the fifth . the rest of these intervening kings were collaterals , viz. ferchard the second son of ferchard the first , malduine eldest son to donald braik , eugenius the sixth ferchard's second son , amberkelethus findan's eldest son , murdach his son , eugenius the eighth and solvathius , these four lineally descending from one another in the collateral line ; fergus the third eldest son of etfin and elder brother to achaius , ethas , or ethachi , or whether etfin or ethafind . but i cannot remark , that the genealogist calls ethafind son to ethdre , but he calls him son to ethachi ; or that the genealogist calls eugenius ethac . indeed the genealogist calls him ethachi , whom fordon in the genealogy of kenneth calls eugenius . but these are idle remarks . his objection betwixt fergus the second and eugenius the fourth is , that the genealogist makes dongall to succeed fergus , and , leaves out eugenius the second ; very reasonable indeed , because eugenius the second though eldest son , had no succession , and to dongard cobren succeeds , and to him aydan the father of eugenius . and there are left out from amongst our kings mentioned by our historians constantine the first , whom the doctor calls constantius , because he was dongard's younger brother , and congallus dongard's eldest son , because he did not continue the line , his line being extinct after the death of eugenius the third , convallus and kinnatell his three sons , and kenneth the first son to convallus his grand-child . but the doctor makes no mention of kenneth , but in place of him saith , that conranus is omitted by the genealogist , as if conranus and cobrenus might not pass for one . against the first race , his objections are much lighter , and so i shall not be so special in giving answer . his noticing the difference of names is very pretty , betwixt arnidal and dornadill , rowen and rether , not nothatus , as the doctor mistakes ( for nothatus being dornadill's brother a collateral , he is left by the genealogist as such ) and rutha for reuda , and ther for thereus , and rosine for iosin , and corbre for corbred , and daradiamore for dardanus , and that corbre's sirname of galdus was forgot ; and luthach for lugtacus , and mogalama for mogallus , and coner for conarus , ethach for ethodius , and fiachrach for satrahell , and athirkin for athirco , findachar for findochus , thrinkline for crathilinthus , fencormach for fincormachus , romaich for romachus , and enegussa , which the doctor acknowledgeth is plainly angusianus , though it be not so plain as many others of the rest he quarrels , fethelmech for fethelmachus , and engusafich and etheat for eugenius and ethodius , erthus for eirch . and so to have named this objection is to refute it , being the difference onely betwixt a latine termination and a vulgar , betwixt a highland and a lowland . and if he will take the pains to compare , how these same names are written in fordon , and how in major , he will find the like difference . and if he will not rest satisfied , he is referred to flahertie in his preface for a fuller answer . but feritharis and king donald , the first christian king , and nathalocus , and other two donalds are excluded by this ancient genealogists ; and very reasonably , because feritharis was brother to king fergus the first ; and donald , because he was brother to satrael . nathalocus was an usurper , concerning whose contingency of bloud , our historians generally make no mention ; all the collaterals proved by boeth * , buchanan † and lesly ‖ . and the doctor himself in his preface acknowledgeth , that nathalocus and donald were usurpers , and so could not be mentioned in the genealogy of the right line ; donald the third called of the isles , an usurper , and donald the second brother to findoch . and what though the genealogist by mistake hath called rosin the son of ther , when he was his brother ? and ethodius the son of eugenius , when he was his brother ? if the genealogist had mentioned all our kings that did reign , and had called the next always son to the former king , he had committed this errour oftner . and it hath not been fordon's ignorance : for he tells that ethodius was brother to eugenius . but the doctor says , after this you find a greater difference : for instead of finnanus , durstus , evenus , gillus , evenus the second , ederus , evenus the third , metellanus , caratacus , we find there onely dethach , iau , aljelah , even , ederskeoli , comermore . it seems , the doctor hath taken this at second hand ; for if he had looked either the genealogy of king alexander or king david , he would have found fin , which is the same with finnanus . but the doctor might have known , that such a small difference in names and numbers doth not overthrow the verity of a genealogy from his friend flahertie in his epistle to io. linceus , who takes the name of lucius gratianus in cambr. evers . as in the genealogy of the scripture cainan is interposed betwixt arphaxad and sala , who tells , that such like errours may proceed from one person 's having two names , or by taking a brother for a father , or the like mistake of the writer ; where the line may be a little lengthned or shortned , the tract of it remaining the same . but here , besides the difference of highland and lowland language , wherein alexander is called alaster , and archibald gillespie , gillus was a bastard usurper , and evenus a collateral to durstus , as appears by our historians boeth , buchanan and lesly . as to the genealogy of st. david , it is subjoyn'd immediately to baldredus his lamentation about him ; and , whether it be his , or cardinal wardlaw's , it furnisheth still another ancient and more credible authour , a cardinal . but perhaps he was not cardinal , when he told fordon the genealogy , but thereafter , and the transcriber of the scotichronicon hath given him his most honourable name . and though he died in robert the first of the stuart's time , yet he was archidiaconus of lothian , and secretary to king david the bruce , as appears by the * scotichronicon . and fordon saith of the account from him , dudum acceperat , and prefixeth a preface , in which he asserts , that st. david was descended from a glorious and ancient race of kings , who had preserv'd their kingdom free from slavery longer than any other race of kings had done , and had resisted or expelled all such enemies as had invaded them . post britones , dacos , pictos , anglósque repulsos , viriliter scoti jus tenuere suum ; et romanorum spreverunt vim validorum , exemplo quorum pensarunt praeterit rum inclyta scotorum proles laudem genitorum . this doth not agree with the doctor 's origin of us after the saxons , and our dependence upon them . this wardlaw bishop of glasgow is design'd in scotichronicon cardinal of scotland and ireland , and the account and verses appear to be far ancienter , than either wardlaw or fordon , otherwise fordon had hardly ever cited the relation of one contemporary with himself , and of one who was perhaps a younger man. and as to the pretence , that the passing from the first line before fergus the second will cut off the pretence of establishing the regents , and incapacitating the sons of kings being minors , this appears evidently to be false . for long after fergus the second's time , the collaterals did certainly succeed , till that evil custome was abrogated by kenneth the third , about years agoe . and albeit many murthers and encroachments were committed upon these kings of the first race , their times being more barbarous , what is that to the purpose ? were they therefore never in being , or not kings ? doth not flahertie tell us , that of the first hundred thirty six kings of ireland ; centum ferrum sustulit , septemdecim naturae concesserunt , sex pestis absumpsit ; tres fulmine percussi , & decem diversis aliis modis , singuli vivis excesserunt ? were there not murthers and usurpations in our second race , and hath not the like been every where ? and doth not the doctor remember of richard the third of england , who murthered edward the fifth and his brother , who were his own nephews , and usurped the crown ? and the inserting these , to lengthen the line in favour of regents had been ridiculous : for by a clear law these were cut off in kenneth the third's time ; and so our historians needed not the help of forged genealogies in this . so that i can see no design nor politick in fordon nor boeth , in this number and account they give of our kings , nor that they have differed from the genealogist , nor that the highland genealogist hath shortned the royal line , as the bishop of st. asaph hath done . and the doctor ought to have remembred , that i did undertake onely to maintain the antiquity of our royal line at the least ; to refute the bishop of st. asaph's hypothesis , of a settlement in the year , and not to vindicate every passage and part of our history which cannot be done , as to any profane history . by all which i may conclude most convincingly , that these three accounts given of the genealogies of our kings are so far from contradicting our history , that they agree with it , and being inserted in three several genealogies , prior to fordon , and being exprest by them upon very solemn occasions they do fortifie much the truth of the genealogy of the royal line , and that fordon did not dream the same , but inserted these genealogies in his history from good authours and by good authority . the reader may for his better understanding the answers formerly made , take a general view of this complex matter , as sum'd up in these short positions . i. that the highland gentleman was obliged to ascend from son to father , as all genealogies do ; and consequently he was obliged to name some who were not kings , because they were fathers to kings . ii. he was obliged to omit collaterals , because , though they were kings , yet they were not such as were comprehended within the gradation from son to father , whereas our history rightly sets down those who succeeded as brothers , as well as sons . iii. in this genealogy some are omitted , as bastards , and other usurpers ; and so should not have been insert in a genealogy to be repeated before the king , though they were likewise expressed in our histories , they having reigned de facto , though not de jure . iv. the greatest doubt , that is made by the doctor himself , as to our kings , is since fergus the second , after which , the irish and others acknowledge our historical genealogy ; or after kenneth the second , since which time even ubbo emmius does assert the truth of our history . and so any difference betwixt our history and genealogy must arise from the mistake of the genealogist's memory , or the transcriber's negligence ; and i have condescended upon a probable ground of mistake . v. most of the difficulties arise from the difference of names of the same persons , which is very ordinary in all genealogies . vi. there could be no design in our historians inserting any to favour the right of regents : for the succession of regents was condemn'd by a positive law , before some of these controverted kings did succeed . vii . it is not imaginable , that our historians would insert in their histories contradictory genealogies : for that were so palpable , that , though it could have escaped one historian , yet it could not have escaped many . viii . to illustrate farther the whole matter , i have subjoyned the tree of alexander the third his predecessours , both in the direct and collateral line , whereby it doth evidently appear , that all his predecessours mentioned by the genealogist were in the direct line , and that these kings of whom the genealogist made no mention , were onely collaterals to king alexander ; whose genealogy was recited . and i have also farther continued this genealogy in a direct line from st. david by the families of bruce , and stuart to king iames the seventh , who now reigns . chap. v. the irish genealogy of our kings compared with the accounts given by the chronicle of melross , and both compared with the genealogies contained in our histories ; with a full proof , that our historians are to be preferred to the irish annals as to this point : ogygia examin'd . i having urg'd , that our historians were to be believed in matters of fact , such as are the genealogies of our kings , they being many , and men of authority ; and having declared , that they extracted their histories from authentick records , though now lost : and these matters of fact being probable in themselves , and adminiculated by the current of foreign histories and authours , except our adversaries should redargue them by authours living in the time , or more credible , which were inconsistent with them . the doctor did therefore urge the inconsistency of our genealogies amongst themselves , which i have fully answered in the preceding chapter , and their inconsistency with the irish annals , which he contends are to be preferred to ours , we being descended from the irish , and they having more ancient annals than ours ; which i am to answer in this chapter . and , for the preference of our histories in the point of credibility , i adduce these following arguments . . no history can be discredited , as uncertain and fabulous , upon the testimony and authority of another history , except that other history be acknowledg'd by both the debaters ; but much less , where it is reprobated by him , who urges an argument from it . but so it is , that dr. stilling fleet himself does treat the irish annals in ridicule , as to the remote part of their antiquity , in his preface , page . and chap. . p. . where he proves , that they had not sufficient warrants before the eleventh century , which is long after the time , wherein both the bishop of st. asaph and he acknowledges that we were setled here . and consequently the authority of their history is not sufficient to overturn the time of our settlement , as it is asserted by our historians . . we desire to know , what warrants the irish had within six generations of iaphet ? especially to warrant them , not onely to condescend upon particular actions , mentioned , and adminiculated by no other histories , but even to be special in the coming of some from ireland , just days before the floud . and that partholanus , and others , arrived in ireland , anno . after the floud , in the month of may , the th of the moon , and upon wednesday . and how the doctor should urge this history against ours , as sufficient to overturn the credibility of ours , when he will not allow us to know so much , as when our nation at first setled in scotland , and who was our first king , about years after that time , when the romans , who lived long in our neighbourhood , in france , and fought long with us , are acknowledged to have had the use of letters , and the way of calculating time : both which were absolutely unknown in the ages mentioned in the irish annals . and either the irish had the exact knowledge of letters , and the calculation of time , when our first colonies came over from them , or not : if they had them ; why not we likewise ? and so the doctor does unjustly object to us , that our histories are not to be believed , because we wanted both these . or if the irish had them not , our history cannot be overturned by the authority of theirs . . it 's acknowledg'd by all the irish , except iocelin ; that we were at least setled here since the year . and so since that time we must understand the history and descent of our own kings better than any other nation can doe ; nor should any man debate with these that deny this principle . but so it is , that since that time , the irish accompt of the descent of our kings differs extremely from ours ; for they will have loarn to have been our first king , and elder brother to fergus , whereas our story makes no mention at all of any such king , but makes fergus the second the restorer of our monarchy . and their catalogue calls him fergusius magnus , a title never given to him who founds , but to him who augments the monarchy . and how can any man imagine , that a nation would have forgot who was the founder of their monarchy , and being so late , and yet have remembred his brothers , and all the rest of the line ; especially since loarn is said to have reign'd ten years , as offlahartie says . we make eugenius the second to have succeeded to this king fergus , but they make domangardus to have succeeded to him . they make congallus to have succeeded to domangardus , but we make constantine the first to have succeeded to dongardus , whom i conceive they make domangardus . to our corranus , whom he calls gouranus , did succeed eugenius the third ; but he makes conallus to have succeeded to him . to congallus succeeded truly kenatellus , but he makes aydanus to have succeeded to him . to aydanus succeeded keneth the first , but he makes achaius the first to have succeeded to him . the differences after him , will best appear in these columns , which may likewise be observed from the beginning of this period . the genealogy as in our histories from fergus ii. to murdoch . the genealogy as in the irish from loarn to murdoch . fergus ii. loarn eldest son , and eugenius ii. eldest son , fergusius magnus second son to erik , dongardus the second son of fergus the second . domangardus son to fergusius . constantine i. third son , all three sons of fergus ii. congallus domangardus ' s son. congallus i. dongard ' s son , gauranus congallus ' s brother . goranus dongard ' s son. conallus congall ' s son. eugenius iii. congallus ' s son. aidanus gauran ' s son. congallus ii. congallus ' s son. acbaius i. aydan ' s son. kinnatellus congallus ' s son. conadius achaius ' s son. aidanus goranus ' s son. ferqhardus i. conadius ' s son. kennethus i. convallus ' s son. danaldus i. brother to ferqhard . eugenius iv. aidanus ' s son. conallus ii. achaius ' s son. ferchardus i. eugenius ' s son. dungallius i. donald brec ' s son. donald iv. eugenius ' s d . son. donaldus ii. conallus ' s son. ferchard ii. ferchard ' s son. malduinus conallus ' s son. malduinus donald ' s grandchild by dongard no king. ferqhardus ii. eugenius v. donald ' s son. achaius ii. grandchild of donald i. by his son dongard . eugenius vi. ferchard ' s son. amberkelethus son of ferqhard ii. amberkelethus findan ' s son , who was son to eugenius . selvathus brother to amberkelethus . eugenius vii . brother to amberkelethus . achaius iii. son of achaius ii. and then murdachus amberkelethus ' s son. muridachus son of amberkelethus . so that , comparing . flahertie's account with ours , we shall find them to differ in names , the times of their reign , and degrees of their consanguinity , the irish omitting some who did reign , and inserting others who never reign'd , or at least , who reign'd not near these times , in which they are placed . my fourth argument shall be , that after the year we are acknowledged to be setled , and to have had a distinct kingdom from ireland , and to have had the learned monastery of icolmkill , from which swarms of learned men were sent to all places ; but especially to the saxons in lindesfarne , to whom aidan , finan and colman were sent bishops , as st. asaph and flahertie acknowledge . and therefore it cannot be denied , but that our histories must be much better believed , than either the irish annals , or the chronicle of melross , though they agreed in what they differed from our histories ; but much more , when they contradict one another ; especially when their differences are very considerable . and since the chronicle of melross is judged so authentick by the bishop and the doctor ; it must be concluded , that , when that chronicle differs very much from the irish , and comes near to ours , ours must be preferred to the irish in point of credibility . but so it is that all this will appear by comparing the three , in so far as concerns the genealogies of our kings , from murdachus , to kenneth the second . by our histories and genealogies , murdachus was son to amberkellethus , and began to reign anno christi , whereas by the chronicle of mailross he is made the son of ewam as he was indeed successour to ewam , or eugenius his uncle , though not his son , and he is called murizant , and he is said there to begin his reign anno . but by the irish catalogue of the scotish kings in ogygia , his reign is said to begin anno . by our history , etfinus , son to eugenius , begun his reign anno . by the chronicle , ewen , son to murizant , anno . by the catalogue , dongallus son of selvachus , is said to succeed his cousin german murdachus , anno . whereas dongallus did not succeed till the year . nor did solvathius succeed till the year . to etfin succeeded eugenius , who began to reign anno . according to our history . by the chronicle , hedobbus , the son of ewen , succeeded to ewen , anno . by the catalogue achaius the fourth succeeded to dongall , anno , and offlahartie the authour of the catalogue subjoyns to this king an observation , that in divers copies of this poem or catalogue . selvachus , achaius the third , achaius the fourth , and achaius the fifth , and gregory are wanting ; which shews , of how small authority this poem or catalogue should be : for achaius and gregory are two of the most considerable , and uncontroverted of all our kings in these periods . for achaius did make the league with charlemain , and is mentioned in many histories beside ours . and gregory lived after the time of kenneth the second , and is sirnamed the great , because of the victory over the britains , irish and saxons , and this is acknowledged , and is cited as such in the famous debate betwixt us and the english before the pope . selvachus also is acknowledged by the chronicle of mailross . but the secret and true reason of this suggestion is , that he might obviate the objection from the difference of the number , and suppress achaius , because they will have the league not to be made with him , but with the irish ; and gregory , because he invaded ireland . o! how witty are these contrivances ? to eugenius succeeded fergus the third , who began his reign anno . by the chronicle to hed succeeded fergus his son , anno . by the catalogue , aidus fin the first , corrupted ethfinn , succeeded to achaius the fourth his father , anno . whereas truly achaius was not father to etfin ; but etfin was father to achaius . according to the catalogue there are nine kings without any special chronology from to ; viz. our kings from fergus to kenneth , are by our histories . according to the chronicle of mailross . donall iii. solvathius . selvand . conall iii. achaius . eokall . conall iv. congallus . dungall . constantine i. dongallus . alpine the son of eokall , which shews that eokall was achaius , and then aeneas . alpinus and then kined son to alpin . aidus ii. kenneth ii.   eugemanus aeneas son.     achaius fifth son of aidus .     alpine the son of achaius , and then kenneth alpine's son.     here are many kings , of whom the nation , where they are said to have reigned in a very late and uncontroverted time , know nothing , and in which the irish not onely differ from us , but also from the chronicle of mailross , which seems to have been written by some english borderers , who though they have somewhat carelesly observed what was doing among us ; yet because of their neighbourhood and commerce , have understood the same better than the irish. it 's likewise observable , that by collationing that period of the genealogy of our kings , from fergus to malcolm ; the irish catalogue in ogygia , allows from the to the , being years for kings which is very short , whereas we allow from the to , being years for kings , which is far more probable in it self , and more agreeable to the doctor 's observation , who allows twenty five years to a generation , according to the most received opinion ; whereas this calculation allows onely ten years , and about ten months to every king , even in those ancient times when men lived long . and whereas it is still objected against hector boethius , that he augmented the number of our kings , by inserting collaterals to support the law of incapacity ; and to make the long account of time seem probable . it 's answered , that this objection is fully satisfied , both by the authority of the chronicle of mailross , and this irish catalogue , which insert collaterals , as well as those of the direct line . and if all these kings named by them had been in the direct line , that great number of fifty two joyned with the collaterals , had made the number of our kings in that period to have come near to an hundred , and thus each king to have had about six years allow'd him . i had not fully considered the irish genealogies when i insisted upon that argument from carbre lifachair , and now i acknowledge that my own argument from that book was of no moment , and to shew my ingenuity i pass from it . but the reason why i said then , that there might be a hundred years allowed for a man's life , is because the civil law allows so much , and a man is never presumed to be dead , till it is proved he lived an hundred years ; but i confess the doctor 's calculation from censorinus , of what makes a generation , holds ordinarily true ; and is to be preferred in the accounts of genealogy . my fifth argument against the irish genealogy is , that it differs not onely from ours and from that account in the abbacy of mailross , but from all the french historians , and our ancient records yet extant ; by which it is clear , that our king achaius entred in league with the french king charlemain : whereas the exact offlahartie , makes onely this french league to have been entred into with charles the sixth in the year , which fell in the time of king robert the second , and adds , that this league was made by robert stewart , lord d'aubigny , in which he confounds two known stories , that he may contradict wardaeus his countreyman ; for it is indeed true , that the ancient league was renewed with king robert the first of the stewarts , anno , the original whereof is yet extant in our records , and whereof the copy is in fordon : but this league was treated by cardinal wardlaw for us , and the count d'bryan for the french , and the same league was again renewed , anno , by iohn lord darnly constable of france , for the french ; and wardaeus makes this last treaty to be the first that was made betwixt our kings and the french : and offlahartie , not to contradict him , has joyned the persons who treated the one league , with the time wherein the other was treated . but that there was a league betwixt our achaius and charlmaigne , or at least long before the year , is most uncontravertable for these reasons : . the french historians acknowledge that this league was betwixt achaius and charlemain ; and i have proved by eguinard secretary to the said charlemain , that there was great correspondence betwixt them ; and that he esteemed very much the king of scotland . as also , i have proved from italian authours , that there were families descended of our scotland setled in italy , who came over with william brother to the said achaius . . not onely does chambers of ormond , who lived then in france , set down the articles of that treaty , and the several times it was renewed ; but fordon * does expresly insert the league that was betwixt robert the second , first of the stewarts , and the king of france . wherein the king of france acknowledges even at that time , the old confederacies and leagues , à longo tempore , inter praedecessores nostros reges firmatae & connexae ; and the king of scotland on the other part expresses , confoederatio inter illustres reges franciae & avum nostrum , this was robert the bruce ; and adds , et ab olim facta & diutius observata . and to instruct this part of fordon's story , as well as the league it self , we have the original league with king robert the first yet extant , and iohn baliol ( then pretended king of scotland ) refused to joyn with edward of england against philip of france , because of the ancient league made by their predecessours charlemain and achaius , et usque nunc inconcusè servata . whereupon a league is renewed and confirmed by a marriage , the tenour whereof is also extant in fordon , who also sets down the tenour of the pope's bull , prohibiting alexander the second , our king , to continue in his league with the king of france , but to joyn with the king of england ; and , as an effect of these leagues , marianus ( whom the irish call their countrey-man , albeit they also confess , that he called our countrey scotia ) mentions , that anno , the scots and french wasted the english : which shews , that this alliance was much elder , than either the , or the , as o flahertie asserts : and therefore , that excellent historian the sieur varillas relates , that charles the fifth's governour did advise him not to expect , that the king of scotland would enter into his interests , because the alliance of that nation with the french had lasted seven hundred years , without interruption , from king to king , before that time . and by these we may see , what a just authour ubbo emmius is , who rejects our history for many years after this alliance , and how judiciously he is produced by the doctor . but , though the french could have been mistaken in all their histories , yet it is not imaginable , that they would have bestowed great privileges and rewards upon us for services done by the irish ; and that the families , who came over at that time , would not have own'd themselves to be descended from the irish , and not from us . the doctor , to induce his readers to believe , that we are mistaken in the genealogies of our own kings , pretends that the true reason of the mistake of the scotish antiquities was , that we finding , that there was a fergus in the irish genealogy called fortis or fortamalius , who reigned truly in , and that in the descent of that fergus there was a conar ; and from him rieda called by the irish carbre rieda , and by us eoch and ried ; and that there were several other names in our genealogies agreeing with the genealogies of the irish , as eochoid , who was father to erk , and is acknowledged by both to be father to fergus the second ; the doctor from all this concludes , that the original mistake lay in applying the irish genealogy to the kings of scotland , and that we either imagined , or would have others believe , that all the kings mentioned before fergus the son of erk were kings in scotland , and so went back by degrees , till we made up a formal story of forty kings . to this we answer ; that it were a strange thing , that our story , which we have so well prov'd , should be overturned by the doctor 's mere conjecture ; especially , seeing there is no ground for such a conjecture from any of these steps on which the doctor founds his probability . no authour , for ought we can see , concurs with the doctor in this conjecture , as to fergus ; and o-flahertie , who pretends that he understands the differences betwixt the descents and the reasons thereof , goes no higher than conar the second . and speaking twice of fergusius fortis , he makes not at all him to be the first authour of our race . . if we had not had a sure warrant of the settlement and genealogy of our kings , but had onely inserted the kings of ireland , as ours , from a vanity to be thought ancient ; it is more probable by the same reason , that we would have improved it to a story of twice forty kings backwards . and why should the doctor make us to have sisted in fergusius fortis rather , than in fergusius rogius , or fergusius denti-niger , both kings in ireland before fergus the second ? . that there could be no ground for our sisting in fergusius fortis , is very clear : for he reign'd anno mundi , whereas our fergus began to reign anno mundi , and so we had lost years of our antiquity ; and we should rather have fixed upon hugonius magnus , who began to reign . and consequently agreed with the true time of our settlement , and there had been a more probable conjecture from what is said in ogygia , in the reign of reactus immediate predecessour to hugonius , in whose time it 's said from the manuscript of o-duveganus , that one ferc made a descent into albania , and conquered it ; and this ferc might have been more probably said to have been ferqhard , and so to have made way for the settlementof fergus his son as king here . the next step of this conjecture is , that wherein o-flahertie agrees with the doctor , and o-flahertie asserts , that all the antiquaries of scotland and ireland agree , that our kings are descended from carbre ried the son of conar the second , who was king of ireland . which step is also ill founded . for . though indeed we had a king called conar ( as we had but one conar ) yet here our conar does not at all agree with the irish conar in time : for our conar began to reign in the year of christ , whereas the irish conar the second began to reign anno christi . so that here we had lost years again of our antiquity . and the conjecture from the agreements in names is very silly , we being neighbours , and speaking one language ; and kings even in remoter kingdoms use to give their children , one another's names . the other part of that position , that we are all agreed , that our kings are descended from carbre ried the son of conar , and that our countrey is called dalrieda from him , this is false : for we own our being called dalreudini from king reuda or reutha , in which our historians follow beda's express words ; and rieda and reutha differ much in time , reutha having in beda's opinion setled here before iulius caesar ; whereas carbre rieda behov'd to be born long after that time , for his father conar reigned onely years after christ. . we had no carbres , who could be sons to conar the second , for we had onely one conar , and so no conar the second , and he was posterior to both our carbres ; for carbredus galdus reign'd in anno , and carbredus the second reign'd in anno , and so long prior to the reign of conar in . . as to the pretence , that eochoid ried , or etdach ried is the same with carbre ried , and that our genealogy had an eochoid ried posterior to conar ; this is groundless : for both our genealogies , and the irish have both eochoids and carbres , as distinct names , nor do the names appear the same any manner of way . . though it might be pretended , that our countrey was call'd dalrieda from a countrey in ireland , and not from reutha ; yet non conslat , that it was so called from a countrey call'd dalrieda , and so from the sirname of ried ; but from araidh king of ireland , seeing the same , o-flahertie gives an account of a king of ulster called fiachus araidh , from whom also a countrey in ulster is call'd dalaradia and dalriadia , and the inhabitants dalaradii . and this king araidh was also after conar : for he began to reign anno . and as it was more honourable to have a countrey called after reuda a scotish king , than from araidh , who was but a king of ulster , and so one of the kings of a province in ireland ; so it is yet more dishonourable , to have our glorious monarch , who now reigns , descended from carbre ried , who was but a dynastie in this provincial kingdom of ulster ; and so a subject , each provincial kingdom having five dynasties , as o-flahertie tells us . and from all this i leave to my readers to judge , whether dr. stillingfleet and his authours doe the king greater honour , in making him to be descended from a petty subject ; or our historians , who make him still to be descended from absolute monarchs . i cannot here omit to laugh at good o-flahertie for asserting , that our kings , even till the , were but dynasties , tributaries and subjects to the kings of ireland , and that aidanus got an exemption from paying tribute at the parliament of dromcheat ; where he appeared . and the doctor does great honour to our king in following such authours , and rather to follow them , than the venerable beda . the bishop of st. asaph has a different derivation of dalrieda from all the former authours : for he brought it from r● which signifies king in the irish , and eda the king's name ; so that eda was a different king ( and authour of this appellation ) from rheuda , carbre ried , echoid ried or araidh . and are our histories to be overturn'd by such irreconcilable authours ? the fourth step of this conjecture is , in the agreement of our history with the irish in the persons of eric , eochoid , mainreamhere , oengus fear , the father , grandfather and great grandfather of our fergus the second , though there be a difference in the rest of the line , from carbre to fergus , our historians making this line to consist of thirteen persons , and theirs of ten . but against this last period it is represented , that the small agreement in this step , as to the names of father and grandfather of fergus , with their residence in ireland , the grandfather having been expell'd from scotland , and fled to ireland , when king eugenius was killed by the romans under maximus , gave a rise to some unexact irish writers to imagine , that the return of this fergus the second from ireland , after forty four years absence , was our first settlement in britain . but the want of three in this period of thirteen in a direct line does much over-balance the small probability , that is urged against us from the agreement in two names , and some resemblance in other two , viz. in carbre ried , and eochoid ried , and aenegusa tich and angus fear . it is also very observable , that this irish genealogy allows years to these ten , viz. from the death of conar carbre's father ( who dyed anno , arthur his successour having begun his reign that year ) to the year , wherein laorn eldest brother to our fergus the second ( as they say ) began his reign ; and yet to fifty one kings from that laorn to malcolm the third , they allow onely years . and from the reflexion it is also more probable , that there were thirteen in this period , and that conar began to reign in the year , and fergus the second in the year , as our historians assert . to all these i add the irreconcilable differences amongst the irish authours , as to the first founder of our monarchy , and the time wherein it was founded ; as also the irreconcilable consequences following thereupon , wherein our three great adversaries camden , usher and bishop of st. asaph did so widely differ , as i have fully prov'd in my first book , without any answer ; and by which contradictions dr. stillingfleet himself is so misted , that he cannot determine , whether we setled in the fourth , fifth , sixth or seventh centuries , professing , that in matters of so great obscurity he could determine nothing . my last argument to prove , that our histories cannot be overturn'd by the irish , shall be from comparing the warrants of both . but , before i enter upon this , i must again regret in this book , as i did in my last , that the irish should mistake so far their own interest , as to suffer or furnish theirs to overturn the credibility of ours : since , because we acknowledge our selves to have come last from ireland , it were our common interest to unite together , and to sustain one another's antiquities , as their authours did before bishop usher , who was of foreign extraction . for , though they controverted some of our saints and monasteries , because of the common name scoti , yet till then they never opposed our antiquities , knowing that in so far as we prov'd our antiquity by roman and foreign authors , which they had not the occasion to do , they in so far were proved to be ancient , which stanihurst well observ'd , as i did remark , in my first book . and upon seeing the use that is made of authours against us , who are really for us ( as beda and others ) we are apt to believe , that theirs are not , if we saw them ; and that the irish rather omit our remote antiquities , than contradict them . nor would we have controverted the authority of their annals , though some of the english had produc'd them against us , if some of the irish had not by ignorance or mistake concurr'd of late with them . we likewise desire them to consider , how our adversaries , and particularly dr. stillingfleet railly their antiquities and authours ketin , wardoeus and o-flahertie , and yet seem ( which is severe ) to allow their antiquities , to the end they may encourage them to oppose us , laying still foundations in the mean time to overturn theirs also , when they have serv'd their turn , which i now proceed to discover . first , the milesian race is accounted by the irish their fourth race ; and yet this is controverted by dr. stillingfleet . and the authority and learning of the druids , upon which the irish do chiefly found the authority of their histories , is absolutely denied ; as it also is , that the irish had use of letters , till after st. patrick's time : and all the antiquity he does allow them is , as to general things , as , from whence they were peopl'd , and that they had successions of kings time out of mind ; and does magnify the tygerneck annals for confessing , that the irish antiquities , till the reign of kimbacius their d king , are very uncertain , and he liv'd within years of our fergus . and the doctor adds , that he might have gone farther , and done no injury to truth ; and at last brings down this truth to fergusius fortamalius , who liv'd anno mundi . which is years after our fergus ; whereas we necessarily conclude the irish to have a much greater antiquity : for there were many descents made here from ireland , to prepare the settlement of fergus ; and ireland lying in the neighbourhood of britain and spain , and describ'd by the ancientest geographers and other writers , as inhabited , and without any mention of conquest , it necessarily follows , that they must have been aborigines there . and , by the same reason , they having been very ancient , and wanting wars , must have eased themselves by colonies ; and , this countrey being within miles of them , our settlement must have been very ancient . and so the one does necessarily infer the other , and should not be made use of to contradict it ; and the english , who have conquer'd them , are interested to humble them , but we to maintain them . albeit then it is our own interest to support their antiquities ; yet in as far as they are now produc'd to overturn what relates to our countrey , they are not to be preferr'd to ours , as the doctor asserts : for who would maintain , that the accounts given by the saxons , celtae or spaniards should be preferr'd to the british , or english , or irish histories for the times , after the britains , english or irish were acknowledg'd to be setled ? and as to the irish writers themselves , this poem selected and preferr'd to all other annals by o-flahertie , as not onely containing an acknowledgment of our settlement , but a genealogy of our kings , we have prov'd , that it is not preferable to our historians in point of credibility . and besides all that i have said of it , i must add , that o-flahertie * acknowledges , that there were several different copies of it , and even this , which he follow'd , was not intire , some distichs being wanting , else he doubted not to make an intire catalogue . and even this , such as it is , is onely written in malcolm canmore's time , whom it mentions , who reign'd in the , of which lateness all the other irish annals allow'd by the doctor are . the main ground insisted on by the doctor for preferring the irish in the point of credibility to us is , that we neither had , nor could have so ancient annals as they , our monasteries being onely founded by st. david , and after him , and so ●osterior to their annals . which argument is founded upon a false supposition : for the doctor himself acknowledges that the psalter of naran contains onely matters of devotion , as the irish antiquaries cited by him confess . this is the eldest , and was written in the latter end of the eighth century . the next is the psalter of cashel , which he rejects as not well founded , and allows none as credible , but those which are written after the year of christ . and it cannot be deny'd , but we might have had well-warranted annals before that time ; which the doctor denies . for first , we were then fully possess'd not onely of our own first part of scotland , but even of the pictish part of it , and also of the northern ( now english ) countries confirm'd to malcolm the first ( by the english own acknowledgment ) who reign'd anno christi . and so we were masters of icolmkill , abercorn , abernethie , mailross , lindisfern , and other monasteries , which lay within that great extent ; and which extent dr. stillingfleet acknowledges , since severus's wall is by him confess'd to be built betwixt tine and esk. we had also the number of our bishopricks increased by the subduing of the picts , as is not onely probable in it self , but is clear by the acknowledg'd catalogues of bishopricks in fordon . icolmkill is by beda said to be founded about the . and to be the chief of all the monasteries in britain or ireland . abernethie was founded in garnard's time , who was next pictish king to brudeus , in whose time columba liv'd , and so about the . and fordon relates , that this monastery was founded years before the church of dunkeld was founded . and here is not onely a monastery mention'd , which might have had annals higher than the psalter of naran , suppose it had created history ; but he cites the chronicle of abernethie , which the doctor acknowledges to be an old chronicle ; and beda also acknowledges ; that there was such a monastery as abercorn . and though the doctor cites buchanan , saying , that it was so demolish'd , that no vestige of it did appear ; yet , the pictish kingdom being quite ruin'd , the argument , that there was no such monastery , is of no force : for the records of many demolish'd monasteries are preserv'd . and , though the abbacy of mailross was rebuilt by st. david ; yet , that it was a famous monastery in beda's time , is clear ( for he tells , that the abbat of mailross was translated to lindisfern ) and has probably remained long demolish'd by the wars , as abercorn did ; and the writers did thereby express the rebuilding as an original foundation . and the reason , why i said in my former book , that this abbacy was ( before it was rebuilt ) called rivallis , was because i have seen in a collection of foundations made by our lord register skeen a copy of the foundation of mailross , wherein the lands of mailross and others are given to the monks of rivallis . but , whether mailross or rivallis are distinct or not , is not material to our point ; and , if they be distinct , it is more for our advantage , since by that concession we have two monasteries doted by st. david . it contributes much to the preference of our histories beyond the irish in point of credibility , and to the establishment of the credibility of our histories against all our adversaries , that in the debate before the pope at rome , about the year . ( where the roman antiquities must certainly be best understood , and when the debate was against the learn'd english , who were very much concerned to contradict us ) we did own this our settlement before iulius caesar his entry into this isle ; and that we as a setled nation , and not as a vagrant company of irishes , maintain'd that long series of wars related by beda and our own historians . and in that debate we assert justly , that the visible ruines of the two walls built by the romans against us and the picts are certain proofs of our antiquity , and that we were the people who maintain'd the war. as also in a letter from our nobility to the pope about the year . we again assert our antiquity , and that haec collegimus ex antiquorum gestis & libris . and all this debate and letter being yet extant , these are surer warrants for our antiquity , than any thing that can be urg'd against us from the irish annals , the eldest whereof are in the year . written by natives at home , without any contradiction or warrant , for ought we have yet seen . nor has the learn'd dr. stillingfleet answered the same objection , when urged in my first book , though with less force than it is now urg'd . dr. stillingfleet answers to all that is urg'd from the antiquity of our monasteries , that this proves onely , that we might have had , but not that we had sufficient warrants , since we produce not the annals of these monasteries . to which my answer is , that ( . ) this at least overturns his position , that we neither had , nor could have sufficient warrants for a greater antiquity than the irish. ( . ) the irish produce no warrants for their annals , though much later than ours ; and , as we are equal in other things , so we are stronger in this . ( . ) we have formerly prov'd , as convincingly as can be in any such case , that we had such annals in these our monasteries , and that our historians compil'd our histories from them ; and that they were lost by the invasions of the english , and by the demolishing of our monasteries in an age , wherein all their records were thought reliques of popery . the doctor 's own chief grounds for preference , in point of credibility , are * testimonies founded upon ancient credible writers , having a concurrent probability of circumstances , and that amongst these ancient writers , consideration is to be had of their abilities , opportunities , care and diligence , according to which rules , i have formerly produced many concurring testimonies from ancient credible authours , relating things credible , and probable : and now in competition with the irish , as to the abilities , and opportunities of our authours , and their care and diligence in collecting our histories , i contend , we ought to be preferable ; because , beside the grounds above urg'd , i must remember my readers , that the doctor denies the irish any opportunity of transmitting their histories by letters , till after st. patrick's time . but so it is , that i have prov'd that palladius's mission was to the scots in britain , and the doctor has acknowledg'd , that this mission of palladius was prior to that of saint patrick : and which is higher , the doctor acknowledges that the unconquer'd nations beyond the roman wall , were the christians spoke of by tertullian ; and i have prov'd that we were one of these unconquered nations . and therefore , since we had the use of letters before the irish , letters being the surest vehicles of history , and christianity the chief nursery of letters , it follows necessarily from the doctor 's own rules , that our histories are more credible than the irish. and this argument holds equally good , whether we our selves were the unconquer'd nations , when christianity was first planted , or became masters by conquest of these christians here , who had the early use of letters : even as the english , or saxons , had good grounds of knowledge , from the letters and learning of the britans , whom they conquer'd . the next is , that we had greater opportunity to know our own histories , and greater reason to use care and diligence in writing them , than the irish , who were strangers . the third is , that the irish having err'd so grossly in the last , and most uncontroverted part of our history , and in which they contradict the foreign and contemporary historians of other nations , it cannot be urg'd that their credibility is of any moment , in the more ancient and darker part of our antiquities , and history , wherein they differ from us . and lastly , our historians have for their abilities been very famous for many ages , in foreign nations , and amongst the best criticks ; whereas we have seen no histories from ireland till of late , and much later than ours . and though we are far from having any low esteem of the irish abilities , yet we conceive , that the doctor should remember that by the suggestion of his countrymen , pope adrian gives the kingdom of ireland to henry the second of england , ad declarandum indoctis , & rudibus populis christianoe fidei veritatem , &c. whereupon they writ a letter to pope iohn , wherein they complain , that they were severely and cruelly us'd as beasts , and therefore desire that his holiness would confirm the election they had made of edward , brother to king robert the bruce , for their king. the learn'd bishop usher was pleas'd , in partiality to his own country , to assert that this his majesty's kingdom was never called scotland , till years after christ. but the reverend bishop of st. asaph finding that this was not tenable ; he onely asserts , that after the year . we got the rest of the country , and then it onely came to be called scotland . both these opinions i have endeavoured to refute in the seventh section of my book , where i have clear'd all this matter in nine positions , to all which the doctor is pleased to answer nothing , save ( . ) that i have unwarrantably asserted that the name of scots , doth originally belong to the scots in britain , and onely by way of communication to these in ireland . but i beg his pardon , to tell him , that i have no such position , though for confirming my answers to these two reverend bishops in the former debates , i did onely for farther clearing the matter , assert that the old name under which ireland was known to the greeks was ierna , and to the latines hibernia , which i prov'd from bishop usher himself . ( . ) i asserted that before the year . there was no author that made mention of scotia , or scoti , but when they meant our country , and country-men : and this i have prov'd without any answer . but in the ( . ) place , i positively say , pag. . of my first book , that i was not concerned to debate the antiquity of the names of scotia , or scoti , but onely when we first setled here . and therefore though our historians do assert that the irish were first called scots , that contradicts not any of my positions . for though very anciently the irish might be called scots , yet about the time that the romans and others begun to write of the scots , the books now extant do onely apply these names to us , and to our country . and the authour of ogygia does himself acknowledge , that the romans first invented the name of scotland : and if so , it was probably applicable to us : for they had much commerce with us , but none with ireland . amongst the many citations which i adduced for proving that scotland was called ireland , in bede's time , one was from his ecclesiastical history , wherein bede relates , that egfrid , king of northumberland , having sent an army into ireland under bertus , he wasted the country , and the innocent people : and the next year , having sent an army to waste the province of the picts , contrary to the advice of his friends , and of st. cuthbert , god suffered that army to be destroyed , because the former year he had rejected their advice , that he should not invade scotland which did not wrong him . and to clear that the scotia here exprest was not ireland , he adds the english and scots who abide in britain . this passage ( as well as the others , which i have cited , and shall cite ) proves ( . ) that scotland then has been promiscuously called by the names of hibernia , and scotia : for the same thing is said first to have been done in scotia , and then in hibernia . and this answers the objection , hiberni revertuntur domum , and where could their home be but in ireland ? ( . ) it proves that this our country was called scotia in beda's time , and so long before the year . which the bishop denies . nor can it be prov'd that the king of northumberland went to make war in ireland , otherwise than from offlahartie's late book , which is not to be put in balance with beda , who was disinterested , and liv'd in the very time . to which the doctor answers , that by scotland must be there meant ireland , because the nation which egfrid invaded , had been always kind to the english ; which cannot be said of our scotland . but to this it is replied , that i have prov'd in my book , from the same beda ( who must be the best interpreter of his own words ) that the english at that time were very kindly entertained by the scots , and furnished with all things necessary : which kindness proceeded from an union in religion , which in those happy , and pious days , was the foundation of all kindness : and thus i have answered the doctor 's argument , but he has not answered mine . but to prove that scotland was called ireland in those days , and that this place of beda's is applicable to our country , and not to ireland ; i cite the english polychronicon , who says many evidences we have that this scotland is ofttimes called ( heght ) hibernia , as ireland does : for which he cites many proofs , and particularly this passage in beda . if it is a common saw , that the country which now is nam'd scotland , is an outstretching of the north part of britain . this lond hete sometime albania , and hath that name of albanactus , afterwards the lond hete pictavia , for the picts reigned therein years : and at last hete hibernia , as ireland hyght . and thereafter it is said at the end of that page , many evidences we have out of this scotland , that it is oft called and hyte hibernia , as ireland has : and particularly amongst many citations out of beda , he cites egfridus , king of northumberland , destroyed ireland , &c. which is the passage controverted . this polychronicon is cited by fordon , and was prior to him , for as vossius tells us , it was written by ranulphus higden , who died , anno christi . and was translated by iohannes trevisa , who continu'd it to the year . from which i draw these conclusions . ( . ) that this country was called scotland before the year . which overthrows the bishop of st. asaph's assertion . ( . ) that our country was called hibernia , which answers most of all our adversaries arguments . ( . ) that this place in bede is to be ascrib'd to us , notwithstanding dr. stillingfleet's reason , and offlahartie's history . for proving likewise that scotland was called hibernia , in beda's time , and by him , i produced among many other passages that very clear one , where he says that aidan was sent from the isle which is called hy , which is the chief of the scotish and pictish monasteries , and belongs to britan ; et ad jus britanniae pertinet : albeit , speaking of hy , in other places , he says it is in hibernia . to which the doctor answers , doth not beda in the same place say , that the island hy was given by the picts , and not by the scots to the scotish monks that came from ireland ? but what a paralogism is this ? for it might have been given by the picts , and yet have been within the territories of the scots : for these neighbouring nations did seise oft-times places belonging to one another . and the picts being sensible , that they were not able to keep this place which was so remote from their own territories , they did therefore the more easily mortify it to a monastery . nor could it otherwise have belong'd to the picts : for it was never pretended that the pictish dominions extended to our western isles , or that they did reach farther than clyd : and beda himself does march them so . and the shire of argyle , and many isles such , as bute , lie betwixt clyd and icolmkill , or hy : and it was never question'd , but that these belong'd to us , and were the seat of our kings . and usher thinks that beda was mistaken , in saying that the picts gave this isle to this monastery . but ( . ) does this answer prove , that it belong'd to ireland , which is the onely point here in debate . or can there be any thing more inconsistent with that , than beda's own words , which are , that it belong'd to britain as a part of it ? and if it be a part of britain , it cannot be in ireland , otherwise , than because scotland , which was a part of britain , was then called ireland . nor does the situation of the place contribute less to clear this , than beda's clear authority . for it was never pretended by the irish , that our western isles , which lie upon our coast , belong'd to ireland . and the first thing that is known of them , is , that they belong'd to scotland ; and since this monastery and isle is now in the possession of the scots , and has been so for many ages ; we desire the learned doctor , and his irish evidences , to condescend when , and by what war or transaction the irish lost that , or the other isles : for if it had been theirs , we could not have got it , but by one of these two ways . since then hy was a part of our scotland , it necessarily follows , that aidan came not from the northern scots in ireland , as doctor stillingfleet asserts : for the bishop of saint asaph acknowledges , that aidan was ordained at hy , by the bishop of hy , and dunkeld * , which he supposes with usher to be then founded , and cites bede † for his voucher : and adds , that after firian's death , colman succeeded in the bishoprick , who was also sent from scotland , that is , from hy ; and that he was a bishop of scotland : which must be our scotland , for the reasons aforesaid , notwithstanding of what the doctor says . and from all this we wonder , with the doctor , that any that can carefully reade beda , can dispute , what is so clearly said in him , that scotland was called hibernia ; and so we 'll conclude against him in his own words . but we wonder what the doctor means , when he acknowledges that from beda it appears , that the scots had a kingdom in britain . but when he speaks of the religion of the same scots , he means the scots of ireland : this is indeed beyond my understanding : but i am sure , it can have no colour , from making the ireland , wherein icolmkill , or hy is , an isle distinct from britain ; having in my former book cleared , that our part of scotland , was called an isle , as contradistinguished from britain , by the two firths , clyd , and forth , being clos'd up by a wall , and is therefore called an isle by tacitus , and others whom i formerly cited . to whom i now add several english authours , as william of malmsbury , who speaking of britain , says , & per se , velut insulam , à scotia divisa . and bartholomoeus anglicus says , that scotia regnum promontorium est , montibus & maris brachiis à britannia separata : & anglorum progenies , britanniam insulam possidet . and therefore beda speaking of weremith in northumberland , he tells us , that it is near to scotland , and adds , that by this it may appear , that the remotest part of the isle of britain towards the north is northumberland . which could not have been true , if it had not been spoken upon the supposition , that our country had been an island ; for our country lies benorth northumberland ; in the isle of britain . all which are to be found in the third chapter of the second book of fordon , with several others , which i here omit , rather as unnecessary , than impertinent . i add to these paulus diaconus , who speaking of wars betwixt the britains and saxons , from the time of ambrosius aurelianus , says , that the victory hung uncertain betwixt them , donec saxones potentiores effecti , tota per longum insula potirentur : and this must be onely understood of england , for the saxons did not in his time , nor since conquer that part of britain which belong'd to us . but by that he onely meant , that the saxons conquer'd that part which belonged to the romans , and was called an isle , as contra-distinguished from ours . i prov'd this also from the martyrologium romanum , abredonioe in hibernia , sancti beani episcopi , to which nothing is answered : and i now add to it , baronius in not is , beani vetera manuscripta ex quibus molanus hac die fuit hic episcopus abredonensis . having thus cleared the antiquity of our kings , and the truth of our histories , by so solid reasons , and from so good authority . i hope the reverend dr. stillingfleet will be as ingenuous , in retracting what he has written against the state , in these points ; as he did very commendably retract what he had written against the government of his own church , in his irenicum : at least he will retract that insolent expression , praef. pag. . that our antiquities are universally dis-esteem'd , amongst all iudicious and inquisitive men : since all men have not written their opinion , nor has he read all writers ; and this at least contradicts the many parts of his book , wherein he acknowledges , that lipsius and other great criticks are of our side . and i have cited most of all the considerable criticks , and have fully satisfied the insignificant answers made by dr. stillingfleet to them ; and if i have left any expression in all the book unanswered , it is because it was unworthy of having been urged by dr. stillingfleet , or answered by me . and , though i could add many new authours , who have owned our antiquities ; yet , loving rather to reason , than to cite , i produce one , who not onely owns our antiquities , but makes our antiquities a strong argument against the supremacy of the pope . for ( says he ) the bishop of rome cannot pretend , that the church in britain received the christian faith from rome , since scotland , a part of it , was christian before the romans had access to it . the authour is the learned lomeierus ; * who tells us , that the britains had the knowledge of letters years before christ : for dornadilla king of the scots wrote , before then , the laws of hunting observed to this day amongst the subjects of that kingdom , as sacred even to this age. and they were not amongst the last , who received the christian religion : for tertul. advers . iud. cap. . tells , that the places which were unaccessible to the romans , had yielded to christ. and from this he concludes , that they are parasites , who flatter the bishop of rome , as universal mo narch of the church , since here were christians , to whom the romans had never access . from which i also draw these conclusions : . here is a proof of our ancient learning , and consequently a foundation for the credibility of our annals . . here is an acknowledgment of a king before fergus the second , and long before the year , proved too by laws yet observ'd , which was a sure way of preserving his memory ; and the matter of fact is true , for we remember those laws as his to this very day . * . here is an acknowledgment , that tertullian's citation is applicable to us . . it seems by this more just , that the bishop of st. asaph should rather have sustained our antiquities , as an argument against popery , than rejected them for answering an argument against episcopacy , religion being of greater consequence than government , and the inference being stronger in the one case than the other ; for he should have urg'd that it is not probable , that we who were enemies to the roman nation would have submitted to the roman church ; but would have rather lookt upon their missionaries as spies , especially in those barbarous times , when nations were considered more than doctrine : for though religion already received , might have cemented us ; yet before it was submitted to , so great an enmity as was betwixt us , might have obstructed commerce and kindness ; from which probably proceeded our aversion to the romish rites as to easter , and other points for many ages , in which we followed the greek church in opposition to the romish . but leaving this argument to be prosecuted by dr. stilling fleet , it cannot be denied but both the learned blondel cited by the bishop of st. asaph , and lomeierus were both convinced , that our antiquities were undeniable , for no man in his wits draws arguments from premisses which himself thinks uncertain . possevinus also the jesuit , in his bibliotheca selecta , inserts among the historians whom he recommends as most authentick , an account of our antiquities : wherein among other things , we are asserted to have had a christian church here in the year . and the citations from tertullian and st. ierom are appropriated to us , and to these are added three other citations , agreeing with them , one from st. chrysostome in serm. de pentecost . a second from the same authour , in his homilia quòd deus sit homo , and a third from petrus venerabilis , lib. . epist. . and therefore , as in my last book i did conclude , that our antiquity behoved to be very remarkable , since before bishop usher's time , every nation made us most ancient , next to themselves ; so in this book i may conclude , that our christianity must be much ancienter , than those reverend divines would make even our settlement , since men of all persuasions concur in it , and speak of it with great elogies , and draw consequences from it , for the honour of their own church : which according to the doctor 's principles cited by me , are the surest marks of conviction . thus i hope i have sufficiently illustrated this subject , and therefore i am not resolved any farther , either to burthen it , or my readers . for clearing some passages in this book , the reader may be pleased to consider seriously , these following additions and alterations . pag. . lin . . for kenneth iii. reade kenneth ii. pag. . lin . . add to what i have said concerning lese majesty ; that dr. stillingfleet , praef. p. . calls this , the sharpest and most unhandsome reflexion in all my first book , and i am glad he does so ; for if there be any severity in these my words , luddus is to be blamed , and not i : for my words in my letter to my lord chancellour , p. . are — and since luddus owns , that he durst not deny the british descent from brutus ; lest he might thereby wrong the majesty of the english nation ; i admire , that any of the subjects of great britain did not think it a degree of lese majesty , to injure and shorten the royal line of their kings . by which it may very easily appear , that i did take the word lese majesty in a rhetorical , and not in a legal sense , though i find , that dr. stilling fleet does not answer my objections , even supposing the word to be there otherwise taken ; for it seems for ought that 's yet answered , that to injure and shorten the royal line , is a degree of lese majesty ; that is to say , it tends ( in luddus's own words ) to wrong the majesty of the british monarchy . pag. . lin . . put out these words , — and this is clear also by the book of pasley . pag. . lin . . instead of these words , that the people deposed kings ; reade , that the people sometimes de facto deposed kings in those ancient barbarous times ; ibidem , lin . . instead of these words , till kenneth the third's time , reade , long after fergus the second's time . pag. . lin . . for these words , and the inquisitive bede was not able to reach so far back in the year . reade , that bede made it not his business , to search out secular antiquities , having onely design'd ( as is clear by his book ) to write of us in so far as was necessary , for his ecclesiastical history , which needed not the helps of the old manuscripts in our monasteries . ibid. l. . put out the words , ut fertur , as they say , a word used in the remotest antiquity . for farther clearing pag. , , . cap . whether the meatae and caledonii were britains distinct from the scots and picts , whom dion calls the unconquered nations , and who the doctor says , were different from the scots and picts ; it 's fit to add to what i said on this subject , that our adversaries differ among themselves , and contradict one another in this point ; for cambden , whom st. asaph follows , makes the picts caledonians , or extraprovincial britains , thinking it thereby more easie to make the settlement of one nation late , than to make both so ; because thus he differs less from received histories : but the doctor sticks not to make the settlement of the picts later , than that of the scots ; because he never finds the name of the picts mentioned , till about the time the scots are , and therefore refutes cambden : whereas offlaharty rejects this reason , contending , as we do , that it is ridiculous to say , that a nation is no older , than from its being mentioned in history under such a name . pag. . lin . . for &c. . reade &c. pag. . pag. lin . . after the word piracy , add , and whereas the doctor objects , that this wall was unnecessarily built betwixt the two seas to hinder the incursions of the scots and picts ; seeing , i supposed , the custome was to cross over the two firths , and to land on this side of the wall ; for so they landed on the british side , and left the wall behind them , and consequently the expence had been unnecessary , and the romans and britains very idle in building it . to this it is answered , that i very justly supposed that the invasions were over the firths ; and though they had left the wall behind them after their landing , yet the objection concludes not , that therefore the building of the wall was unnecessary ; for the britains being separated and distinguished from the scots and picts by two firths which did meet onely in a short neck of land , they completed this natural fortification of water , by building a wall on the land where it was wanting , thereby defending themselves against the irruptions of their enemies ; so that the scots and picts being debarred from entring by this neck , which was the easie and ordinary way before , were after necessitated to invade by water , formerly the more difficult way . and this is not onely a conjecture arising from the clear probability of the thing ( which were sufficient to answer the doctor 's objection that is onely founded on a bare conjecture ) but it 's the express reason given by beda , who lived so near the time and the place , and who speaking of this wall , saith , fecerunt autem eum inter duo freta , vel sinus ( de quibus diximus ) maris per millia passum plurima , ut ubi aquarum munitio deerat , ibi praesidio valli fines suas ab hostium irruptione defenderent — from which i must also add , that the seas we came over , were our own firths abovemention'd , and not the irish sea ; for the wall is said to be betwixt the two firths and bays of the sea , and thereafter in the same chapter it's said fugavit eos transmaria , which are also the words of gildas : all which is appliéd to our firths , and not applicable to the irish sea , which can neither be called firth nor bay in the singular number , nor maria in the plural , it being called mare hibernicum , as our seas are called mare germanicum , or deucaledonicum . and that the irish sea was not passable , nor fit for such anniversary invasions in corroughs , is ( beside all i have said formerly ) clear from the english writers themselves , bartholomaeus anglicus , and the english polychronicon in their descriptions of ireland . but the sea that is between britain and ireland is all the year round full of great waves , and uneasie ; so that men can seldom sail it securely . this sea is sixscore miles broad , and bartholomaeus anglicus says of it , — mare autem hibernicum versus britanniam undosum & inquietum est , & toto anno vix navigabile . the doctor , to evite the force of our arguments , makes the caledonii and meatae to differ from the scots and picts , and to be britains dwelling near the wall ; who being forced to attend there for the defence of the wall against the romans , left the more northern parts of the isle waste , which they formerly inhabited , as the bloud doth the extremities , when it runs to the heart : whereupon the scots invaded their possessions from the west out of ireland , and the picts from scandanavia . but besides the arguments i urged formerly in my second chapter , i now add , that first , beda makes onely mention of five nations , who inhabited britain , viz. the britains , romans , picts , scots and saxons , whereas if the caledonii and meatae had been different from the scots and picts ( and not the highlanders and lowlanders of the scots and picts under different names ; as i have formerly proved them to be ) then there had not onely been five , but seven nations inhabiting britain . whereas the doctor contends that dion must interpret beda's words , it 's more reasonable that beda , who wrote long after dion , should interpret his words ; since beda is so express in describing who were inhabitants of old , and in his time ; and dion , who was before beda , could not interpret him . . either the scots and picts came into the possessions of these caledonii and meatae before the romans , or after : if they came in before , then the scots and picts must have come and setled here before the year . because the romans left this isle altogether about that time , without ever returning , and consequently were setled here before the year . which is the bishop of st. asaph's position : but if after the romans left the isle , then it was not when the caledonii and meatae were necessitated to come for the defence of the wall against the romans , which is doctor stillingfleet's position . if the irish had overcome the extraprovincial britains , whom , as the doctor confesses , the romans could not overcome ; this conquest must needs have fallen out near to those times wherein gildas and beda lived , and whereof they write the wars and vastations so particularly and exactly ; and especially since the learned doctor gives as a rule , that a negative testimony is concluding , where the writer is knowing , and had opportunity to know , and the thing omitted is of importance to the subject treated of ; all this quadrats exactly with this case : and though these authours had omitted this conquest , yet it is incredible that these ancient irish annals ( by the doctor alone so much preferred to ours ) would have omitted the full and clear relation of a conquest so very glorious to them , as the overcoming nations , who could never be conquered by the mighty power of the romans ; especially since this must have been , not some particular victories onely , but one intire extinction of the meatae and caledonii , for these are never after so much as mentioned : and it 's yet more incredible to think that we could have overthrown these extraprovincial britains , after the romans had been forced to leave the island , and yet never be able to prevail so far against them , when they had the britains , romans , and us to be their enemies ; it being acknowledged that we were by continual incursions endeavouring to settle here about years before the romans left the isle . whereas the doctor cites fordon distinguishing the picts and scots from the caledonii , and meatae ; and making them to be the extraprovincial britains in the th chapter of the third book of his scoto-chronicon , i have considered the place cited , but i find no such thing in that chapter . indeed in the th chapter of the second book i find fulgentius is called dux britannorum albanensium , and that the britanni boreales , are distinguished from the britanni australes ; but there is no mention made in that place of the caledonii and meatae ; nor does the division of south and north - britains make any thing against us , but on the contrary , it seems very clear by that chapter , that the scots and picts had been long setled in scotland , before the romans left this isle ; for it 's said there , that the scots and picts having ( according to their accustomed manner ) over-run the countrey , notwithstanding the assistence given by the romans to these britains , fulgentius was forced to make a peace with them . pag. . lin . . for fourth chapter , reade fifth chapter . and here add , that by these words ( totam cum scotus iernam movit ) may be meant of our being forced to retreat or return to ireland , when we were expelled by maximus ; which agrees with the time here describd by claudian . pag. . lin . . for this , reade thus . pag. . lin . . the comma is before , but should be after usher . and for do , reade doth . pag. . i desire the reader may be pleased to observe , first , that offlahartie himself confesses , that the words ( soli britanni ) in eumenius , are understood to be in the genitive , as scaliger and we contend ; and not in the nominative , as the bishop and the doctor alledge . and here i would have the doctor to mind that true maxime of law cited by himself ; a witness which a man bringeth for himself ought to be admitted against him . secondly , that the bishop of st. asaph makes use of plantin's edition in the catalogue prefixt by him , and in that edition eumenius's words are pointed as i have cited them . thirdly , i wish the reader to observe that in my first book against the bishop of st. asaph , pag. . lin . . the particle & ( in eumenius his words , natio adhuc rudis & soli britanni ) is printed ( it ) and so the force of the argument is not understood , which was , that ( & ) copulat diversa , and so the natio rudis could not be the same with soli britanni , but must needs have been of the genitive case , and the words must have run , pictis & hibernis soli britanni , the picts and irish of the british isle . pag. . for britons , reade britains . and here add , that the words in tacitus are nobilissimi totius britanniae , which does not at all prove galgacus his men to have been britons , but britains ; and so this agrees very well with the scots , who were caledonian britains . pag. . lin . . for scotice primae , reade scoticae pruinae . pag. . lin . . for fourth chapter , reade fifth chapter . pag. . lin . . add , and that he was sent to the scots in britain is clear . pag. . lin . penult . for nomination , reade omination . pag. . lin . . for the conquered nations , reade relates to the unconquered nations . pag. . lin . . put a comma after the word mortal . pag. . lin . . in place of , a nation before constantius ' s time , say , a nation setled here before constantius ' s time . ibid. lin . . add , that these words in scaliger , & scoti sunt adhuc in hibernia , must be so interpreted as to consist with scaliger's former arguments for proving our early settlement here , and therefore the sense must be ; that there are yet in ireland some of these ancient scots , or that the nation from which the albanian scots are descended are yet in ireland ; neither of which contradicts our ancient settlement here . pag. . lin . penult . for these words , neither is buxhornius special , and has been misled by usher ; reade , and buxhornius has been misled by ubbo emmius , whom he cites , and is later than usher . pag. . lin . . for spartan , reade spartian . ibid. lin . . for all that , reade that which . pag. . lin . . add , that the doctor , pref. p. . is very unjust in saying that our antiquities went not down with iohn major , and that he gave little credit to the being of fergus the first ; for it 's clear that he repeats onely the story of gathelus , scota , and simon brek , but is very positive in asserting the story of fergus the first , and shews particularly that beda did not contradict that part of our history , but gives the true and reconciling distinction , that fergus laid the foundation of the monarchy , and reuda or rether enlarg'd it ; and reckons above years betwixt the two ferguses , and relates the genealogy of alexander the third , as it was repeated by that highland gentleman at the coronation . pag. . lin . . for these words , he could have no warrant but tradition , reade he could have no sufficient warrant without tradition . pag. . lin . penult . put out the word saint from fergus . pag. . lin . ult . immediately after the word verimund , add these words , many material things which are not in boethius . pag. . lin . . put out these words , which are not in boethius . pag. . lin . . after alarick , add the word is . pag. . lin . ult . when kenneth is called the first monarch of scotland , the meaning is , he was the first monarch of all scotland , having subdued the picts , and therefore he is so termed by fordon . pag. . lin . . for , it is likely , reade is it likely . pag. . for de muro lapideo , reade de mora lapidea . i. e. the stony moor. pag. . lin . . for ferchard's second son , reade ferchard the second his son. pag. . lin . for tich , reade fich . pag. . lin . . for created , reade treated of . the reader is intreated to excuse these mistakes in the printing , since they were occasion'd by the authour 's great distance from the press . and if the reader doubt of the old alliance betwixt france and scotland , the articles of the old league shall be printed , for they have been lately found upon record in an old register at paris , and bear date . agreeing exactly with what i have said page . of my first book ; and with page . of this : and this proves us to have been a nation setled long before , and of very considerable reputation abroad in the world : for how is it imaginable that charles the great , king of france , and emperour of the west , should have thought it either his honour or interest to engage in so strict an alliance with a pack of pilsering vagabond robbers , confin'd to the then very insignificant county of argyle , as is most unjustly alledg'd against us . the end . the reverend dr. stillingfleet is pleased to reflect upon the authour 's ius regium , but that the famous university of oxford had other thoughts of that book , the reader may understand by the following letter , which passed their publick seal , and was sent , as it 's here set down , to the authour . honorabili plurimum domino , domino georgio m'henzie , equiti aurato regio regni scotiae advocato . illustrissime & clarissime domine , cum regio principum iure & majestate nihil sit sanctius , utpote quod iis inviolatis & regni gloria & subditorum pax unice conservantur , facile possis credere , quam acceptissimos academiae , quae regi semper fida gloriatur perstitisse , honores contuleris , cum vestras regiae causae vindicias nobis non tantum transmiseris , sed & in publicum simul , iniquo hoc tempore vocaris patrocinium . si quae enim ( post probatam bellis civilibus fidem , ignibusque traditos impios libellos , de quibus originem & vires sumserat perduellio ) ulterioris officii partes supererant , eas omnes vestro explevimus beneficio qui causam principis una videmur defendisse , quod doctissimi laboris effeceris participes . qui ipsa fundamenta penitus convellens quibus , inimica semper regibus , plebis improba innititur causa , de ipsa seditione vel bellicâ potiorem reportasti victoriam ; cum enim armis miles rebelles cogat in tempus tantum gladios recondere , tu , invictissimae rationis viribus , imperas ne iterum stringantur . languet quidem tantum quae debellatur , non extinguitur seditio , devictumque licet humilis & abjecti vulgus imperii patiens videatur , vel minimâ elucente spe res novas continuo molitur . adeo ut regias partes verius sustentet qui suadet quam qui cogit parere , rebusque imperii honestius consulat , qui inconcussae fidei divinam statuens originem , reverentiam principum non metum incu●it , regibusque ex officio docet , non re , vel tempore turpiter inservire . hinc fit ut quamvis scotorum virtuti plurimum debeatur , quod rebelles bis prosligaverint , tibi plus sit referendum quod buchanum & miltonum : quorum licet de scriptis derivatum plurimas regni partes venenum infecerit , tu tamen grassante diu malo , tam felici tandem remedio subvenisti ut conscientiae , rationi , legibusque regni antiquissimis necesse est renuncient si qui in posterum sint qui in deum regemque una rebelles audeant iterum movere arma . quod itaque nostra ex parte unicum possumus , inter libros aeternae memoriae sacros , vestros academia reponet , honores autori exoptans quos ipsa nequit conferre , soliusque possit principis munificentia : nimirum ut penitus fractis per te fanaticorum viribus , sentiat rex quantum possit vel unius subditi literata fides , & ipse experiaris quantum mereatur . haec eo , quo mittimus animo accipias , & inter affectûs indicia aestimes quo te prosequitur illustrissime domine nomini vestro addictissima , universitas oxoniensis . e domo nostrae convocationis v. id. iunii , mdclxxxiv . books printed for , and sold by joseph hindmarsh . davelas's history of the civil wars of france . poems by several hands , and on several occasions , collected by n. tate . miscellany ; being a collection of poems by several hands , collected by mrs. a. behn . the works of mr. iohn oldham , together with his remains . a discourse of monarchy ; more particularly of the imperial crowns of england , scotland and ireland , with a close from the whole as it relates to the succession of i. duke of york . practical rules of christian piety , containing the sum of the whole duty of a true disciple of christ. history of count zozimus translated into english. the doctour's physician , or dialogues concerning health , translated out of the original french. butler's ghost ; or hudibras th part , with reflexions on these times . ienkinsius redivivus ; or the works of that grave , learned , truly loyal and courageous judge ienkins whilst a prisoner in the tower , and newgate , by command of the rebellious long parliament , begun at westminster , november the d , . wherein is plainly set forth the just power and prerogative of the king , the privilege of parliament , the liberty of the subject , and what is treason according to the laws of the land. the familiar epistles of collonel henry martin found in his misses cabinet . a true account of the captivity of thomas phelps at machaness , in barbary , and of his strange escape in company of edmund baxter and others , as also of the burning two of the greatest pirat ships belonging to that kingdom , in the river of mamora , upon the th of iune , . by thomas phelps . the perjur'd phanatick ; or the malitious conspiracy of sir iohn croke of chilton , henry larimore , and other fanaticks , against the life of robert hawkins , clerk , and late minister of chilton , occasioned by his suit for tythes . an historical treatise of the prerogatives of the church of rome , and of her bishops ; written in french by mounsier maimburg , translated into english by a. lovell . notes, typically marginal, from the original text notes for div a -e praef. pag. . chap. . pag. . & passim . notes for div a -e praef. p. d. praef. pag. . notes for div a -e pag. . * dr. stillingfl . praef . pag. . † cap. . p. . c. . p. . * bed. l. c. . * verum eadem britannia romanis usque ad caium julium caesarem incognita suit . * l. . c. . * page . † c. . p. . ‖ pref. p. . * brit. descript. p. . * c. . * utraque gens eam inseder at provinciam quae jam diu scotia est appellata . † c. . * p. . edit . iocelia . * hiberni revertuntur domum . * p. . * c. . parag. . * c. . p. . * quos sibi caledonia viros seposuerat . † integri & indomiti . * indigenae an advecti . hist. univers . de reb . gest . reg . scot. * lib. . c. . many evidences we have that scotland is oft call'd and hecht hibernia , as ireland doth . agente palladio scotorum episcopo a coelestino in britanniam misso ut pelagianam haeresin extingueret . rationar . tempor ad . an . . * p. . † c. . p. . ‖ p. . * p. . † p. . * c. . contr . iudaeos as it is translated by st. asaph , praef . p. . * habet enim progeniem scoticae gentis de britannorum vicinia . * et scoti hanc genti suae antiquitatem mihi debent . * de occident : imp. l. . p. . notes for div a -e * antiquit. hibern . c. . † praef. p. . * de antiq. hibern . c. . † de bell. gal. l. . * l. . c. ult . notes for div a -e pref. p. . lib. . c. . lib. . cap. . which is not lib. . but l. . lib. . c. . . ●● . and lib. . ● . ●● . et in 〈◊〉 recapitulatione . lib. . c. . ford. l. . c. . l. . c. . l. , , . fol. . . l. . passim . boeth . l. , , , & . passim . euch. lib. , , & . passim . les● . lib. , & . passim . ford. lib. . at the beginning . maj. lib. . c. . boeth . lib. . buch. l. . les● . l. . ford. lib. , & . maj. lib. . boeth . lib. , , . buch. lib. . chap. . * lib. . , & . l. . † lib. . & . ‖ pag. . * lib. . cap : . notes for div a -e pref. p. . ogyg. part . cap. . ogyg. part . cap. . chron. mail. p. . edit . oxon. . ogyg. p. . praef. p. . ogyg. pr. p. . * lib. . c. . lib. . c. . education du prince , l. . chap. . p. . praef. p. . . ogyg. p. . ogyg. p. , & . pag. . . . ogyg. p. . chap. . pag. . praef. & chap. . passim . praef. p. , . * ogyg. p. . verum aliquot desider at is distichis , integrum apographum reperire non contigit ; aliàs absolutum ex eo catalogum contexere non dubitaremus . stillingfleet , chap. . p. . praef. p. . praef. p. . * still . chap. . p. . vid. bul. in fordon , lib. . cap. . fordon , ibid. p. . lib. . cap. . lib. . cap. . lib. . cap. . lib. . de scotia cap. . lib. . cap. . voss. de hist. lat. lib. . lib. . cap. . * cap. . p. , , . † hist. . . pag. , . & . . p. . praef. p. . scotiae propinquum . ex quibus patet quod ultima pars insulae britanniae versus boream est northumbria . epit. hist. rom. p. . decr. . pag. . pag. . * joh. lomeierus de bibliothecis , p. . edit . . ex germaniâ transfretamus ad penitus toto divisos orbe britannos , qui quidem literarum cognitionem diu ante christi tempora habuisse dicuntur : anno enim ante christum natum . dornadilla maini silius , scotorum rex , praecepta venandi scriptis commisit , & subditis suis servanda proposuit : quae leges & nostro adhuc seculo , seu sacrae , observantur . fidem christianam non postremi receperunt . tertull. adv . judaeos , cap. . britannorum inaccessa romanis loca , christo vero subdita . audiant hoc romani pontificis gnathones , qui ejus universalem monarchiam in ecclesiam quovis modo stabilire conantur . britanni fidem acceperunt in illis locis quo romanis aditus non patebat . qui posset dari episcopus universalis , cùm nullus unquam fuerit monarcha politicus , qui sibi totum terrarum orbem subjecerit ? quamvis romanorum imperatores hac vanâ opinione inflatos spiritus gesserunt , ut se totius orbis dominos crederent , cùm sanè modicam ejus partem obtinerent . * and though it may be objected that he had this from our historians , yet it still proves that he and others believe our historians . lib. . cap. . notes for div a -e camb. brit. pag. . chap. . p. . lib. . cap. . polychr . lib. . cap. . lib. . cap. . observations upon the . (i.e. .) act, . parl. k. james vi. against dispositions made in defraud of creditors, &c. by sir george mckenzie ... mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing m estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) observations upon the . (i.e. .) act, . parl. k. james vi. against dispositions made in defraud of creditors, &c. by sir george mckenzie ... mackenzie, george, sir, - . england and wales. laws, etc. [ ], p. printed by his majesties printers, edinburgh : . errors in paging. reproduction of original in bodleian library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng fraudulent conveyances -- england -- law and legislation -- early works to . - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - rachel losh sampled and proofread - rachel losh text and markup reviewed and edited - pfs batch review (qc) and xml conversion a observations upon the . act , . parl. k. james vi. against dispositions made in defraud of creditors , &c. by sir george m ckenzie of rosehaugh . edinburgh , printed by his majesties printers : anno dom ▪ . the preface . the easiest and plainest part of our law , are our statutes : for these are by printing exposed to all mens view , and are drawn to instruct the vulgar in what they must obey . and this statute against bankrupts , must be presumed to be amongst the easiest and most intelligible ; because it is founded upon the evident principles of equity , and reason , and was first drawn by the lords of session , and after some years trial , was renewed by the parliament , who would have plain'd what was obscure , and supplied what was defective : and yet i am afraid that albeit the statute be very full , and my observations upon it be very clear , that yet it will appear convincingly that the knowledge of the law is not easie , and that none should pretend to it , but such as have illuminated their excellent natural parts with laborious learning , and have polish'd that learning by a long experience . i have not debated fully the cases here related , that being fitter for pleading then treatises ; nor have i set down all the cases that occurred , lest the reader should think i industriously designed to confound him , the more to magnifie the necessity of lawyers . it cannot be denyed but many now in my condition could have treated this subject , both more profoundly , and delicatly , but yet i may say that nothing here is against law , since all these sheets have had the approbation of one of the ablest lawyers in our nation , who can neither deceive , nor be deceived in his own profession . these sheets are but a part of a greater work , wherein i resolve to clear , . what acts are in desuetude , or abrogated . . how each act is interpreted by the lords decisions . . what new doubts may arise from each act , though not yet decided . . wherein our statutes agree with the civil law , or laws of other nations . and thus i hope to make all our acts of parliament intelligible and plain . an explication of the act of parliament , . against bankrupts . the words of the rubrick , or inscription of this act , are , a ratification of the act of the lords of council and session , made in july , . against unlawful dispositions and alienations , made by dyvours and bankrupts . for the better understanding of the inscripon or rubrick , it is fit to know , that the word bankrupt , which is the translation of the latine banciruptor , is in the original but a barbarous word , either derived from the french word banque , or the italian banco , and the word rumpere : because when merchands became bankrupts , they broke , either the seat upon which they did sit ; or the bank or table , at which they did sit , as salmas . observes , in pref. de usur . pag. . but now the word banciruptor , is taken not only , pro mensulario ; foro cedente , but for any merchand , or any other person , who has contracted more debt , then he is able to pay , as vegnern observes . pag . they are called likewise decoctores , quia rem suam coquendo diminuunt , decoquere signifying diminuere , bud. ad l. si hominem § . quoties ff . deposit . in italy they are called falliti , & cessantes , boer . decis . . but in the civil law the true latine word is fraudatores ; l. . ff . de curat . bon . dand . they are likewise by this rubrick called dyvour , or dyour ; from the irish word dyer , as i conceive , which signifies a knave ; and they are likewise called bairman in our law , l. burg . cap. bairman . . & de jud . cap. bairman . though our learned skeen does in de verb signif . verb. dyvour , make bankrupt to be the same with him who has obtained a cessio bonorum , & qui bonis cessit : yet these differ very much , for a bankrupt is he only , qui foro cessit , sed qui bonis cessit , forum retinet , & bona creditoribus in solutum dedit , hottoman . de verb. sig . verb. credere , caedere for● est facti , caedere bonis est juris , and he only who has lost his estate by accident , without his own ●ault , was allowed bonis caedere , bancciruptor dicitur , qui dolo casuve non solvendo factus est . venger . ibid. how the word banckrupt is taken in this act , may be justly doubted , for by the rubrick of the act , it would appear , that this act strickes only against dispositions which are made by persons insolvent , and whose estate is not able to pay the debt due to the reducer ; for the rubrick of the act beares , to be against dispositions made by bankrupts or dyvours ▪ so that these two , are made pares termini ; and therefore , since a dyvour is a person who is insolvent ; it seems that this act must only strike against dispositions made by persons that are insolvent , per argumentum à rubro ad nigrum : for lawyers are very clear , that where either the rubrick is an intire sentence , or where any term used in the rubrick , is explained by any equipolent , or exegetick word , that there the general term which is dubious , is to be interpret according to the import of both these terms ; and therefore , since the word dyvour is only applicable to persons insolvent , the word bankrupt must be likewise interpret only of these ; and so the rubrick running only against dispositions made by persons that are insolvent , it must follow , that only such deeds are reduceable , as are done to the prejudice of creditors by a person that is insolvent . . this seems likewise consonant to reason ; for if the creditor can recover his debt , he is not prejudged , and so the design of the act fails ; and it were most unreasonable to trouble a person who has got a disposition , except there be an absolute necessity . . this is most suitable to the common principles of law , whereby nunquam recurrendum ad remedium extraordinarium , quamdiu locus est ordinario , no more then in physick , a member should be cut off where it can be cured ; and therefore , a creditor who may recover payment by ordinary diligences , such as by the comprysing , or arresting his debitors estate , ought not to be allowed to reduce all dispositions made by his debtor , since omnes actiones rescissoriae , and particularly actio pauliana , sunt remedia extraordinariae , whereby the magistrate has been by cheats of debtors , and the fraudulent dispositions of such as contract with them , forced to rescind and annull the private pactions of parties , contrary to the ordinar and general principles . . this seems to be further clear , by the narrative of the act , which runs only against dispositions which elude all execution of justice , whereby creditors are defrauded of all payment , and many honest families come to utter ruine ; neither of which expressions are applicable to the case of creditors , who may recover payment otherwise . conform to which arguments , i find , that the lords , upon the. . of march. . in an action at the laird of garthlands instance , contra sir james ker , upon this act of parliament did refuse to reduce an infeftment ; albeit a meer donation , and made likewise by the grand-father to his own grand-child , and that because the granter of the infeftment was neither at the time of the granting thereof bankrupt , and non solvendo , nor was he become such since ; neither had the creditor done diligence for his debt ; and yet it might have seem'd in reason , that though dispositions , where there was an onerous cause , might have been sustained , there was no reason to allow the same priviledge in favours of confident persons , for meer donations . and upon the . february , . the lord loure , having quarrel'd the lady craigs infeftment , as being an additional joynter , granted betwixt husband and wife , to his prejudice who was a creditor , and had comprised the estate ; it was answered , that the disponer was neither bankrupt , nor insolvendo , nor did the compriser sustain any prejudice , seing the lady was content , that the lord loure should be preferred to his annual-rents by vertue of his comprysing , providing he would assign the lady to his comprising pro tanto , that she might recover as much for satisfaction of her additional joynter ; which answer the lords found relevant , the apprisers prejudice being purged , as said is : but they ordained the compriser , not only to be admitted to have access to the comprised lands , by assignation in manner forsaid , during the legal , but they likewise declared , that if the lady redeemed not within the legal , the lands should be irredeemable , and the lady should be totally excluded ; which though it was but a trysting interloquetor , do's confirm the former opinion . and though it may be alleadged , that a disposition being once valid , when it was first granted , cannot become thereafter null by the disponers becoming thereafter insolvent , yet this holds not in many cases in our law ; for we find , that dispositions of less then the half of ward-lands , without consent of the superiour , become thereafter null , if as much of that barrony be thereafter disponed , as will amout to more than the half ; but in my opinion , though the rubrick of our statutes may found a presumptive argument for explicating the text ; yet it is not authoritative , for the rubrick is not read in parliament , and it is added to the law , after it is past , carelesly without debate . our soveraign lord , with advice and consent of the estates : the legislative power of scotland consists in the parliament , that is to say , the king and three estates of parliament ; and though some think it more proper in our law to say , our soveraign lord , and estates of parliament , as in all the statutes , or acts of the . par. ja : : then to say , our soveraign lord , with advice and consent , &c. yet i conceive , the king statutes , and they but consent , ( though their consent be necessary ) for his touching them with the scepter , and not the being voted , makes them laws ; and in england , the king statutes with consent of parliament , and upon their supplication , and therefore i understand not craig . who diag . . affirms statutes to be constitutiones trium regni ordinum , cum consensu principis : for that is just to invert the statutory words of this , and many other acts. our old acts being all past the last day of the parliament , did not express the statuting power in every act ; for in effect they were all but branches of one act , and run , item that , &c. and many of these acts bear , it is statute by the parliament , and the king forbids , as acts. . . par. ja. . which intimats , that though the parliament statutes suffragando & consentiendo , yet the king only doth statute sanciendo , & prohibendo . sometimes our acts bear , it is statute by the hail parliament ; and sometimes , it is statute and ordained , without mentioning either king or parliament ; sometimes also they bear the determination of parliament , without speaking of the king , which was either where the king was to perform what was statuted , as . act , par. . ja. . it is statute and ordained , that our soveraign lord shall gar mend his money . and by the act , par. ja. . the estates has concluded , that the king shall ride thorow the realme ; or else when the estates are only to grant what is statuted , as in commissions granted for uniting the two kingdoms . but i find one statute bear , the king statuting without mentioning the estates of parliament ▪ viz. act . sess. . par. . ch. . but this is but meer inadvertance . ratifies and confirms an act of the lords of session , &c. this was originally an act past by the lords of session , when they do sit judicially , at which time it is marked in their books of sederunt , such and such men did sit . thus the hebrews disigned the books of the old testament , by the first words ; and thus we still mark the laws from the first words ; and thus the old books of our law are called regiam majestatem , because they begin so . his majesty , at the first institution of the colledge of justice , did allow the lords of session to conclude upon sick rules , statutes and ordinances , as shall be thought by them expedient to be observed and keeped in their manner and order of proceeding , at all times , as they devise , conform to reason , equity and justice , his grace shall ratifie and approve the same . these are the words of the . act , . par. ja. . to the which act , i think this act relates : but it would appear , both by that act , and by the power as here repeated , that the lords of session have only power to make orders relating to the regulation of their own house , and to the forms of process . for this was indeed necessary for explication of their jurisdiction , and possibly was implyed in their very constitution , without any expresse warrand : arg . l . ff . de jurisdict . but it seems that this general power cannot authorize them to make statutes , and acts relating to the material distribution of justice ; such as , that all writs should be null , except subscribed before witnesses , though they might have ordained , that papers under the hands of their own clerks , should be so subscribed : for if they could make statutes , as to any thing else besides the forms of their own house , there needed no parliament ; for their statutes might bind all the people in all things ; and yet it may be objected , that by this argument the lords of session could not have made this law , declaring contracts amongst the leidges , to be null ; that touching upon one of the fundamentals of humane society , albeit they might have declared such a nullity , receiveable by way of exception , for that concerned only form of process . but the answer to this is , that the lords , in making this act , did not introduce jus novum , a new law ; but only adapted to our practice , the old roman or civil law , which they might have followed in their decisions , without making any new act of sederunt , as they do in most cases where the civil law is founded upon equity ; as here ; and where they are not determined by either our former practice , or constitutions . and by the same principle , both the lords of session , and the parliament did in this statute declare , that their said act should extend to causes depending , or to be intented : whereas statues regularly are extended only to future cases ; except where the act declares what was law formerly , as in this case . we may then conclude these differences betwixt these acts of sederunt , and acts of parliament , that acts of sederunt can only be made concerning the formes of procedure , or to fix a constant decision for the future , in cases which they might have so decided , before their own act : and it is their prudence , and our hapinesse , that they should rather decide in hypothesi , then in thesi . but acts of parliament should mainly be made to regulat new substantial grounds of justice and commerce . but though this power of making orders for administration of justice , be properly , and principally their province , yet they have in this but a cumulative jurisdiction with the parliament , who may and do likewise make such orders , but the parliament ought to do so sparingly , since forms are better known to the lords of session , then to them : and therefore , it seems that the power of making acts , relating to forms , or of regulating forms already made , belongs particularly to the lords of session , both because of ther constitution , and experience . the lords have been in use , not only to regulat their own court by acts of sederunt ; but they have by the same power prescribed regulations to other courts , and thus as to the justice court in anno , . years , they made an act , that women , and socii criminis , might be received witnesses , in cases of treason : and we find , that they have likewise regulated inferiour courts , without any previous warrand , as is clear by the . act , . par. ja. . where the parliament ratifies an act of secret councel and session , which did ordain and command , that no process should be granted before inferiour judges , on the first summonds , but upon lybelled precepts , and citations of fifteen dayes warning . and in anno , . they made an act of sederunt , appointing , that no consent of any inferiour court should bind the consenter , except it were subscribed by himself , and that the assertion of the clerk of that court was not sufficient . nor should this extention of their power seem unwarrantable ; for , since they may reduce the decreets of inferiour courts , it seems most consequential , that they may regulat their procedure : but though the lords of the session pass the bills before the justices , and advocat causes from before that court , it may seem strange , that they should have power to make acts of sederunt , for regulating that court , the jurisdictions civil and criminal , being most distinct and different . it may likewayes seem , both by the former act allowing the lords of the session this power , and the ratification of their statute specified in this act , that it is necessar , that all the acts of sederunt , which relate not meerly to the regulating their own forms , should be ratified by the parliament , though in the interim of parliaments , these acts should bind . and yet , de facto , we see very many acts of sederunt to have full vigour , and force , without any such confirmation . before i begin to explain the words of the act of parliament , i shall offer this analysis of it . either the creditors who are defrauded , are such creditors as have done no diligence , or such as have done diligence : if they be such as have not done diligence , then either the dispositions quarrelled are made to conjunct persons , or not ; if they be made to conjunct , or confident persons , either they are made for necessary and onerous causes , or not ; if they be made for an necessary and onerous cause , they are valid , though made to conjunct or confident persons . . if these dispositions be made without an onerous cause , then either they remain with the conjunct confident to whom they were made , or not ; if they remain with him , they are reduceable , either by way of exception , or reply . but if any third party , no way partaker of the fraud , has lawfully purchast any of the bankrupts lands , for a just and true cause , then the right is not quarrelable , but the receiver is only lyable to make the same forthcoming to the bankrupts true creditors . . the fraud is probable by writ , or oath of the party receiver . . if the creditors have done diligence by inhibition , horning , &c. then the bankrupt cannot in prejudice of these creditors who have done diligence , dispone voluntarily any part of his estate to defraud that diligence , in favours of another concreditor , who has done no diligence , or posterior diligence , or in favours of any interposed person to their behoof . and in this part of the act , it is not considered , whether the interposed person be a person conjunct , or not . . the bankrupts , the interposed persons , and all such as have assisted them , in advising , or practising these frauds , are declared infamous . conform to the civil and canon law , &c. because the act of parliament and act of sederunt bear , that they have in this act followed the civil and canon law ; we may justly assert that it were ●●t the lords of session understood exactly the civil law , and that it is the great foundation of our laws and forms . thus we see , that robert leslies heirs , are by the . act , parl. . k. ja. . ordained to be forefaulted for the crime of treason committed by their father , according to the civil law ; and forfaultor in absence , was allow'd by the lords of session , in anno . because it was conform to the civil law : and falshood is ordained to be punished , according to the civil and canon law , act . par. . q. m. and that the civil law is our rule , where our own statutes and customs are silent , or deficient , is clear from our own lawyers , as skeen , annot. ad l. . r. m. c. . ver . . and by craig , l. . diag . . as also from our own historians , leslie , l. . cap. leg. scotor . boet. l. . hist. camer . de scot. doctr. l. . cap. . and the same is recorded of us by the historians and lawyers of other nations ; as for●a● . lib. . de gal . imper . polid. lib. . hist. angl. petr. d● amitis geograph . europ . tit . di escosse : and duck , de auth . jur . civ . lib. . cap. . and though the romans had some customs or forms peculiar to the genious of their own nation : yet their laws , in undecided cases , are of universal use . and as boet. well observes , leges romanas à justiniano collect as , tanta ratione & sermonis venustate esse , ut nulla sit natio tam fera vel ab humanitate abhor●ens quae eas non fuerit admirata . and k. ja. . was so much in love with the civil law , as boet. observes , lib. . that he made an act , that no man should succeed to a great estate in scotland , who did not understand the civil law , and erected two professions of it , one at st. andrews , and another ar aberdene ; and when k. james the second did , by the . act , . parliament , ordain , that his subjects should be governed by no foraign laws , he design'd not to deny the respect due to the roman laws , but to obviat the vain pretences of the pope , whose canons and concessions were obtruded upon the people , as law , by the church-men of these times . it is also fit to know , that by the civil law many remedies were provided to secure crditors against the cheats of their debitors : as first , actio pauliana , so called either from paulus the praetor , who did introduce it , or from paulus the lawyer , who did first advise it : by which action creditors might recall either the estate moveable , or immoveable , dispon'd by their debitor to their prejudice . . actio in sactum , by which bona incorporalia , such as jura , & servitutes were recalled , when alienated , l. . ss . quae in fraudem creditorum . . actio faviana , whereby patrons might revoke that which was done by their freed men , to the prejudice of that fourth part or legittim which was due to them by the law. . actio faviana utilis , by which minors who were adopted or arrogated , might revoke what was done in prejudice of their fourth part due to them . but though snedwine calls this utilis faviana , yet it is a mistake ; for hottoman , gomezius , and others , do much more properly make this a species actionis calvisia●ae . actio calvisiana , which was granted indifferently to patrons and others . . edictum fraudatorium , which was competent , when the creditor was to revoke what the debitor had alienated , and which belonged to another , and not to himself : as if a tutor had alienated the goods belonging to his pupill , which pupill , and not himself , was debitor . the action competent by the civil law ▪ was called actio revocatoria , so called , because the judge revoked what was done ; and with us it is called an action of reduction , because the deeds so done are reduced or rescinded : and i find the word reduction used by civilians even in this sense , as by panormitan , concilio secundo , and others . and reducere does properly signifie informam pristinam instaurare , as is clear by ulp. l. . ss . de itin. act privato § . and therefore we have elegantly called this an action of reduction , because the judge was to restore the thing alienated in prejudice of the creditor to its former condition , whereas the reduction of decreets was a term unknown to the civil law , they using only appeals , and revisions ; but reductions of sentences is used amongst the doctors , even in the same term and sense that we use it , as is clear by gail . lib. . observ . . & . and the reason why it was necessar for lawyers to introduce the necessity of such reductions or revocations , was , because in the subtility of law , the alienation did ipso jure transferre dominum , l. si sciens ss . de contra empt . and therefore it is that if such reductions be not raised before the years of prescription , the alienation it self is valid , though within that time it might have been rescinded by this action of reduction . though this statute only declares all alienations , dispositions , assignations and translations whatsoever made by the debitor , of any of his lands , teinds , reversions , actions , debts , or goods whatsumever , to be null ; yet this is extended to bonds granted , and to tacks set by the debitor , to the prejudice of his creditor , for though neither tacks , nor bands , be comprehended under the letter of the law , yet the same parity of reason extends the act to them ; and in laws which are founded upon the principles of reason , extensions from the same principles are very natural , and in laws which are introduced for obviating of cheats , extensions are most necessary , because the same subtile and fraudulent inclination which tempted the debitor to cheat his creditors , will easily tempt him likewise to cheat the law , if the wisdome and prudence of the judge did not meet him where ever he turned . but yet bands , in so far as they are personal , do not prejudge the creditor , nor fall they under this statute : but only in so far as they tend to , and may be the ground of legall alienation , by comprizing , poynding , or other diligence to the prejudice of the creditors , and by affecting the debitors estate . by the word alienation , is meant not only an express transferring of the right , but any act whereby the dominium or property is loosed to the debitor , as if the debitor should in prejudice of his creditor , habere rem pro de relicto ut alius ●um occupet , if he should relinquish any thing , upon design , that a conjunct or confident person might possess it . discharges likewise by the debitor , of a right competent to him , are reduceable upon this act of parliament , though the word discharges be not exprest in the act , for by the common law , competebat pauliana , quando creditor liberabat debitorem suum acceptilatione vel per pactum de non petendo . wherein l. . § . . ff . h. t. agrees with l. . basil. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . i doubt not but upon the same parity of reason , if a debitor suffered a decreet to go against him , dolose , and connived so far in prejudice of his creditor , as to omit a competent defence ; but the creditor might reduce that decreet upon this act of parliament , if he could instruct the connivance and collusion , and verifie the defences that were omitted , but without this collusion were clearly instructed , it were very hard to reduce a decreet at the instance of a party , who needed not to have been called , i likewise think , that if the debitor should in prejudice of his creditor suffer the term to be circumduced against him for not compearing to depon , that decreet were likewise reduceable : and this was so found at the instance of marjory halyburton contra morison , where though morison was a singular successor , and had got an assignation to the decreet obtained by collusion against watte , by his brother , yet the lords ordained witnesses before answer to be led for proving the collusion , and repon'd watte to his oath , and ordain'd him to depon . but the difficulty there would be , how a debitor could be compelled to swear ▪ and i doubt not but in this case if the collusion were offered to be proven by the oath of him who obtained the decreet , that the decreet would be reduced , though the debitor compeared not to depon : or if the creditor pursu'd him , that ●o casu he would be forced to depon , and that if he refused , personal action would be obtained against him , l. . § . . h. t. which allows action to the creditors , si data opera ad judicium non venerit . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . upon the same reason also , if my debitor should by collusion prejudge his marches by a transaction , meerly to prejudge me who was to secure his estate to my self by a diligence for my debt ; this transaction might be quarrel'd , as done in defraud of me his creditor , which agrees with l. . basil. h. t. it is much debated amongst the civilians , whether he is said to alienat in prejudice of his creditors who refuses to acquire an estate that he might acquire , to the advantage of his creditors : as for instance , if he refused to accept of a legacy , or to enter heir , it would appear to me , that by the common law , actio pauliana extends not to these cases , as is clear per l. quod autem ff . quae in fraud ▪ qui autem cum possit aliquid qu●rere , non id agit , ut acquirat ad hoc edictum non pertinet & § . . p●oinde & qui repud●avit haereditatem vel legi●timam vel testamentariam non est in eo casu ut huic ●dicto locum faciat . and the ordinary distinction allow'd by the doctors in this case is , that aut agitur de jure de lato & quaesito , & hoc debitum quaesitum creditor repudiare non potest , aut agitur de jure non del●to , aut saltem nondum quaesito licet de lato , & non prohibetur illud repudiare . but yet this decision of the civil law seems unreasonable , for since the law was to secure creditors , it was just that it should have secured them against all frauds , and what fraud is more malicious , then to ly out of an estate by which the creditor might be pay'd : or not to fulfil a condition , by the fulfilling whereof , they might be put in a capacity to pay their debt . and therefore our law has much more justly by the . act , par. ja. . allowed , that the creditor may charge his debitor to enter heir , whereupon the estate may be apprised from the appearand heir , in the same way , and manner , as if he had entred heir . as also , by our law , if a legacy were left to my debitor , if he designed to ly out of it meerly to prejudge me , who am his creditor ; yet the law would secure me against this malice , either by allowing me to arrest the legacy left in the hands of the executor , if the executor did confirm that testament wherein my legacy was left , and so i might establish a right to the said legacy in my own person , by a decreet to make forth-coming ; or if the executor should refuse or decline to confirm the testament . i the legators creditor might confirm my self executor , dative ; and so in omnem eventum , secure my self against the fraud designed by my debitor ; but they are in a mistake who think , that i could have confirmed my self executor to the defunct , for the defunct was not my debitor , though he left a legacy to my debitor . the question is yet harder with us , in conditional obligations , whereof i shall give two instances ; one is , if by contract betwixt my debitor and titius , titius were obliged to pay my creditor merks ; and upon the payment thereof , my creditor were obliged to confirm titius as his vassel , but my debitor finding that the said merks would accress to me , should upon that head decline to fulfil . the question is , how could i settle in my own person a right to the said merks ? and it is thought that the proper way were to comprise from my debitor , that right by which he could have confirmed titius ; and having thus put my self in a condition to fulfil the condition upon which the merks was payable , i could either arrest the money in titius hand , and force him to make it forth-coming , or else pursue an ordinary action against him , wherein i would conclude that he being obliged to pay merks to my debitor , upon obtaining a confirmation from him , should be now descerned to pay me the said merks , as having come in place of his said creditor , by having comprised his right , and so being capable to pursue , and fulfil the condition whereupon the said merks was payable . but it is thought that the last part of the alternative will not hold , viz. that there may be a personal action for payment ; and that because , albeit the creditor having comprised the right whereupon he may confirm , may fulfil the condition , yet he cannot have right to the conditional obligation , so that he may pursue for payment , unless it be setled in his person by comprising , arrestment , or some other legal diligence . the second case is , if titius be oblidg'd to pay my debitor merks , upon condition that my debitor should build him a house : the question is , how i , if my debitor be unwilling to fulfil , can establish a right to the said sum in my own person . to which it may be answered , that either my debitor was obliged expresly by way of mutual contract , to build the said house to titius : and then some think , that i may force titius to asigne me to the contract , and thereby i will force my debitor to fulfil his part ; but yet i see not how he may be forced to asigne me , or from what that obligation can be infer'd . others think , that i may arrest , and if when i pursue to make forth-coming , titius shall alledge that he cannot pay until the condition be fulfilled . i may eleid that allegeance by this reply , viz. sibi imputet , that he did not obtain the implement of that condition by registrating the contract , and forcing my debitor to fulfil . but i think the foresaid reply , sibi imputet , would not be relevant , seing the debitor is secure ; and it cannot be imputed to him that he did not pursue for implement , and as the creditor of the conditional debitor would not be heard to say sibi imputet , so this creditor who can be in no better case ; cannot reply upon sibi imputet . but if my debitor was not expresly obliged to build the said house , and that titius was only bound to pay merks , when my debitor should build him such a house . i conceive that eo casu , if my said debitor designed to defraud me by not fulfilling the condition ▪ our law would allow me no remedy . to be intented by any true creditor . a creditor is he to whom we owe any thing ; against which we cannot defend our selves by a perpetual exception . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 basil ▪ de verb signif . l. . by these words it clearly appears , that this action is competent to all creditors , whether they were creditors for an onerous cause , or not . for though it would appear by the narrative , that this law was only designed to secure such as were creditors for an onerous cause ; and albeit it would seem that the only reason why that this law was introduced , was wanting here ; since the creditor did not lend out his money in this case , in contemplation his his debitors estate : yet since in the construction of law , even donations are good rights , and the person to whom they are made becomes thereby creditor ; etiam donatarius est creditor , post quam donatio est completa ( except in the case where the donation is revockable ) therefore this action is likewise competent to them ; and so it has been oft decided in our law. though creditors whose term of payment is not come , differ from such whose debt is suspended by some condition , the one being called creditor conditionalis , and the other creditor in diem ; which two differ both by the civil law , and ours ; yet whether either of them be comprehended under the general word creditor , where that word is used in statutes , is much debated . cagn . adl . . ff . si certum petetur is of opinion , that these are not true creditors , because a debitor is he who may be forced to pay , l. debitor : ff . de verb. sign . with which law the basilicks do agree , for l. . tit . basil. de reg. jur . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , but so it is that he who owes to a day , or under a condition ▪ cannot be forced to pay . . the law called a conditional debt , the hoop only of a debt . ex conditionali just . de verb. obl . . these are called creditors in this title quibus ex quacunque causa cum debitore est actio , but so it is that before the condition be purified , or the term of payment , there can be no action , l. caedere diem , & l. creditores : ff . de verb. signif . but yet on the other hand , these are both creditors , because the law makes creditor to be genus , the species whereof is creditor purus , creditor in diem , & creditor sub conditione , l. creditores ss : de verb. signif . . it is clear per l. aquil. ss . ad l. aquil. that a conditional creditor may purlue to have his debt payed , or secured , when the term comes , though it be not yet come . . ille vere est creditor , qui perpetua exceptione non potest removeri , l. creditores , ss . de verb. sig . but so it is , that neither creditor in diem , nor creditor sub conditione , potest perpetua exceptione removeri . ▪ in reason it appears , that since when the condition is purified , the condition is drawn back to the date of the contract ; that therefore the conditional creditor hath this remedy competent to him , glos in d. § . si quis in fraudem . this action then , is competent to creditors , to whom a debt is conditionally owing ; but is not to take effect until the condition be purified . as for instance , if titius sell me his lands with absolute warrandice , and thereafter dispone any part of his estate , to a conjunct , or confident person , without an onerous cause , i might reduce that alienation as done in defraud of me , though the lands sold to me were not evicted , and so the warrandice did not actually take place . which case though it be not expresly decided in our law , yet i find a reduction ex capite inhibitionis sustained in thir very terms , but with this just caution , viz. that the reduction should take no place till distress should follow , which is likewise decided by the civil law , l. potior ss . qui potiores in pig . § . where also the former caution is used , & ubi conditio purificata est , ibi conditio retrotrahitur . . this action is even competent to these creditors whose term of payment is not come , though it may seem , that till then they are not true creditors , the reason why both the civil law , and ours allow reductions in these cases , is comonly thought to be , least the creditor to whom the alienation is made , become insol . vendo , and so the action of reduction , if delayed till then , would then become useless . but if the lands or others disponed , be still in their hands , it does not import whether they be insolvent or not , seing reductions are in rem , and doe affect the right disponed , whatever be the condition of the person who receiveth the right ; and if they be dispon'd to a third person for an onerous cause , the reduction cannot be effectual ; and for obviating that prejudice , the creditor may inhibite . the true reason then for sustaining reductions at the instance of creditors in diem , or sub conditione , is , that though personal actions for payment , are not competent to such creditors before the day , or the condition exist , yet they may obtain declarator , that notwithstanding of such fraudulent rights , their bonds shall be effectual to them , and their debitors estates liable to them , and to execution at their instance , as if those rights were not granted , and upon the matter , reductions are nothing els but declarators to the effect foresaid . . by the common law , such as were creditors ex delicto , had this remedy , which though some lawyers have contradicted , yet it is most clear in my opinion ; l. . ff . de verb. sig . sed et si ex delicto debeatur , mihi videtur posse creditor is loco accipi : for though he only is a creditor , whose faith we have followed , l. . ff . si certum petat : and that the party injured cannot be said to have followed the faith of the injurer , yet that law expresses only one quality of a creditor ; and there are many creditors whose faith we have not followed . and yet i have seen this debated in our law , february . lindsay contra gray of haystoun ▪ in which persuit a reduction was raised by lindsay against haystoun , of a disposition made to haystoun by him who had murdered her husband , after the murder committed , to the prejudice of the assythment due to her , and thereafter decerned to her by the exchequer : from which reduction the lords assoilzied , because haystoun was not obliged in law to know of the murder , nor did any register put him in mala side , and singular successors are only obliged to seek the registers ; and she having only the gift of the murderers escheet ( he being denounced in absence ) for satisfaction of the assythment due to her ; the lords found she might pursue declaratours of escheet , but could not pursue real actions . and generally with us in scotland , he who commits a crime , is either only denounced fugitive , and in that case , his escheet only falls , or he gets a remission , and then there is an assythment due , but in neither of these cases reductions upon this statute are sustained , or else the murderer dies , and then nothing is due even by way of assythment with us . but this first seems unreasonable , or at least severe , for if a person should commit a crime against me , and should thereafter to defraud me of that assythment , and just reparation that were due to me , dispon his estate to a conjunct or confident person ; it seems very unjust that i should be disapointed of my just satisfaction by this voluntar deed of his . and as this is not suitable to the principles of equity , and justice ; so neither seems it suitable to the principles of law , for tantum facit quis delinquendo , quantum facit se obligando , and therefore as i could have reduced any such voluntar alienation , if another had expresly oblidged himself to me , so ought i to have the same benefit when another l●●s committed a cryme against me : and ●● we consider seriously the principles of either the civil , or our municipal law ; we will find ; that not only are creditors ex dilicto looked upon as creditors , but that they have 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . or jus prelationis to all other creditors , in swa far as concerns the necessary reparations . and thus it is with us expresly declared by the . act . par. k. ja. . and the . act . par. ja. . that all remissions , or respits granted to any person till the party skaithed be first satisfied , shall be null . and by the . act. par. ch. . the party from whom goods are stollen , are to have reparation out of the first , and readiest of the thiefs goods and the last part , viz. that nothing is due by way of assythment where the guilty person suffers , seems unreasonable for the heirs of the person injured being put to great expenses in the persuite oft times , and the wife , and children , being oft times beggar'd by the death of the person killed , it is unjust they should have no reparation ; and the offenders death satisfies publick justice , but not them . and i love bette● the law 's of spain and france , which allow's reparation even where the offender dyes . for the better understanding of the general point , how far the fisk becomes a creditor , by the common law , upon the commission of a cryme , and so may reduce posterior dispositions ; it will be fit to destinguish these cases , first , before the cryme be committed , the fisk has no interest to reduce any disposition made by any person whatsoever , except the commmitter had disponed his estate , upon disigne to disapoint the fisk when the cryme should be committed ; as for instrance , if a person who disigned to run in to the enemy , or to kill the king , should immediatly before dispon his estate ; i conceive that disposition would be quarrelable , as done in fraudem fisci . if this animus comm●ttendi crimen , & fraudandi siscum , could be made appear , by these , or such like presumptions , viz. if the disponer did immediatly before the committing of the cryme , and without any onerous cause , grant the said disposition , and made an disposition omnium bonorum , for a particular disposition of any small part , though made immediatly before . and though gratuitous , could hardly be quarrelable ex hoc capite . . if the receiver of the disposition was conscious to the disponers designe of committing the cryme , then if the cryme was treason , the receiver is guilty of the cryme ; and so the disposition , and all the receivers own estate fals to the fisk. and in these crymes a disposition made to one who was conscious to the designe , makes the disposition quarrelable whether it be made for an onerous cause , or not , or whether it be omnium bonorum , or not . . as to dispositions made after the cryme is committed , we must distinguish thus , viz. either the cryme committed is treason , and all dispositions made after the perpetuating of this cryme are null , though before citation , or condemnation , but there must still ensue a sentence , which sentence is drawn back to the committing of the cryme . . in other crymes , dispositions are either of heretage , or moveables ; as to heretage , no disposition is quarrelable , because no cryme confiscats heritage , except treason . and yet quoad assythments to the party wronged , i think there is in reason ( though our law allows it not ) so far jus quasitum , to them , that they may quarrel all gratuitous dispositions , though made before citation , as made to their prejudice ▪ who became lawful creditors by the injury suffered in the same cryme : but if the disposition was for an onerous cause , i conceive it cannot be reduced ex hoc capite , or affected with the subsequent assythment because the buyer was in bonafide to buy , finding nothing against him in the register of hornings , or inhibitions . and that though he knew the disponer had committed the cryme , because he was not oblidged thereby to know that he was incapacitated in law to dispon . . in other crymes , besides treason , dispositions of moveables are quarrelable by the fisk , if if made after sentence , and it may be , if after the party was cited for the crime , if the crime was such as did consiscate moveables . for though regulariter post commissum crimen , valet alienatio ante sententiam facta titulo oneroso neque revocatur nisi appareat contrahentium fraus . angel. ad. l. . siquis c. de bon ▪ proscript , yet there lies still a presumption , that all dispositions made after an accusation are made me tu justae penae . picus ad l. post contract . ibid. and all lawyers are of opinion , that in neither of these cases , a delinquent may pay his former creditors : and it is a received opinion amongst us , that all crimes which are capital do confiscate the commiters moveables , though there be no act appointing that confiscation , as a part of the punishment , because moveables , sequuntur personam ▪ and thus in the case of waugh in selkirk ; the lords found his moveables to fall under escheet for theft , though there be no express statute confiscating the moveables ▪ for theft but though this be followed in some particular nations , as france ultrad . concil . . yet clarus tels us , in quest. . that de consuetudine totus mundus servat quod bona mobilia non confiscantur nisi exdispositione statuti , vel consuetudinis , excepto crimine heresis , & lese majestatis . and particularly in theft , bossius is clear , that the moveables are not escheet nisi vigore statuti . and why with us should it be declared by some acts , that the committers life or goods shall be in the kings will , and in others , that the committers moveables shall be escheet to the king , if this hold in all cases ? . where the committer is declared punishable by confiscation of his goods , and his goods are confiscated ipso jure , there even after the committing of the crime some think , that the committer can dispon no part of his moveables , even before denounciation or citation . that being the effect of confiscation ipso jure , as is clear by the above cited doctors . and it would appear , that confiscation ipso jure , must import somewhat more then the confiscation that results only consequentially from the nature of the deed it self . for else why needed the law express this ; and if the law has confiscated them at the time when the crime was committed , it would appear that the dominium is thereby transferred to the fisk , and that consequently the committer is devested of them nam duo non possunt esse domini in solidum . and if the committer be thereby devested of the property , he cannot dispon , for none can dispon but he who is proprietor . and yet even in that case the person injured , should have still action for his dammage , and interest , for he is mor prejudged by the crime , then the fisk ; and consequently it is not just that he should be excluded by the fisk , since the fisk has only intrest by him , and by the wrong which he has suffered . but i refer the reader to peregrinus de jure fisci , who has treated this question most lernedly . . this action is not only competent to the creditor himself , but to the creditors heir , for heres & defunctus sunt in jure una & eadem persona , and not only is it competent to the creditors heir , but in many cases , it is competent to his singular successor , to whom either the right is asigned , or who becomes singular successor , ratione rei , as donators to escheets , and forefaulters &c. as was found , march . . the defuncts creditors are allowed to reduce alienations made to the prejudice of appearand heirs , upon death-bed , when these heirs were their debitors , for though this priviledge seems only introduced in favours of appearand heirs , yet their creditors may comprise from them omne jus quod in iis est , and so reduce , as having comprised , as was found at the instance of balmerinochs creditors contra the lady coupar , and the th . january , . roxburgh contra beatty . and in this case it was found that even creditors might pursue declaratours and reductions , upon this act , though they had not yet appris'd , albeit it was then alledged , that none has interest by our law to pursue reduction of a real right , except such as have a real right standing in their person to the lands , whereof they crave the right to be reduced . it is in some cases , not only competent to such as were creditores before the alienation quarrelled was made , but even to such as were creditores futuri , and became creditors only after the alienation quarrelled was made . and the civilians mention two cases wherein this action is competent even to such as were not creditors the time of the disposition quarrelled : the first is , if the disponer designed to borrow money before he made the fraudulent alienation , and did borrow the money upon design to break with it , for there though the reducer was not a true creditor , the time of the alienation , yet the fraudulent inclination respecting expresly this creditor , or the borrowing of the money ; made the disposition revocable and reduceable . jason ad jnst . hoc tit . num . . but here the design must be expresly proven , or at least must be necessarily infer'd from convincing circumstances , and presumptions . the second case mentioned by them , is , if the creditor did lend the money for paying prior creditors ; in which case , as they might have reduced the deed done in their prejudice , so may the posterior creditors , since they come in place of the creditors whom they payed ; & surrogatum sapit naturam surrogati . but this last case does not ( for ought i remember ) take place in our law , and seems not at all suitable to the annalogy of our law in other cases ; for else he who had lent money to pay sums due upon an inhibition , would have right to the inhibition , or he who lent money to pay off comprysings , or arestments , without being expresly asigned to either . and therefore i conceive , that either the creditor who payes the creditors who were prior to the alienation , takes assignations to these prior debts which these pays , and then they may reduce deeds done to the prejudice of that first debt , or else he pays only the money to the debitor , and the debitor pays the prior creditors , which is the case meaned by the doctors here , and in this case i conceive , the creditor who so pays , would not have the priviledge , and that because the debt which only had the priviledge is extinguisht , & non entis nullae sunt qualitates , nor can the maxime surrogatum sapit naturam surrogati , take place here , seing that the debt in whose place it is surrogat , became extinct before the surrogation : and none of the parties could design to transmit this priviledge , else the payer had taken assignation ; nor can he complain since sibi imputet , who did not that which he might have done for securing himself . as to the first of these cases , there was a famous decision extending thir reductions even to posterior creditors , . july , . at the instance of street , and jackson , english-men , against james mason . the case whereof was this , james mason having dispon'd his lands to james mason his son , the said street , and jackson raised a reduction of the sons right , as granted in prejudice of them , who were lawfull creditors to him , by vertue of a trade and correspondence which was begun long before the alienation ; though the bands wherein he became debitor to them were of a date posterior to the alienation . to which it was answered , that the ground of the debt , being a bond , and the bond being posteriour to the alienation , they were not creditors the time of the alienation ; and consequently the alienation was not reduceable upon this act of parliament . to which it was replied , that this pursuit was not founded upon this act . only but upon the sure principles of the common law , according to which the lords useed to decide before this statute was made , and according to which , they are warranted to proceed by this statute in cases that are new . though the debt was not constitute till after the infeftment was granted , yet the pursuers having long before that time entred in a trade with mason , they did bona fide continue that trade without any interruption , and under the collour of that trade he had most fraudently bought with their moneys this land , and did most fraudulently convey the same to his son to their prejudice : which did clearly inferr a designed fraud in the father , and tended inevitably to ruine all trade and commerce which might be very easily disappointed by such fraudulent conveyances as this ▪ upon which debate the lords ordained james mason , the fathers count-books to be produced , that it might appear in what condition he was at the time when he made that disposition to his son ; and whether the same was granted upon designe to frustrate his creditors , or not , like as they allow'd witnesses to be adduced for either party , for clearing the lords how far the trade was continued betwixt the father and thir pursuers , before , and after the sons right ; after making of which report , the cause being again called , it was urged for the pursuer , that by the report it was clear , that there was a former trade , and correspondence betwixt them , prior to the sons infeftment , dureing all which time he oftimes sold cheaper then he bought ; and that when he went to take the infeftment for his son , he disguised himself , and rode from , and to the land , in a by-way , and caused so mark the seasing in the minut-book , that no man could know but that the seasing was taken for the father , and after the seasing was taken , the father still remained in actual possession . from all which it was argued , . that mason elder having entered into a publick and unterrupted trade , and correspondence with the pursuers , the said trade is to be considered with respect to its first beginning , and the bonds , though posteriour to the infeftment , yet are to be drawn back ad suam causam , viz. the trade and commerce from which they did result . . it was clear from the nature of commerce in general , and from this report in particular , that former payments were still made the foundation of new credite : and if the making of such rights during the dependance of such a continued trade were allowed in favours of children ; no merchand would give trust , or if they gave , they might be ruined by it , both which would be equally destructive to trade . . if we consider the analogy of our law , we will find , that the lords have still considered a continued , and uninterrupted trade as very priviledged in many cases ; and therefore though other compts prescrive in three years , yet that statute uses not to be extended to a continued trade , and correspondance , and so far have privilegia mercatorum , & commercii , been allowed in our law , that bills of exchange are allowed , though wanting the ordinary , and statutary solemnities of witnesses and warrands ; for payment of bills of exchange are sustained without the solemnity of intimation , against posterior assignayes , and arresters : and annualrent is sustained betwixt merchants , sine pacto , vel lege , and a bill subscribed only by a mark , without either the subscryvers intire name , or the initial letters of it , was sustained , it being proven that the drawer of the bill was in use so to subscribe . . by the common law , actio pauliana was extended even to posterior creditors , where animus fraudandi , prior to the alienation did appear , either by writ or presumptions , which are enumerate by jason , ad inst . hic and are very far short of the presumptions formerly condescended on : and if the common law , and natural reason allowed this remedy in the case of debts absolutely posterior ; how much more ought it to be allowed in this case , where the debt , which is the ground of this pursuit , depended on a prior cause , and was the result and product of a correspondence entered into , before granting of the sons infeftment . . the father had no estate before this correspondance , and having drawn fraudently into his hands the persuers goods , about the same time that he bought the land , law and reason presumes that the price of their goods , did pay the price of thir lands : and that therefore this land ought to be affected and burdened with their debts . to which it was duplyed , . that though the common law did allow actio pauliana to posterior creditors , yet that was only in the case where the receivers of such rights were participes fraudis which cannot be alledged here , since the son was minor nec doli capax , and that especially being introduced in odium of the collusion , it cannot be extended to cases , where no collusion can be alledged upon the receivers part . . commerce and trade is founded upon personal trust , and merchants follow the faith of those with whom they trade , without ever considering what real estate they have ; so that thir pursuers cannot be said to have been cheated in their expectation , since they cannot be said to have furnished their goods , in contemplation of the real estate now controverted . . either thir pursuers did search the registers , or not ; if they did not , sibi imputent , qui sibi non vigilarunt ; and if they did , they would have found that the son was infeft , his infeftment being registrate , and though the minut-book did not specifie , whether the seasing was granted to mason elder , or younger , yet they ought to have searched the minut-book it self , whereof this is appointed to be but an index , and the son not having been particeps fraudis , could not have been prejudged by any cheat or contrivance of his father : for the jus quesitum to him by the infeftment , sine facto suo ab eo auferri nequit . . the pursuers did innovat their accompts by taking bond for the product , and mason had a discharge of all former accompts , and trade : so that at the time of the disposition , he was not their debitor upon the accompt of any prior trade ; and the pursuers were no more to be considered as merchants , but as common creditors : and it were a very dangerous consequence , to make debts that are innovated , retain all the priviledges that they had ante jnnovationem & pernovationem prior obligatio perimitur . ● . . ff . de novationibus . . it can be made appear , that mason had other trade , which would have furnished him the price of the land , and that he was loser by the pursuers trade . to which it was replyed , that the common law did only consider participes fraudis , in order to another effect , viz. if the alienation was ex causa onerosa , then the alienation could not have been reduced ; unless the receiver had been particeps fraudis ; but where it is ex causa mere lucrativa , as in this case fraus in eventu was sufficient . and even here the disposition being made by the father to his own son who was in familia , the son , was in as ill condition , as if he had been particeps fraudis : nor could he plead the same benefite as a stranger , contracting bonafide . upon which debate , the lords did reduce the disposition , as being made to the son , by the father , who was a merchant , during his publick trade and correspondance . which disposition could have no other rational designe , but to cheat creditors , the father not having so much as reserved himself a liferent , or power to redeem . but since the lords declared that this decision proceeded upon all these grounds joyntly , it can hardly be extended to other cases . and i find that this publick interest , and advantage of trade and commerce , has been sustained to reduce deeds done to the prejudice thereof : but yet not upon this act , and statute , but upon the general ground of fraud , infer'd by most pregnant qualifications , as is clear by the decision betwixt pot and pollock . . feb. . the case whereof was this ▪ john pollock being creditor to his wife of a second marriage , for her life-rent provision , and to others to whom he owed money , they apprised his estate , and assigned their rights to pot , who thereupon intents reduction of a band granted by the defunct to james pollock , his son of the first marriage , for . merks . the reasons of reduction were , first , that this band was granted by a father to his own son , without an onerous cause . to which it was answered , that they not being creditors when this band was granted , this act of parliament allowed them no reduction of it , for this act is only conceived in favours of prior creditors , and since his father might have gifted away his estate to a stranger , and even that gift could not be quarreled by posterior creditors , because they had not then interest , and so their interest could not be said to be prejudged , there was no speciality as to him , why he might not be capable of the same donation ; and whereas it was alledged , that this would ruine commerce , because a father might grant such a right , and thereafter keep it latent , and cheat his creditors with whom he traded , who could not know the condition of the defunct . to this it was answered , that the act . introduced no such speciality in favours of trade , but upon the contrair , such dispositions , when made by merchants , were lesse presumeable to be done in defraud of creditors , then when made by such as had no trade , nor commerce , because traders might grant bands to their children , in expectation of what they might gain , and when they ●ell thereafter insolvendo , that might be imputed to their losse by sea , or trade , and not to the donation in favours of children . upon which debate , the lords repelled the reason founded upon the act . the . reason was , that this band was reduceable ex capite doli , as granted by collusion betwixt father , and son , in necem creditorum , and to defraud their just interest : which dole , and fraud , was infer'd from these circumstances , . that the son being forisfamiliat , and provided , it could not be granted for any onerus cause . . the band was kept latent till the father died . . it did bear no annualrent , and the term of payment was delayed till after the fathers death . . their debts were all contracted immediatly after the granting of this band ; so that it appeared clearly , that he had designed to exhaust his estate by this band in favours of his son , and then to contract debt freely , and to apply their money to the payment of this band. upon which qualifications of fraud , the lords reduced the band. the third reason was , that this band granted by a father to a son , was but a legittim or portion natural , in the construction of law , and therefore was revockable by the father , and consequently by his creditors ; and legittims did only affect the the defuncts free gear ; which reason was also justly repelled , for this being a band granted to a son , who was foris familiat , and being delivered to himself , was found not to be of the nature of a legittim . first , because it did not bear to be in satisfaction of his portion natural . and secondly , because it was an ordinary band , and delivered in the ordinary way . there was another case decided th decemb. , wherein the lords reduced a disposition granted by reid of daldilling to his son , even at the instance of posterior creditors , in respect that the right was base , and that the father continued still in possession , and acted still as absolute fiar , and that the registers of that shire were carried out of the countrey , so that they neither could , nor were obliedged to know the sons infeftment . and that , albeit it was alledged for the son , that as fraud never ought to be presumed , so there is no ground for presuming it here , since this infeftment ought to be imputed to another cause , then a design to defraud creditors , viz. to a prior contract of marriage ; wherein his father having gotten a great portion with his mother , was thereafter obliedged to infeft him in his lands , and this being the ordinary way taken to secure ancient families against prodigal sons : and it being the ordinary remedy taken by provident men , when they give great portions with their daughters ▪ it were very dangerous to reduce such dispositions at the instance of posterior creditors ▪ in whose favours nothing was provided , by the act of parliament , and the sons infeftment being registrat , did likewise take off all presumption of fraud . and though the registers were taken away , that could not prejudge the defender , or be a ground of reduction here , no more , then it could defend him against a reduction ex capite inhibitionis , or interdictionis , for the user doing omne quod in se est , and following the faith of publick registers , cannot be prejudged by an accident , to which he had no accession . and there was as good reason for reducing interdictions at the instance of posterior creditors , as for reducing such base infeftments : the not allowing of which would still force sons thereafter to be at the great expence and trouble of publick infeftments , and even these publick infeftments , were lyable to the same reason of reduction , since lawful creditors were in both cases prejudged ; and a son preferred to them . and though equity should be considered , where there is no law ; yet where there is an expresse statute , in which many cases are considered , casus omissus , habetur pro omisso . it was here observeable , that the contract of marriage did not bind the father to infeft the son in these lands , but that hereby the estate was only provided to the heirs of marriage , so that the son behoved to have been served heir , and so would have been lyable to the fathers debt , if this new infeftment which was here quarrelled , had not interveened . not only deeds done to the prejudice of prior creditors are reduceable , but even deeds done dolose to the prejudice of such as became creditors , at the same time with the deed done , are reduceable . as for instance , one brother grants a band to another , upon designe to let the friends of her whom he is suiting in marriage , see that he has an estate , and immediately after the contract , or about that same time , grants a discharge to his brother , having engaged the womans friends to give him a gerat tocher in contemplation of that fallacious band : this discharge is reduceable , as given fraudulently to the prejudice of the woman who gave the tocher . and who is creditrix by that contract , without respect to priority or posteriority of the debt . as was found in the case henderson against henderson ; and donald foller being provided by his father , in his contract of marriage ; to the conjunct●ee with his wife , of a tenement of land , the fee whereof was provided to the children of the marriage , and the father having fraudulently taken a tack from the son at the same time ; the lords reduced the said tack , as done in defraud of the said contract , & contra fidem tabularum nuptialium . and if this had been otherwise decided , all poor women might easily be cheated , and contracts of marriage , which are the obligations most priviledged by law , would become ineffectual and might easily be evacuated : and so favourable are such obligations in contracts of marriage , that glencorsse having provided his sons by several bands of provision , and having thereafter dispon'd his estate to his son in his contract of marriage , the son having got a good tocher in contemplation of this estate ; the lords did find , that the sons fee could not be reduceable by , not affected with those provisions , since they were but latent rights , which neither the son , nor they who contracted with him were obliged to know . the presumptions from which lawyers conclude a designe of cheating future creditors , are those . . if the debitor dispone all his estate , assignatio omnium bonorum , especially if he reserve not his own liferent , as in masons case , for it is presumed , that no man would denude himself of all means of subssistance without some malicious designe , and if the disposition be made without an onerous cause , l. omnes § . lucius ss . de his quae in fraud : or for a lesse price , then the thing dispon'd was truly worth , strach . tract . de decoct . part . . num . . but since licet contrahentibus in emptione vel venditione seinvicem decipere . it seems that this extention should not hold , except where the thing dispon'd is much under-rated . . if the disponer be bankrupt , or a cheat. or deploratae vitae . strach . num . . . if he borrowed immediately after the disposition . . if he borrowed secretly , and desired to conceal his condition , as in masons case . and . decem. . duff contra culloddin this qualification of fraud , was sustained to reduce an assignation made by one brother to another , viz. that the resigner desired the resignation should be kept secret , and thereafter suffered his brother to continue in possession . if he borrowed summs far above his fortune : and upon this last presumption , a merchant in paris was executed , having borrowed vast summs , with which he broke next morning after they were borrowed . to any conjunct or confident person . the reason why the act suspects such , and is more unfavourable in the case of dispositions , and rights made to conjunct or confident persons ; is , because these have easier occasions of making , and are more pron to make such rights then any else . for what strangers would cheat creditors for one another ; and though a debitor will be desirous to prefer his creditors to strangers ; yet he will be ready to prefer his friends to his creditors . which reason seems to be insinuate by that excellent law , l. . c. de donat . data jam pridem lege constituimus , ut donationes interveniente actorum testificatione conficiantur , quod vel maxime inter necessarias , conjunct asque personas convenit custodiri . si quidem clandestinis ac domesticis fraudibus , facile quidvis pro negotii opportunitate confingi potest , vel id quod vere gestum est aboleri . and the doctors have received as a brocard , that conjunctus presumitur scire facta conjuncti , l. octavi : ff . unde cognati : and therefore presumitur alienatio in fraudem facta , quando facta est donatio omnium bonorum vel conjuncta personae , bart. ad l. post contractum , h. t. num . . our law has not fully determined who are repute conjunct persons , since this opens a door to arbitraryness in judges , it had been fit the law had obviated by a special definition , quo ad this poynt the power of judges , as well as the fraudulent conveyances of creditors . but certainly father and son , and all degrees ascendant and descendant , are repute conjunct . and because these are the most near relations , therefore dispositions made to them , are not only reduceable by this statute ; but such dispositions , when made to such as might have been heirs , make the receiver successor titulo luc rativo post contractum debitum . which passive title was not extended against a brother , though the disponer was so old that he could not expect succession whereby his brother might be excluded , nor was the presumtion of fraud so strong amongst collaterals , as to infer so odius a passive title , but reserved action upon this act , . in so far as the cause was not onerous , . decemb. . spencer-field contra kilbrakmont . . brother and brother are repute conjunct persons . but whither this should be extended to the same degrees in affinity , as in consanguinity , has often been contraverted ; and it is certain , that in other statutes , non idem est jus affinitatis , ac consanguinitatis ; and thus the statute forbidding father , son , or brother , to judge in actions of their correlati , is not extended so as to prohibite fathers , brothers , or sons in law , to judge in such cases ; as was found in mores case against gruibbit . but yet a sister in law was found to be a conjunct person , . july . hoom contra smith . and a brother in law was repute a conjunct person in the reduction against major biggar , at waughaps instance . and s●eidivin hoc tit , pag. . tells us , that inter affines & conjunctas personas fraudes presumuntur . and since men will do as much for their allies , as for their blood friends , especially for sisters , or brothers in law ; and that the law upon that same reason repells them from being witnesses : it seems most reasonable that they should be repute conjunct persons . and it is not imaginable why the law , which is jealous that an allye or affinis may perjure themselves for another , should not be much rather unwilling to assist them in such conveyances as thir , to the prejudice of their creditors , where the cheat is easier , and less dangerous . but whether a bastard be such a conjunct person , as that a disposition made to him by his father is reduceable ; may be doubted : for upon the one part , a bastard patrem demonstrare nequit , and he who is of no blood , cannot be conjunct upon the account of blood : and yet upon the other part , a bastard is known to have much natural affection , and so may be presumed a person-willing to conveigh such frauds : and upon this accompt , the law rejects him from being witness in favours of his natural father , marsil . singul . . and a bastard with us is only received cum nota . and the law hath allowed him action against his father for aliment . and though the law will allow him no advantage by his birth ; yet it should not capacitate him to cheat others : and i think this distinction more reasonable then to say with paleot : that bastards are not conjunct upon the father side , but on the mother side . cap. . de not his , or to say with alex. consil . . that these are to be accounted conjunct , in so far as concerns marriage only , so that a bastard brother cannot marry his bastard sister ; for certainly , though these be not conjunct in strict law , sunt conjunctis similes felin . ad cap. per tuas de probat . who is understood to be a confident , seems more difficult , and it would seem that an ordinary factor , or a domestick servant must be said to be confident persons , and an ordinary agent was found to be such a confident person , . june . moubra against spence , and immola ad h. t. leg . post contractum affirms that amicus , magna amicitia conjunctus , is lyable to this presumption , and the law judges still of him as of conjunctus sanguine , and friendship is oftimes warmer then blood . dispositions likewise omnium bonorum , are reduceable , though not made to confident persons , but to a meer stranger : except the disposition be made for an onerous cause , for the law presumes as i observed formerly , that it is made to prejudge creditors ; and it were unreasonable that a meer gift should be preferred to poor creditors , this was found the . november . henderson contra henderson . albeit it was there alleged , that this act declares such deeds only reduceable , as are made in favours of conjunct or confident persons , for though this statute make that a presumption of fraud , yet it excludes not other presumptions , such as were in this c 〈…〉 , viz. that it was assignatio omnium bonorum , and that it bears to be granted for a cause falsly narrated , viz. for the summ of two thousand merks , due by howat the common debitor to anderson ; whereas it was offered to be proven by discharges under howats own hand , that the far greatest part of this sum was payed before the disposition . since this clause of the statute annuls deeds only done to the prejudice of confident or conjunct persons , it would seem , that such rights when made to others who are not conjunct , nor confident , are not reduceable . and yet de praxi , all rights made to any persons whatsoever , without an onerous or necessary cause , are reduceable by this statute , and our law considers the difference betwixt conjunct , or confident persons , and others ; only in reference to the way of probation , so that these must prove an onerous cause whereas others need not ; this shews how misteriously our statutes are conceived . without true just and necessary causes , &c. titulus onerosus , is when any thing is dispon'd with the burden of doing or paying somewhat , titulus lucrativus , is when the deed is meerly gratuitus , and proceeds from meer favour . the civil law observed two rules , in the difference betwixt an onerous , and lucrative cause , quoad this action . the first was , that this action was competent , even against these who had received such rights for onerous causes , when both the giver and receiver were guilty of fraud , if they were partakers of the fraud , l. ait . praetor ff . h. t. and in that case the thing alienated was recalled without restoring the price . the second rule was , that he who had received such a right , ex causa lucrativa , was lyable to restore ▪ though he was not accessory to the fraudulent conveyance . nec particeps l. quod autem § . ij . ff . eod . our law likewise considers two cases , one is , if the creditor had done no diligence ; and then rights made to their prejudice are only reduceable , if they be made to confident persons without an onerous cause : the other if the reducer has as a creditor done diligence , and ●hen the rights done to his prejudice are reduceable , whether they be made ex titulo oneroso , or lucrativo . for by the last part of the act , it is declared that the debitor cannot prefer one creditor to another , to the prejudice of any such diligences . how far children are creditors to their father , and may upon this statute reduce deeds done by their father in favours of other children after their provisions , may be dubious in many cases ▪ of which i shall only name a very few . the first is , a father by his contract of marriage with the first wife , provides the children of the first marriage to ten thousand pounds , and by the contract with a second wife , provides them to twenty thousand merks , and by a contract with a third wife provides the children of that marriage to ten thousand merks . the question rises , whether the children of the first marriage can reduce the contract of the second marriage , quoad the provisions therein made : as made in prejudice of them who became lawful credtors by the first contract ; or if the children of the second marriage , may not do the same to the children of the third marriage : and i conceive that if the provisions be made to the heirs of the marriage , and if they enter heirs , they cannot reduce , because tenentur prestare . but if the contract bear children of the marriage , some think that they may assigne their portions , and the assignay may reduce these provisions made in the second marriage . and just so the children of the second marriage , may reduce the provisions made to the children of the third marriage : but i think , that either the children of the first marriage are infeft , and then certainly , the father cannot prejudge them by posterior personal provisions , or else where neither are infeft , i conceive , that if there be an onerous cause , such as a tocher payed by the contracts of the second , or third marriages , and then also the contracts cannot be reduced upon this statute : for these contracts are not made to defraud creditors , since they are made for an onerous cause . yea though there be no tocher , yet even the marriage is an onerous cause ; for who would marry if there were no provision , and the designe here , was not to prejudge true creditors . the other case is , a man in his first contract provides his land , and ten thousand merks to the heir of the first marriage , and in the contract with his second wife , he provides the children of that marriage , to the conquest that shall be made during that marriage . the question is , whether the son of the first marriage will be creditor to the father for ten thousand merks , even though he be served heir to his father : for though here it seems , that confusione tollitur obligatio , the son of the first marriage being both debitor and creditor . yet conquest is still understood to be , illud quod super est deducto are alieno : and therefore the children of the second marriage , can have no right but with the burden of these ten thousand merks . and in the case of scot of bavila contra binning . the lords found that the heir might reduce the provisions made to the wife , and bairns , of the second marriage , in so far as concerned , the ten thousand merks provided to the heir of the first marriage : but this may be doubted ; for first it may be alledged that there was no debt , since the pursuer was the debitor himself . but secondly if the money with which the land was bought , was conquest also in the second wifes time , it seems against law and reason , that this should not be called conquest quoad an heir of another marriage , cui nihil deest , though if the money had been conquest in the first marriage , it might be more properly called aes alienum . a third case is this , a father obliedged himself in his contract of marriage , with his first wife , to provide the bairns of the marriage , to eight thousand pounds : but before his death he provides one of the three bairns to the whole eighth . the the question propon'd was , whether the other two daughters might raise a reduction of the disposition made to their sister upon this act , and for these sisters it might be urged , that the brother became debitor to them prorata , even as if he had granted band to six men for a summe , each of them would had right to a proportional part of it ; at least , that each child became creditor to him , and so something was due to each of them . and consequently he defrauded them by his disponing all to to any one : but for the other sister , to whom the disposition was made , it might be alledged ; that the father was debitor only to the bairns of that marriage , tanquam stirpi , and so he satisfied his obligation by disponing his lands worth that summ to any one of them , but was not debitor to them in capita . . the designe of the parties contracters , in such cases , is only to secure the summ to the issue of that marriage , without consideration of any division ; for this provision is made to secure against children of other marriages ; but not to secure one child against another , and there may be some reason to be jealous of the father in the one case , but not in the other . . this restriction were contrair to the fathers patria potestas , and the law is never jealous of the fathers affection , but presumes that his division will be just , and what judge should be juster to children then a father . . it were against the interest of the commonwealth to restrain , or take away the fathers power , of distribution in such cases , which is the great curb , that the father has upon his children , for making them good children , or good citizens , and were it not against reason , that if the two sisters had been very vitious , and the third most virtuous , that the father should have been so bound up , that he could not gratifie the one , or that he behoved to provide the other with money to serve their lusts . . it is ordinar to provide expresly , that the money so provided to the children should be divided as the father pleased , and the law uses to decide general cases according to what is ordinarily pactioned , presuming that to be the tacit will of the parties , which is ordinarily the express will of other parties . likeas if it had been contraverted amongst the parties at the time when the contract was to be subscribed , who should have had the power of division ? certainly , it had been allowed to the father . to which last i incline , except it could be alledged that all were equally deserving , and that the father , or children preferr'd , had used indirect means in preferring one to the rest . for though there be no testament quarela testamenti in officio si — with us , yet there may be some place perhaps , for the judge to interpose in such cases . i find by the opinion of the doctors , a father disponing to one child a necessary portion , is not said to defraud the rest of the children , to whom he disponed formerly , nam hoc potius tribuendum pietati quam fraudi . and it is clear , that for this reason , libertus in fraudem patroni , filie dotem constituere poterat l. . § . sed si ff . si quid in fraud . patro , but it is not so with us in all cases , as has been formerly observed . it has been likewise debated , whether provisions by parents to their children , in their contract of marriage , be such onerous causes as may defend the children against reductions upon this act , at the instance of creditors , who crave dispositions made to them in satisfaction of these obligations to be reduced . for upon the one part , it seems , that since they are creditors who may pursue , and distress their father , therefore their father may dispone his estate , and this is both a necessar and a prior debt , and so falls not under the act ; which declares only such rights reduceable , as are granted without true , just , and necessary causes . and provisions of children by contracts of marriage are the ordinary allowable remedies granted to such as paying tochers with their daughters , or providing their sons , desire to see their grand children thus secured . but upon the other hand , it seems very hard , that such latent deeds as contracts of marriage , which creditors cannot know , should be sustained as onerous causes to seclude them ; and that the debitors own children should be preferred to creditors . and as there can be no debate as to this point , where the provisions are made in favours of the heirs of the marriage , because there the heirs must represent the granter , and so cannot reduce his deed , so where the provision is made to bairns of the marriage , yet creditors were preferred to them in the case of bannerman of elsick contra haystoun . but upon the . july . in an action , gordon contra fraser : the lords found , that a right to moveables made by the father to his children , was reduceable at the instance of posterior creditors ; though it was made in satisfaction of the mothers contract of marriage , except the children would alledge that the father was not bankrupt , but had an sufficient estate to pay the pursuers ; for they thought it much more reasonable , that the children should loose by their father , then the creditors . it has been contraverted , whether a right made by a father to his son in law for a tocher , be reduceable by an anterior creditor , and if this be allowed in all cases , men may easily prefer their children to their creditors ; and it would appear , that at least the right so made , should only be esteemed onerous in quantum , it extends to such a value , as may be a suitable tocher , for such a mans daughter , or else it should be repute onerous , in so far as may answer to the joyntur given by the husband , or to the aliment that he is oblieged to bestow upon her stante matrimonio , though he be by contract oblieged to no joyntur , nor hath any joyntur to give her , et it a dos , est titulus onerosus , ex parte mariti , qui● datur pro oneribus matrimonii , sustinendis l. pro. oneribus c. de jur . dot . sed ex parte uxoris dos , est titulus lucrativus . l. qu● liberos ff . de ritu nuptiar . l. sin . c. de doti● ▪ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . basilic . l. . s. . hoc tit . and upon the other hand , a joyntur to the wife is titulus onerosus , in swa far as it is suitable to the husbands estate , as was found novemb. . contra russel . but if the husband should dispone all his opulent estate to his wife , as a joyntur , i think it might be reduced to a third , at the instance of prior creditors , both because a tierce is the provision , that the law allows a wife if there be no provision ; and so is the legal quota . and because rights made by a man upon death bed , to the prejudice of his heir , is restricted to a tierce ; but if the contract bear● , the land to be disponed to the son in law for love and favour , that narative proves titulum lucra tivum , though really no other tocher was bestowed ; and though a joynter was given , as was found betwixt graham and stewart . how far a wife is creditrix by her contract of marriage , and may reduce posterior deeds as done in defraud of it , is debateable in many cases , as to heretage ▪ but these fall not properly under this act , but under the act . par. . ja. . and as to the husbands moveables , i shall only mention one case , viz. campbel contra campbel , decemb. ▪ which was this ; campbel by his contract of marriage , provided his wife to the half of the moveables , that should pertain to him at his death , and a little before his death , he disponed many of his moveables to his brother ; whereupon the relict raises a reduction of that disposition upon this statute . to which reason of reduction , it wa● answered , that the reason was not relevant for the relict was only creditrix by this contract , as to what moveables should belong to the husband at his death , which was but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , & spes successionis , but did not hinder the brother to dispon at any time , in his liedge poustie , upon any part of his moveables . and as such clauses providing a wife to the third of the moveables , were most ordinar , so if this were sustained , the husband could not gift to his brother , or relations , any horse , or any thing else . to which it was replyed , that if such dispositions were sustained , the former , or the like clauses would be elusory , and might easily be evacuated ; for a husband might dispon a little before his death all his moveables : this was not decyded . but the lords inclined only to sustain this disposition , if made for some probable cause : but if it had been made upon death-bed , it was reduceable , or if there had been great presumptions of fraud adduced to clear , that it was contrived as a meer cheat against the relict . but were clear , that if the donation , was only of one particular thing made in leidge poustie , it could not be quarrelled upon this act. it may be doubted , if when the onerous cause exprest , is not true , or if there be no onerous cause , but that the right granted , bear expresly , to be for love and favour . if in either of these cases , it be not lawful to the granter to astruct his disposition , when quarrelled upon this statute , by offering to prove , true and real onerous causes , prior to the debts whereupon the reduction is founded . and first , it is without all doubt , that if the right bear no cause , the user may condescend upon , and offer to prove the true and onerous cause . . i find it decided , that where the writ did bear only love , and favour , though granted by a man to his own wife ; she was allowed to astruct it , by founding it upon her contract of marriage , and ascribing it to make up the defects of the lands , provided to her by her said contract . january . la. brae , contra chisholm . . where the disposition did bear love and favour , and other onerous causes : either the receiver of the disposition was admitted to astruct the disposition , by proving an onerous cause adequat to the worth of the land. in the case naper contra ardmore ; which decision may be debated , for why was love and favour insert , if the cause was adequat , and this was a great presumption of the fraud , especially in a disposition by the father to the son , for though , utile per inutile non vitiatur . and that this might have proceeded ex stilo , yet in suspect cases , where it is known that narratives are much considered , these arguments are but weak . . where the writ bears an onerous cause , and that the cause can only not be proven . then it seems reasonable that the person to whom it was granted , may astruct his right , by offering to prove that there were othere summs justly resting to him . . if the disposition bear an onerous cause ; but if it be proven expresly , that the cause exprest is not true , but is caluminously , and fictitiously exprest : i would conclude , that the user should not be allowed to astruct another true cause , and that in odium falsi , & calumniae : even as if the date of an execution , or other diligence , be found to be false ; the user is not allowed to astruct the same , by condescending upon another true date , and abiding at it . without true and competent . the doctors also condescendes upon a third kind of title , different from both a lucrative , and an one rous title ; and this they call a mixt title , titulum mixtum , l. apud celsumꝰ . authoris ff . de except doli . vid. jason ad l. nemo potest ff . legat : and an instance of this is given in an alienation made in defraud of creditors , for lesse then the true price . and even in this case , reduction is competent for the creditor , prejudged , in so far as the price received is below the true value ; and thus , l. . basil. h. t. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , si in fraudem creditorum meorum , minore praetio fundum vendidero , revocatur quod gestum est , etiam non reddito praetio , but since , licet contrahentibus in emptione & venditione se invicem decipere , and that we see prices of land very different , every man taking his advantage . it may seem strange , why the law should prejudge so far the buyer in this : and i conceive , that except the price be palpably made so low , upon design to cheat creditors , ( any of the creditors having offered more ) or that it is extraordinary low in it self ; such prices cannot be challenged . as if a chalder of victual , worth truly . merks , were sold for . merks : but yet i think not that it behoved to be ultra dimidium , below the just half ; for then it might have been reduced by the civil law upon another head , and so this action had been unnecessar . whether if any debitor buy a hazard ( jactum retis , as lawyers call it ) v. g. if he buy a womans liferent at seven years purchass , and dispone his land for the price : if he die the next year , may not i reduce that disposition , as done to the prejudice of me a lawful creditor ; even as a minor might reduce such a bargain , if made by his tutors . to which i conceive it may be answered , that it cannot be quarrelled , if it was made in the ordinary way , and for the ordinary advantage , for which a man would have transacted it , if he had no creditors , and if no design to defraud , can be shown : and here that maxime holds , fraus & eventum , & consilium requirit : nor are the leidges put in mala fide to contract with debitors in such cases . without just . it is not sufficient , that the price or cause be onerous , but it must be just ; that is to say , a price which the law allowes ; as for instance , if a man should loose a great summ at game , and for payment of it , should dispone his lands , that disposition might be quarrelled as made without a just price , because the law allowes not the payment of what is gained at game , if it exceed . pounds scots . and since the law would not sustain action for it , at the gainers instance against the debitor who loosed it , much lesse should it sustain a disposition for payment of it against the creditors , and yet this may be said to be an onerous cause ; for the looser hazarded as much of his own , against what he gained , and so this game was but the return of his money : and like to emptio jactus retis . and though it may be alledged , that by the . act , . pa. ja. . the superplus of what is gained at game above . pound , be ordained to be consigned for the poor of the parish . and so the disposition made for payment of it , must accresse to them ; and is still an onerous and necessar debt , quoad the looser , and consequently is not reduceable at the instance of his creditors ; yet i conceive that such a disposition would be reduceable at their instance , as not made for a just cause , since it is made for a cause , upon which the law would not allow action . and the civilians number , what is gained at game , amongst lucrative causes , bald. adl . i. c. si quid in fraud patron . and generally what is acquired unlawfully , is by them said to be acquired , titulo lucrativo , jason hic num . . and thus dispositions granted ob turpem causam , &c. may be said to be reduceable also upon this statute , as granted without an just and onerous cause : according to them ; as it is granted without a just cause , to speak in the termes of this act. and i think , we speak more properly then the civilians here , for what is gained at game , rather wants a just cause , then an onerous cause . and necessary causes . dispositions made to conjunct or confident persons may be quarrelled , though they be made for an just and onerous cause ; if they be not made for an necessar cause . for it may be fraudulent , and be designed to prejudice creditors , except the cause be necessary , though it be onerous . as for instance , if a conjnuct , or confident person , knowing that his debitor intends to frustrat his creditors , and to go out of the countrey , and yet presuming that a right granted for an onerous cause cannot be quarrelled , should so far comply with his fraudulent design , as to buy land from him , and to pay him the price upon that design , such a transaction may appear to be fraudulent , and lyable to be questioned upon thus act ; and these words of it , without true just and necessary causes . to have been from the beginning ; and to be in all time coming , null , and of none availe , force , strength , or effect ; by way of action , exception , or or reply , without any further declarator . by this paragraph of the statute , the nullity arising from this statute , is reduceable by way of exception , as well as action , ope exceptionis , as our practick terms it : and this was introduced in favours of the pursuer , who is leised by the fraud● , whose advantage it is to have his interest sustained to him any way , and so to have his diligence thus shortned . for the clearer understanding of these words , we must consider , that by the common law , nullities are either such as are received ipso jure , or ope exceptionis . that is said to be null , ipso jure , where the thing is declared null by any expresse law , as this is by this statute , quod contra legem fit , pro infecto habetur , & ipso jure nullum est . l. non dubium c. de legib : that was nullum ope exceptionis , which was not receiveable , except the nullity had been proponed , by him to whom it was competent . but in our law nullum ipso jure , & nullum ope exceptionis , are the same , & termini convertibiles : and with us the opposition is betwixt nullum ope exceptionis , & actionis ; the reason of which difference proceeds from the favour designed by the law , quoad the form of procedure . for if any thing be null by way of exception , it is received summarly against the pursuite , without raising an action of reduction , or declarator : but what is only null by way of action , needs process of reduction , or declarator . by the common law , either a penalty was not adjected to the prohibitory law , but the thing was simpliciter prohibited , and these things were ipso jure null . but if the law proceeded further , and adjected a penalty ; then either the penalty was adjected to the annulling of the deed : and then the deed whereby the law was contraveened , and the penalty , was both due , or else the deed was declared null , but so that it was some way allowed to subsist , but a remedy was appointed , and then it was not null ipso jure , but was reduceable by the way appointed ; according to the principles of the common law , this nullity was receiveable ipso jure , for quod contra legem fit , id ipso jure nullum est . but so it is that this alienation in defraud of credirors , was declared null by the law , and by this statute being declared null , that nullity should be receivable ope exceptionis . and yet by our practice the nullity arising from this act , is oft-times received only by way of reduction , whereby the lords have receded from the expresse words of the law ; and the only reason i can give for for it , is , that the author or disponer must be called to maintain his right ; which could not be if the nullity were receiveable ope exceptionis : and if the disponer were called , he might eleid the the pursuite , by alledging that the debt , to the prejudice of which his right was said to be granted , was payed , or discharged , or became extinct by compensation ; neither of which could be known to the receiver . and yet i find in some cases , this nullity receivable , ope exceptiouis , v. g. if the right bear , to be for love and favour ; for here there needs no probation that it is fraudulent , and it is a principle , that where the nullity is founded upon law , and the subsumption is instantly verified , that ●o casu the nullity is receiveable ope exceptionis . and in my humble opinion , where ever the fraud can be instantly verified , it ought to be received , ope exceptionis , and the former and ordinary reason , viz. that the disponer should be called , because he may alledge the debt to be payed , seems not to be good , because that nullity is not competent to be propon'd by way of exception , but where there is a competition betwixt the creditor , and confident persons , both pretending right to the lands and others dispon'd , which cannot be but where the creditor has comprised ; and though before comprysing , the creditor ought to cite the disponer in his reduction , which is processus executivus , and previous to , and in order to execution by comprysing : yet after ultimat exeecution by comprysing , it is not necessar the debitor should be cited upon that pretence , that he may question the debt as satisfied . . i find that dispositions of moveables , have been found null by way exception , though nullities of heretable rights are not found null , without reduction or declarator , and thus it was decyded , . june , . bower contra the lady coupar : the reason of which distinction must proceed from this , viz. that mobilium vilis est possessio , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as the greek calls it , and therefore the law requires not so much solemnity to their constitution , nor destitution , or revocation . . i find , that where the right quarreled , is parvi momenti , the lords admit the nullity to be receiveable , ope exceptionis , january , . but here the parties were poor , which i find they do also in nullities ex capite inhibitionis &c. in small matters , and betwixt poor parties , nam de minimis non curat lex , & deminimis summarie jus dicit pr●tor . since there the subject matter is not able to bear large expences . . i have observed , that where the nullities did arise incidenter from another pursuit , depending , that there it was received , ope exceptionis , least the other process should sist , as was found in the case haliburton contra morison . where a reduction being intented at haliburtons instance of morisons right , ex capite inhibitionis , it was alledged that morisons disposition depended upon a right prior to the inhibition . to which it was replyed , that that right was null by the act . upon which debate the lords sustained the quarrelling of this right , by way of reply . but i should rather think , that where the right is betwixt most confident persons , such as father and son , that eo casu the nullity should be receivable by way of exception , both because the cheat is easiest , and most unfavourable : and because the father , or very near friend , might have made all concurr willingly to defend the right , without the necessity of being called , which is the reason why reductions are so necessary in other cases . and in case any of his majesties good subjects ( no wayes partakers of the fraud ) have lawfully purchast any of the bankrupts lands , for a just and competent price , &c. it is much debated amongst the doctors , if actio pauliana be actio realis , or not . the gloss and some interpreters assert it to be only a personal action : and they conclude so , because the possessor of what is alienated in defraud of creditors , is not lyable to this action , except he be particeps fraudis , or else have acquired the thing so alienated without any onerous cause , that it is not the possession , but the deed of the possessor that is considered . our law agrees in this with the civil law , for by this paragraph it is statute , that all who have acquired the thing alienated in defraud of creditors , shall not be lyable to this reduction , but such only as are partakers of the fraud , and have not payed a just price to the interposed person . as for instance , one dispons his estate to his other brother , without any onerous cause , which brother dispons it again to a stranger who knew nothing of the fraud ; and who pays a just and adaequat price for it . in which case , a priorlawful creditor , may reduce the first alienation made to the brother , but he cannot reduce that alie nation that is made by the brother to the stranger : and yet if that stranger did either know that the first conveiance was fraudulent ( which the act calls the being partaker of the fraud ) or if he payed not an adequat price , then and in either of these cases , the creditor may reduce even the disposition made to the stranger ; he is said to be partaker of the fraud , to whom it was intimate by the creditor , that he should not buy , l. ait praetor ff . hoc tit , which is founded upon excellent reasons , and would certainly hold in our law ; though i remember not that it is already so decyded . for this intimation would take away the bona sides , upon which the priviledge granted by this act to singular successors is founded . but the third parties knowledge , that it was to the behoove of the bankrupt , or of the confident , is still sufficient to take from him the benefit of his clause ; which being granted , because of the third parties bonafides , cannot reach to such , whose knowledge put them in mala side , as was found january , . hamiltoun contra hamiltoun , and the viscount of frendricht . as also , if the disposition made to the first receiver , whom this act calls the interposed person , did bear love and favour , and was made to a confident person ; in that case , the right is reduceable . for in that case , the third person buying ought , to have known the nullity , & scire , & scire debere equiparantur ; and this was found in the reduction of a tack , . hay contra jamison . though that tack had past thorow many hands , and to singular successors , who had acquired their rights for onerous causes . i have heard it debated , that though a third person , who acquires a right from the person interposed , for an onerous cause , be not lyable to this action ; yet a compryser , comprysing this right from the interposed person , had no such priviledge . as for instance , a right made by one brother to another without an onerous cause , is reduceable ; and therefore if one of the creditors of that brother , to whom the right was made , should compryse the right so made to him : it was alledged , that as this right would have been reduceable in the person of the first acquirer , if it had continued with him ; so it would have been reduceable from the compryser ; and that for these reasons , . a compryser compryses only , omne jus quod in debitore erat , tantum , & tale : and therefore since it was reduceable in his debitors person , it ought to be so in his , even as it had been reduceable from his creditor , ex capite inhibitionis , aut interdictionis , &c. . the express words of the priviledge , given by this paragraph , does not meet this case , for the words run thus ; if any of his majesties good subjects , shall by lawful bargains purchase . but so it is , that he who compryses , cannot be said to purchase by way of bargain ; but though a comprysing be a legal disposition , and assignation , yet it is a sale by the judge , and not a purchase , or contract amongst the parties . . this case seems not to fall under the reason of the act ; for the act priviledges such , as having a good security , do in contemplation of that right ( which for ought they can know , is sufficient ) lay out their money ; and so follow the faith of that right in the first constitution of their debt . but the compryser lent his money to his debitor , without shewing that he relyed upon the right now quarreled , but finding thereafter that he could not recover his debt , he comprysed any thing he could find . . if this were allowed , it would open a wide door to fraud ; for rights might be made to confident persons , and then might be comprysed ; which any creditor might be induced to , whereas few would adventure to buy originally these rights , as said is . this case was debated in july , . betwixt jack and jack , but was not decyded : and it did divide the opinions of very able lawyers . it may be doubted also , whether the receiver of the right from the interposed person , knew not that the right was fraudulent the time of the alienation , but knew before he received the thing sold , that the first alienation was fraudulent , whether this right be reduceable or not . and it seems that if he knew either the time of the vendition , or tradition , that the right was fraudulent , that he is particeps fraudis , and ought not to have the benefit of this exception ; for traditionibus , & non venditionibus , transferuntur rerum dominia , and so he cannot be said to purchase a right , bona side , who knew before tradition , the fault of the right disponed , and he might have kept the price in his own hand till ▪ tradition , and so needed not have been prejudged . likeas , it is a principle in law , that bona sides requiritur in emptionibus ; & tempore contractus , & tempore factae traditionis , l. . ff . pro empt . & l. fin. ff . pro solut . though the doctors give as a rule that such alienations are reduceable , as are made without an onerous cause , and where the receiver is particeps fraudis : yet they except two cases from this rule , first , deeds done in favours of the fisk , or of a city , or incorporation , which they declare reduceable , though the receiver was not particeps fraudis , l. . c. de debitore civitatis . but i think this most unreasonable ; nor would it hold in our law : for as the act makes no exception in favours of the ●isk , so in dubio , semper contra siscum respondendum . and since this third party is only priviledged , because of his bona sides , i see not why he should be prejudged by the mala sides of his author : or why he should loose his priviledge where he can alledge his bona fides . the second exception is in favours of a patron , who might revock the goods sold , though the buyer was not particeps fraudis . l. . ff . si quis in fraudem patro : but in that case he was lyable to pay the price , ibid. we have no use for this in our law. and yet by our law , masters have no such a tacita hypotheca , in the farms that grew upon their own ground , that they may reduce any disposition made thereof , even to a buyer who was not particeps fraudis . so favourable likewise are singular successors , who are not particepes fraudis ; that a tack being craved , to be reduced ex capite fraudis , as granted and delivered blank quoad the issue or ▪ endurance , and in the blank , eighth years being filled in : whereas ninteen years were only communed upon ; this was found relevant to reduce the tack quoad the tacks-man , who had acquired right to the tack for but not quoad a singular successor , for an onerous cause , without being particeps fraudis . first decem. . crichtoun contra crichtoun and hannans : and a disposition being craved to be reduced , as granted by a person who was only a trusty , having given a back-band ; the disposition , though made as said is , to a singular successor , was found to be reduceable , if the right was made without an onerous cause ; or that the singular successor knew of the disponers back-band ; though it was but a personal obliegement , and not in gremio juris ; and consequently could not in law have otherwise affected a singular successor . novem ▪ . george workman contra john crafurd . and it has been often found in our law , that though gifts of escheat , taken to defraud creditors ▪ be reduceable in the persons of such as took them ; yet they are sustained , when establisht by assignations in singular successors , no wayes partakers of the fraud : and an assignay is not in law obliedged to suffer his cedent to swear in his prejudice , if his assignation be made for an onerous cause ; but if either the assignation be granted without an onerous cause or be made upon design to preclude the debitors from these just remedies : then whatever is competent against the cedent , is competent against the assignay ; so that we may establish this general rule , viz. particepes fraudis , have never the priviledges competent to singular successors . if the disposition has been made by the interposed person , for payment of a price , but the price is not equivalent to the thing sold , then in so far as the thing exceeds the price , the disposition will be reduced , but it will stand in quantum ; it exceeds even as a disposition made to a conjunct person , will be valid in so far as it is onerous , for in either of these cases is the disposition absolutely revockable . but either the conjunct person in the one case , or the singular successor in the other , will be obliedged to make up the true and just price , as was found in the former case , henderson contra henderson , and the . janu. . skeen contra betson , which is likewise more fully clear by these words of the act , viz. providing alwayes , that so much of the saids lands , goods or prices thereof , so trusted by bankrupts to interposed persons , as hath been really payed , shall be allowed unto them , they making the rest forth-coming to the remnant creditors : and the reason of this is , because the law did not absolutly oppose the alienation ; but only did reprobate it , in so far as it was done to the prejudice of creditors . and therefore , the law resolving not to pursue its revenge , further then its design , did reasonably ordain , that these dispositions made in defraud of creditors , should only be quarrelable , in so far as the price was not equivalent . this is likewise fit for commerce ; which is never restrained in so far as is absolutely necessary : and this is very suitable to the analogy of law in other cases ; for thus , according to the common law , he who had taken an obligation for more annual-rents then the law allowed , did not thereby loose all his own annual-rents , but only loosed them in so far as they exceeded the quota prescrived by law , l. placuit ff . de usuris . and a donation bearing a greater summ then the law allowed , when the donation was not insinuated or registrated , did not lose the whole , but only quatenus superat definitionem legis l. sancimus , c. de donat . and in our law , though it be by expresse statute appointed , that tacks set by inferior beneficed persons , without the consent of the patron , for longer then three years , shall be null ; yet quoad these three years they are still sustained , and are not annuled in totum . and albeit by another statute , all bands and other writs not subscribed by the party , or two nottars for him , be declared null , if exceeding one hundred pounds . yet though granted for a greater summ , it will be valid , if he to whom it was granted restrict it to an hundred pounds : and though witnesses can prove nothing above an hundred pounds ; yet though the summ craved be greater , the pursuite will be sustained to be proven pro ut de jure , if restricted to an hundred pounds . and yet i confess ; that these arguments from analogy , do not in this absolutly hold , for in several of these instances , the deeds specified habent individuam , formam , prescribed to them by the law , & ubi actus est individuus , ratione formae , ea non servata , actus omnino corruit , & utile per inutile vitiatur . but the arguments taken from donations , & ab usuris quadrat with this case or at least the argument ab usuris does . but the receiver of the price shall be holden to make the same forth-coming to the bankrupts true creditors , for payment of their lawful debts . though the interposed person be particeps fraudis , yet he is not by the act , lyable to restore the land , or others disponed to him simply , or the price thereof , if he has dispon'd , the same to a third person : but there will be deduced , or allowed to him , so much either of the land , or price , as he has given , or payed to lawful creditors : and the superplus is to be forth-coming to the other creditors , who wants their due payment ; and that not without new dilligence , by these who have reduced the right granted to the interposed person , by arrestment , or otherwise . but if the creditor who has prevailed in the reduction , had not done diligence to affect the land , or price , in the hands of the interposed person , either by comprysing , or arrestment , he must notwithstanding the decret of reduction , affect the same : otherwise , other creditors doing diligence , will be preferable , seeing reductions do not settle a right upon the creditors to their debitors estate , but they only sweep away such fraudulent rights , as may stand in the way of their diligence , and execution ; and hinder them thereby to get a right to the debitors estate . and it shall be sufficient probation of the fraud intended against the creditors , if they , or either of them , shall be able to verifie by writ , or oath of the party receiver , that the same was made without any true cause , &c. for clearing of these words , it is fit to know , that the word fraud , is variously used by lawyers ; it is taken pro poena capitali , l. eum autem ff . de aedilit edict . pro periculo alicujus in commodi , l. . ff . ad l. falcid pro impostura , l. aliud est fraus ff . de reg . jur . pro privatione juris l. . ff . de his quae intest delen : but here , fraud signifies the prejudice arising to the creditors by unlawful alienations . and even in the civil law , it was taken sometimes pro damno pecuniario . l. is ff quae in fraud credit . and he is said to de fraud his creditor , who prejudges him by that alienation , without necessity of proving any previous design of cheating ; for that design being a secret and latent act of the mind , the law which designed mainly the indemnity of the creditor , would not burthen him with so narrow , and difficult a probation . but presumptione juris , & de jure , concluded that alienation to be made in defraud of creditors , which wanted an onerous cause : and this is fraus in re , though not in consilio . and lawyers have well distinguished , fraudem in re , a fraude in consilio , accurs . ad § . in fraud just . quib . ex caus . manum . which is suitable to the distinction used by the law it self , in the title , de dolo . inter dolum ex proposito , & dolum ex re ipsa : for fraus , & dolus , differ only , as genus , & species . ●raus being more general then dolus , as is fully proved by bargalius , de dolo lib. . c. . but albeit the civil law makes alienations in conjunctam personam , to be only sufficient probation , si aleae presumptiones concurrant , l. si quis c. de bon . damnat . burgal , de dol . c. . l. . num . . yet our law makes the want of an onerous cause , per se , though nothing concur , to be a sufficient probation of the fraud , against a conjunct , or confident person . and albeit by the civil law , fraus , & eventum , & consilium desidera● . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . basil. l. . h. t. yet our law requires only fraudem ex eventu , without considering whether there was fraus in consilio ; for albeit he who received the disposition , knew not that the disponer had debt , or creditors : yet if the estate of the disponer was not able to pay his debt , our law will reduce that disposition , if made without an onerous cause ; which is also expresly contrair to l. . § . . basil . h. tit . quae in fraud . cred . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . what probation shall be sufficient in reductions , upon this statute , is determined by this paragraph ; and though the statute appoint the probation to be by the oath of the party receiver , or by writ , bearing no onerous cause , or bearing to be for love and favour ; yet the practies has in this point so varied , that it will be fit to reduce our present decisions into these conclusions . . narratives , bearing the disposition to be for true and onerous causes , being but the assertion of the party granter , does not prove the cause to be onerous ; else it would be very easie to elude the act. . though the narrative does not prove for the granter , yet it proves against him , nam verba narrativa , as craig observes , pag. . licet sepe falsis sima probant tamen contra proferentem . and therefore , if the disposition quarrelled , be made to a conjunct person , and bear to be made for love and favour , it will be reduced , that though the person to whom it is granted , should offer to prove the onerous cause , as was found in the case stewart contra graham , nothing can prove better the design of the parties , then a writ under their own hands ; for as this cannot fail , so if the receiver should be allowed to lead a subsequent probation , for proving the onerous cause , contrair to the writ produced , it is very probable , that he might use indirect means for proving the said onerous cause , and this might both disappoint the creditors , and open a door to perjury ; & sibi imputet , the pursuer who accepted of a writ , bearing such an narrative . . a right made by very conjunct persons , such as father and son , are made to persons against whom there lies a presumption of fraud , either because of the relation , or because the receiver had no visible estate , wherewith to acquire ex titulo oneroso , the right disponed in that case , though the right bear an onerous cause : yet the receiver must prove the onerous cause , otherwise then by the narrative . . if the disposition bear , that the same was made for satisfying of debts , owing by the disponer , or for satisfying a debt owing to the receiver : he must prove the onerous cause ; as was found . march . duff contra cullodin , though the disposition there , was made only to a brother in law , and the reason of this seems to be , because if there was any antecedent debt , that debt may be easily proven ; and the lords have proceeded , so far according to the presumptions of fraud , which have appeared , that where bonds have been produced , proving the disponer to be debitor , prior to the disposition ; they have yet ordained the onerous causes of these bonds to be proven . because if confident persons design to cheat their creditors , they may as easily grant bonds bearing borrowed money : and then dispositions for payment of these bonds ; as they may simply grant dispositions bearing onerous causes . and as a minors disposition would not be found proven to be for an onerous cause , though granted for payment of a preceeding bond , so neither should a disposition granted by a bankrupt ; for a bankrupt is as prone to cheat , as a minor is to be cheated . and therefore , if the presumptions of fraud be very strong , they will ordain the party receiver to instruct the onerous cause , even of the preceeding bond , by the parties who received , and the witnesses who were present ; or else will ordain the concealed bands to be produced , or at least the party receiver to depon thereupon , as was found , december , duff contra brown , and december . campbell against campbell . in which last case , a woman being creditrix by her contract of marriage , as being provided to the half of the moveables which should pertain to her husband , the time of his death , and to . merks out of the other half , pursued reduction of a disposition made to her husbands brother of his moveables , who defending himself by a disposition , made for an onerous cause , viz. a bond granted by his brother to him , it was urged , that the brother to whom the disposition was made , should prove the onerous cause of that bond , for though the bond bare onerous causes , yet it is easie by such bonds to cheat creditors . and it was presumeable in this case , that the bond was not granted for an onerous cause , since payment of annual-rent and execution was deferred till the granters death . notwithstanding of which presumption , the lords allowed the receiver to give his oath upon the onerous cause ▪ especially seeing it was ordinar for brothers to spare their brothers , both as to annual-rent , and as to execution : and much more when the brother who granted the bond was sick , and would die shortly in all humane probability . nor did they think fit to burden the receiver with other probation of the onerous cause , since the disposition bare to be for onerous causes , and the bond was produced , bearing to be for onerous causes also . so that to require a higher probation backward , was dare progressum in infinitum . and it was well known that brothers have such private transactions , trusts , and lendings , that they pay and receive money , to , and from one another , without witnesses . . when bands are granted to trafficqueing merchants , who are brothers in law , or such relations as are known to be men of integrity ; it is hard to put them to prove the onerous cause , otherwise then by their oath , for merchants and others use to adhibite witnesses to all their bargains , and in many cases they cannot have witnesses to their bargains , being made abroad , and in remote countries ; and to tye them not to make bargains with their near relations ( with whom ordinarily they enter into societies ) were to ruine all commerce . and though moveables use to be dispon'd without writ , nor does the law require any writ to their transmission ; yet in the former case of anderson , the lords forced him to prove the onerous cause of his disposition to howats moveables , though he alledged that he could be in a worse condition by his having a disposition , then he would have been without it : but so it is , that his right to moveables would have been sufficient without writ ; but here there was a disposition , but where there is no disposition , it were hard to reduce a right made to moveables , because i could not prove the onerous cause . as for instance , if i bought a horse , and payed the money , no creditor of the sellers could force me to prove the price to be payed . . sometimes the lords use to suffer the receiver , to astruct the onerousnesse of the causes , by one or moe witnesses , and to give their oaths in supplement , and according as the relation is remote , or the presumption of the receivers honesty strong , they lessen the necessity of the strong adminicles . and thus the . july . in the case of margaret home contra smith , they sustained one witness , deponing that he was witness to such a bond , and that he heard the granter of the bond acknowledge that he was debitor , to be sufficient adminicles , being joyned to the defenders oath of supplement . and in the case above cited , . november . andersons disposition being quarrelled , as being omnium bonorum , and for a false cause , a great part of the summ for which it was granted , being payed before the disposition ; yet the lords sustained the disposition in swae far , as it was granted for summes owing before the disposition , to be proven by the oath of anderson himself , and of the persons to whom the money was payed , and for what summes were payed before dililigence at the pursuers instance , though after the disposition , to be also proven by the oath of the common debitors , and of these to whom the debts were payed : and yet where the disposition did bear , to be not in general for payment of the granters debts , but particularly for payment of the debts after specified , and some of the debts being filled up with new and different ink , the lords would not allow these debts , except the defender would offer to prove , that these debts were filled up before the pursuer did diligence as a creditor , after which time , there being jus quesitum to him by his diligence , as no disposition could have been made to his prejudice , so neither could he be prejudged by filling up other creditors names , then these contained in the first disposition ; for else it were easie to cheat all creditors by such blanks . and yet here it was offered to be proven , that it was communed expresly , at the very time of the granting of the disposition , that these debts should be payed which was alledged to be sufficient , being propon'd in fortification of the disposition , which was prior to the creditors diligence , . january , . lady lucie hamilton , against the laird of dunlap , and others . these remarks may reconcile the contrair decisions that are to be found upon this head , such as the . january , . pringle contra mr. mark ker. wherein the lords found no necessiry to burden the pursuer , that he should prove a true and onerous cause , otherwise then by his own oath , because as is there observed , when parties borrow money or contract mutually , there is no other way to prove the borrowing or contracting , but by the writ then made and found expresly , that this was not a negative which proves it self . and yet upon the . february , . it was found that this part of the act of parliament : was a negative , and proved it self . it seems likewise , that if the party who made the right , was not able to pay the debt otherwise , that then the probation should be so much the stricter : and though the oath of the receiver should not be taken as a full probation ; yet if the receiver of the disposition have in any former pursuit , been forced to depon upon the onerousness of the cause , that oath ought to purge any presumption of fraud ; for though that pursuit should not bind any other then the persons who were pursuer or defender there , as what was inter alios acta , quae aliis non nocet , yet the receiver having been put to swear , ought to have this advantage also , as he had that trouble . and that oath being upon the same subject-matter , it ought to be still much respected ; especially since this oath is only required to clear the judge , as to the truth of the debt , and as to the onerousness of the cause . whether a disposition procured by a tutor to his pupil may be quarrelled , as granted in defraud of lawful creditors , and how the fraud may be proved , in that case may be doubted , for it may seem , that no mans right can be taken away , without some act of his own , and the tutors oath cannot prejudge his pupil , for a tutor may make his pupils condition better , but cannot make it worse . and yet there may be two distinct cases considered here , one is , if the disposition be granted without an onerous cause ; and there is no doubt but such dispositions may be quarrelled , for if the minor cannot instruct an onerous cause , his disposition is null ; and there should be no difference as to this , betwixt majors and minors : and in this sense is to be understood , l. . § . . h. t. si quod cum pupillo gestem est , in fraudem creditorum , labe● art , omnino revocandum esse quia pupilli ignorantia non debet esse captiosa creditoribus , & ipsi lucrosa , which agrees with l. . § . . basil. h. t. though it be the more general 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . the second case is , when the tutor payed a price in the pupils name , but knew it was granted to defraud the disponners creditors , it seems that though a tutor cannot depone upon rights not acquired by the tutor himself , yet in rights acquired by himself he may depone , and his oath acknowledging the the fraud should annul the pupils right acquired by his tutor , for quem sequitur commodum , eum sequi debit incommodum : and that there is no reason the poor creditors should be prejudged by inserting the pupils name , but he ought to pursue his tutor . but yet i incline rather to think , that if any tutor knowing that such a debitor was to defraud his creditors , did lend out my money to buy land in my name ; that though his being partaker of the fraud might have annulled this right , if it remained in his own person , yet his fraud being meerly personal , cannot prejudge me who was innocent , no more , then if my factor should collude with such a debitor , would his collusion prejudge me . and so neither of their oathes can prove against me , for their fraud is not relevant against me , except in so far as i have received advantage by the fraud of my tutor , or factor : in which case , deeds either done by the minors self , or by his tutor , are reduceable at the instance of lawful creditors . l. . s. . basil. h. t. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ▪ but if minors sell any lands in defraud of their creditors , then if they sell without the consent of their tutors or curators , the alienation will be ipso jure null , and so needs not be reduced : but if the disposition was made with the consent of tutors and curators , though it be reduceable upon minority and laesion , yet the minors creditors cannot raise a reduction , ex hoc ▪ captic , for that reason is personal , nec egreditur personam minoris ; but the creditor in this case must comprise the right or action competent to the minor , and as having right to the action in manner forsaid , he may reduce the deeds done by the minor. whether a defender in their reductions ex capite fraudis , may be forced to depone whether he was particeps fraudis ; my be doubted , and it appears that he cannot , for he being partaker of the fraud , by this statute diffames all such as are guilty of it . and by our law , no man is oblieged jurare in suam turpitudinem . but yet i find , that the lords have , ex nobili officio , obliegeded parties to be examined upon their accession to such contrivances , febr. . dame elisabeth burnet contra sir alexander fraser . and even in improbations , they examine , ex officio , the parties who are alledged to be authors ; though the hazard be greater there , then in thir reductions . and seeing reasons of circumvention are referred to oath , why may not the being partaker of the fraud , be referred to oath ? if the lords , and his majesties advocat , declare , that the deponers oath shall not infer , infamiam juris , against him , which is a criminal punishment ; without which be secured to him , i conceive he is not oblieged to depone . it may seem , that the action of reduction , founded upon this act , against such as are partakers of the fraud , should not prescrive , because this is a cheat which the law ought not to maintain , nor assist , and this should no more prescrive , then actio falsi dos ; whereof this cheat seems but a branch , or which at least , it does much resemble . and by the cannon law ( which as craig observes , we prefer to the civil law in scotland , where matters of conscience are considered ) he who is in mala fide , cannot prescrive , . sin . de prescript . and to allow the partaker of the fraud a security of prescription , were to tempt him to cheat . notwithstanding ▪ of all which , certainly all actions upon this act would prescrive : for neither our act . par. . i. . which appoints the prescription of moveable rights , nor the act . which introduced prescription in heretable rights , makes any exception in favours of this action . and our law being desireous to secure all persons in general , has drawn these acts very comprehensively , & sibi imputent , such as are prejudged , who suffered so much time to elapse without diligence . likeas the civil law , which considered malae fidei possessores , with a very unfavourable eye , does allow the benefit of even years prescription , mal● fidei possessori , for the same reason , as is clear , c. de . prescript . . & . annor . and the same is observed in france , guid. pap. quest . . and though we observe the cannon law , in case of marriage , teinds and such like , which are somewhat ecclesiastical by their own nature ; yet in prescriptions which had their original from the civil law , we follow the dictats of that excellent law. or the most part of the price thereof was converted , or to be converted , to the bankrupts profit and use . another presumption of the fraudulent disposition of the bankrupts estate , is , if the price of the debitors estate was converted , or to be converted to the debitors own use , and profit . and this proceeds upon the same reason , whereby the rebels escheat is declared null , if he be suffered to remain in possession , act . par. . ja. . and as by that act , the suffering the rebels wife or bairns to remain in possession , is equivalent , as if the rebel himself remained in possession ; so if it can be proven , that the price of the debitors land was applyed to the behove of his wife , and children ; i conceive it is equivalent , as if it were converted to his own behove , though this act do not expresly beat it . upon this part of this act , arose lately the ensuing debate ; hermistoun being obliged to pay the lord sinclar merks as an annuity , and for his aliment : this oblidgement was assigned to john watt , and was by him transferred to george cockburn , who did pay several debts for my lord , but finding that his payment , might thereafter be challenged by my lords creditors , as made in prejudice of them who were prior creditors , he did take the gift of my lords escheat , and gave a back-bond to the exchequer , wherein he oblieged him to compt at the sight of the exchequer , for the superplus that exceeded the payment of the debt truely payed , or to be payed by him , for my lord. the creditors having quarrelled those payments upon this act , . as made to their prejudice , because though it was free to the exchequer , to gift my lords escheat , and to burden it with any back-bond , yet this gift was granted truely to george , in contemplation of his former right ; which former right was null , as made to defraud them , and for the use of their debitor ; and the right made to him was null by this clause , of this statute , by which all rights made to any person , are presumed fraudulent , if the price be converted to the behove of the debitor : and if this were allowed , poor creditors might soon be cheated by so easie contriveances . and though his majesty may prefer a donator to the true creditor , where that is chiefly designed by his majesty , yet where the gift is taken only by a person who had formerly defrauded creditors , meerly to pallia● the fraud , in that case , the gift laborat eodam vitio , being also taken for the behove of the debitors , and so is null by the former act . par. . ja. . but this was repelled , because the lords found , that whatever might be said against the former right , upon this statute , yet the gift of escheat did sufficiently defend him , for since any superiour might allow an aliment to his vassal , being rebel , and might grant his liferent escheat for that effect , why should not this liberty be allowed to the king , . december , . but if this gift had not interveen'd , it seems uncontraverted , that the obliegment to pay sinclars debts , though undertaken prior to any action at the creditors instance , was not sufficient to defend the undertaker against prior creditors , for the right being at first quarrelable at their instance , as done in defraud of them ; it being a right made for the behove of the debitor : it could not thereafter convalesce , by ▪ undertaking the debitors debts . for it was all one to pay the money to sinclars debitors , as it would have been to have payed it to himself . and if the money had been payed to my lord , to the end he might have payed them , the payment might without doubt have been quarrelable . and yet a deed once quarrelable may thereafter convalesce , if their was no fraud in the first contriveance , v. g. if an uncle should dispone his estate to his nephew , who knew not of his being insolvent , this right might be reduced upon this statute . and yet if thereafter , the nephew should bonafide undertake the uncles debts , before any diligences done by the creditors , his disposition would be sustained in so far as true payment was made . they making the rest forth-coming to the remnant creditors who want their due payment . since by this act , the disposition made by a bankrupt to one who was partaker of the fraud , is reduceable ▪ so that the buyer will be forced to quite the land , or thing bought fraudulently to the bankrupts true creditor : it may be doubted , whether the buyer , though partaker of the fraud , will get repetition of the price truely payed by him , from the bankrupt to whom he payed it . and it may be argued , that he would not , because first , the law never authorizes , nor lends its assistance , to recover what is due by fraudulent , and unworthy obligations , for there is behoved to be the minister of iniquity , and to serve vice in a mean , and sordid way , & ubi dantis , & accipientis turpitudo versatur , cessat repititio . l. . ff . de condict . ob . turp . caus . . the buyer in this case cannot complain of the law , since he knew the hazard , and yet run upon it . . this were to invite men to commit cheats ; whereas to deny them action of repitition upon the eveiction , were a ready mean to deter them , since the hazard would be so great . . this may be further clear , l. . c. de prescr . . annor . & l. hi qui c. de rescind . vend . & l. fin . c. de litig . & l. si fundum sciens . c , de evict . & l. . basil. de reb . auth . jud . possidend . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . but yet the contrair , viz that the fraudulent buyer ought not to have repitition from the bankrupt seller ; may be urged by these reasons , first , crimes and frauds are extinguished by mutual compensation , and therefore , since as the buyer would have had an action of eviction , if no fraud had interveened , so ought he to have the same action where the fraud is mutual , for there it is in the same condition , as if had never been ; for it is extinguished , l. viro . ff . solut . matr . . if the seller should not be oblieged to restore the price , he should gain by his own cheat , for his creditors would be payed , by prevailing against the buyer , and he would retain the price . . where the buyer and seller are in the same condition , his condition is most favoured by the law , who seeks only to secure himself against loss ; in pari casu melior est conditio ejus qui certat de damno vitando , l. non debet ff . de reg . jur . and this is also clear , per l. . c. de his qui vi metusve caus . & l. sin . c. common : de legat . i would rather perhaps incline to think , that because both have offended , therefore both should be punished ; the one by being oblieged to refound the price received , and the other by not get in git , though refounded : but that he should see it confiscated by publick authority , like the legacies left to unworthy persons , who are uncapable of them ; for these remain not with the testator , nor yet go to the legator , but fiunt caduca , and belong to the fisk. it may be here doubted , if in these reductions , the defender who is to restore what is disponed to him , will be oblieged to restore the fruits of the thing sold , and whether he will be oblieged to restore them from the date of the sentence , or from the time of litiscontestation , or from the citation . the civil law l. . § . . f. h. t. ordains not only the thing it self to be restored , but the fruits which were upon the ground at the time of the alienation , and these which were reaped after the action was intented , non solum autem rem ipsam restitui oportet , verum & fructus qui alienationis tempore terrae eohaerent , quia sunt in bonis fraudatoris . item eos , qui post judicium inchoatum recepti sunt medio autem tempore preceptos in restitutionem non venire . but the basilicks differ somewhat , for they say , qui post litem contestatem percepti sunt . as fabrot translates them , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . but these may be reconciled , because though in our law , litiscontestation is only made by the decision of the points in jure , and the assigning a day to either party to prove , whereupon an act is extracted : yet by the civil law , litiscontestation was made how soon the defender denyed the thing craved , and so judicium inchoatum differed little with them , from litiscontestation . our senate observe as a general rule in all reductions , to decern fruits to be restor'd from the time that the possessor knew that his right was not valid : and therefore when it was palpably unjust , they use to decern from the date of the citation , but not from the citation upon the first summonds , because these are but indorsations , where copies are seldom truly given , and so the defender could not thereby be put in mala fide . this was so decided , howison contra gray , february . and yet this seems to authorize the belief that citations upon first summonds may be false , whereas since the law commands them , it ought to believe them , and so punish the forgers , rather then discredit the form . if the nullity depend upon a debateable point , they decern from the litiscontestation , because that nullity was not clear till then , v. g. if a disposition were quarrelled as made to a brother in law , and he alledged that the act extends not to brothers in law , if the lords found the statute to extend to brothers in law , eo casu , if it were referred to the defenders oath ; the lords use to decern from the litiscontestation ; because after that the defender could not doubt of the nullity of his own right , though before he might have doubted . but if the nullity depend upon extrinsick probation , which the defender could not know before sentence ; as for instance , if it should be denyed by act of litiscontestation , that the debitor became , and was insolvent ; the defender could not be in malafide till this were found proven , and so ought not to be lyable in fructus , till sentence . i conceive that these generals may be likewise particularly applyed to this statute , by considering three different cases , relative to the three different parts of this statute . the first is , that of the first part of the act , by which all dispositions made to confident , or conjunct persons , in defraud of lawful creditors , without an onerous cause , are so reduceable , that the alienation being reduced , the fruits extant are to be restored from the time of the intention of the cause , and not only from the time of litiscontestation . and yet it would appear , that all the bygone proffits , or fruits , ought to be restored ; not only from the time of the citation , but from the date of his possession : because , . by the expresse words of the statute , all such alienations are declared to have been null from the beginning , and so are in the same case , as if they had never been made . but so it is , if they had never been made , the possessor behoved to have restored all the fruits , whether extent , or not , and even from the time of his possession . . this seems most reasonable , for the law having dicharged such alienations , he who contracts in spight of , or to cheat the law , ought not to be protected by it ; and if the debitor might thus prejudge his creditors , for it is a prejudice to them to want the fruits and profits of their debitors estate , from the alienation , till the time of intenting an action , which poverty , or absence , ignorance , or latency of the deed , may keep them from intenting : and which may be very considerable and were it not absurd , that a gratuitous disposition of an estate , often thousand merks by year , should carry the receiver to five or six years rent , extending to . merks , because these rents were intrometted with prior , to the intenting of any action of reduction , and yet the estate should not be able to pay all the debts due to the many poor creditors , who are pursuers of the reduction . the second case is , where the disposition was made to one who was particeps fraudis , and he is to restore even all the profits from the date of the alienation , whether they be fruits occasioned by his own industry , or brought forth by the nature of the thing possest . for he who was partaker of the fraud , is malae fidei possessor , and such are still discerned to restore all , fructus extantes rei vindicatione ; & consumptos conditione sine causa , l. . c. de condict . ex leg . nor ought he in reason to reap advantage by his own cheat : and as he cannot blame the law for severity to him , since he occasioned his own losse ; so the creditor might complain that such as cheated the law , and him , were enriched by his loss . and the reason why bonae fidei possessor facit fructus consumptos suos , is , because he not knowing but these profits were his own , thought he might live accordingly , this reason is wanting in him who is partaker of the fraud , for he knew that these profits belonged to others , and so should not have spent them . and though it may be alledged , that all dispositions made to confident , or conjunct persons , are reduceable by this act , as fraudulent , and therefore the receiver cannot be called bonae fidei possessor in no case for nothing is so contrair to bona fides , as fraus . it is answered , that a disposition may be made to a conjunct person , who knew neither that the disponer had creditors , or that his estate was not able to pay them , and fraus ex eventu , as i observed formerly , is not mala fides . the third case , is of creditors who got a disposition from the common debitor for payment of their debt , but it is reduceable at the instance of other creditors , who have done diligences ; and these , i think , should according to the rules of justice , and reason , be only obliedged to restore the profits of the thing so dispon'd from the date of the sentence : for since they are more favourable then a conjunct perrson , who gets a disposition without an onerous cause , and that he luoratur fructus ante citationem perceptos , they ought to have more favour . but i have not heard this debated , nor decided , and it is generarly believed that they would be lyable after citation , but if he hath dolose received payment , and was particeps fraudis , even he , though a creditor ought to restore all the profits received by him from the time of his possession . in all which restitutions the restorer will have detention of the profitable expences bestowed by him , whether he be bonae fidei , or malae possessor l. . de rei vindicat . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . basil. l. . § . . h. t. to which there is also added , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . et si quae aliae ex creditorum volunt ate factae sunt . the civil law ordained the fruits that were upon the ground , the time of the disposition , to be restored , though these were consumed before citation , l. . § . . h. t. because fructus pendentes , were pars ▪ soli , and so were to be restored ; but this has not been craved with us : and since they use to be bona fide spent , there is no reason to restore them more then other fruits . i have heard it contraverted , whether a person to whom a disposition is made in defraud of creditors , may when that disposition is reduced , pursue by way of action , for the expenses he bestowed necessarily in reparing the lands , or houses disponed ; and it may seem that this being once a debt due to him , it cannot be taken away but by a discharge● and yet lawyers are clear , that though such expenses may be retained , or that the defender in such reductions may alledge that his right cannot be reduced , till all his expenses be repayed . yet if he suffer his right to be reduced without proponing upon his expenses , and meliorations , then he seems to have past from them . for the law presumes , that if he had any thing due to him , he would have craved it before he was dispossest : and albeit the scolion ad l. . tit . basil. de sumptibus in re aliena factis , asserts this only de malae fidei possessore , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ▪ & l. . ibid. ! this is also asserted de bonae fidei possessore , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which agrees with l. sumptus de rei vind . & l. si in area de condict . indebit . but yet it is the opinion of some eminent lawyers with us , that evenafter the right is reduced , the person to whom the right is made , may recover payment of what he necessarily bestowed even by way of action : and molineus ad consuetud . parisiens . t. i. gloss . . is of their opinion , and asserts that the present customes of all courts have receded as to this from the civil law , and yet it may seem in our law , that this is competent and omitted , and so should rather be allowed in our law , then in the civil law , especially seeing this is of the nature of compensation . for when the pursuer craves the thing disponed to be restored , with the fruits and interests : it seems to be a sufficient ground of compensation , or at least an exception quae sapit naturam compensationis , that the defender bestowed as much upon the thing craved to be reduced , as may compense the fruits , or a part of the stock , and by expresse act of parliament , compensations are not receiveable after sentence , and therefore neither should it be lawful after sentence of reduction , wherein this allowance might have been craved , to seek allowance by way of action , for what was bestowed in mellorations , or necessary expenses . and if in time coming , any of the saids dyvours , or their interposed partakers of their fraud , shall make any voluntar payment , or right to any person , in defraud of the lawful , and more timely diligence of another creditor , having served inhibition , or used horning , arrestment , comprysing , or other lawful means duely to affect the dyvours lands , or goods , or price thereof to his behove : in that case , the said dyvour , or interposed person , shall be holden to make the same forth-coming to the creditor , having used his first lawful diligence , who shall likewise be preferred to the creditor , who being posterior to him in diligence , hath obtained payment by particular favour of the debitor , or of his interposed confident , and shall have good action to recover from the said creditor , that which was voluntarly payed , in defraud of the pursuers diligence . albeit by the first part of the act , all dispositions be allowed , if made for onerous causes , to conjunct or confident persons , yet that only holds where creditors have done no lawful diligence : but where creditors have done lawful diligence against the bankrupt , by inhibition , arrestment , horning , comprysing , or otherwayes in that case , the bankrupt against whom the diligence is used , cannot make any voluntar right of his estate , to prefer thereby any creditor he pleases , to the creditor who has used diligence , and that though the creditor who has got the disposition , was likewise a lawful creditor : but in that case the creditor who is preferred , is declared by the act to be lyable to make forth-coming the price of what was disponed to him . by the principles of reason , he seems not to act fraudulently , who gets payment of what is due to him . but yet by the civil law , postquam creditores a magistratu in possessionem bonorum missi erant , their debitors could not even pay any true con-creditor , and so prefer one crditor to another , suitaly to which , our law has not allowed here the prefering one creditor to another , after diligence done by horning , inhibition , &c. which diligence we have equalled to the missio in possessionem by the roman magistrate : and in effect there can be no diligence done in scotland , without the authority of the magistrate ; for no inhibition , horning , &c. can be raised without a warrand from the magistrate . and as it was reasonable that a creditor qui sibi vigilavit , by getting payment , should not be prejudged ; so it was as reasonable , that payment made to him in prejudice of another creditor , qui sibi vigilavit , by doing diligence should not be sustained . and thus we may reconcile this part of the statute with l. . § . . h. t. which sayes that qui suum recipit nullam videtur fraudem facere , with which agrees l. . § . . basil. h. t. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . from this part of the act , it is first observeable , that though voluntarly rights are reduceable , at the instance of prior creditors , who have done diligence ; yet necessary rights are not , and therefore , if the bankrupt was oblieged by a minute to sell his land , before he was put to the horn , if for implement of that minute , he should thereafter dispone his lands , that disposition may seem not reduceable , at the instance of a creditor who had used diligence , by horning , or otherwayes after the minute , though before the disposition : because it may be alledged , that in this case , the creditor cannot be said to have been voluntarly preferred by partial favour , as the act bears , for that cannot be called voluntar , to which the disponer might have been compelled . and in this case , as well as in reductions , ex capite inhibitionis , these dispositions which depend upon necessary causes , are drawn back , ad suam causam . but the doubt may be greater , if the cause upon which the disposition depended , had no specifick obligation in it , to grant the deed quarrelled , but only a general obligation , v. g. if titius should only be oblieged by a minute , to dispone lands to mevius ; if titius thereafter being put to the horn , at the instance of sempronius , should after he was put to the horn dispone lands to mevius ; it may be doubted whether that disposition would be reduceable , since the minute did not bear an express obligation to dispone the specifick lands afterwards disponed , but only to dispone lands in general : for it may be alledged , that quo ad these lands , the right was voluntar , seeing there was no specifick obligation , quo ad these . and if such a disposition as this might be sustained , all dispositions , though made for onerous causes , might be sustained , notwithstanding of all which , i conceive , that by voluntar rights and payments in this paragraph , are understood all such rights and payments , as are made without any previous diligence , though the debitor could have been compelled to make them ; and though there be a preceeding cause , whereupon the debitor might have been forced , to make the saids rights and payments , and so are necessar , quo ad the debitor , if other creditors had not been concerned ; yet they are accounted voluntar , as to this act and statute , because the debitor having other creditors , who might have compelled him as much as the creditor whom he has satisfied : yet he voluntarly prefers and gratifies him in prejudice of their diligence . and even in the case here instanced , of a minute bearing an obligation to dispone land , if the dyvour should after the diligence of other creditors dispone , that disposition would be construed a voluntar right , which the bankrupt ought not to have granted in prejudice of his other creditors , who had done diligence , and who might have affected the same land , if the disposition had not been made ; notwithstanding of the personal obligation contained in the minute . and it cannot be deny'd , that there is a great difference betwixt a debitor inhibited only , and a debitor bankrupt : for a debitor who is inhibited , disponing what he was bound to , by an obligation prior to the inhibition , do's not contraveen the command of the inhibition , which only forbids him to do any new deed , to the prejudice of the inhibitor . but a bankrupt not being able to satifie all his creditors , does contraveen this law , in gratifying one , to the prejudice of others , and to the prejudice of diligences done by them . especially since he could not have been compelled in law , to prefer the creditor who had done no dilligence . it may be observed , that though voluntar dispositions be only quarrelable by this part of the act , at the instance of creditors who have done diligence ; yet , dispositions made by notorious bankrupts , are even quarrelable at the instance of creditors who have done no dilligences . but in this case , the disposition so made , is not absolutely reduceable , but is only reduceable to the effect the creditors may have accesse to the estate , not to affect it simply , for the whole summe , but to put them in the same case , as if the disposition had been granted to them all , for payment of their summes , conform to their dilligences : and the ordinary qualifications quo ad this part of the act , are , either that he was in meditatione fugae , or that he was in the abbay , or in prison , or that there were very many hornings , and dilligences against him : and therefore on the . december . the lords sustained action upon this act against the laird of kinfawns , at the instance of tarsappies creditors , though the disposition made to kinfawns , was made for the payment of the lawful creditors ; and that because tarsappy the time of the disposition , was fugitive in the abbay , and that his debt did exceed his estate , and that it was a disposition omnium bonorum , made to an uncle , though the creditor here had done no diligence . though this clause bear generally , that dispositions made in prejudice of such as have done lawful diligences , by inhibition , horning , arrestment , or comprising , shall be quarrelable : yet it may be justly doubted , whether these words must be so interpret , as that any of these dilligences shall be a sufficient ground , promiscuously to quarrel any disposition : so that the law considers not so much the nature of the dilligence done , as the partial favour , and gratification of the dyvour , or confident who has done no diligence , and the prefering him to one who has done diligence , though that diligence was not perse ▪ proper to affect . for if it had affected properly , there had been no necessity for this act , or statute , v. g. if the creditor had inhibited , the debitor could not have thereafter disponed in prejudice of that disposition , but the disposition would have been reduceable ex capite inhibitionis . but if the creditor not knowing that the common debitor had money lying by him , that could be affected with arrestment , did ommit to arrest , but did inhibite , it appears , that if the debitor should , to gratifie and prefer a creditor , who has no diligence , give him that money , this law and statute intended , that the creditor who has done diligence by inhibition , should not only have liberty to reduce all dispositions ex capite inhibitionis : for that was competent before this law , but that he should have condictionem ex hac lege , to recover that money ; though the inhibition be no proper way to affect it . and yet upon the other hand , it would seem absurd , that the using of an arrestment should be a sufficient ground for the user to quarrel a right made of lands , for that were vitiosa transitio , de genere , in genus . but as in all general clauses , so in this , the application must be , singula singulis : and therefore if after a creditor has used any real diligence that may affect land , such as inhibition , or comprising , his bankrupt debitor , shall to disappoint that diligence , dispone his lands to a con-creditor , who has done no diligence ; then the inhibiter or appryser , may quarrel that disposition ; or if a creditor has affected any of his debitors summes , by horning , or arrestment , and if to disappoint that diligence , the bankrupt debitor should dispone upon his moveables in favours of a con-creditor , eo casu , that disposition to the moveables might be quarrelled by him who has used horning , or arestment : which are diligences proper to affect moveables in our law. which may be further urged , by these reasons , . because inhibitions and comprisings are not proper diligences to affect moveables , no more then arestment or horning can affect heretage : and the law never priviledges a diligence , except where the diligence could affect . . the reason why the law priviledges such creditors as have used these diligences , is , because the law presumes they might have affected the bankrupts estate by these diligences , and because it presumes that the debitor dispon'd his estate , to disappoint that diligence . but so it is , that neither could inhibitions affect moveables , nor can arrestments affect heretage ; nor were these dispositions made to disappoint such diligences , and therefore , &c. . when men are to buy land , thy look only the registers for inhibitions , or comprisings , but they never consider whether there be any arestments used against the seller . . though this part of the act be conceived in favours of creditors , who have used inhibition , horning , arrestment , comprising , or other lawful diligence ; yet this clause must be so interpret , that the meer raising of an inhibition or horning is not sufficient except the inhibition or horning be execute , as was found february , . in the case betwixt tynet , and grahame of creigie . for the act of parliament mentions serving an inhibition , and using a horning , and not the raising of either ▪ but yet if the bankrupt to disappoint his true creditors , who have raised letters of inhibition , horning , or arrestment , should collude with his other creditors who know the raising of these letters , and they by express collusion , should make and receive such dispositions , i conceive these dispositions may be quarrelled upon this part of the act , though the letters were only raised ; for else the act might be absolutely disappointed , and immediatly upon the raising of the letters , such dispositions might be made , and the creditor who did exact dilligence , & omne quod in se erat , should be prejudged by fraudulent conveyances , and by the nimious diligence of his cheating debitor . nor should the fraud of a creditor , receiving such dispositions , be of advantage to the receiver , nam nemo debet lucrari ex suo dolo . but it is more difficult to resolve , whether a meer charge of horning , without denounciation , be a sufficient diligence to make all deeds after the charge to be quarrelable upon this act. and it may be alledged , that to charge upon the horning , is to use a horning , which is all that this act requires . the charge is properly the diligence , for thereby the debitor is commanded under certification , that he will be denounced ; whereas the denounciation is but the effect of the dilligence : and the debitor is denounced , because he did not obey . which reasons incline me to believe , that the charge without denounciation , is a sufficient dilligence in this case , and for the same reason , i believe that a personal charge upon an inhibition , would operate the same effect , though the execution were not used at the mercat cross ; because that is only necessar to put the liedges in mala fide , in order to a reduction ex capite inhibitionis . and i conceive likewise , that the inhibition being lawfully served , though not registrat , would be sufficient quoad the effect designed by this part of the act , for the registrating an inhibition is different from the serving of it ; and the serving of the inhibition is all that this act requires : and if the creditor may reduce ex capite inhibitionis , before it be registrat , if it be once served , that is to say , lawfully execute , much more should the execution of it , without registration , be sufficient as to this act. it may be likewise observed , that though this part of the act , must be so interpret , as that proper and peculiar dilligences may only affect ; that is to say . arrestment moveables , and comprysing heritage : yet even in that case , horning may be accounted a sufficient dilligence , after the using whereof , the debitor being a dyvour , can neither dispone heritage , nor moveables , to the prejudice of the creditor , who used the horning ▪ for a horning is not only a dilligence that may affect moveables , but it is likewise a step in dilligence , necessary , previous in many cases to comprysings , which are real dilligences . by these words any other mean , is to be understood other lawful dilligences , beside inhibitions , hornings , arrestments , comprisings , here exprest . as for instance , if a creditor should raise a precept of poynding , and should charge his debitor thereupon , to disappoint which , the debitor should dispon his moveables to another creditor , the raiser of the precept might quarrel that disposition upon this clause of the act. . it is observable , that though in the first part of the act , after the law has declared all deeds done by bankrupts , in favours of their creditors , without an onerous cause , to be null , yet it subjoyns immediatly in another clause , that if a third party shall bona fide acquire a right to these fraudulent rights , these rights shall not be quarrellable in their person , except they were likewise partakers of the fraud . but here where the law , in this clause , declares , that where diligence is done by a creditor , the debitor cannot thereafter in his prejudice ; prefer another who is a con-creditor , and dispone the land to him , though even for an onerous cause . yet the law has not determined , whether if this disposition made to a con-creditor , shall be quarrellable in the person of one , who bona fide has acquired that disposition from the con-creditor , in the same manner as if it would have been quarrelable in the person of the con-creditor himself . and though it may be alledged , that the clause subjoyned to the first part of the act , in favours of third parties , ought to be repeated here , for singular successors in this case , not being partakers of the fraud , ought not to be prejudged : yet if we consider the case somewhat inwardly , we will find that a disposition made by the bankrupt to a con-creditor , and by the con-creditor to a third party , is quarrellable in the third parties person . for the con-creditor could make no better right nor he had himself ; and there being jus quaesitum to the creditor by the dilligence , so that he might have quarrelled the right made to one of the con-creditors , by the common debitor . this right could not be evacuated by any disposition , that the con-creditor could make , and if it were otherwise , the creditors diligence might be easily eluded , and disappointed : for the con-creditor finding that the right made to him was quarrelable , he might still transfer his right to a third party , and there was great reason why the clause conceived in favours of third parties in the first part of the act , annulls only deeds , because made fraudulently ; and therefore this nullity ought not to have been extended against third parties , who were not participes fraudis , for there deficiebat ratio legis : but this clause of the act annuls not these deeds upon any personal account , but because these deeds are contrary to diligences done by a lawful creditor . and therefore the nullity here ought to be extended quo-ad all ▪ because to whomsoever such dispositions were transfered , they remain still to be deeds done in prejudice of diligences done by a lawful creditor . and so the ground of the nullity here being real , it ought to be extended to all . but if after the right is setled in the person of the confident , diligence be done against the dyvour , which the purchaser from the confident , neither doth , nor is obliedged to know : he is in bona side to acquire , and his right cannot be questioned upon pretence of diligences , as being real , & quae afficiunt fundum , in respect the diligence is not against the person , who stands in the right , but against the author who was denuded . though the former conclusion holds in disposions of lands , yet it may be doubted , whether it should likewise ●hold in moveables , and it seems very prejudicial to , and destructive of all commerce , that a third party buying bona fide moveables , should be quarrelled for them : because though they past throw many hands , and were bought ( it may be ) in a publick mercat ; yet they were originally dispon'd by a bankrupt , to a con-creditor , in prejudice of another creditors lawful diligence ; and if this were allowed , no person could be in bona fide , or in tuto , to buy or to trade . upon this part of the statute , may be raised this other doubt , viz. a creditor comprises , and thereafter another creditor gets a disposition for payment of his debt , and is infeft . and last of all a third creditor comprises , and is infest. the first creditor who had comprised , intents reduction of the disposition made to the second creditor , as made after he had done diligence : in which reduction the second compriser compears , and desires to be preferred , because he is infeft before the pursuer , though the first compryser : and so would be preferred to him . and since qui vincit vincentem ● me , vincit & me ; it follows clearly , that since the second compryser would be preferred to the first , that thereafter he ought also to be preferred to the creditor , who had got the disposition , because the first compryser would be preferred to him who had got that disposition . it is answered , for the pursuer who is the first compriser , that he must be preferred , and the disposition made to the second creditor must accress to him , because he had done diligence before his disposition ; and by this statute , a creditor to whom a disposition is made in defraud of a true creditors diligence , is oblieged to make his right forth-coming to the creditor who has done diligence ; whereas that disposition would be preferred to the second comprising , though infeftment had not followed upon that comprysing ; because no diligence was done by that compryser , when the disposition was made , nor could the second compryser be preferred ; because he comprysed only all right that was in the person of the debitor : but so it is , that the debitor was denuded , by the disposition made to the creditor or trusty . and i think the first compryser would be preferred ; for this part of the statute , ordains not the disposition to be null , and not to prejudge the creditors doing diligence , which if it had only done , the second compryser would have been preferred ; but it ordains the right made to the other creditor , in prejudice of the diligence , to be forth-coming to them who did diligence , as said is . it is here also observable , that if the creditor who got the disposition , had not been infeft , the second compryser had certainly been preferred , for he had the first real right : nor had the debitor been denuded by the disposition . as to the argument , qui vincit vincentem me , vincit me . it may be answered , that this brocard receives many restrictions ; amongst which one is , that if he qui vincit me , use a priviledged way for prevailing against me , which is not competent against another , then potest vincere me , & tamen non vincere vincentem me . and in this case we know , that there is a special priviledge given by this statute , to the creditor who does diligence : and by vertue of this priviledge , the first compryser prevailes here . and this leads me to another doubt in our law , which is very considerable . there are three creditors , whereof one has raised , and served an inhibition : the second compryses for debts , and upon bonds posterior to the inhibition , and is infeft . the third compryses also for debts prior to the inhibition , and is also infeft . the inhibiter intents a reduction , ex capite inhibitionis , against the first compryser , and reduces his right ; and thereafter the inhibiter compryses also , and being infeft , he compets for the mails and duties with the second compryser , and craves to be preferred to him , because he has prevailed against the first compryser who would have been preferred to him , he being but a second compriser , & qui vincet vincentem , &c. . the second compriser comprised from a person who was denuded , in swa far as the first compriser denuded the debitor by his comprising , whereupon in●e●tment followed . but on the other hand , it may be urged for the second compriser , that the inhibiter prevai●ed only against the first compriser by vertue of his inhibition , which did sweep away the posterior debts , whereupon that first comprising was founded . but as to his debts , whereupon he led the second comprising , they were debts contracted prior to the inhibition , and so were not liable to a reduction ex eo capite . and as his debts could not be quarrelled by this compriser ▪ so his real right was also preferable to his , he having a prior comprising , whereupon in●eftment followed . as no bankrupt can prejudge his creditors , who have done diligence , by prefering one of them to another : so neither can he make a disposition to any confident person , with power to him to pay the debt due to himself in the first place , and his creditors in the next place , two instances whereof i remember lately decided . the first was , the . of january . the case whereof was this , the laird of craigmiller being debitor to mr. john prestoun his brother , did dispon him his estate for payment of his debts particularly therein related ; with power to the said mr. john to pay any of the creditors he pleased . and mr. john being infeft upon that disposition , there was a competition for the mails and dueties , betwixt mr. john , and captain newman , who was one of the creditors contained in the disposition : in which competition , captain newman craved to he preferred , notwithstanding of that disposition granted to mr. john , because the disposition granted to mr. john , was granted to the behove of the said captain his debt , being one of the onerous causes therein exprest . to which mr. john answered , that he had power by the same disposition to prefer any of the creditors he pleased , and that the value of the land was now exhausted by payment made to other creditors : to which it was duplyed by newman , that this disposition was fraudulent , and reduceable upon the act of parliament , for as craigmiller himself could not prefer any to the prejudice of him who had done diligence , so neither could he bestow that faculty upon any other . to which it was answered , that craigmiller might have disponed his estate to any person he pleased , for an onerous cause , before captain newman did diligence . but so it is , that at the time of this disposition , newman had done no diligence . . this disposition at least ought to be sustained , in so far as craigmiller was debitor to mr. john , either for debt due to himself , or for relief of cautionry . to which answers , it was replyed , that quo ad the first , it was not relevant , because though the disposition was prior to the diligence done by newman : yet the said newman had done diligence , before payment made to any others of the creditors ; and consequently before the preferrence . whereas by the forsaid act , no creditor could be preferred after diligence . and to the second branch of the answer , it was replyed , that though craigmiller could have disponed his estate to mr. john , for his payment , or relief , expresly before newmans diligence ; yet that was not done in this case : for this disposition was only made in general termes , for payment of craigmillers debts generally , and mr. john had no advantage over others thereby , but in swa far as he had by preferring himself by vertue of the forsaid clause , which was unwarrantable . and so the disponers deed quo ad him , was null ; because quod sacere potuit non fecit , & quod fecit , sacere non potuit . upon which debate the lords preferred mr. john only in swa far as concerned his own debt , or cautionry : but sustained not the preferrance , in swa far as concerned other creditors . the other decision was the . july , . in which young craved a disposition made to anderson , by fleming , to be reduced , as done in his prejudice , he being a creditor who had inhibit , and comprised . it was answered by anderson , that he had granted a back-band , declaring that the disposition was in trust , for payment of the debt due to anderson himself . and in the next place , for payment of flemings creditors : and subsumed , that he had payed as many creditors as would exhaust the price , which he was in bona fide to do , there being no diligence against him ; nor could he be prejudged by any diligence against fleming , fleming being denuded , as said is . to which answer it was replyed , that anderson being but a trustee , was fictione juris , in the same condition with fleming ; and as flemnig could not disappoint him , as a lawful ▪ creditor ; so neither could anderson his trustee : and if it were otherwise , the diligences of lawful creditors might be rendred elusory , for the debitor who resolved to disappoint the diligences of his creditors , might still dispon his estate to a trustee ; which trustee , and trust , the debitors not knowing , they could not know against whom diligence was to be done . likeas , in law , this power to prefer creditors , behoved to be interpret legittimo modo , & interminis habilibus : so that the creditors could not be disappointed , but that they should be preferred according to their diligences , as they behoved to have been by the debitor himself . in respect of which reply ; the lords preferred the creditors , and found that voluntar payment made by the trustee , could not prejudge the creditors who had done lawful diligences , by voluntar payment . but the question here remains ; whether if any of the creditors had arrested in andersons hand , as trustee , and had pursued an action to make forth-comming against him : if in that case , anderson was oblieged to give in a qualified oath , bearing that he was trustee , but that there was other creditors who had done more timeous diligence ; or if he ought to have called the creditors , who had done more timeous diligence , as said is . this act is only conceived in favours of such as were creditors , to those who granted such dispositions , prior to the deeds contraverted . but argumento hujus legis , and upon the same reason of equity , the lords constantly sustain declarators at the instance of creditors of the father concluding any right , made even by strangers , to children in familia , to be null , as being granted to their prejudice , without an onerous cause , or as being acquired by the parents means . which presumptions are never otherwise elyded , then by alledging , that the procurer had an estate aliunde , whereby he might have procured the right contraverted . as for instance , sempronius being debitor to mevius , dispones not his estate to his son , but acquires an estate in his sons name from a stranger , this disposition so acquired , can never be quarrelled by mevius , the fathers creditor , by way of reduction , for the effect of a reduction is nothing else but the annulling of the deed , and the taking it out of the way , or the bringing back of the estate dispon'd , to the same condition it was in before ; which would not be sufficient in this case , because the estate which the creditor desires to affect , was never in the debitors person . and therefore it is necessary for the creditor to raise a declarator , wherein he must narate , that sempronius being debitor to him , did fraudulently acquire the right of such and such lands , in his sons name ; and which must be presumed to be acquired by the fathers estate : because they were acquired by a son in familia , who is presumed to have no estate , but what he derives from his father , or else he must lybel , that though the disposition be procured by a major , who is foris-familiat , and trafficking upon his own account , the same was truly acquired by the debitors means , and the disposition only acquired to be a colourable title to disappoint his debt . therefore concludes , that the said estate so bought , may be declared lyable to his debt , in the same manner , as if the disposition had been taken in his debitors name . the common law , and ours , does not only reprobate dispositions , made by debitors : in meditatione fugae , but both the one , and the other of these laws , do likewise allow the summar apprehending of creditors , who are suspected to be bankrupts . and by our law , though a man cannot be regularly imprisoned for debt , without letters of caption be formerly raised ; yet in masons case , the . november . the lords summarly , upon a bill , issued out a warrand to apprehend him , tanquam debitorem suspectum , & fugitivum . and though at first they doubted , whether their own power could extend this far , yet thereafter they found that it might : since even the admiral grants such warrants , and yet there may be some speciality quoad the admiral since the nature of his jurisdiction allowes a very sumar procedor : and since this his jurisdiction is ordinarly exercised over persons , who have an easie way to convey themselves out of the countrey , and are ordinarly very little fixed to one place . but because this may open a door to great arbitrariness , and may afford great occasion of prejudging the leidges , since upon this pretext , merchants may , whilst they are going about great bargains , and others about urgent , and necessary affairs , be laid up in prison upon this account . it will be fit to consider , what the common law , and lawyers have delivered as their opinion in this point . lawyers distinguish inter fugitivum , & suspectum de fuga , the one is guilty only of an intention , but the other has actually fled . and i conceive , that meditatio fugae , so much considered by our law , is a midst betwixt those two , for he who is in meditatione fugae , has cum suspecto designed a flight , and has cum fugitivo , done some extrinsick deed in order to his flight . he who is suspect , or fugitive , may be apprehended by the common law , summarly by any judge , who can cite that person before him , qui potest recitare , id est personali coercitione coercere debitores , they may be also apprehended by a judge otherways incompetent : and he that is taken by an incompetent judge , cannot object the incompetency . for as lawyers observe , these debitors who are fugitive , or suspect of flying , may be apprehended by warrands , direct either by incompetent judges , or by warrands direct in incompetent times , such as are vacand times , or holy dayes , gloss in l. si super c. de feriis . verb. ●ideijussionis ▪ but with us , no inferiour , much less can incompetent judges ; can give such warrands . and it has been expresly decided , that an arrestment laid on , even upon a bankrupts goods , by an incompetent judge , was not valid , december . where the arrestment was laid on in pasley , by vertue of an decreet obtained before the bailie of cunninghame , and so was found null , as extra districtum . albeit the bailie of cunninghame , was alsò sheriff of renfrew , within which sheriffdome pasley lyes . — lawyers are likewise of opinion , that the creditor may apprehend one who is debitor , if he find him actually fleeing : for fleeing in this case , is a kind of cryme . but if the flyer be not a debitor by express contract , he cannot be apprehended by the creditor without a warrand , except either a judge cannot be had , or that he be fleeing with the debitors money , ang. in l. extat . ff . quod met . caus . he who craves a warrand , to take a debitor who is suspect , or fugitive , must lybel to the judge , reasons why he suspects his fleeing , as that he was packing up his goods , or was lurking , or denyed himself when his creditors were seeking him . and though by opinion of the doctors , none who has an immoveable , or land estate , can be thus proceeded against , because it is presumed , he will have so great care for his estate , as not to leave it : and because his land estate is alwayes a biding cautioner : yet if either the land estate be very small , or if it be affected with diligences that may exhaust it . i think that in these cases , such heretors can have no priviledge , nor are thir summar warrands ever allowed to such as become voluntarly creditors , after the debitor was suspected ; for these ought to blame themselves , who trusted a person in that condition : but it is otherwise if they became creditors ex delicto , vel quasi delicto : as for instance , if after he was suspected ; he robe , or wound , or commit any ryot . for in that case , he who becomes so , his creditor may have such a warrand for apprehending him ; and these warrands are granted , not only for pure and liquid debts : but even for conditional debts , and for debts whereof the termes of payment are not yet come ; and though the debts be small , except they be very inconsiderable , cacia-lup . tract . de debit . susp . quest . . finally , the lords declares , all such bankrupts , and dyvours , and all interposed persons , for covering , or executing their brauds ; and all others , who shall give council , and wilful assistance unto the said bankrupts , in the devising , and practising of their saids frauds , and godless deceits , to the prejudice of their true creditors , shall be reputed , and holden dishonest , false , and infamous persons , incapable of all honours , dignities , benefices , and offices ; or to pass upon inquests , or assises , or to bear witness in judgement , or out-with in any time coming . for the better understanding of this part of the act , concerning the punishment of bankrupts , and of such as advise , or assist them . it is fit to observe with the civilians , that bankrupts , and dyvours , are either such as are become insolvendo by their misfortune , rather then fault . and quo ad these , because they were guilty of no crime , therefore no corporal punishment was appointed for them by the law , omni corporali cruc●atu remoto saith l fin . cod. qui. bon . ced . poss . nor does infamy follow them , novella ; and therefore this clause of the act , cannot be interpret of such bankrupts : and though the clause be general , without distinguishing bankrupts : and that it might be therefore alledged , that ubi lex non distinguit , nec nos . yet general lawes must receive their restrictive interpretations from the common law. and since the design of this act , was ( as is very clear by the narrative ) to prevent , and punish frauds and cheats ; it is just , that these general clauses should not be extended beyond the express scope , and designe of the act. the second kind of bankrupts mentioned in the law , are these ; who only by their own fault become bankrupts : qui suo vitio fortunas conturbarunt . and the third kind of bankrupts , were such , as became bankrupts , partly by their own , and partly by the fault of fortune . and both these last kinds of bankrupts were denyed the benefit of a cessio bonorum , nam hoc est miserorum subsidium , sed non presidiu● , dolosoruml . sin . h. t. & l. pen. ff . de jur . dot. and with us , the bankrups of both these classes are denyed the benefit of a cessio bonorum , except they wear the habit : though such are spared from it ; whom fortune without their own fault , has thrown into the necessity of seeking that miserable remeed . nor does the granting of dispositions that are reduceable upon this act still infer infamy , for if a man grant a disposition , whereby one creditor is preferred to another who has done diligence , that disposition would be reduceable , and yet if there remained as much as might have payed all the creditors , that disposition could not infer infamy . and by this act , such only are declared infamous , as are guilty of fraud , and godlesse devices . such as give council are lyable to the pains of this act , which is likewise conform to the opinion of the civilians , vid , strach . de decotor : but they distinguish betwixt such as gave council , or advice to those who were resolved before to cheat their creditors ; and some doctors do conclude , that such advisers , are not punishable , because the bankrupt followed not here the advice of another , but his own inclination . and this opinion was first sounded upon the gl●ss . inst . de oblig . que ex de lict . § . ope , but others do more reasonably conclude , with dynus ad reg . nullus de reg . jur . l. . that the advice is equally punishable , whether the bankrupt was resolved to follow that advice , or his own inclination : because the adviser did here all that in him was , to transgresse the law , others distinguish thus , either ( say they ) the principal offender designed only to have cheated a bankrupt , but delayed till he got advice , and then the adviser is equally punishable with the principal , because there , the transgression was imputeable chiefly to the adviser : or else the principal adviser had begun to defraud and cheat his creditors ; and the advice did but interveen , and was but supervenient : and then the adviser is not equally punishable , especially where the contrivance is not otherwise probable , then by meer presumptions . wilfull assistance also in devising or practising these frauds , is also punishable by this act , under which lawyers comprehend such as transact betwixt the bankrupts and interposed persons , such as lend him horses to flee , if they knew his design , and such as carry the goods of the bankrupt , or such as rescue him when he is apprehended , or stop his being apprehended , strach . de decoct . part . . the punishment appointed by this act , is , that they shall be repute false persons : by which is not meant , that they shall be punished tanquam falsarii , but as cheats for cheating is a species of falsehood . and yet if a bankrupt did call himself by the name of a rich merchant , thereby to get credit : or if any treated for him under that name , i conceive they might be pursued tanqnam falsarii , and and might be punisht accordingly . they are also declared uncapable of all honours , or dignities , and offices , which are not distinct punishments from infamy , but are the natural consequences of it . for whosoever is declared infamous , is eo ipso uncapable of all honours , dignities , and offices . they are also declared uncapable to pass upon inquests , or assyses . but this was also unnecessary , for assysers have a mixt imployment , and without being either judges , or witnesses , are both , and as to their capacity of judges , they fell under the foregoing clause , whereby all bankrupts and their assistants are declared uncapable to be judges . and as to their capacity of being witnesses , they fell under the subsequent clause , whereby such are likewise debared from being witnesses . and i believe the reason why they were specially debared by this act , was because our law looks upon assysers , as having an imployment distinct , and differing from either a judge , or a witness , and medium participationis , betwixt the two . though regulariter , in our law , whatever debars on from being a witness , debars him likewise from being an assyser . and there is no surer legal topick with us , then an argument drawn from a witness , to an assyser : and yet argumento hujus legis , an assyser may be concluded different from both judge , and witnesse , and medium participationis , betwixt them . bankrupts , and their assisters are likewise by this act , declared uncapable to be witnesses , and the reason of this exclusion certainly is , because the law considers such as have cheated creditors , as persons who would be ready to cheat judges ; that such as have been dishonest in their own affairs , will never be honest in the affairs of other men . and whereas this clause , debars them from being witnesses , in-with , or out-with judgement , by witnesses out-with judgement , are meant witnesses in writs , as bonds , seasings , &c. but yet it may be doubted , whether in bonds , or such like writs , this can take place : for there , the witnesses are presumed of law to be admitted of consent , which excludes all objections against witnesses ; and therefore a mans servant , or brother , cannot be received judicially as witnesses for him ; yet they may be , and are sustained as witnesses in bonds granted to him . nor did i ever hear , a bond , seasing , or any other writ , reduced upon this head , viz. that it had only two witnesses ; one whereof was uncapable to be a witnesse , because he was found by the lords decreet to have either granted fraudulent dispositions , or to have been in accession thereto , except he was declared expresly infamous by the lords sentence , as mason was . though such an objection seems well founded upon this clause of the act. not only such as defraud creditors , are declared infamous by this act , but even in declarators founded upon the common law , the persons guilty will be declared infamous ; as was found in masons case : and though it was aledged , that infamy could not be inferred without an expresse law ; yet it was found that this act impowered the lords , to decide conform to the conmon law in like cases , & à paritate rationis , and he was thereupon declared infamous . i have reserved to be debated in this last place , whether by vertue of the last clause of this act , whereby the advysers of frauds are to be punished : an advocat may be examined upon his having given advice to his client , to defraud his creditors : or whether he may be examined against his client , who in consulting with him , and taking his advice , has made him as his advocat , privie to the fraud he has committed . and because these questions are of universal consequence , i am resolved to consider them in general termes , both with , and without relation to this act. for if advocats may be forced to depon against themselves , or their clients in this point , or as to any other thing which is the subject-matter of their consultations , they may be as well forced in all things ; for the parity of reason , and the publick interest being the same . i see not why if the judge may lawfully force them in the one , he may not as well obliedge them in all other cases . as to the first question , it would appear , that an advocat cannot be obliedged to depon upon any thing which may bind a guilt upon himself , or which may defame him . as to the next question , it would appear , that it is the interest of the common-wealth , to have the truth of all frauds and contrivances detected ; and that he who conceals the truth , is as guilty as he who commits a falshood : but to such as attentively and judiciously consider , they may probably find themselves enclined to the contrary opinion , by these considerations , . an advocat , is by the nature of his imployment tyed to the same faithfulness that any depositor is : for his client has depositat in his breast , his greatest secrets ; and it is the interest of the common-wealth , to have that freedom allowed , and secured , without which , men cannot mannage their affairs , and privat business : and who would use that freedom , if they might be ensnared by it ? this were to beget a diffidence betwixt such , who should of all others , have the greatest mutual confidence in one another ; and this will make ignorant men so jealous of their advocats , that they will lose their privat business , or succumb in their just defence , rather then hazard the opening of their secrets to those who can give them no advice , when the case is half conceal'd , or may be forced to discover them , when revealed . as for instance , a client not knowing that he can be defended against an pursuit for murder , by proving it was committed in self-defence , will conceal from his advocat , that he killed at all , least his confession , and his advocats testimony , might be made use of against him . . this might afford to advocats great matter of prevarication , and might occasion much prejudice to the clients , for an advocat having discovered the weakness of his clients cause , might discover it likewise to his adversary : and to cover his prevarication , he might suggest to his said adversary , that he might be examined , and so impute the discovering of these secrets , to the cogency of the law , and not to his own privat inclinations , which made rob. annaeus say , that si tamen de inceps , advocato liceat , clientium secreta pandere , & causarum arcana fidei suae commissa , palam & publice proferre eaque parum fido pectore effutire . in foro deinceps , non equitatis cognitio , sed latrocinium exercebitur : tribunalia murices erunt , quibus litigantium simplicitatem undique circumvenire , & imputare licebit . & in judicio , non templum ●hemidis , sed spoliarium erit , si clientes tacita confessionis side captare , & irretire permittetur . whereas now , if a clients secret be discovered , he can blame no man but his own advocats , who are by their honour and interest , oblieged to keep up a secret , whose discovery can be ascribed to none , but them . the designe of all probation is to convince the judge , whereas because of the great relation that is betwixt an advocat , and his client , law and experience cannot but presume , that hardly truth can be discovered this way . and this way rather opens a door to lying , or gives occasion to fallacious , and ambiguous concealing of truth , then helps the discovery of it . upon which account , the law has shunned to force men to depon against themselves , or husbands against their wives , or children against their parents in criminal cases . and therefore virgil equals those two , pulsatusve parens , & fraus innexaclienti . upon which place , servius observes that clientes , quasi colentes , patroni , quasi patres , tantundem ergo est clientem , quantum filium fallere : and such was the respect due to clients , that the law allowed less liberty in deponing against them , then against blood relations : and thus m. cato is brought in , by a. gell. saying , adversus cognatos pro cliente testatur , testimonium adversus clientem nemo dicit . and the law has still been rather inclined to evite the hazard of perjury , then to follow too far the interest of the common-wealth ; or of private parties , since god almighty suffers by the one , and men only suffer by the other . . the law l. nimis grave c. de testibus , tells us , that mandatis cavetur , ut presides attendant , ne patroni iu causa cui patrocinium prestiterunt , testimonium dicant . and though bartolus , and some others do expon this law , so , as if a judge were thereby only discharged to admit an advocat to depon for his client . this gloss seems to be most absurd , both because the words of the law are general , and since they extend to both cases , and that no posterior law has restricted them , there is no reason why both should not be equally comprehended : as also , laws are presumed to be made still against the more doubtful case ; but that advocats could have been received to depon in favours of their client , was so clearly against the whole analogy of law , that there needed no special law to have been made against that case : but there was necessity to inform judges , whether advocats could be forced to depon against their clients : which gloss is approved by the learned heraldus de rer. judicatar auctor . lib. . cap. and conform thereto , the parliament of paris did find in december . that an advocat could not be oblieged to depon against his client , for clearing of a fraud , for which his client was pursued . by justinians . novel , cap. . it is appointed , that though witnesses may be forced to depone , both in civil , and criminal matters : yet those who had been imployed as mediators , who are called there , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , should not be forced to depone as witnesses , except both parties consent ; for which no other reason can be given : but because the parties had entrusted their secrets to them . and accordingly the senat of savoy , decided the . november , . as faber observes , lib. . tit . . def . . and the reason there given , is , solent enim qui litigant , agere liberius cum istis mediatoribus , quasi cum confessore ; & causae patrono . then which nothing can be more convincing , idem etiam in proxeneta observavit papiensis in form . jur . test . num . . and in this the cannon law agrees with the civil : for by can. statut . caus. . quest . . it is ordained , that no clergy-men shall be obliedged , or can be compelled to bear witness in a case which has been referred to him , by two laicks . and therefore since that trust is held so sacred , that the secrets even revealed to arbiters , are not to be extorted from them , much less ought an advocat , to whose patrocinie , his clients slee , and from whose faithfulness they seek protection , to violat that trust , and disappoint that confidence , sane id à romana virtute , & animi magnitudine erat plane alienum . and how much secresie they allowed to witnesses , who had got any thing entrusted to them , is clear , l. . § . . ff . deposit . si quis tabulas testamenti apud se depositas , pluribus presentibus legit , ait labeo , depositi actione recte de tabulis agi posse , ego arbitror , & injuriarum agi posse , si hoc animo recitatum testamentum est , quibusdam presentibus , ut judicio secreta ejus qui testatus est divulgarentur . nor can there be a solid reason given , why confessors cannot be forced to discover the secrets revealed to them , sub sigillo confessionis , and yet advocats shall be oblieged to reveal what is consigned to them , under the sacred assurance of trust , and secrecy . : especially seeing that law which is alledged against them , does acknowlepge them to be juris & justittae sacerdotes l. . ff . de just . & jur . since the common wealth is more concerned in the secrets of affairs , then in secrets of devotion ; and there are greater temptations to provoke the trustee to discover the one , then the other : for few can have advantage by what a confessor can reveal , but many could gain by that an advocat can discover . i must here beg leave to represent , that the rise of this great trust betwixt clients , and patrons , was , that first when rome was founded , romulus finding the error the grecians had committed , in tyranizing over their clients , ( whom the athenians called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and the thessalians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , he did introduce a mutual friendship and tye betwixt them . and as aulus gellius observes lib. . cap. . in officiis apud majores , ita observatum est , primum tutela , deinde hospiti , deinde clienti , tum cognato , postea affini . and as dionis . halic . lib. . ant rom. observes , the patron was obliedged , clienti jura interpretari , & lites pro eo suscipere . and this was common to both , that they could never accuse nor bear witness against one another 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . and on the laws of the twelve tables was , patronus si clienti fraudem fecerit , sacer esto . so sacrilegious a thing was it then held , to reveal the clients secrets : but thereafter this mutual dependence , and friendship , became so suspect to the roman emperours , that none were allowed to be patrons , but lawyers , whose power the magistrates needed not suspect ; and who were presumed to be men , so legal , and of such integrity , that they would advice nothing , but what was just . and therefore , betwixt these continued the trust , and mutual assurance that was required betwixt the old patrons , and their clients . though advocats be now known to antequaries , for distinction , under the term of patroni secundarii . whereas it is urged , that it is the interest of the common-wealth , that truth be discovered : to this it is answered , that it is indeed the interest of the common-wealth to discover the truth , as far as that can be done , in a convenient and lawful way ; for it is likewise the interest of the common-wealth , not to unseal the secrets of privat persons , and thereby to render all trust , and commerce suspect . and notwithstanding of this argument , the law has exempted men from deponing against themselves , and against many others , who are enumerat , l. . ff . de testibus and of which we have very many instances in our law. rei publicae quidem interest , crimina impunita non esse , sed rei publica quoque interest , pietatis & necessitudinis officia sarta tecta conservari , sine quibus nihil sanctum haberi potest , nec inviolatum . and cicero lib. . de offic . does elegantly affirm , non igitur patria prestabit omnibus officiis , sed ipsi patriae conducit , pios cives habere . advocats are persons whose breeding obliedges them to admire justice , as musicians do musick , or as a man does that countrey in which he lives ; and they having given their oath de fideli , at their admission , to give their clients advice according to the laws : they cannot be presumed to have advised any thing against the law. and it is known , that they offend in this so infrequently , if at all ▪ that it may seem fiter not to inquire into such cases , that seldom occure , then by inquiry to introduce a jealousie betwixt parties , who need such strict intimacy . and as no gentleman is desired to divulge his friends secrets , much lesse should the law require this from advocats , since it has obliedged them to imploy advocats : and to entrust them with their secrets . and though men may be suspect , when they debate for their own interest , and advantage , yet what interest can advocats have here , save that of their clients , for the client and not the advocat suffers by the discovery , and the common-wealth being only a collective body of clients ; in effect the common-wealth is prejudged , because clients are prejudged . and though a decision in the parliament of paris , be commonly alledged upon this point , . june . in the case of one barbine , yet all that was there decided , was , que l'advocat , & conseil , pourroit estre ouy par for me de tesmoinage . so that the advocats have there been willing , but were not forced : and the parties objections were there reserved , for the decision beares . sauf a la partie , ses reproches : so that they were but examined before answer . nor can an advocat be thus said to conceal truth , since he is only said to conceal , who may be forced to depon . and if clients know , that their advocats may be forced to depon against them , they will keep their secrets , or propose their doubts under borrowed names ; and thus the design of finding out truth will be disappointed . and the argument altogether eluded , some urge , that advocats may be forced to depon upon the having of their clients papers . and that by many decisions they have been oft forced to give them up , after full debates : wherein a special priviledge upon the account of their imployment has been pretended ; from which they infer , that they may be also examined upon what past betwixt their clients and them . but to this , the easie , and just answer is , that an advocat can be no further obliedged to deliver his clients papers , then the client himself could have been , but neither the one , nor the other could be forced to deliver up any papers , but such as the pursuer is in law allowed an interest in , and in so far as they are the pursuers papers . nor are such papers as ought to be exhibited , to be accounted secrets , and advocats are obliedged here , not as advocats , but as ordinary subjects . but i will not decide this weighty point . act xxviii . a ratification of an act of the lords of counsel and session , made in july . against unlawful dispositions and alienations made by dyvours and bankrupts . our soveraine lord , with advice and consent of the estates , conveened in this present parliament , ratifies , approves , and for his highnesse , and his successours , perpetually confirmes the act of the lords of counsel and session , made against dyvours and bankrupts , at edinburg , the . day of july , ▪ and ordaines the same to have , and take full effect , and execution , as a necessary and profitable law , for the weal of all his highness subjects , of the which act the tenor followeth . the lords of counsel and session understanding by the grievous and just complaints of many of his majesties good subjects , that the fraud , malice , and falshood of a number of divours and bankrupts , is become so frequent , and avowed , and hath already taken such progresse , to the over-throw of many honest mens fortunes , and estates , that it is likely to dissolve , trust , commerce and faithful dealing amongst subjects : whereupon must ensue the ruine of the whole estate , if the godlesse deceites of those be not prevented , and remedied ; who by their apparent wealth in lands and goods , and by their show of conscience , credit , and honestie ; drawing into their hands upon trust the money , merchandize , and goods , of well-meaning and credulous persons , do no wayes intend to repay the same : but either to live ryotously , by wasting of other mens substance ; or to enrich themselves , by that subtil stealth of true mens goods , and to withdraw themselves , and their goods , forth of this realme , to elude all execution of justice : and to that effect , and in manifest defraud of their creditors , do make simulate and fraudful alienations , dispositions , and other securities , of their lands , reversions , teyndes , goods , actions , debts , and others , belonging unto them , to their wives , children , kinsmen , alleyes , and other confident and interposed persons : without any true , lawful , or necessary cause : and without any just or true price interveining in their said bargaines : whereby their just creditors , and cautioners , are falsly and godlesly defrauded of all payment of their just debts : and many honest families likely to come to utter ruine . for remedie whereof , the said lords , according to the power given unto them by his majestie , and his most noble progenitors , to set down orders for administration of justice : meaning to follow and practice the good and commendable laws , civil and cannon , made against fraudful alienations , in prejudice of creditors , and against the authors and partakers of such fraud ; statutes , ordaines , and declares , that in all actions , and causes , depending , or to be intended by any true creditor , for recoverie of his just debt ; or satisfaction of his lawful action and right : they will decreet , and decern , all alienations , dispositions , assignations , and translations whatsoever made by the debtor , of any of his lands , teyndes , reversions , actions , debts , or goods whatsoever , to any conjunct or confident person , without true , just , and necessary causes , and without a just price really payed , the same being done after the contracting of lawful debts from true creditors : to have been from the beginning , and to be in all times comming , null , and of none availe , force , nor effect : at the instance of the true and just creditor , by way of action , exception , or reply : without further declarator . and in case any of his majesties good subjects ( no wayes partakers of the said fraudes ) have lawfully purchased any of the said bankrupts lands , or goods , by true bargains , for just and competent prices , or in satisfaction of their lawful debts , from the interposed persons , trusted by the said divours . in that case , the right lawfully acquired by him who is no wayes partaker of the fraude , shall not be anulled in manner foresaid . but the receiver of the price of the said lands , goods , and others , from the buyer , shall be holden and oblished to make the same forth-comming to the behove of the bankrupts , true creditors , in payment of their lawful debts . and it shall be sufficient probation of the fraud intended against the creditors , if they , or any of them , shall be able to verifie by write , or by oath , of the party receiver of any security from the divour or bankrupt , that the same was made without any true , just , and necessary cause , or without any true and competent price : or that the lands and goods of the divour and bankrupt being sold by him who bought them from the said divour , the whole , or the most part of the price thereof was converted , or to be converted to the bankrupts profit and use . providing alwayes that so much of the said lands and goods , or prices thereof so trusted by bankrupts to interposed persons as hath been really payed , or assigned by them to any of the bankrupts lawful creditors , shall be allowed unto them , they making the rest forth-comming to the remanent creditors , who want their due payments . and if in time comming any of the said divours , or their interposed partakers of their fraude ; shall make any voluntary payment , or right to any person , in defraude of the lawful , and more timely diligence of another creditor , having served inhibition , or used hornining arrestment , comprizing , or other lawful mean , duly to affect the divours lands , or price thereof to his behove . in that case the said divour or interposed person , shall be holden to make the same forth-comming to the creditor , having used his first lawful dilligence : who shall likewise be preferred to the concreditor , who being posterior unto him in diligence , hath obtained payment by partial favour of the debtor , or of his interposed confident : and shall have good action to recover from the said creditor that which was voluntarily payed in defraude of the pursuers diligence . finally , the lords declares all such bankrupts and divours , and all interposed persons , for covering or executing their frauds , and all others , who shall give counsel , and wilful assistance unto the said bankrupts ▪ in the devising and practising of their said fraudes , and godless deceits , to the prejudice of their true creditors , shall be reputed and holden dishonest , false , and infamous persons , incapable , of all honours , dignities , benefices , and ▪ offices : or to pass upon inquests , or assyses : or to bear witness in judgement , or out ▪ with in anytimes coming . finis ▪ the laws and customes of scotland, in matters criminal wherein is to be seen how the civil law, and the laws and customs of other nations do agree with, and supply ours / by sir george mackenzie ... mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the laws and customes of scotland, in matters criminal wherein is to be seen how the civil law, and the laws and customs of other nations do agree with, and supply ours / by sir george mackenzie ... mackenzie, george, sir, - . [ ], p. printed by james glen, edinburgh : . reproduction of original in bodleian library. table of contents: [ ]-[ ] created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of 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general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng criminal law -- scotland -- early works to . criminal procedure -- scotland. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - emma (leeson) huber sampled and proofread - emma (leeson) huber text and markup reviewed and edited - pfs batch review (qc) and xml conversion edinburgh , the seventh of april , . it is ordered by the lords of his majesties most honourable privy council , that none shall re-print , or import into this kingdom , this book , entituled , the laws and customs of scotland , in matters criminal ; by sir george mackenzie of rose-haugh , for the space of nineteen years after the date hereof , under the pain of confiscation of the same to thomas brown , george swintoun , and iames glen , printers hereof , and further punishment , as the council shall think fit to inflict upon them . extracted be me thomas hay . the laws and customes of scotland , in matters criminal . wherein is to be seen how the civil law , and the laws and customs of other nations do agree with , and supply ours . by sir george mackenzie of rose-haugh . edinbvrgh , printed by iames glen , anno domini , mdclxxviii . to his grace john duke of lauderdale , marquess of march , earl of lauderdail , and guildford , viscount maitland , lord thirlestane , musselburgh , boltoun , and petersham : president of his majestie' 's most honourable privy council of scotland , sole secretary of state for the said kingdom ; gentleman of his majestie' 's bed-chamber : and knight of the most noble order of the garter . may it please your grace , though the number , and wit of such as use to write dedications , may seem to have exhausted all that can be said upon such occasions : yet i have a new way of address left me , which is , to write nothing of you , but what is true , by the confession of your enemies , who admire more the greatness of your parts , than of either your interest , or success : and how you have made so great a turn in this kingdom , without either blood or forfeiture , shewing neither revenge , as to what is past , nor fear as to what is to come ; continuing no longer your unkindness to any man , than you think he continues his opposition to his prince . all have at sometime confest , that you have been the ornament , as well as defence of your native countrey , to whom every scottish-man is almost as dear , as every man is to his own relations . and i am sure that your enemies will find it easier to put you from your office , then to fill it ; and none of them can wish you to be removed , without being himself a loser by it . nor can i be so unjust , even to such as oppos'd you , as not to acknowledge that i have heard them talk of you so advantagiously ( when design and interest oblidged them to dissemble ) as almost convinced me , that the most of them opposed you only in publick , rather from the glory of having so great an adversary , than from the justice of the undertaking . and your countrey has in their late confluences , ( where they crouded in mighty numbers , and with a remarkable joy to meet you , when a privat man ) shew'd greater respect to your naked merit , then to the highest characters by which others were marked out for publict honour . having writ this book to inform my countrey-men , and to illuminat our law , i could not present it more justly to any , than to your grace , who has derived your blood from a noble family , which has been still eminent in our courts of justice , since we had any ; and who are your self , the greatest states-man in europe , who is a schollar ; and the greatest schollar , who is a states-man : for to hear you talk of books , one would think you had bestowed no time in studying men ; and yet to observe your wise conduct in affairs , one might be induced to believe , that you had no time to study books . you are the chief man who does nobly raise the study of the civil law , to a happy usefulness , in the greater and general affairs of europe , and who spends the one half of the day in studying what is just , and the other half in practising what is so : all which may be easily believed , from me who am as great an instance of your generosity , as an admirer of it . especially since you have left me nothing to wish , so that what i say , needs not flow from flattery , and so must be presumed to flow from conviction and gratitude in , your graces most faithful , and most humble servant , george mackenzie . the design . the great concerns of men , are their lives , fortunes , and reputation , and these three suffering at once in crimes , it is the great interest of mankind , to know how to evite such accusations , and how to defend themselves , when accused : and yet none of our lawyers have been so kind to their countrey , as to write one sheet upon this pleasant and advantagious subject , which made it a task both necessary and difficult to me . in prosecuting this design , i was forced to revise and abreviat those many and great volums which make up our criminal registers , and having added to them these observations i have my self made , during my twenty years attendance upon that court , either as iudge , or advocat ; i collationed all with our statutory law , the civil law , and the customs of other countreys , and the opinions of the doctors : and , as i may without vanity say , that few valuable authors treat of crimes , whom i have not read ; so there is nothing here which is not warranted by law , or decisions , or in which , when i doubted , i did not confer seriously with the learned'st lawyers of this age ; and yet i doubt not but in some things , others may differ from me , as the best writers do amongst themselves : and having only designed to establish solidly the principles of the criminal law , i wanted room for treating learnedly each particular case , or even for hinting at all such cases as may be necessary ; and without wearying my readers with citations , ( which was very easie ) i have furnished the book with as much reason as is ordinarly to be found in legal treatises . the reason why i have so oft cited the basilicks , theophil . and the greek scholiasts , was not only because none before me have used them in criminal treatises , but because i conclude them the best interpreters of justinians text : for these books having been writ in the same age , and place , and some of them by those who compiled the latine text , they must understand it best of all others , of which i have given many instances in this book , and shall here adde one , there forgot , which is , that the latine interpreters doubt much what is meant by remittendum in the constitution , si quis imperatori male dixerit , some interpreting it pardoned , some to be sent back to the emperour : but the basilicks render it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which signifies only ignoscendum . i cannot but admire much the wisdom of god , who gives not only inclination , but pleasure to such as toyl for the good of others ; for i am sure few men would have from any weaker impulse bestowed so much time , and so many thoughts upon an imployment , which without bringing gain , will certainly bring envy and censure : for i find it is the genius of this age to admire such as make the publick good bend to their designs , and to hate such as design to inform them , as if he were more my friend who would set my family by the ears , than he who instructed my children and servants in necessary duties . there are but too many who endeavour now to make all whom they hate , pass for such as love arbitrary government ; but as in many passages of my former life , i have preferred my countreys interest to my own , so in this book i endeavour to oppose arbitrariness , where it is most dreadful , and that is , in matters criminal , in which life and fortune are equally expos'd ; for he who disinterestedly declares his own opinion , before private cases occurr , ( wherein interest or inclination may byass him ) doth in so much praeclude himself , and others too ( as far as his authority can reach ) from the power of being arbitrary ; and let others say what they please , i will stand more in awe of my conscience then of my enemies , and govern my self more by my own reason , then by the giddie multitude . i hope i need not be jealous that our publict differences will make any unkind to this book , which is published for their service , and which is now more accurate , than when it at first pleased them in sheets . i did print it , not only to correct the many false copies which were abroad , but to divert me from refining too much upon our publict debates ; and i wish the reading it may have the same effect upon others . and that all of us would turn things to their true light , and consider without passion how happy we are , who live under a prince of our own religion and blood , whose clemency is as extraordinary as his restitution , who governs us by our own laws , and countrey men ; and distribute , all his own revenue amongst us : that we enjoy by his prudence a profound peace , whilst others bleed or starve in lasting wars . that all the commerce of europe is gathered in amongst us ; that we are free from those sucking taxes under which they groan ; and are but lately rescued from a rebellion , in which , after we had emptied our veins and purses for religion and liberty , we became atheists and slaves . the index . part i. . of crimes in general , and by what law they are judged in scotland . . the division of crimes . . blasphemy . . heresie . . simony , baratry . . treason : laesae majestas . . sedition . . poyson . . de incendiariis , or , fire-raisers . . witch-craft . . murder . . of duels . . self-murder . . paricide . . incest , sodomy , bestiality . . rapes , or ravishing . . adultery . . bigamie . . theft . . theft-boot and receipt . . hame-sucken . . breaking of prison . . de dardanatiis , or , fore-stallers . . usury . . the bribing , partiality , and negligence of iudges . . deforcement . . falshood . . stellionatus . . perjury . . of injuries personal and real , and of infamous libels . . poynding of oxen in time of labouring . . bearing of unlawful weapons . . beggars and vagabonds . . robbery , oppression , vis publica & privata . . art and part , ope & consilio . . some crimes punished amongst the romans , which are not directly in use with us . part ii. . of iurisdiction in general . . of the iudge competent , de foro competenti . . iurisdiction of the parliament in crimes . . iurisdiction of the high constable in criminals . . the iurisdiction competent to the high chamberlain , and magistrats of burghs royal. . the iurisdiction of his majesties privy council in criminals . . of the exchequers iurisdiction in criminals . . the iurisdiction of the lords of session in criminals . . the admirals iurisdiction in criminals . . the iurisdiction of the commissars in criminals . . the iurisdiction of regalitis in criminals . . the iurisdiction of sheriffs in criminals . . the criminal iurisdiction of barrons . . of iustices of peace . . the iurisdiction of the iustices , and of the several imployments and officers of that court. . the iurisdiction of the iustices over souldiers , and of military crimes . . advocations of criminal causes . . of inquisition . . of accusations , and accusers . . of advocats and procurators . . of libells , and the forms of process thereto relating . . of exculpation , and the other priviledges competent to the defender . . of assizes . . of probation by confession . . probation by oath , by writ , and by presumptions . . probation by witnesses . . of torture . . of remissions . . of prescription in crimes . . of punishments , de poenis . . of criminal sentences , and their executions . part i. title i. of crymes in general , and by what law they are judged in scotland . how crymes differ from delicts and malefices . in what consists the nature and essence of a cryme . by what lawes crimes are punish'd in scotland . how far dole or design is necessar to the committing crimes , and how tendencies and insinuations are punisht . whether minors can commit crymes . whether such as sleep can commit crymes . whether such as are drunk are punishable for crymes . whether furious persons are punishable . whether an university or collective body be punishable . god almighty having created this lower world to be equally an instance of his power , and of his goodness , did furnish it with great variety of excellent , and wonderful productions : but lest these should be defac'd at pleasure by man , who having ruin'd himself , doth little value , and is much inclined to ruine every thing besides ; therefore god did not only imprint upon his soul some 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , common principles whereby he is led to love order , but did likewise fence the aeconomy and government he had placed in the world with rewards and punishments , and it was just , that as these who did vertuously , were to be rewarded , so these who were vitious should be punisht , which punishments are the subject-matter of the criminal law , and of this treatise . i. transgression , or peccatum , is by modestinus l. obligamur , ff . de . obl . & act. made the root of all enormities , and is divided delicta into quasi delicta , & crimina . quasi delicta , are such faults and transgressions as are not so hainous that they deserve to be punisht criminally ; such as small ryots , delicta , are such as deserve a more severe punishment , but yet because they tend not to wrong the common-wealth , and publict security immediately , therefore do not deserve to be punisht by any express law as crymes . crymes are these injuries done to the common-wealth which are so immediat and heinous , as that they are punished by express law. this distinction is used by matheus : but farinacius makes delictam the genus , and divides it , in crimen , & maleficium , with us this subtilty is not observed , for the word crime , comprehends both crymes , and delicts . the summonds raised for accusing in both , are called criminal letters , and the court in which both are judged , the criminal court. neither use we the word malefice in any cryme , but in witch-craft , in which it signifies that prejudice , and damnage , which arises from the unlawful means used by sorcerers . ii. in what consists the nature of a cryme may be doubted , and l. . reg. maj. c. i. a civil action is defyned to be that which concerns lands or goods ; and a criminal action that which concerns life or limb. but skeen in his observations upon that place , do's confess all that to be a cryme which concerns the publick good , whether a corporal punishment , or pecuniary mulct be craved : but this is also too general , especially since the law divides crymes in publick and privat crymes : and therefore i offer these considerations , . all transgressions of law are not criminal , v g. to make a disposition in defraud of creditors , is not criminal , though it be prohibited . . that is not only to be accounted a cryme which bears expresly to be punishable by corporal punishment , or pecunial mulcts : for in my lord renton's case against hoom , it was found , that poynding of oxen in time of labouring was criminal , though it be not appoynted by the act whereby it is prohibited , to be punished by a definit punishment . nor is it exprest to be a cryme , likeas , single adultery , is punishable , albeit it be not declared to be a cryme by any expresse law with us . . that cannot only be thought a cryme , which is committed against the law of nature , for poynding of oxen is no more such , than making fraudulent dispositions . iii. the true nature then of a cryme may be comprehended , under these general conclusions , first , that is a cryme , which is declared such by an express statute , as murder , treason ; and it were to be wisht , that nothing were a cryme which is not declared to be so , by a statute ; for this would make subjects inexcuseable , and prevent the arbitrariness of judges . and i find by the general consent of criminalists , nothing is to be accounted a cryme or punisht criminally ; but what is forbid by the law , under an express pain or punishment ; for they observe , that as there can be no punishment inflicted , but where a delict is committed : so there can be no delict but where the law hath appoynted a punishment , cabal cas. . and this is clear , l. at si quis § . divus ff . de religios . & sumpt . fun . l. haeres ff . de usufr. leg . surd. consil . . and yet lawyers assert that such as disobey , and transgress any prohibiting law , may be punisht arbitrarly , as contemners of the law , sutably to the degree of their contempt , though they cannot be punisht criminally as guilty of a cryme , cabal ibid. . the transgressing any municipal law , which prohibits that which either the law of god , or the civil law , punishes criminally , by corporal punishment , or a pecuniary mulct , is a cryme , and thus the poynding oxen , in time of labouring was declared a cryme in the former decision , because though it was prohibited by an express statute , which did bear no punishment ; yet it ought to have been punisht according to the civil law , whereby it is declared to be a cryme . . that is a crime whereby the publict peace is immediatly disquieted . or whereby the law of nature is violated ; thus incests , and rapts , were accounted crymes with us , before they were declared to be such by an express law. and bestiality , and sodomy , are crymes ; though yet we have no statute against them . . that is a crime , which long custome hath punisht , by corporal punishment , or by a pecuniary mulct , in the justice court , as single and not manifest adultery . from all which , it appears that the law of god is the first fountain of our criminal law ; and thus the lybel in single adultery is only founded upon the law of god. and in usury we lybel upon the municipal law , and the law of god joyntly . . our statutes , or acts of parliament , are our proper law ; but even these may run in desuetude , so far that they cannot be the foundation of a criminal pursuit , for former transgressions , since the people who know not law , so much by reading the books of statutes , as by seeing the daily practice of the countrey , should not be ensnar'd by pursuits ; upon old buried laws ; which scarce lawyers study or know . nor can the people be thought to have contemn'd , what they cannot be presum'd to have known . and our judicators ▪ by ordaining such ancient laws to be renewed by proclamations , do confess , that before these proclamations ; these laws were not binding : for else the renewing them had been unnecessar , and if it were otherwise , we have so many paenal statutes now in desuetude , that the leidges would be certainly ruined by them . and thus collonel borthwick having pursued the maltmen criminally for contraveening the . act. . parliament ; ia. . the councel upon a supplication representing thir grounds , sisted that pursuit . but desuetude must be universal , ancient , and notorious , else the want of any of these three qualifications , will alter this conclusion . and yet i think that desuetude cannot in futurum abrogate a cryme , and enervate the law altogether , since the parliament only , can rescind their own laws : nor should the people , nay nor our judges ; be made legislators , consuetudinis ususque longavi non vilis est auctoritas verum non usque adeo sui valitura momento ut aut rationem vincat aut legem . l. . c. quae sit long . consuet . which should rather hold in crimes , then in any other subject , because it seems absurd , that it should be lawful to the people , to loose themselves from the laws made against themselves ; and to gain impunity by frequent repetition of their faults : or to be able to free themselves from punishment , by contemning these laws by which they are inflicted . the decisions of our criminal court , as of all our other , do bind the same or succeeding judges , rather out of decency , then necessity ; for nothing tyes judges but laws , and none can make laws , but the parliament , which is very suitable to l. nemo c. de sent . & inter . where iustinian doth expresly command ne ullorum judicum sententiae pro jure reputentur . the reason whereof given in that law , is quod non exemplis , sed legibus est judicandum , and the other reason l. ult . c. de legibus quia imperator est solus legum conditor . and if we consider how much circumstances influence particular cases , how judges may fail where parties are nam'd , and that decisions pass necessarily upon less premeditation then is necessary to laws ; it will be found reasonable , not to trust decisions too much . likeas our judges , do make express acts of sederunt , as we call them , when they resolve to regulat future cases ; which were unnecessar if all decisions did of themselves bind . nor doth the decisions of the very parliament of paris , bind even the pronounters themselves for the future , as conan observes , lib. . c. . and so frail , and fallible a thing , are mens judgements ; especially where votes are numbered , and not weigh'd : or where experience may discover the errors , which the sharpest reason could not foresee ; that therefore judges should no more be tyed from altering their decisions , then philosophers to continue in the errors of their youth . but yet when the arguments pro and contra weigh equally , and reason seems puzled where to encline , the authority even of our former decisions , should cast the ballance , especially where the same reason then urg'd , was there pressed ; and in the interpretation of laws ( of which decisions are the best interpreters ) if a whole tract of decisions can be produced , it would infallibly bind , wherein craig diag . de jure quo utimur agrees with callistrotus , l. . de . leg . in ambiguitatibus quae ex legibus profisciscuntur consuetudinem , aut rerum perpetuo judicatarum auctoritatem vim legis obtinere . where these decisions have proceeded upon a debate ; by which the reason of judges is much ripened , and the future inconveniences fully considered : for as pomponius well observes , l. . § . his legibus ff . de origine juris , his legibus latis caepit ut naturaliter evenire solet , ut interpretatio desideraret prudentium authoritate necessariam esse disputationem fori . and durie in the case of hoom of cowdoun-knowes , shewes us how the l. of session thought it not derogatory from their honour , to retreat a sentence after debate , which they had pronounced , when no advocats were compearing . we follow the civil law in judging crimes , as is clear by several acts of parliament , wherein the civil law is called the common law. and robert leslies heirs are by the . act. par. . ia. . ordained to be forefaulted for the crime of treason , committed by the father according to the civil law. and forefaultor in absence was allowed by the lords of session , in anno . because that was conform to the civil law ; and falshood is ordain'd to be punisht , according to the civil and canon law , act . par. . q. m. and that the civil law is our rule , where our own statutes and customs are silent , or deficient , is clear from our own lawyers , as skeen annot. ad . l. . r. m. c. . ver . . and by craig l. . diog . . as also from our own historians , lesly . l. . cap. leg . scotor . boet. l. . hist : camer . de scot. doctr. l. . cap. . and the same is recorded of us , by the historians , and lawyers of other nations , as forcat lib. . hist. angl. petr. diamitis geograph . europ . tit . d. escosse and duck de auth . jur . civ . lib. . cap. . and though the romans had some customs , or forms , peculiar to the genious of their own nation : yet their laws , in criminal cases , are of universal use , for crymes are the same almost every where , as boet. well observes , leges romanas à iustiniano collectas tanta ratione & sermonis venustate esse , ut nulla sit natio tam fera vel ab humanitate abhorrens ; quae eas non fuerit admirata . and k. ia. . was so fond of the civil law , as boet. observes , lib. . that he made an act , ordaining , that no man should succeed to a great estate , in scotland , who did not understand the civil law , and erected two professions of it , one at saint andrews , and another at aberdeen . and when iames the . did by the act of his . parliament ordain that his subjects should be governed by no forraign lawes , he designed not to debar the respect due to the roman lawes ; but to obviat the vain pretences of the pope , whose canons and concessions were obt●uded upon the people as laws by the church men of these times . the th branch of our criminal law are the books of reg. maj : which are in criminalibus lookt upon as authentick . thus the thief must be punisht before the recepter , and assysers must be pares curiae , &c. for which , and many other maximes , there is no warrand besides what is contained in these books of reg : majest : but why should this be doubted , seing they are cited as such , act . parl. . ia. . where it is said , that wilful and ignorant assysers shall be punisht after the form of the kings law , in the first book of the majesty , and by the . act . . p. l. . transgressions of that act are to be punisht conform to the kings laws , and of regiam majestatem , likeas by the . p. . i. . a comittee of parliament is ordained to meet and examine the book of the law , that is to say , regiam majestatem , and quoniam atta chiamenta , which is repeated , . act. . p. i. . and albeit they contain many things which are not in use with us ; yet they have been in use , and this objection would conclude , the acts of parliament not to be our law. it is then my opinion , that k. ia. the . hath brought down some of these collections from england with him . nor find i these books cited before this time . it is doubted whether the secret council can by any act , or proclamation , either introduce a cryme , which can infer tinsel of life , or escheat ; for the parliament can only dispose upon our lives , and fortunes . and it being the representative of the nation , every man is in law , said to have consented , to what the parliament doth ; i find craig to have been of opinion that no act of secret council can infer a crime , pag. . nor can the council , by their acts , warrand any to do what would be otherwise a crime : for ejus est nolle , cujus est velle . and none can take away a cryme , but such as can introduce a cryme , and therefore m r. archb : beath , being pursued , for killing some men , he alledged , that these men , were bringing meal from ireland , and that by act of council , it was lawful to sink or kill such as contraveened the act. to which his majesties advocat did reply , that the acts of secret council , could not warrand the killing of a free leidge , and the committing of murder : which reply was found relevant . but since the council are to secure the peace , and that many accidents may emerge wherein the publick peace cannot be preserved without this power , it were hard to limit them too much . iv. whether dolus or a wicked designe , be requisite in all crymes ; is largely treated of , by the doctors , and is most fully debated , in the process of ochiltrie , balmerino , and the marquiss of argyle . and by the texts , § placuit just . de furt . l. . ff . de injur . l. pen. ff . ad . leg. jul . de adult . it seems , that the wickedness of the designe , makes only an action criminal ; but in my judgement , this inquiry may be resolved , in these conclusions , . that seeing man can only offend in what is voluntar to him , it must follow , that the will is the only fountain of wickedness . and consequently , it was at first the designe of law-givers , only to punish such acts as were designedly malicious . . because design is a private , and conceal'd act of the mind , which escapes the severest probation . therefore in some cases , this dolus is allowed by law , to be inferred from conjectures , and presumptions , where the act is such , as of its own nature , may be good or evil , accordingly as it is circumstantiat : as in poyson , the giving whereof may be occasioned by ignorance , mistake , or malice , . some acts are so irregular , of their own nature , that the law requires only that the act be proved , without proving the dole , or wicked designe , as in sodomy , adultery , &c. . some acts , though they be not wicked of their own nature , yet because the design cannot still be proved , therefore the contraveening the law is equivalent to design , & dolus presumitur contra versantem in illicito , as the conversing with a woman after the church hath forbid the same , and therefore the doctors divide dolum in verum , & presumtivum . . where the law hath expresly required , dole , and defigne there , it must be expresly libelled and proved , as in the act . par. . k. ia. . where it is statuted , that if any man wilfully recept rebels , he shall be forefaulted ; but albeit lata culpa , be equivalent , to dolus , in lesser crymes , yet the doctors conclude , that where the cryme may infer death , or mutilation ( losse of life , or limb , as we speak ) there the grossest negligence , or lata culpa , is not equivalent to dolus . clar. quest. , num. . it is likewise much debated , whether an endeavour , to commit a crime , be a crime , albeit the efffect follow not . and albeit , it be a rule , in the civil law , that in maleficiis , voluntas spectatur , non exitus , l. . § . divus ff . ad leg . corn. de sicar , yet is generally concluded by the practicians of all nations , that simplex conatus , or endeavor , is not now punishable by death : clar. quest. . gothofr . § . conatus . but for clearing this , accorcording to the principles of reason , i shall form these conclusions , first , that all indeavour , is an offence against the common-wealth : though nothing follow thereupon : albeit sometimes the punishment be conniv'd at , or mitigated , according to the several degrees of malice , but that it is in it self criminal , appears from this , that simple designe is punishable in treason , and some other atrocious crimes ; because in these , especially in treason , it would be too late , to provide a remedy , when the cryme is committed . . in lesse atrocious crymes , the designe is punisht , if the comitter proceeded to act that which approached nearly to the cryme it self , si diventum sit ad actum , maleficio proximum . but this is not simplex conatus , but in effect is a lesser degree of the crime , to which it approaches ; as if a thief , have put ladders to the house , which he resolves to rob ; or if he mix poyson , but the potion be spilt upon the ground by an accident : and albet it be commonly received , that even in these cases , affectus non est puniendus , sine effectu , by the same punishment , with the cryme designed : yet i would distinguish in this , betwixt an effect disappointed , by an interveening accident ; and that which is stopt , by the repentance of the committer , for , where the designe was only disappointed , i think the ordinar punishment , should not be remitted , in cases ubi deventum est ad actum proximum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . basil : de extraord : crim : l. . and therefore the court of savoy , did very justly condemn a thief , to be hanged , who had entered the house of one girard to steal and murder , but was deprehended before the theft was committed goth. § . conatus num : . for since the punishment is only remitted in conatu , or indeavor , because of the favourable circumstance , that nothing followed thereupon . so i think this may be counter-ballanced by the depravity of the designe , in many cases . as if one should design to kill a whole family , or burn a whole town , and seing men are punisht , not meerly for what is done , because that cannot be helped , as lawyers affirm , but because , the committer of a cryme , may commit the like ; therefore i conclude that he who designed to commit a crime , should be punished as if he had committed it ; if he was only letted by accident , because the common-wealth cannot be otherwise secure . and therefore it was admired , why in iuly . . m r. stanfields servant , was not punisht with death for indeavouring to burn her masters house , albeit she was apprehended before any prejudice was done : but i would here add , as a caution , that great praemeditation , should be proved before conatus be punished capitally ; for that showes the confirmed malice of the designer , and is aequivalent , as to him , to successe . . in mean crymes , where the effect followed not , upon the designe , but was hindred by repentance : i think little or no punishment should follow , for , nihil tam naturale , quam unum quodque eodem modo dissolvi , quo colligatum est . the like should also hold , where the design was taken up in passion or without premeditation , because there the committer , is not for the future , so much to be fear'd : but this subject will be more fully cleared in the particular subsequent titles ; for in some crimes , conatus or indeavour , is more punishable then in others . whether what tends to a crime , though it be not arrived at the full guilt requisite , to make it fall expresly under the statute , or law , by which that crime is punished , to which it approaches : has been oftentimes doubted . as for instance , to misconstruct his majesties government , and proceedings ; or to deprave his laws , is expresly declared punishable by death , by the . act. . p. i. . whether then may not papers , as tending to misconstruct his majesties proceedings , and government , or bearing insinuations , which may raise in the people jealousie against the government be punisht by that law ? and that such insinuations and tendencies are not punishable criminally , may be argued thus . . it is the interest of mankind to know expresly what they are to obey ; especially where such great certifications are annext , as in crymes . . the law having taken under its consideration this guilt , has punisht the actual misconstructing , or depraving , but has not declared such insinuations or tendencies punishable , & in statutis , casus omissus habetur pro omisso . . this would infallibly tend to render all judges arbitrary , for tendencies , and insinuations , are in effect the product of conjectur : and papers may seem innocent , or criminal , according to the zeal , or humour , as well as malice of the judger . men being naturally prone to differ in such consequential inferences , and too apt to make constructions in such , according to the favour , or malice , they bear to the person , or cause . are not some men apt to construct that to tend to their dishonour , which was design'd for their honour , and to think every thing an innovation of law , or priviledge , which checks their inclination and design ? whereas some judges are so violent in their loyalty , as to imagine the meanest mistakes do tend to an opposition against authority . and thus zeal , jealousie , malice , or interest , would become judges , if tendencies and insinuations were allowed to be crimes . . men are so silly , or may be in such haste , or so confounded ; and the best are subject to such mistakes , as that no man should know when he were innocent . simplicity might oftimes become a cryme : and the fear of offending , might occasion offence . and how uncomfortably would the people live , if they knew not how to be innocent ? whereas on the other part , it may be represented , that there are some crymes which cannot be determined as to all degrees of guilt . such as is the misrepresenting the government , which may be done so cautiously , and in such various , and different wayes , as cannot be specified in any statute . . if the misconstructing the government be a great guilt , certainly , what tends to it must be punishable to some proportion . . it is the interest of the common-wealth , that all disorders should be punish'd ; and surely it is a great prejudice to the government , that such insinuations , or tendencies , should escape unpunished . and as in the civil law , there are many actions which have no definit and distant names , but are comprehended under the general names of actiones in factum ; and that there are actiones utiles , arising from the reason of the statute , as well as directae , which arise from the words of the law : so in criminal , there are actions arising from the parity of reason , or at least , which inferring guilt in some degree , are sustain'd with us , tanquam crimina in suo genere . . the doing what may tend to misconstruct , or raise jealousies , is expresly declared punishable by the . act . par. q. m. whereby it is declared , that such as sow evil reports , tending thorow raising such rumors , to stirr the hearts of the people to sedition . and by the . act . par. i. . it is declared , that by the former laws , every thing was declared punishable , which tends to sedition , and dissention amongst the people . and if endeavours be punishable , much more ought tendencies : since tendencies are express deeds . nor hath the judge more latitude , nor is he more arbitrary here , then he , and the inquest both are , in judging what is arte and part , for that is determined by no law : and because it could not be determined , therefore a lybel founded upon arte and part in general , was ordained to be sustained as relevant by our statutes . v. what persons may be punished , or are capable to commit crymes ; will be clear by determining what persons are not capable , and whether a minor may be punished for a crime , is contraverted amongst the doctors ; and for clearing of the difficulty , we must distinguish betwixt such crimes as are committed by contrivance , & dolo malo . and in these a minor is to be punished , if the dole can be proved , l. un . god. si adversus dotem . the sum of which law is , that ubi minor deliquit . per dolum restitutio non procedit , sed ubi per culpam ibi subvenitur ei per restitutionem . . in crymes against the law of nature , such as murder , a minor , is lyable though not to the ordinar punishment , but in meerly statutory crymes , such as usury , forestalling of mercats , &c. he is not at all to be punished , except ubi malitia supplet aetatem , which , because it is not presumable , should not therefore be inferred , but from very pregnant , and convincing probation . and seeing arte in all crimes , seems to require judgement and contrivance ; it would appear , that though the crime it self were punishable in minors : yet art and part should not , seeing that , in effect , depends upon acts of the judgement ; wherein minors may be mistaken , because of their fragility , and less age : and thus iohn rae was not put to the knowledge of an inquest , for being arte , and part , of theft , because he was not the principal committer , but went alongst with his father , and was not past twelve years of age , . ianuary . . though a minor be punishable where he is pubertati proximus , yet he is to be punisht more meekly ; and thus the viscount of frendraught , was put to the knowledge of an inquest , for being accessory to the away-taking and privat imprisonment of gregory , though this was a statutory cryme . and thus midlton , and machan were put to the knowledge of an inquest . . of august . and the . of march , . it was found after a most contentious debate , that two boyes , the youngest whereof was not twelve years of age , should go to the knowledge of an inquest , for casting down of a house at their fathers command : albeit it was alledged , that this act was not of its own nature criminal , as murther , or bestiality , but its guilt depended upon circumstances , which minors were not oblieged to know , as if the house belonged to their father , of which they were informed , and so were not guilty . there are some crymes also , wherein minors may be punisht , and are repute majors , per fictionem juris ( according to the opinion of some lawyers ) such as fornication , adultery , sodomy , & omnia delicta carnis ; because the guilt there consists in the commission of the fact , and not in a contrivance , and so minors may be equally guilty of these crimes with majors . yet i differ from these doctors in this ; for since the committing these crimes , may be occasioned , by levity , and vacillancy of judgement in minors : and seing furious persons would not at all be punished for such crimes , i do think the age is somewhat to be considered , even in these cases ; and that minors are not to be as severely punisht , as majors ; seing they are not of so solid a judgement as these are . i find , lib. . reg. maj. c. . § . . and in annot . . vers . . c. . lib. . that a minor is not oblieged to answer for any cryme by which he may loss life or limb . and a case is there cited betwixt his majesty and the abbot of parbroth , annot . c. . v. . and skeen cites for this l. pen. c. de autorit . tut . & l. . § . occisorum ff . ad § . c. sillan . & cap. . de delict . puer . extrav . the reason seems to be , because a minor may ( being pursued whilst he is minor ) omit some defence competent to him . and since a minor is not oblieged to debate de haereditate paterna , whilst he is minor ; much less should he be oblieged to defend in a criminal pursuit , ubi calore juvenili potest dicere vel tacere quod ei nocere potest . so that it seems , that albeit a minor may be punisht for several crymes committed by him when he was minor , yet is he not oblieged to answer for any till he be major . but yet in the viscount of frendrauchts case , it was found that a minor was oblieged to answer to an inditement even during his minority : but whether a minor confessing will be restored against his confession , is fully debated in the title confession . vi. such as commit any cryme whilst they sleep , are compared to infants , l. si . servus § . si fornicarius ff : ad l. aquiliam , and therefore they are not punisht , except they be known to have enmity against the person killed ; or that fraud be other wayes presumable : quo casu , they may be punisht extra ordinem , farin : quest . . vii . such as are drunk , are sometimes for want of dole , and malice , more meekly punisht than others ; especially if they were cheated upon designe , into that condition by others . and in this case the law distinguisheth inter ebrios , who are rarely drunk , & ●briosos , who are habitually drunk : for these last should be most severely punisht , both for their drunkennesse , and for the crimes occasioned by it . but such as make themselves drunk upon design to excuse or lessen thereby the guilt they are to commit , merit no favour , and such as knew they were subject to extravagancy in their dri●k , merit as little , cabal . cas . i have not in our law found drunkenness to defend in either cases ; and it was repelled in the pursuite of murder pursued against the laird of spot and douglas ; for killing hoom of eccles. anno. . yet i think that in some circumstantiat cases , the council may mitigat the sentence upon this accompt . but it is never a defence against the relevancie : such as are furious , are not in the construction of law , capable to commit a crime . stat. . rob. . for the law compares them to infants , or to dead men , lege si quis ff . de acquirend . haered . to such as are absent , l. sed . si . ff . de injuriis , and makes them to be no more guilty because of the crime they commit , then a stone from a house , or a beast is to be repute guilty and punishable for the wrong they do . quam si pauperiem pecus dederit aut tegula ceciderit , l. . ff . ad . l. aquil : and the law commiserats so far their condition , that it expostulats with such as would pursue them for a cryme , & non exigas poenas ab eo , quem fati in felicitas excusat , quiabque ; furore ipso satis punitur . l. infans ff . ad . l. corn. de sicar : they are excused by their own misfortune , and abundantly punished by their own fury : but since the law protects furious persons from punishment , because they want all judgement . l. . ff . de officio praesid . it follows naturally , that this priviledge should be only extended to such as are absolutly furious . . it may be argued , that since the law grants a total impunity to such as are absolutely furious , that therefore it should by the rule of proportions , lessen and moderat the punishments of such , as though they are not absolutely mad , yet are hypocondrick and melancholy to such a degree , that it clouds their reason , qui sensum aliquem habent sed diminutum , which lawyers call insania , and the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . that such as shew any acts of resentment , or revenge , in the wrong they do , may be punished with some degree of severity ; since they show some degree of judgement : but yet the parliament of paris is justly condemned by all lawyers , for having caused execute a mad man , who had killed one that had struck him two dayes before , but since he did show memory and revenge in that act , he might have been punished justly to some moderate degree . . since there are some mad men who have lucid intervals , whose fury has its tides , and waxes and wanes , like the moon upon which it depends ; quos furor , stimulis suis variatis vicibus accendit . l. . ff . de officio praesidis , that therefore they should be thought capable to commit crymes when they are in their lucid interval ; but not when they are agitated by their fury . but here it may be doubted , whether the crymes committed by a mad man who has lucid intervals , should be persumed to have been committed by him when he was in his fury , or in his lucid intervals , and the general conclusion is , that though every man be presum'd to be sound in his judgement , till the contrary be proved , quia qualitas quae inesse debet , inesse praesumitur : alciat praesump . . yet , when a man is once proved to have been furious , the law presumes that he still continues furious , till the contrair be proved , for madness is but too sticking a disease ; and is seldom or ever cured . and this presumption should rather hold in the committing of crymes , then in any thing else ; for the committing of a cryme , looks liker the madnesse , then the lucid intervals . and yet if my opinion were of authority enough , i would limit this rule in two cases , . if the madnesse had fixt to an ordinary interval , as the hight of the moon in lunaticks , i would presume that if the cryme were not committed at that time , it behov'd to be presum'd it was committed in the lucid interval . . if the person offended was one against whom the offender had prejudice in his lucid intervals , or before his madnesse , or if he shew any wit or contrivance in the execution of the wrong he did , i would presume , that the offence was committed in the lucid interval : but because the cryme in these cases would be founded upon presumptions , i think the punishment should be lessened upon that accompt ; and possibly that judge would not be much mistaken who would remit something of the ordinary punishment in all crymes committed , even where the lucid intervals are clearly proved : for where madnesse has once disordered the judgement , and much more where it recurts often , it cannot but leave some weakness , and make a man an unfit judge of what he ought to do , est tantum adumbrata quies , intermissio , sed non resipiscentia integra : and as our proverb well observes , once wood , ●ay the worse . it is statute by the . chap. stat. . rob. . that a mad person shall be kept by his friends , and if he commit any wrong , it shall be imputed to his friends , and keepers ; but though these may be made lyable civily for any damnage the furious man doth , as a master is in law liable for the prejudice done by a wild beast , which he keeps ; yet it were too severe to punish them corporally for the murders , and other crymes which he commits , except where they are commanded by the judge to keep him exactly , which ought not to be extended against such as are only his curators , or nearest of kin . bartol . ad l. divus , ff . de off . praesid . it is generally agreed to by lawyers , that furious persons committing a cryme in their fury , cannot be punisht for it , though thereafter they return to themselves : for in punishing crymes , the time of the commission is to be considered ; though iason , tiraquel . and some others are of opinion , that if the cryme was very atrocious , the mad man recovering , may be punished . and for this they instance the queen of castile , who punished with death , a man who had in his fury wounded her husband king ferdinand ; and they cite l. . ff . de officio praesidis . but the instance is founded upon the passion of a woman ; and that law speaks only of crymes committed in a lucid interval . and whereas caballus thinks such a punishment necessar● , for satisfying the discipline of the church ; i should rather think , that the chu●ch should of all other , least punish that misfortune , it being against christian charity , to add affliction to the afflicted . and it were brutish for church men to be more severe , then the madness it self was , which was so charitable as to take its leave . as a man should not be punished in his health , for what he did when he was mad : so upon the other hand , a man who committed a cryme in his health , ought not to be punished bodily , if he thereafter turn mad : for then he is not sensible of correction , which is one of the great designes of punishment . and to punish him then , were to endanger his soul : nor would the people be deterred from vice , but would rather be troubled with passion at such a spectacle : but yet he may be punished in his goods , clarus quest . . tells us of one who was scourged for perjury , though it was alledged he was mad , but this last seems too severe , for the reasons foresaid ; and since a mad man is lookt upon as absent , it may be justly doubted , whether he may be process'd during his madness , for a cryme committed by him while he was in health , even in order to the inflicting a pecuniary punishment : and that because absents cannot by our law be try'd criminally : and because , mad men cannot inform their friends or lawyers , so as they may propon their just defences . but since absents may be tryed for treason , by the late act , it would therefore appear , that mad men may be likewise accused for treason during their madness ; it may be likewise doubted if he who used any means to make himself mad after his sentence , may not be put to death , notwithstanding of his madness , since that madness was occasioned by himself , and so should not disappoint the law. but clarus quest . . is of opinion , that it ought to defend him from all corporal punishment , and caballus casu . num . . is also of opinion , that even he who commits a cryme whilst he is mad , though he himself occasioned the madness , yet he is not to be punished by the ordinar punishment , for the law doth not presume that they made themselves furious upon design . ix . whether a collective body of people , or university , such as a burgh , or incorporation , may commit a crime , seems debateable : and ulpian . seems to deny it l. sed & ex dolo ff . de dol. mal. whose words are , sed an in municipes de dolo detur actio , dubitatur , ego puto , ex suo quidem non posse dare , quid enim municipes facere possunt . but i conceive that we may clear this point by these positions , . that properly incorporations cannot commit a crime ; for they are jus , non persona . . crimes which consist in omission , may be fixed upon incorporations , as if their magistrates omit what the law commands . l. iubenius c. de sacro-sanct : ecclesia & l. si procuratorem ff . mandati . . in these things which are proper only to be done by incorporations , such as in making acts , raising , and using unlawful judicators : incorporations may be said to be guilty of what their rulers commit : constit. freder . de stat . & consuct . . even these crymes which are ordinarly committed by privat men , such as murder , oppression , &c. are in law sometimes charged upon the incorporations ; if these things be done by command of the rulers , l. metum . ff . quod metus causa . . no deeds of the magistrats can infer a cryme against the incorporation , except the body of the people concur : for they represent not the people in their crymes , but in their government : and they were not impower'd in their election to commit crymes , l. si procurator § . celsus ait . ff . de condit . indebit . . if one man oppose what may be a cryme , then the incorporation cannot be guilty ; for the university there cannot be said to offend : since all concur'd not , & in damno vitando , potior est conditio negantis . how far incorporations may be punished , may be likewise clear by these positions , . the incorporation offending , may be ordained to restore , in so far as they got advantage . l. metum autem . ff . quod met . caus . & l. sed & ex dolo ff . de dol . mal . . in these crymes wherein the fathers may be punished with the children , such as treason , incorporations may be likewise punished , for their innocence is not more favourable , then that of children . bartol . gives several instances , where towns have been for treason condemned to be plow'd . . if an incorporation offend in doing things that are only proper to be done by universities , then the university may be punished , by confiscation of a part of their common-good : but if an university should proceed to commit a cryme , which is usually committed by private persons , such as the going with displayed banners to oppress their neighbours , then , as the deeds of privat citizens cannot wrong the incorporation ; so neither can the deeds of their rulers . and bart. is of opinion , that if the incorporation be fin'd , such as are innocent should not be liable to pay any part of it , but it should all fall upon the actors ; arg. l. . ff . de magistrat . conveniend . for they were not impowered in their election to commit crymes , as said is . title ii. the division of crymes . crymes are publick or privat . ordinary or extraordinary . capital or not capital . occult or manifest . atrocius or not atrocius . statutory and such as are not punish'd by express statute . crymes are divided by the civil law , into publick crymes , and privat crymes , publick crymes are defined to be these , which any privat person may pursue , for publick revenge , and whereof the punishment is stated by an express law , § . . institut . de publ . jud . and a privat cryme which none can pursue , but the party injured , and which is not declared to be a publick cryme by an express law. but many of the doctors , do of late conclude , that all crymes which are punishable by the statute of any particular countrey , are eo ipso , to be accounted privat crymes , statuta enim sunt loges judiciorum privatorum bal. ad leg . ult cod. qui testa fac . poss . yet this appears to be a mistake , for if a statute should allow any person whatsoever to pursue the cryme , therein forbidden ; that cryme would be doubtless a publick cryme ; for the true notion of a publick cryme , seemes to be that , wherein the common-wealth is immediatly concerned either by interest , or example ; by interest , as in treason , or coining of false money ; by example , as in murder , witchcraft , &c. in which , though the common-wealth be not immediately concerned , as a body , yet every particular person of that body is concerned ; because he who committed that cryme , may commit the same again , & semel malus , semper praesumitur malus , in eodem genere malitiae . so that every ones having power to pursue a cryme , or a crime being declared publick , by an express law , are not the true constitutive differences , betwixt a publick cryme , and a private ; but are only the effects thereof : for when the kingdom , or state , doth find that any cryme , is of dangerous , and universal consequence , then they allow , very justly , that every privat man may accuse . with us in scotland , the vestiges of this distinction , are yet to be seen for , albeit his majesties advocat may pursue without the concurse of the party injured : yet no other person will be allowed to pursue any cryme , nisi suam vel suorum injuriam prosequatur , and that every privat person , may not pursue in all crimes ; is clear , from c. . lib. . reg. maj. where in treason , it is said , that every man may pursue , which had been unnecessar , if every person might pursue in every crime , and thus m c cal having raised letters in his own name , against charles lindsay , for killing his father , in iuly . the justices would not sustain the pursuit at his instance , because he could not prove that he was son to the defunct , and since his majesties advocat , represents in all criminal pursuits , the publick : and as it is presumeable , that he will not refuse his concurse , so he will be punished , if he refuse the same . it were therefore inconvenient , and unnecessary , that every privat man should be allowed the liberty , of pursuing crimes , in which he were not interested : this distinction is much abused in the books of reg. maj. for in them publick murder is defined to be that , which is committed by forethought fellony : and private murder , which is committed without being known to any , but the persons who were complices , stat . malcom . . c. . ii the civil law , likewise divides crimes in ordinary , and extraordinary ; extraordinary were these wherein the law had appointed no particular punishment ; ordinary crimes were such as were punishable by a liquid pain , determined by the law , and was therefore called crimen legittimum . iii. crimes are likewise divided , into such as were capital , or not capital . capital crimes are such , as are punishable by death , banishment , or loss of liberty : so called à capitis diminutione ; but with us these crimes are only called capital , which are punishable by loss of life or limb . iv. crimes are either occult , or manifest : occult crimes are these , which either are occult of their own nature , as hamesucken , conspiracy , adultery , or such as are occult by accident , such as murders committed by inn-keepers upon their guests . though murder of its own nature be not occult , since it is oft-times openly committed . this division is considered by lawyers , either in order to probation ; because in occult crimes less exact probation is accepted : and thus with us the being rob'd at sea was found probable by these in the ship , because no other probation could be had there . and it is against the interest of the common-wealth that crimes should pass unpunish'd : or they consider this division with respect to prescriptions , because it is debated whether when a statute appoints a crime to be pursu'd betwixt and such a day , that time should run in occult crimes , from the time the crime was committed , or from the time it was known . in occult crimes also , torture is admitted more easily then in other crimes . v. crimes are divided in such as are atrocious , and such as are not . atrocious crimes are these wherein the guilt is very great . vi. in scotland , crimes are divided in statutory , and such as are not punished by an express statute , as common adultery , bestiality , &c. and albeit it was controverted in the lord rentouns case , ian. . that the poynding of oxen in the time of labouring , could not be accounted a crime , because it was not declared punishable by an express statute ; yet the justices found , that eo ipso it was forbidden by a statute : it was in so far a crime , because authority was thereby contemned , especially having been formerly declared a crime by the civil law. and it were unreasonable to think that adultery , albeit it be not notour , should be a crime , albeit its penalty is not exprest by a statute . and with us especially of old it was most ordinary to forbid crimes without express sanctions , as may be seen in several acts of parliament : likeas by the civil law , extraordinary crimes were declared to be such , as were forbidden by law , but where the penalty of the law was not determined , from all which it appears , that the essence of a crime consists in its being forbidden , and not in having its punishment stated by an express statute , though i wish it were otherwise . what crimes are called crimes of the crown , or pledges of the crown , is treated largely title regalities : what crimes are called crimina excepta , is declared in the title treason . title iii. blasphemy . what is blasphemy ? the several kinds of blasphemy . whether ignorance , repentance , or railery be good defences against the punishment . what is the punishment of blasphemy , by the common-law . what by our statutes ? cursing of parents , and swearing , how punished ? blasphemy is called in law , divine laese majesty , or treason ; and it is committed either by denying that of god which belongs to him , as one of his attributes : or by attributing to him that which is absurd , and inconsistent with his divine nature . ii. these who swear by the head , or feet of god , are guilty of this crime by the common law , c. . si quis per dei capillum . quest . . videntur enim amplecti anthropomorphitarum haeresin quae membra deo tribuebat : by that cannon they are also punishable , who delate not blasphemers . albeit regularly what is spoken in passion be more moderately punished , yet it lessens not a blasphemers crime , hostien . tit . de maled except he speak at such a rate , as clearly indicats that he is furious , or somewhat distracted : or if he recover himself , and testifie immediatly his contrition ; thus socin . relates consilio . that a jew who had denied the omnipotence of god , was absolved from a pursuit of blasphemy , because he immediatly threw himself upon the ground , and kist it , and testified an extraordinar horrour , which lawyers say , is an extraordinar punishment , and oftentimes exceeds the fear of death . and there are some lawyers , as abbas & felin ad cap. . de jure jur . who conclude , that either he who blasphems passionatly , is unlawfully imployed when he falls into that passion , as in playing at cards , drinking , &c. and then his passion doth not lessen his crime : but if he be honestly employed , as doing business , treating for his friend , and then if he blaspheme only in passion , it lessens his guilt , and should mitigat his punishment : but why should passion excuse blasphemy more then murder ; if it be not because the fall cannot be repaired by repentance , a man being killed , but the fault in blasphemy may be extinguished by repentance . iii. clarus thinks that these who blaspheme in jest are to be less severly punished ; and that rusticity mitigats the ordinary punishment in this case ; but gothofredus is , as to the last , of a contrary opinion , because rusticity excuses not from the knowledge of the law of nature , much less of god , but they may be reconciled thus , that open gross blasphemy , is equally punishable in both ; but not consequential and indirect blasphemy , as if a countrey-man should erre in the persons of the trinity , which some remot high-landers are so ignorant of , as not to know , those should rather be pitied then punished , except they add obstinacy to blasphemy , vid. cabal cas . . iv. the punishment of blasphemy , is death by the law , nov. . by the canon law : publick repentance for the first fault , and the standing at the church door , with an infamous mitre , or paper hat for a relapse . v. by our act . sess. . par. . c. . blasphemy , railers against god , or any of the persons of the blessed trinity , shall be likewise punishable by death , if they obstinatly continue therein . from which act it is observable , . that this crime can only be tryed before the justices ; and therefore not before the lord of a regality , though they have equal power , as hath been formerly observed . . distraction is only excepted here , so ignorance , passion , rusticity , or railery excuses not ; nam exceptio firmat regulam in non exceptis , and yet these may excuse from the ordinar punishment , in some circumstances ; but are never defences against the relevancy . . it may be doubted , why the denying god , or any of the persons of the holy trinity , is only punishable by death , if they continue obstinat therein . and yet the railing upon , or cursing god , or the trinity , is simply punishable , without obstinacy : and the difference seems to be , that cursing , or railing against god , cannot proceed from ignorance , but argues malice : whereas the denying gods attributes , or the trinity , may proceed from ignorance . it may be doubted , if with us a person who should call himself the son of god , or the messias , could be punished as a blasphemer ; and it is said that the parliament of england thought he could not : and therefore iames nailor was only scourged for this crime . yet i think he could be reached by our foresaid act , as a person who rail'd upon god , and the trinity . for to make our selves equal with them , is to rail against , and vilifie them . vi. cursing of parents , viz. father , or mother ( but no others ) is punishable by death , if they be past sixteen , or arbitrarly if they be below sixteen , and above punishable , ( vid tit . parricid ) act . par. . sess. . ch. . justices of peace are by the . act . par. ch. . to punish such as curse and swear profanely , and exact from a noble man twenty merks , a barron twenty merks , a gentle man , heretor , or burges ten merks , a yeoman fourty shilling , a servant twenty shilling , a minister the fifth part of his steipend , and the husband must pay his wifes fine , ergo regulariter , the husband is not liable for the wifes fine , if there be no warrant therefore by statute . by the . act . par. q. m. the swearing abominable oaths are to be fin'd , but that act is only temporary . by the . act par. . i. swearers and blasphemers ar to be punished by the magistrats , and if they fail , by the privie council . notà by this act , that women are to be punished in penal statutes , conform to their blood , and their husbands quality ; that is to say , conform to their blood if unmaried , or to their husbands quality if maried : and therefore may be doubted , whether these women who have precedency according to their birth , though maried , as an earles daughter , when maried to a gentle man , or those who have precedency by a patent , above their husbands quality , should not be punished according to their precedency , though maried . the justices did in may . fine a woman in dumfreis , in merks for drinking the devils health , but did not find it blasphemy . title . iv. haeresy . the definition of heresy . whether invocation of spirits be heresy . the punishment of heresy . iesuits and trafficquing priests how punished . the specialities ontroduced in punishing this crime . heresy is committed , when a christian owns pertinatiously errors condemned by the church . i said when a christian own'd them , because pagans and mahumetans are not punish'd as hereticks . simancas de haereti . cap. . num . . for these are enemies to our faith in general , and erre not in particular points of it . i said who err'd pertinatiously , because such as erre ignorantly , or as having err'd perversly , do not pertinatiously adhere to their error ; are not to be esteem'd haereticks . and this repentance is to be receiv'd any time , even after sentence to stop the execution . carer . fol. . except they have relaps'd in their heresy , for their second fall is not to be taken off by repentance , but though their repentance secures them against death in the first fall , yet the are to be punished by perpetual imprisonment . igneus : in : l. ff . ad sillan : cook. hoc . tit . ii. though some make the adoration , and invocation of spirits to be heresy , yet others do more judiciously determine that if these devils be invocked to reveal things to come , then that invocation is of the nature of heresy , for that is to attribute omniscience to the devil , which is one of gods attributes , but if the devil be invocked for a particular end , or interest , such as that he may learn the invocker how to prevail with a mistriss , or how to gain a princes favour , in these cases the invocker is not to be call'd a heretick . clarus . § . haeresis . num . . but neither do's that distinction please me , for such as invock the devil are not properly hereticks , especially if they have renounced their baptism , for there is no reason to call them hereticks who not only erre in the faith , but have renounced the faith intirely , and as pagans are not hereticks because they worship false gods , so neither should they who worship the devil , and these who have renounced their baptism , for they are in the same condition with these who were never baptized . iii. the punishment of heresie , in the opinion of the doctors , is to be burnt , and confiscation of the delinquents moveables , clar. num . . but by the law of england , hereticks are only to be burnt if they will not abjure . by our law heresie was in the first instance try'd by the church , and the secular power did not meddle to condemn hereticks , till they were first condemned by the church , ia. . par. . act. . in which it is ordain'd that the bishops shall inquire into heresie , and if they be found , that they be punished as the law of the holy kirk requires : and if it misters , that secular power be called in support , and helping of holy kirk . from which act it is observable , first , that the kirk was judge to heresie , in prima instantia , during popery : and this is conform to the opinion of almost all the doctors , who think heresie crimen mere ecclesiasticum , alcia . in c. . num . . de offic . ord . but they justly conclude , as in this statute , that the cognition belongs to the church , and the punishment to the secular judge ; and this canonists calls tradere h●reticum brachio seculari : and clarus do's so far appropiat this tryal to the ecclesiastical judge , that he allows not so much the secular judge as the power of mitigating the punishment : and yet now the justices are judges competent , in prima instantia , to such as hear or say mass , but the reason is , because such are in general condemn'd by the church , as guilty of heresie , and yet the popish church are still judges to the protestants , thogh they be condemn'd in general as hereticks ; for the hereticks are try'd and condemn'd first by the ecclesiastick judge among them . the second thing remarkable in this act , is , that amongst ecclesiasticks , the bishop is the first judge in heresie , which is also conform to the opinion of the canonists , clar. h. t. num . . after the reformation , there was a confession of faith made , and is set down by king iames in his first parliament , and ratified act . and they who profess not the true religion may not be a judge ( but this is not extended to heretable offices ) procurator , nor member in any court , ia. . pa. . c. . and such church-men as will not subscribe that confession , are deprived , ia. . pa. . act . and all such as refuse to subscribe , are to be repute rebels and enemies to the king and his government , act . iv. our law fearing the pains taken by the romish church , more then the hazard arising from any else , have been more severe to these , than to others : and therefore the sayers or hearers of mass , or such as are present thereat , are punished , . act . p. i. . by confiscation of all their goods , moveable , and immoveable , and an arbitrary punishment of their persons for the first fault , banishment for the second fault , and death for the third fault . it may be doubted , if such as hear mass for curiosity , may be thus punished , which is very ordinary abroad ; and it seems that heresie must be an act upon design , and yet this law makes no distinction here . . it may be doubted , if by confiscation of goods immoveable , be meant land and heritages , for they are call'd bona immobilia : and yet i rather incline to think that this should only extend to heritable bonds , and such like , but not to lands : for heritage uses alwayes to be exprest distinctly , when the confiscation of it is design'd : and if heritage were forefaulted by the first fault , the punishment of the first would be greater then the punishment of the second fault , which is only banishment : nor do's heritage use to be exprest under the word goods . but thereafter the sayers of mass , and trafficking papists , and the receivers of them against the king's majesty , and religion presently profess'd , are declared guilty of treason , act . pa. . ia. . but from these words , against the king's majesty , and religion presently professed , it may be argu'd , that only such jesuits , and others , as traffick to the prejudice of the king's person , and government ; such as these who attempted the gun-powder-treason , or to kill the king , or raise rebellion , are only guilty of treason , which seems the rather , because it were hard to make simple endeavouring to perswade others in meer matters of religion to be treason . it is also observable from this act , that such jesuits , or trafficking papists , or receipters of either , as satisfies the king and kirk , are not to be guilty of treason ; so that here treason is taken away by repentance : but it may be doubted , if though they be not guilty of treason , they may not be punish'd as hereticks , conform to the above-cited . act. . pa. ia. . for the act only declares that the penalty foresaid shall not strike against them . and though ( as i observed formerly ) such as are guilty of heresie , may by repentance save themselves from the punishment of death , yet are they still declar'd lyable to other punishments , such as perpetual imprisonment . but yet since our law appoints no other punishments against traffickers , and receipters of jesuits , but what is exprest here , and that the punishment here exprest is taken off in case of repentance ; i rather believe that no punishment can be inflicted , in case of repentance , against these . and it is very reasonable , that meer errors in faith should be pardon'd by meer repentance ; but as to the sayers and hearers of mass , the former act seems to stand . the sellers also , and dispersers of erronious and popish books , are to be punish'd arbitrarily , by the rubrick of the . act . pa. ia. . but the statutory words run only against the home-bringers of such books , the books also are to be destroyed , and warrand is given to magistrats of burghs with a minister , to intromet with them without hazard of spuilzie : but yet de practica , other officers , such as sheriffs , and lords of regality do intromet with such books , though they be not warranted . and though inclusio unius est exclusio alterius , and though the act ordains a minister to be present ( which was certainly apointed that it might be known whether the books were popish ) yet de praxi , magistrats use to intromet without having a minister present . i find no express punishment against other hereticks in our law , nor de praxi , are other hereticks punish'd corporally ; but whether they may not be punish'd conform to the common law , and upon that general act of k. iames the first , i will not determine . as also , it is ordinary to banish only jesuits , and sayers of mass , as was done december . . mr iohn robertson was banished by order from the council , he enacted himself under the pain of death never to return to scotland . v. the common law , or doctors have introduced many specialities in the tryal of this crime , as first , that less clear probation is admitted in proving heresie , then other crimes , clar. § . haeresis , num . . and by an old act of sederunt , socii criminis , women , and pupills , are to be admitted with us , to prove hearing , and saying of mass , else that crime could not be proved . . a heretick may be try'd after death , alber. in rubr . h. t. which they say holds not only in a heretick found guilty by probation ( haereticus verus ) but in these who were cited to compear for heresie , but compeared not , whom they call haereticum praesumptum , but this holds not with us , no not in these who are guilty of treason , as being traffiquing jesuits or papists , for only perduellion is by our law to by try'd after death : but though the heretick cannot be punish'd after death , yet his opinions may be condemn'd , as heretical , even after his death . title v. simony , baratry . what is simony ? how it is probable . the nature and punishment of it in scotland . baratry ecclesiastick . baratry civil . simony is the selling or buying any church office , cupiditas emendi aut vendendi aliquid spirituale aut spirituali annexum . so called from simon magus , who offered to buy the grace of god. and the canonists teach , that it is simony to paction for any advantage in administrating the sacraments , but not to take reward after they have administrate them . ii. in this crime , infamous persons , whoors , and other witnesses , who are not habiles , or at least , who are not omni exceptione majores , are here receivable cap. sicut . de simon . because it is ordinarly carried on with much privacy , and clandestine dealing , for which reason likewise , lawyers conclude , that it may be proved by presumptions . it is crimen mere ecclesiasticum , and cannot be punished by laicks , the punishment is depravation . iii. with us , simony is once mentioned , and that is , act . par. . ia. . wherein it is statute , that if the arch-bishop , or bishop deprehend that the person who is presented , hath made any simonaical paction with the patron ; whereby he hath so hurt the benefice , as that he hath not reserved a sufficient maintenance for himself , and his successors , suitable to the value of the benefice , that the bishop may refuse the presentation , and the lords of session are declared to be judges to any debates arising betwixt the bishop , patron , and person upon that account . from which act it is observable , . that it is implyed , and tacitly acknowledged , that simony is a crime by our law , seing this is punished as a branch thereof : and therefore i conceive , that what ever is punisht as simony by the canon law , is punishable with us ; and that a minister , or other benefic'd person who bargains , or transacts with any to get them a church , or benefice , and gives or promises money therefore , is punishable even by our law. . that by this act , a paction , whereby the incumbent reserves to himself , a competencie suitable to the benefice , is not simony ; and what this conpetencie is , is left arbitrary to the judge , because it is not determined . . that this crime is probable with us by oath , because of its clandestine convoyance , as said is . by the stat. eliz. . the person committing simony , is declared uncapable to enjoy that ecclesiastick office. iv. baratry is a kind of simony , ( socinus reg . . bald. part . . consil. . ) which with us is committed by these , who go to rome to buy benefices , without licences from the chancellor , or their ordinar , i. . p. . cap. . the pain of it is banishment , and never to bruik honour , or imployment for the future , within the kingdom . this word comes from the italian word baratry , which signifies , corrupting of judges ; for our law presumed , that these who went to rome to get a benefice , designed to get it by corruption . but though baraters are called canpones beneficiorum by the doctors ; as craig observes , pag. . yet our kings being of old very submissive to the see of rome , durst not directly at first , forbid application to rome ; but did only forbid the carrying abroad money out of the kingdom ; knowing that nothing could be done there without money : but thereafter this crime growing greater , the parliament did by the . cap. p. . i. . forbid expresly the going to rome , to purchase benefices , or to be its collectors , under the pain of being demean'd as traitors , and never to bruik benefice , or use worship ; which is ratified by the . act . p. i. . but though the punishment is that of treason , by these acts ; yet by the . act p. i. . the punishment of baratry , is declared to be prescription , banishment , and never to bruik honour , nor office within the kingdom : and all applications to rome are punishable as baratry . this act being after the reformation . and by this last act , it is declared that baratry may be punisht , either by the justices , or lords of session . and upon this act iames arch-bishop of glasgow , was exauctorated after the reformation , for going to rome . v. the sons of noble men , and others passing to schools beyond sea's without the kings licence , are also said to commit baratry , i. . p. . cap. . and the council uses to ordain noble men , who breed their children abroad , in popish schools , to bring them home under a great fine , as they did lately to the lords of mordingtoun , and semple in anno . . before which act also , all laicks going out of the kingdom , without consent of the king , or licence from the chancellor , committed baratry . i. . p. . cap. . and though craig debates pag. . whether the punishment of this be the same with treason , because it is said to be punishable as treason , cap. . pa. . i. . yet it is clear , that this punishment is restricted by the act . p. . i. . to the being declared incapable of trust , and banishment . this prohibition of laicks going abroad , was first at carthage , and is now in vigour at naples , and many other places . and though it be now in desuetude , at least is not punisht , except in privy councellours : yet i see no reason , why any should say , that this crime takes only place in vassals , holding immediatly of the king ; for the act is general . and yet merchants are warranted by divers acts of parliament , to traffique abroad , and so fall not under this prohibition . title vi. treason . laesa majestas . treason is divided by the civil law in perduellion and laese-majestie . the differences betwixt perduellion and laese-majestie . treason with us may be divided in perduellion laese-majestie and statutory treason . the nature of perduellion , or rising in arms , which is the first species of treason . the second species of treason is committed against the kings person . the third is the recepting such as have committed treason . the fourth is to hold out houses against the king. the fifth is to assail castles where the king resides . the sixth is to raise a fray in the kings host. the seventh is to trouble any who kills a declared traitor . the eighth is to impugn the authority of the three estates . the ninth is to decline the king or councils authority . the tenth is to conceal , and not reveal treason . the eleventh is to desert the kings host. the twelfth is to deny the kings prerogative , in having the sole power in calling and dissolving parliaments . how the killing counsellors is punishable . the several branches of statutory treason . to accuse any man for treason , if the accused be assoilzied , is treason . treason is not baleable . summonds of treason ought to be execute by heraulds . whether less probation be sufficient in treason then in other crimes . treason may be pursued after the committers death . traitors may be forefaulted in absence . how disobeying the king is punishable . the punishment of treason in general . unhappy man retains in nothing so much a desire to be like his maker , as in that he would be supreme : and no wonder that this crime should be incident to him in this laps'd condition , when his will is crooked , and his judgement blind ; since the very angels in their purity , and man in his innocence , were tempted by it : so that since men have subjected themselves to government , we may easily conclude they found a great convenience in this submission ; else they had never offered so much violence to their own inclination . to societies , and laws , we owe every moment the preservation of our lives and fortunes , which nothing but discipline does secure : and without an intire submission , these societies would be but companies of robbers , and laws but meer toyes . how many dangers do governours incurr ? and by how many cares and fears are they disquieted ? wherefore it is most just , that those who govern , should be more secure against their subjects , then against their enemies , since they may be most easily wrong'd by those who live in their own bosome , and who have easie and open access to them . in other crimes , one , or at most few , are wrong'd : whereas in rebellion , and laese majestie the whole society is offended . and therefore it was most just , that those who design the ruine of the common-wealth , or the supreme governour ( which crime we call treason ) should of all others be most severely punished . and the basilicks , l. . h. . observes well , that treason is a kind of sacriledge , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . i. treason was by the civil law divided , in perduellionem , & laesam majestatem . perduellion was that treason which was committed against the prince or common-wealth immediatly : adversus populum romanum , vel securitatem ejus . laese majestie ( as opposed to perduellion ) was committed by speaking against the prince , revealing his secrets , &c. this crime was punish'd per legem juliam ; the branches whereof are the raising of arms against the state , the being in accession to the flight of such as were hostages to the common-wealth , or to the killing of any magistrat of the common-wealth , the keeping correspondence with the enemies , the continuing to govern a province after a a successor was named ; the levying of an army , and running in to the enemies . all which are expresly enumerat ff . ad leg . iul. majestat . ii. betwixt these two , hottoman assignes these four differences , . that perduellion was that whereby the common-wealth was in general wrong'd , qui summam rei publicae lube factare conati sunt . laesa majestas was that whereby the common-wealth was only wronged in a part , or by consequence ; as to suffer the enemies of the common-wealth to escape , or to conceal them , &c. the . is , the crime of laese majestie might have been pursued before the ordinary judge in foro ; but perduellion could not be pursued but in the great meetings of the people , à populo romano , comitiis centuriatis in campo martio . whence probably did arise the judging treason by parliaments with us . the . was , that the crime of ordinary laese majestie was not punished with death , as perduellion was , but with ban●shment . the . was , that the ordinary laese majestie was punish'd by death , but perduellion was punishable after death . iii. treason may be with us divided in perduellion , which we call high treason , called by the english law alta proditio , or rebellion , which is only with us a rising in arms against the king ; and in ordinary treason and laese majestie , such as to conceal , and not reveal treason . and in statutory treason , which is not treason properly of its own nature , but is declared to be so by a particular statute , as is that of murder under trust , theft in landed-men , &c. iv. perduellion in the civil law , is that which we call rebellion in our acts of parliament , and it was so called extravagan . hen. . qui sunt rebelles : and there it is statute that rebelles & infideles , imperii , qui quom docunque aliquid machinantur contra prosperitatem imperii . but i find not the word rebellion used in the law before that time . yet sometimes rebellion is in our law taken for that which is committed against the kings person , as in the . act . parl. k. ia. . where it is said , no man shall rebell against the kings person openly , nor notourly : but the adverb there used openly and notourly in that , and the subsequent acts , interprets sufficiently the word rising against the kings person , to be the same with us that is called perduellion in the civil law , viz. siquis hostili animo adversus principem , vel rempublicam animatus sit . to raise arms against the king then , or to rise in open rebellion , is the first and highest degree of treason , ia. . par. . act . where it is called a raising in fear of war against the king ; which act comprehends all the kinds of treason , like lex prima ff . ad l. iul. majest . and therefore i will follow that method . and though it be added in that act , that it shall be treason to rise in fear of war against his person , or majesty , of what ever age he be of , without the consent of the three estates : yet the consent of the three estates will not defend the rising in arms against the king , as was found in the case of the marquiss of argyle , being pursued upon this act , in anno . for rising in arms against the marquiss of montrose then the kings commissioner . for the analysis of that act must run run so , as that these words , without consent of the three estates , cannot be added to all the former treasons committed against the kings person , which are contained in that act ; for many things in that act could not be justified by the authority of the three estates , for else the three estates , and not the king , would be soveraign : for they only are soveraign , against whom treason can be committed . but these words must only be taken as added to the last crime prohibit , which is the assailing of the castles , or houses where the kings person is , which may be lawfully done by authority of the estates . for if the king being very young , were taken prisoner , as our kings oft-times were in their minority , it had been absurd to think , that these who went to assail , by the authority of the three estates , that castle where the kings person was , should be punish'd as traitors , because of their obedience . but to suppress all pretext that might arise from that act , it is declared by the : act . parl. . sess. ch. . that the king hath the only power of making war , and peace . and that it shall be treason for any number of men , less or more , upon any ground or pretext whatsoever , to rise , or continue in arms , to maintain any forts , strengths , or garisons , or to make leagues or treaties amongst themselves , or with forraign princes , without his majesties authority and approbation first interponed thereto : or to attempt any of these things under the pain of treason . from which act it is observable , . that the authority of the three estates is not able to defend the rising in arms , or making leagues , seing that is declared to be his majesties prerogative . . that the rising in defensive arms is treason by these words , upon what pretext soever . . that nudus conatus is in this case treason by these words , to attempt . by the english law the conspiring to raise a war is not treason , except it be de facto rais'd ; and with them , if three or four rise to throw down private houses , or for any privat cause , it is but a ryot ; but if these three or four rise to reform laws , or religion , or upon any publick account , then it is accounted the levying war against the king , cook hoc tit . pag. . who likewise tells us , that if three conspire to levy a war , it is treason , if in the meer conspirers , if the rest thereafter levyed actually a war , though he was not present ; and in that sense only i would interpret the severe l. . basil. h. t. propter cogitationem dignus est poena 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . and the english law requires still ouuert fait , an open deed . this rising in arms is likewise called seditio regni vel exercitus reg. majest . lib. . cap. . & cap. . ibid. ad tit . sedit . the second species of treason , is to commit treason against the king's person ; and i find that this is the first kind of treason exprest in the former act . parl. . ia. . whereby it is declared treason to lay hands upon his person violently , what ever age he be of . which words were added to clear that it was treason to rebell even against his authority before he was proclaimed , or crowned . for the being crowned or proclaimed , is tantum declaratoria juris , sed nihil novi juris tribuit , it being the jus sanguinis , and succession of blood which makes him king. this species of treason is likewise declared , act . and . parl. . ia. . and in thir cases affectus sine effectu punitur : and thus the master of forbes was hurled through the calsey , hanged and quartered , for imagining ( this is an english term which signifies a design ) to shoot k. iames the th . . iuly . and the countess of glames was burnt for imagining to poyson the said king iames the fifth , . iuly . by the law of england , it is not treason to kill a king out of possession , cook pag. . but this seems unjust , if the king's title be clear , as our kings was in exile . though in dubious cases , such as betwixt the bruce and baliol , possession may difference the case . to kill the king 's eldest son , is with them treason , . stat. edw. . the third species of treason is , the resetting any who hath committed treason , or that supplies them in redde , help or counsel , cujus opera dolo malo hostes populi romani pecunia aliave re adjuti erant : this is likewise discharged , act. . parl. . ia. . where all the liedges are forbidden to reset , supplie , or maintain our soveraign lords rebels , under pain of death : and if any disobey , to inforce ( id est , to second the king ) against notour rebels , against his person , when they be required and commanded , they shall be punished by the king as favourers of such rebels , except they have for them a reasonable excusation , act . parl. . ia. . from which act it may be debated the refusing to assist against rebels that are not notour , or against rebels that have not committed any other treason then perduellion , cannot infer with us the guilt of treason . the doctors here debate , whether a wife resetting her own husband , or a father his son , commits treason . and albeit it may be alledged , that the relation of soveraign and subject , is the chiefest of all others , and so all other relations should cede to it ; and rebellion against the state looses all relations , l. post liminium ff . de capt . & postlimin : yet the ordinary distinction is , that if any of these relations assist a rebel with things that are necessary for him as a man , as meat , drink , &c. in that case they are not guilty of treason ; but if they assist these relations with any thing that may be serviceable to them in their treason , then they are guilty , farin . quest . . num . . and matheus hoc tit . cap. . num . . for albeit rebels lose all the priviledge of the municipal law , yet they retain those priviledges that flow from the law of nations , and nature , bartol . ad l. amissum , ff . de capt , & postlim . and thus caesar pardoned pompey's sons , and tiberius piso's son , albeit they followed their fathers after they were declared traitors . but i find in our law many decisions of this question , as in iuly . where ianet dowglas lady glames is convict and burnt , for fortifying and assisting the earl of angus and george dowglas her brethren , traitors and rebels . and . iuly . the mr. of glames is hang'd and drawn for concealing , and not revealing the treasonable design of his mother to poyson the king : but the countess of errol being pursued for assisting the earl of bothwel , at least for not revealing a letter she had received from the earl of bothwels lady , desiring assistance : it was alledged for the lady , that the countess of bothwel was no rebel , though her husband was , and that she had not consented . this was delay'd , anno . vii . the fourth species or point of treason is , to stuff the houses of them who are convict of treason , and holds them against the king , or that stuffs any of their own houses in furthering of the king's rebels , which is expressed also by the former act : yet i think this rather exegetick of the former point , then a separat point of treason ▪ for both these may be comprehended under help redde or counsel . robert stewart was hang'd for keeping out his house against the king : and the earl of orknay his father was hang'd for hounding out his son ; the one the . of ianuary , and the other the . of february , . and cunninghame of tourlands was forefault and execute for assisting his brother in keeping out the house of cunninghame-head , . february , . but yet when houses are ordained to be rendered ( being kept only for privat causes ) under pain of treason , though the party disobey , yet if he thereafter yeeld , that manner of keeping out houses will not be punished as treason , but arbitrarily , as in burgies case , . the . of february , . mackloud of assint was pannel'd for having garrison'd his house of arbreak , and convocating his majesties liedges , to the number of . men , under pay and collours . against which it was alledg'd , that assint here only fortified his house , and convocat his men to oppose the earl of seaforth , but not the king : nor did he pretend any quarrel against the government , but against privat oppressions . to which it was answered , that this was expresly treason by the . parl. k. ia. . cap. . whereby it is statute , that none rebel against the king's person or authority : and the house being here garrison'd to defend against the sheriff , who was comming to eject in his majesties name : to resist him , was to resist his majesties authority , and being garrison'd in furtherance of rebels and rebellion , it was treason by the . act . parl. k. ia. . likeas the convocation being of about . men , or thereby , under the command of captains , ensigns , and other officers . it was likewise treason by the . act . parl. q. m. and the . act. . parl. ch. . the justices did find the garrisoning of the house not relevant to infer treason , but only to infer the punishment of deforcement , whereupon the pursuers were forced to alledge of new , that they insisted against him for having garrison'd his house after the publication of the letters of fire and sword raised at the pursuers instance against assint , upon which debate they found that the garrisoning and providing of the house after the publication of the letters of fire and sword , was relevant to infer the punishment of treason . likeas they refused to sustain that article wherein was libel'd the raising of men , and the disposing them in companies under collours , to be relevant , except it were alledg'd that they were an hundred men or upwards , and were under collours , or muster'd , or under weekly or daily pay . and that all this was done after the publication of the letters of fire and sword : both which interloquutors seem'd surprizing . for as to the first , it seem'd that the garrisoning of any house against a sheriff , or any judge , is to garrison it against the king ' authority ; for a sheriff doth represent the king in his authority as much as any souldier doth . and it is undenyable , that to garrison houses against the king's souldiers , is treason . nor can it be denyed but that if this were allowed , no sentence could receive execution in scotland , since every man might garrison his house , and every man might deny that he garrison'd his house against the king. and to put in a garrison , and authorize them to defend the house , was so clearly a war-like action , that there was no place left to debate upon intentions . and though the defending houses be ordinarily pursued as deforcement , yet the formal garrisoning of it imports much more . and the commission of fire and sword did not add any thing to the crime committed , in garrisoning the house : for the design of such letters is only to warrand and command the liedges to prosecute them as rebels ; so that before the raising of the letters they were accounted open and notorious rebels , for letters of fire and sword are only granted against such ; and therefore assint in garrisoning his house to defend such , did expresly commit treason against the . act . par. ia. . the second part of the interloquutor seem'd likewise very hard ; for raising men in fear of war , and listing them under colours , or swearing them to colours , is certainly exercitum comparare , though there were no commission of fire or sword ; for the design of these letters is not to make a traitor , but to prosecute actual rebels . and though this army was not levied to oppose immediatly the king's government , yet even to raise an army within the kingdom , though no design could be proved , was treason , for that was to usurp the king's power : but much more was this criminal , when the levy was made , upon the wicked design of opposing the execution of the king's laws , to see which executed was the chief part of his kingly government . and it is clear by the foresaid act . parl. ia. . that it is treason to make war against the king's liedges against his forbidding , and if any do , the king is to gang upon them , with assistance of the hall lands , and to punish them after the quality of their trespass . viii . the fifth point of treason is to assail castles , or places where the king resides , or is for the time , ibid. but this must be only understood to be treason , if the assaulter know the king to be there , or if he be not , upon design to rescue him , quo casu , he must be warranted by the estates , as said is . ix . the sixth point of treason is , to raise a fray in the king's host or army wilfully , ia. . parl. . act . upon which act the mr. of forbes was hanged for raising sedition in the king's host at iedburgh , . iuly , . x. the seventh point of treason is , to trouble any who kills a declared traitor , which act extends only to the kin , friends , fortifiers and maintainers of these who are killed as traitors ; because it is presumeable that when these who are so related trouble the killer , it is presumeable the trouble arises upon that account . . these relations are discharged to bear the killers any grudge , or injure them by word or writ . nota , it appears that the reason of this grudge needs not be proved , but is presumed presumption , juris & de jure , for here lex praesumit & disponit super praesumpto . xi . the eighth point of treason is , to impugn the dignity and authority of the three estates : or to seek and procure the innovation and diminution of their power or authority , act parl. . ia. . but this is to be understood of a direct impugning of their authority , as if one contended that parliaments were not necessary , or that one of the three estates may be turned out . xii . the ninth point of treason is , to decline the king's authority , or the authority of his council in any case , whether spiritual or temporal . and the king's council are declared to be judges competent to all causes whatsoever , whether spiritual or temporal , of what ever degree or function the defenders who are summoned shall be , act . parl. . k. ia. . which act was made to repress the insolencies of the ministry , who about that time used constantly to decline the king's authority in ecclesiastick matters . conform to which act mr. andrew crightoun was sentenced to be hanged and demain'd as traitor , septemb. . and mr. iames guthrie was execute in anno . for declining the king and his councils jurisdiction at striviling , when he was challenged for some words spoken in the pulpit . from this act it may be observed , that the king is in his own person judge competent over all causes , and all persons , even though the pursuit be at his own instance , which will appear both from the rubrick and statutory part of the act , albeit regulariter no man can be judge in his own cause . xiii . the tenth point of treason is , to conceal and not reveal treason : but concealing in this case is not treason , except the concealer could have proved it ; for else he had by revealing and not proving made himself guilty of treason . this concealing of treason is by the english law called misprision of treason , and is punish'd only by imprisonment during life , forfeiting of goods , and of the profit of lands during life . for this crime the earl of morton was execute by king iames . for having conceal'd the design'd death of king henry his father : and it may be doubted whether concealing be treason , where the king is not in a condition to repress or punish the treason that is intended , for there the end of revealing seems to cease , which is information in order to resistance . it hath been likewise doubted , whether the not revealing treason was punishable where the treason was design'd by the prince or queen : but since they are likewise subjects , and may commit treason , therefore there can be no doubt but it is treason in any others to conceal their treasonable designes . xiv . the eleventh point of treason is , to flee from his majesty or his lievtenant , which is not extended only to such as are sworn to collours , but even to such as are warned to , and do attend the king's host , vid. tit . the jurisdiction over souldiers . xv. the twelfth point of treason is , to deny his majesties having the only power of calling and dissolving of parliaments , act . . parl. ch. . xvi . by the common law it is treason to kill any of the princes counsellors , because they are a part of the princes own body , l. quisquis c. h. t. but with us the pursuing or invading any of the session , secret council , or any of his majesties officers for doing his majesties service , is only punishable by death , but not as treason , act . parl. . ia. . by officers here are meant only officers of state , else it might be extended to messengers . and i heard it resolved that this act extended not to such as invaded the lyon. and these words , any of the session , are not extended to advocats , clerks , macers , or any else besides the lords , as is clear by the narrative of the act. but i think the quality adjected that they were invaded for doing his majesties service , may be proved by circumstances and presumptions , as if a pursuer who had lost a cause , should invade the next day a lord who had voted against him . and the words , this being verified and tryed , import so much . but the stat. edward . . is much more clear , making it treason to kill the officers therein mentioned only , viz. chancellor , thesaurer , chief justice of either bench , or any judge of either bench sitting in judgement only ; and from this statute of our neighbouring nation , we may argue that the killing none below a lord of session should infer the punishment of this act. the killing a member of parliament is not in england treason , though the parliament be a higher judicatory then any exprest in the act. and cook tells us that they allow not argumentum à fortiori to infer crimes . and with us the killing a member of parliament would not infer death by this act , since they fall under no qualification therein specified . in england killing officers falls only under the statute , but with us , invading or pursuing them is death , though it take no effect . quaritur , if to invade them when they are out of the kingdom would fall under the statute , since they are not under that character elsewhere . or if he who invaded them during their being suspended , would fall under this act , since during that time they retained the character , and the exercise is only suspended . and it is resolved by the doctors that a statute punishing such as invade magistrats , is only to be extended to such magistrats as are once admitted , but not to such as are only named or elected ; for such statutes are extended in gratiosis , yet they are restricted in such odious points as thir , cabal . cas . . treasonable words , vid. t. injuries and libells . xvii , the third branch of the division is statutory treason , which comprehends under it several other points of treason , which because they relate to other crimes , therefore i shall also refer the reader to these titles wherein these crimes are principally treated of . but it will appear by these acts , that these crimes are not declared to be treason , but only to be punishable as treason , and therefore these statutory treasons have not at all the other priviledges competent to treason , as that they may be proved by women , & alios testes inhabiles , or that he who accuses in these will commit treason , if he prove not his accusation . thus wilful fire raising is treason , ia. . parl. . cap. ultimo . theft in landed-men is treason , ia. . parl. . cap. . vid. tit . theft , murder under trust is treason , ia. . parl. . cap. . vid. tit . murder , sayers of mass , jesuits , trafficking papists and their resetters , commit treason , ia. . parl. . cap. . vid. tit . heresie . to buy or bring home poyson , is treason , ia. . parl. . c. . vid. poyson . thieves who take leill men upon bond to re-enter them , commit treason , ia. . parl. . cap. . but though this act speaks generally of the taking of any scottish-man , yet it may clearly appear by the narrative , and the whole strain of the act , that the same strikes only against such thieves as kept correspondence with the english , and took scottish-men prisoners into england . but custom hath interpret this otherwise , for duncan macgrigor was . iuly , . convict and hang'd as a traitor , for arte and part of taking iames anderson and iohn mackie , and the taking of captain cairns found relevant as an article of treason against assint . to usurp any prelats place after his decease , is likewise treason , ia. . parl. . cap. . xviii . this crime hath in it many specialities ; wherein it differs from other crimes : as first ; he who accuses any man for treason , doth incur the pain of treason , if the defenders be acquit , which is occasioned ( as the act bears ) because of the odiousness of treason . but since the the act sayes expresly that this shall take place where the party calumniat is called , accused , and quit of the crime of treason ; therefore it may be inferred , that though the pursuer raise summonds of treason , and should pass from the same before the pannel go to the knowledge of an inquest , that eo casu , though the pursuer might be punished poena extraordinaria , yet he could not be punished as a traitor . it may be likewise doubted , if this holds in statutory t●eason , as theft in landed men , &c. and since the reason inductive of that act is the odiousness of treason , it would appear that this rigid law should not take place in these points of treason , which are not so odious of their own nature . another speciality in treason is , that it can only be tryed by the justices , reg. maj. lib. . e. . v. . and that because of the kings immediat interest , since it is not presumable that the fiscal in inferiour courts would be as careful as his majesties advocat , who cannot appear there , and because of the intricacies and great consequence of that crime : but it may be doubted whether lords of regality , or subjects having a justitiary , are judges competent to treason , and it seems not , for the reasons foresaid . xix . the second priviledge of treason is , that those who are pursued for treason should be immediatly committed to prison , and their goods should be put under sicker burrows , id est caution , under which they must remain ay and while they suffer an assize , ia. . p. . c. . and reg. maj. lib. . c. . but it seems very hard in our law , that there is no time prescribed for the pursuer to insist , but that the person suspect may be kept in prison for a long time , though he be very innocent , and offer himself to a tryal ; whereby the most innocent of subjects may be ruined in their fortunes and families , without any just cause . and yet upon the other hand , it were hard that traitors should be allow'd to go abroad , because probation cannot be presently had , which it may be the traitor hath abstracted , or that the king or state should be forc'd to discover too soon by a pursuit , a treason , which he is bound in policy to cover for some time . and as in war , so in treason ( which is as dangerous ) many things are allow'd to be done which are not otherwise regular , the interest of all preponderating the interest of any one , or a few . xx. the third speciality in treason , is , that all charges of treason should be execute by heraulds and pursevants , bearing coats of arms , and by macers , and that for the greater solemnity , else these charges are declared null , ia. . p. . c. . likeas , the ordinary custome is to execute summonds of treason after that manner . but it was found upon the . of december . in the action intented at his majesties advocats instance against mackulloch and others , that this act did only relate to summonds of treason , or any other charges , wherein men are ordain'd to obey , under pain of treason . but that inditements of treason given to men who are in prison , may be execute by ordinary messengers : and yet the act sayes , that all executions given otherwise then is appointed by that act , shall be null . xxi . women , and others , may be witnesses in this crime , though in other crimes they cannot : and one witness is sufficient here , and famosi & impuberes of what ever age , are receivable as witnesses , by an express act of the sederunt of lords of session , in anno . likeas , cod. fab . hoc tit . def . . sayes , est privilegium criminis laese majestatis ut facilius probetur . and that it may be proved per famosos & socios criminis . and that it was decided in savoy , . vid. pappon . lib. . tit . . but the english do most justly conclude , that because the punishment is severe in treason , therefore it ought to be proved by manifest and direct proof , and not by presumptions , or strains of wit , cook pag. . and that two witnesses are necessary for proving treason , he proves most learnedly , pag. . by the civil law , famosi , & mulieres were admitted to accuse in this crime , though not in any other crime , l. , and . ff . ad l. jul . maj . but this last priviledge should only hold in perduellion , mascard . de prob . lib. . conclu . . and not in statutory treason . and that this should hold in no species of treason , was math. opinion , pa. . because per l. ult . cod . de prob . in capitalibus causis idoniis testibus atque appertissimis documentis opus esse dicitur nec excipitur crimen majestatis . neither doth it follow , that because persons who are not admitted in other crimes , are admitted to be accusers in this , that therefore these who are unfit to be witnesses in other crimes , should be admitted in this : for there is little hazard in an unfit accuser , but there is great hazard in unfit witnesses . and this i think much more suitable to reason then the former statute ; for the greater the hazard is , the probation should be so much the clearer . and though testes inhabiles may be received , or one witness may prove sufficiently for subjecting the pannel to the torture , ( which is all that can be infer'd from that act of sederunt , which sayes only that they ought to be received witnesses , but sayes not , that they ought to be received in all cases ) . yet it were against all reason that any condemnatory verdict or sentence could be founded upon such probation . i find also by the law of savoy , that socii criminis , & famosi , are admitted to be witnesses ; not in treason generally , but in perduellion . and that act is by their lawyers restricted so , that the pannel cannot be condemned to death or forfeiture upon such depositions , but only to torture : nor will he be tortured upon such depositions , except the deponent be upon oath , and abide the torture also at his deposition , cod. fab . lib. . tit . . all which seems most reasonable , but yet it seems that no man is to be repute socius criminis , but he who is convict , or hath confess'd the crime , and dilates others ; for else a man being accused for treason , cannot alledge that the witnesses led against him were socii criminis , for that were to confess himself to be guilty : for no man can be socius criminis to the pannel , except the pannel be guilty himself , and was socius to the witness therein nam relata se mutuo ponunt . and this was so found in assint's process , but it was there alledg'd , that though socius criminis could not be received for the pannel , yet he could be received against him : and that was the sense of the doctors , who exclude socius criminis from being a witness in treason . but as to this , i doubt very much , for if a person confessed his accession , it seems unjust that he could condemn others , being infamous himself . and yet in open treasons , as rising in arms , it seems necessary to receive such as were in arms ; for none else can come near an army of rebels , and so the crime must be proved by these , or by none . xxii . the fifth priviledge is , that treason is not extinguisht by death in all cases , as other crimes are . but that treason committed against the k●ngs person , or common-wealth , may be inquired into after death , and the committers heir may be forefault therefore , ia. . p. . c. . which act bearing to be founded upon the civil law ; these general words contained in it , against the kings person , or common-weal , must only be extended against such treasons , as were by the civil law accounted perduellion : and therefore it is most necessary to know the civil law in this case , and what was therein called perduellion . seing albeit all treasons may by an natural interpretation be said to be committed against the kings person , or common-wealth , yet the civil law declared only that species of the crime of treason , which they called perduellion to be punishable after death , l. ult . ff . ad l. jul . maj. plane non quisquis legis juliae majestatis reus , est in eadem conditione : sed qui perduellionis reus est , hostili animo adversus rem publicam , vel principem animatus . so that the infallible mark of perduellion is hostilis animus , a design of raising arms. and therefore we may conclude that not only statutory treasons are extinguished by death , but that even simple concealing , and not revealing , or a malicious design to poyson the king , and such other treasons as shew not a desire of rising in arms , are likewise extinguish'd by death . and yet the basil. l. . h. t. say , that all the heads of treason are extinguisht by death , excepto capite proditionis , & insidiarum contra principem , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . albeit the bones of the defunct traitor are ordinarily taken up , and brought to the pannel in pursuits of this nature , as was done in the forefaultur of the laird of restalrig ; yet this is not necessary , but it is necessary in pursuits of this nature , that the defuncts nearest of kin be called , as defenders , for their interest ; both because their estates are to be taken from them by their forefaultur , and to the end they may defend the defunct , and object both against the relevancy of the libell , and the hability of the witnesses : and therefore the basilicks add very well , that haereditas publicatur , nisi crimen ab haeredibus purgetur , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . it may be doubted , whether since the forefaulting after death , is founded upon the civil law , and that the former act bears expresly , that these pursuits may be intended conform to the common law , if these pursuits should not prescrive with us in five years , as they do by the common law : and it would appear they should , since these pursuits are intented conform to the common law , and quem sequitur commodum eum d●bet sequi incommodum . the sixth priviledge of treason is , that the kings advocat is to be the last speaker to the assize in perduellion , though in other cases the pannel's advocats are to be last speakers ; and the last speaker has much advantage , for he may answer all is alledg'd by the opponent , art. . regulations . xxiii . the last priviledge of treason is , that albeit of old no persons could be condemned in absence by the justices ; yet the parliament still could have proceeded against traitors in absence . and now by a late act of parliament , it is found , that in the case of perduellion , and of treasonable rising in arms against the kings authority , the justices may proceed to the receiving of probation , and pronouncing of sentence even in absence of the party : which being first propounded as a querie to the council , they remitted the same to the session , to whom his majesties advocat gave in the following reasons , and queries , upon the . august . whether or not a person guilty of high treason may be pursued before the justices , albeit they be absent and contumacious ? so that the justice upon citation , and sufficient probation and evidence , may pronounce sentence and doom of forefaultur , if the ditty be proved . the reason of scruple is , that processes of forefaultur are not so frequent ; and that in other ordinary crimes , the defenders , if they do not appear , are declared fugitives , and that the following reasons appears to be strong and relevant for the affirmative , . by the common law , albeit a party absent cannot be condemned for a crime , yet in treason which is crimen exceptum : this is a speciality , that absents may be proceeded against , and sentenced . . by the first act of king iames the th . his . parliament , it is declared , that the king hath good cause and action to pursue all summonds of treason committed against his person and common-wealth , conform to the common law , and good equity and reason , notwithstanding there be no special law , act , or provision made thereupon . and therefore seing by the common law , persons guilty of laese majestie may be proceeded against , and sentenc'd , though they be absent . it appears that there is the same reason why the justices should proceed against , and sentence persons guilty of treason , though absent , and that he is sufficiently warranted by the said act so to do . . it is inconsistent with law , equity and reason , that a person guilty of treason should be in a better case , and his majesty in a worse , by the contumacy of a traitor , the same being an addition ( if any can be added ) to so high a crime ; and that he should have impunity , and his majesty prejudged of the casuality arising to him by his forefaultur . . the parliament is in use to proceed and pronounce doom of forefaultur , though the party be absent : and in so doing they do not proceed in and by a legislative power , but as the supreme judges : and the parliament being the fountain of justice , what is just before them , is just and warrantable before other judicatories in the like cases . . by the above-mentioned act of parliament , it is statute , that summonds and process of treason may be intented and pursued after the death of the delinquents , either his memory , or estate , delating the one , and forefaulting the other , whereupon sentence may follow to the effect foresaid . and therefore , seing sentence may follow when the delinquent cannot be present , and is not in beeing , it were against all reason , that when they are wilfully and contumaciously absent , they should not be proceeded against , and sentenced , if they be guilty . and it were unjust that his majesty should call a parliament for punishing and forefaulting of persons , being absent , or that he should wait till they die ; especially seing in the interim the probation may perish , by decease of the witnesses . follows the lords of session their opinion , edinburgh , the . of february , . the lords of council and session having considered the queries above-written , presented to them by the lord bellenden his majesties thesaurer depute , it was their opinion , that upon the iustices citation , and sufficient probation taken before them , the iudge and assize may proceed and pronounce sentence thereintil , and forefaulter against the persons guilty of high treason , though they be absent and contumacious . sic subscribitur io. gilmore i. p. d. upon this the parliament ratified the processes led against these persons : and by the . act parl. . ch. . ses. . it is statuted , that rising in arms against the kings authority , might be pursued before , and judged by the justices . but the parliament retain still a power cumulative with the justices ; and when processes of treason are intented before them , they may proceed as formerly , and thought this last act a great innovation of all our law. nor is it imaginable but that if it had been safe , that that priviledge would had been granted to his majesty formerly : and that it is contrary to the civil law , is clear , per l. . & l. penult ff . de requirendis reis , nam annotabantur bona , & si reus post anum non comparuerit , & satis dederit de stando ; non recuperabit bona , non tamen de delicto habetur pro confesso . divi fratres rescripserunt , l. . ne quis absens puniatur , & hoc jure utimur , ne absens damnetur . and that no probation can be received against absents in treason , is clear by matheus hoc tit . and albeit per extrav . constitutionem hen. . it is ordained , that probation may be received in absence , yet this is repute no part of the civil law , and is followed by no nation , and by that extravagant constitution this priviledge is allowed to all species of treason , which we find to be unjust . and albeit treason may be in some cases punished after death , yet it cannot be from that inferred , that it may be punished in absence , since after death the malice of unjust pursuers ordinarily ceases , and the hazard of death is then over : so that the event of the pursuit is not so terrible , nor dangerous . and in these processes , the nearest of kin are called , who may propound against both relevancy and probation , whatever was competent to the defunct . whereas when a person is pursued in absence for treason , no man can in our law be admitted to propound any thing in his defence . and albeit it seem unreasonable that a person guilty of treason should be in a better condition by his contumacy , then if he compeared . to this it may be answered , that this would prove too much , for this absurdity may be as well press'd in absents for all other crimes , and against such as are absents in all the several inditements of treason ; and yet the justices are never allow'd even by the late act to proceed to sentence against any , but such as are pursued for rising in arms against the king. but the true answer to this seeming absurdity , is , that the law is not so inhumane , as to punish equally presum'd and real guilt : what may be a crime , as what is found one . and it hath been oft found , that men have been absent , rather out of fear of a prevailing faction , or corrupt witnesses , or by inadvertence , or not being truly cited , or by being violently detained , then out of a consciousness of guilt ; yet since so judicious a person proposed this overture , and since council , session , and parliament have fortified it by their authority , i submit my judgment to their determinations . xxiv . it is ordinary for his majesty , to command , or forbid , by privat warrands , under all highest pains , or as you shall be answerable to us . and the certification here being indefinit , it may be doubted what the punishment may be , in case of contravention . and . it would appear that the contraveeners cannot be punish'd as guilty of treason , for only laws can make traitors in this kingdom . . it seems that this being a contempt of the chief and supreme magistrat , it may be punish'd arbitrarily ; if the command be lawful , and in case of importance , since even inferiour judges may punish such as contemn or disobey them , in what is necessary for their jurisdiction . likeas lawyers are of opinion , that in obediens praecepto superioris sub paena indignationis , est arbitrarie puniendus , cabal . casu . bald. in l. legis virtus , ff . de legib . menoch . cas . . but in that case , they determine that the arbitrary punishment cannot extend to death . and though some doctors are of opinion , that commissions are to be punish'd in this case more severely then omissions , yet i conceive some omissions may infer greater contempt , and be more dangerous then commissions . nor allow i the distinction used by lucas de penna , ad l. . c. ut dignit . ord . servet . who sayes , that if the contempt be of dangerous consequence , as if one being commanded to take care of a castle , or to stop the passage of an enemy , that then the contempt is to be severely punish'd by death : but if the contempt be of things indifferent , or mean , then the contempt is only punishable arbitrarily . and yet he is too severe in making it to be punishable by death , except the person commanded were a souldier , or one who were obliged by acceptation of his office to obey under that peril . and therefore i would rather distinguish betwixt such commands as use to be punish'd by death , if contemn'd , such as military commands ; and in these , the contempt may be punish'd by death , for custom comes in place of law , & sibi imputet , who hath undertaken such an employment as requires such obedience . but if the king should command any country gentle-man , or lawyer , to fortifie , or keep a castle under all highest pains , it is probable , that their omission could not be punish'd by death , and is only punishable by losing of the princes favour , & quod princeps non exhibebit se gratiosum : which bartol ▪ makes the punishment of that disobedience in all cases , ad extrav . qui sunt rebelles . xxv . the punishment of laese majestie was death , l. . c. h. t. animae omissio , as iustinian calls it in his institutions , together with the confiscation of all his estate that lyes within the territories of him against whom the treason is committed ; but is not extended to his estate lying else-where , c. . de constil . in . so that if a man commit treason against the king of britain , his estate in france does not forfeit . with us the punishment of treason is death , and confiscation likewise of all the traitors estate , whether heretable , or moveable , feudal , or allodial . and the solemnity used in parliament at the pronouncing of such sentences are , that the pannel receives his sentence kneeling , and that after the doom of the forefaulter is pronounced against him , the lyon and his brethren heraulds come in in their formalities , and tear his coat of arms at the throne , and thereafter hang up his escurchion revers'd upon the cross : which had its rise from the old roman customs , for as tacit , observes , lib. . deterrere omnes à simili culpa volebant , non poenae modo , sed ignominiae m●tu , ut nomen è fastis deleretur , & effigies tolleretur . which is likewise clear , l. . ff . de poenis . and that this is the custom of flanders is clear by perez . h. t. moribus nostris insignia gentilia delentur , & destruuntur . but this i think should only hold in the crime of perduellion , but not in other treasons , perez . ibid. num . . another speciality introduced in the punishment of perduellion , by the common law , was , that memoria damnabatur , and that his children were declared uncapable to bruik any estate or office ; which the emperours arcadius and honorius , l. . c. ad l. iul. maj. calls a mitigation of the punishment due to children , who as they say should have died for their fathers crime . but this is so unjust , that no nation doth now use it , as matheus observes , p. . and it is expresly against l. crimen ff . de poenis , and the scripture , deut. chap. . vers. . and the opinion of plato , lib. . de legibus . and therefore amazias king. . , . would not kill such as were the children of those who kill'd his father , because ( as is exprest there ) the father shall not be put to death for the children , nor the children for the fathers . and achan's punishment , ioshua . . wherein he and his sons and his daughters were stoned to death , and burned for his own crime is no concluding argument against this opinion , since that was founded expresly upon gods revealed will , who can dispense with , or alter the laws of nature : but it is very probable that the reason of that severe sentence was , that god knew the whole family to be involved in the guilt . and it is very probable that they were resetters of the theft , or conscious to it , since the stollen goods were taken out of the tent were they were . and i remember that our parliament in anno . having adjected to the marquiss of argyles sentence the dishabilitation of his children , his majesty did expresly command it to be rescinded in the last session of that parliament ; in which the children were rendered capable to bruik estates or honours , as the other subjects were . i know it is the opinion of some lawyers , such as budeus , that this l. . was thereafter abrogat , ● . sanc●mus c. de poenis , which by his calculation is two years after the other . and though matheus thinks that l. sancimus is only introduced in favours of the friends , but not of the children : yet it is more just to think that by this law the former was abrogat , even quo ad children , since the reason given in that law is general , sancimus ibi esse poenam ubi & noxia est propinquos , notos , familiares procul à calumnia submovemus quos reos sceleris societas non facit . nec enim adfinitas , vel amicitia nefarium crimen admittunt . peccata igitur suos teneant auctores : nec ulterius progrediatur metus , quam reperiatur delictum . hoc singulis quibusque judicibus intimetur . nor can it be concluded , that it is clear that the former law was not abrogat by that law , since l. pen. c. theod. de bon . proscrip . the same emperour honorius leaves no estate to the children of traitors ; for it does not follow , that because they are to succeed to no estate of the traitors , that therefore they should be uncapable to gain , or to succeed to any other estate . but after all these laws the basil. l. . h. t. extends the punishment , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . another punishment of perduellion by the canon law , cap. felicis de paenis in . is , that the traitors house shall be thrown down , and not re-built , which is not in observance amongst us . nor was it lawful to mourn for him when dead , or to give him a publick burial , l. . ff . de his qui not . & l. . ff . de relig . and with us it is ordinary for the friends of such as are condemned for treason , to get a warrand for attending them in mourning upon the scaffold . but i do not find that the attending him in mourning , or the burying him , was ever accounted a crime in scotland . i find that some lawyers believe , that the fear of losing an estate excuses him who has complyed with the enemies of his prince , notae ad clar. h. t. num . . imol. consil. . but this was expresly repelled in the marquiss of argyle's process . but certainly the fear of life might excuse ; for there can be no crime where there is not a voluntar act , and nothing can be voluntar which is forc'd . though repentance is no relevant defence against a ditty of treason , especially where there is once a deed of treason committed ; yet such is the clemency of princes , that by the l. . basil. h. t. i find that he who in the beginning of a conspiracy reveals , is to be rewarded , but he who after the treason is committed reveals the authors , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is only to be pardoned . sometimes likewise to punish the atrociousness of this crime , the very parents are banish'd , and all the family are ordain'd to change their name ; as was done ravillac's case by the parliament of paris : for though these could not be corporeally punish'd , yet the state may justly deny their protection , and countrey , to any who may be presum'd will bear revenge , or probably were infected with their friends crime . but though these punishments may be inflicted after probation , yet if the pannel was only denounced for not appearing in tre●son , he only loses his moveables ; and a gift of forfeiture following such a denounciation was declared null by the lords of session , because the certification of the letters in that case , is only to be denounced fugitives , and lose their moveables , . iuly , . and . novemb. . haige contra moscrop . title vii . sedition . . what is sedition ? . the punishment of it . . convocation of the liedges how punished . i. sedition is a commotion of the people without authority , and if it be such as tends to the disturbing of the government , ad exitium principis vel senatorum ejus & mutationem rei publicae , it is treason ; but if it only be raised upon any privat account , it is not properly called treason : but it is with us called a convocation of the liedges . these publick seditions are called seditio regni vel exercitus , cap. . l. . reg. majest . and this species of sedition is punishable as treason : and the mr. of forbes was hang'd for raising sedition in the king's host at iedburgh . when a sedition is raised against the government , it is ●epute treason by the doctors , as is clear by bossius de crimine laese majestatis : and perezius hoc . tit . ii. albeit per l. . cod . de seditiosis , it be only said , mulctam gravissimam subtinebit , which general term , in my opinion , is used to signifie that this crime is not to be equally punished , but according to the several degrees of guilt , and the authors and first raisers of the tumult are to be most severely punished . and the basilick sayes only that gravissimae paenae subjicitur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which the greek gloss expounds unwarrantably to be ultimum suplicium in all cases , and as to raise men against the prince is treason , so to raise them against publick order or discipline , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is sedition properly , and thus treason and sedition properly differ , though oftentimes sedition may be accompanied with qualities which may raise it to treason . and this the basilicks make not seditiosus conventus treason , but if it be rais'd ut occidatur magistratus seditiosus conventus , it is treason in that case , l. . h. t. i find not sedition to be expresly declared treason with us in any case ; for by the . act ia. . parl. . the raising of commons in hindering the common law ( which is properly sedition ) or the making of leagues and bonds within burgh , without the command of their head officer , is declared to be punishable by confiscation of moveables , and that their lives shall be in the king's will. from which act it is likewise to be observed , that the command of the magistrate doth in things belonging to his office excuse the liedges , and therefore it may be asserted that the liedges rising in obedience to commands of the sheriff , or lord of regality , are not punishable , except it was clearly palpable to them that their insurrection was in contempt of his majesties authority , which appears to be the meaning of the foresaid l. si quis contra evidentissimam jussionem , &c. and seing the liedges are oblidged to obey their magistrats , and to rise when he calls them , as is evident by many acts of parliament , and without this allowance his majesty could not be served : it were hard to punish them for that obedience , which would be punishable if they refused it . iii. the convocating the liedges in bands of men of war , for daily , or monethly wages , without special licence , is declared likewise to be punishable by death , by the . act . parl. q. m. which act is ratified by the . act . parl. k. ia. . and the making of all leagues and bands amongst the liedges without his majesties consent , are discharged , and the contraveeners are declared to be punishable as movers of sedition and unquietness , to the trouble of the publick peace of the realm , therefore to be punished with all rigour , to the example of others . both which acts are ratified by the . act . ses. charl. . and yet it may be contended that such seditions as these are punishable as treason , since the making of bonds and leagues amongst the liedges is declared by the foresaid . act to be one of his majesties royal prerogatives . and sure it is treason for any of his majesties liedges to usurp his royal prerogative . but sure it is , that to convocat the liedges simply without bonds or leagues , can no wayes be accounted treason , much less the being present as such convocations , though in arms : and thus it was found in the case of a baxter who was pursued as guilty of the convocation raised against the customers in anno . that naked assistance at such meetings per se was not relevant to infer death , but only an arbitrary punishment , as is clear by the . act . parl. ia. . whereby all men are forbidden to travel with more not they can sustain , and if they do , they may be put under sicker burrows till the king declare his will. and by the . act . parl. i. . electing of deacons was discharged as sedition . convocations are allowed in some cases , as for pursuing of thieves and sorners , as ia. . parl. . cap. . this crime of simple convocation is ordinarily pursued before the council , and is seldome punished either by the council , or justice court , tanquum crimen per se , but as the agradging quality of a ryot or other crime . title viii . poyson . . the punishment of poyson by our law. . how far the giving good druggs irregularly is punishable . . whether the poysoning iews , or excommunicat persons , be punishable . . whether the poysoning beasts , or fields , be punishable by this statute . . whether endeavours to poyson be punishable . . the aggravations of this crime . . poyson is by our law declared to be punishable as the crime of treason , but it is not declared treason , act . . parl. ia. . by which all persons are discharged to bring home poyson for any use by which any christian man or woman may take bodily harm , and that under the pain of treason , and that being convict , they shall forefault to the king life , land , and goods ; but notwithstanding of these words , for any manner or use , apothecaries and others do daily bring home poyson . but to this it may be answer'd , that they bring the same home , not as poyson , but as druggs , and the law presumes that the liedges are in no hazard of that poyson which is in the hands of skilful men . this was likewise the opinion of the doctors gothofred prax . criminal . § . venenum : but notwithstanding that the buying or giving of poyson is declared treason by the law , yet i find no instances in the journal books where any have been convict as traitors upon this account : but on the contrary , iohn dick for poysoning his brother and sister is only ordained to be execute , but is not forefault , ult . march . if any stranger bring home poyson any manner of way , it is provided by the . act of that parliament , that they shall be punished the same manner of way , and that no remission or safe conduct shall be profitable to them . the reason of this severity proceeds from the abominableness of that crime , plus est enim hominem veneno necare quam gladio dicit gloss . in § . ead . l●ge just . de publicis judicibus per textum l. . de mal . & math. for he to whom poyson is given cannot defend himself , and poyson is a way of death so much hated , that though the law hath allowed executions by the sword , yet it hath never allowed any execution by poyson . those who give poyson were by the civil law called venenarii and they were only punished capitally , per l. corneliam de sicariis , l. . § . . adl . cornel. de sic . and it may be proved by presumptions , clarus quest. . vers . fin . but the body must in this case be sighted by physitians , and the poysonous quality must be proved . the buying of poyson , though with a design to kill thereby , if murder do not actually ensue , is not thought capital by the doctors , but only punishable paena extraordinaria , gothofred . prax . criminal . § . venenum num . . yet with us the very buying is by this act of parliament capital . ii. whether to give druggs that are not of their own nature poysonable too frequently , and contrary to the nature of the disease , be punishable by this law , or as murder , or be punishable at all , was debated in kennedies case , the . of february . and that it was punishable was contended , because venenum or pharmacon was in law nomen generis , and exprest good druggs as well as ill , l. venenum ff . de verb. sig . and the best of druggs , given in great excess , is poyson ; for poyson consists in excess of quantity as well as quality , and whatever overpowers our nature is poysonable to us . and since the one may kill as well as the other , and that killing is that which is punish'd , the law should punish the one as well as the other . and whatever may be said where the design was not known , yet here the design of killing was communicated to kennedie . and it is proved that he refused to give meer poyson , left the external marks after death should discover that poyson was given , but that it was safer to give constant purgations to be thrown in by his servant in his drink upon all occasions , and that without his knowledge , and contrary to the nature of his disease , he having a flux : all which circumstances shew a design to kill . and gothofred . § . venenum is clear that medici & farmacopolae ineptum medicamentum scienter ad hibentes ut infirmus morietur tenentur ut homicidae . and though the judgement of physicians ought to be ask'd where the design is not known , yet where the design of killing , and means suitable to that design are clearly proved , there is no place for consulting physicians ; nor can any danger ensue from the preparat●ve of punishing this pannel to other physicians or apothecaries , except they give physick without being imployed by the party , and at the desire of servants , who imploy upon a design to kill , and administrat the druggs at unseasonable hours : all which are of themselves criminal ; and this way is more dangerous then ordinary poyson , because servants are more easily admitted then others , and this way is less discoverable . nor needs it be proved that the defunct died of this poyson , for even one who got true poyson might have died of other diseases , but it is sufficiently proved , that after the giving of thir purgatives , he died the next morning of such a loosness as made his bed to swim . and as this is like the natural product , so presumitur contra versantem in illicito , especially all this design of murder being to conceal the servants theft , in which this apothecary was a sharer . iii. from these words of the act , through the which any christian man or woman may take bodily harm , it may be concluded , that . the poysoning of a jew or pagan falls not under this act , though it may be pursued as murder : and it may be doubted whether the poysoning of an excommunicat person can fall under this act , since they are not christians : but to prevent all this , the english statute bears , that to kill any reasonable creature in rerum natura , by poyson , or otherwayes , &c. and cook observes , that to poyson a jew or turk falls under their satute . iv. from these words likewise it may be observed that the poysoning of bruit beasts does not fall immediatly under this act , nor yet the poysoning whole fields , to the end beasts may die . albeit both these crimes be punishable by death by the laws of other nations , as carpz . observes , tract . crim . quest. . num . . and since theft is punishable by death , much more ought the poysoning of beasts be , since not only is the party less'd by wanting his beasts as much as in theft , but the common-wealth is more prejudg'd then in theft , since the beasts so poyson'd , are made unserviceable as to all uses ; and men are likewise in danger by eating or using of them : and this is worse then houghing of oxen , which is capital by our law. but if a beast be poyson'd , that men may be thereby poyson'd , then the poysoning of beasts will infer death . from these words , may take bodily harm , it may be infer'd likewise that the giving of poyson whereby men do fall paralitick , or lame , should fall under this statute , though the person dies not , since that may be constructed bodily harm . v. as also it may be concluded , that since to bring home poyson whereby men may die does infer death , that therefore the giving of poyson , though death do not follow , either because the poyson was not strong enough , or because the party poisoned did counter-act its force immediatly by suitable remedies , should be punishable by death ; for these are more immediat deeds then to bring home poyson : and generally indeavour is in this crime punish'd as the consumat act , where the indeavour comes to any deed that approaches the crime , l. . ff . ad l. pomp. de parricid . though carpz . is of a contrair opinion , asserting that conatus or indeavour is only to be punished even in that case by an extraordinary punishment . the administrating drinks or medicaments to procure or increase love , is thought not punishable , though death do not follow , because there was no design there to kill , carpz . ibid. & l. siquis ff . de poenis , though this be punishable , as that law asserts , by a lesser punishment , nam est res mali exempli . vi. indeavour is punishable in the poysoning of parents , and in reiterated indeavours , though death follow not . and the poysoning of magistrats , or masters , since these great aggravations are so odious in the very contrivance , that these aggravations are as odious as success : and as the judge may mitigate the punishment upon the accovnt of lessening circumstances , so he may highten the punishment upon the account of aggradging circumstances , vasq. contraver . illust . cap. . and carpz . num . . quest . . part . . gives us several decisions to this purpose , and amongst other decisions , tells us of two mountibanks who were burnt with hot tongs to death , for having poyson'd ten several persons . but if a physician would poyson his patient , it would be certainly treason with us , as being murder under trust . title . ix . de incendiariis , or fire-raisers . . malicious and designed fire-raising is only punishable by death . . what presumptions can prove this design . . whether one may be punished for burning his own house ? . the punishment of fire-raising according to the civil law. . the punishmint of it according to our law. . the burning of coal-heughs how punished . . whether the drowning a coal-heugh be punishable , as the burning of it . . fire-raising cannot be remitted . . the punishment culposi incendii . . how accidental fire-raising is to be punished . . how masters are to be punished for their servants negligence . it is most unnatural that the elements which were created to be servants to man , should have dominion over him : and therefore these who raise fire are repute great enemies to mankind , and more criminal then either theives or murderers . for in theft , the thing stollen remains still with the common-wealth , whereas it is absolutely destroyed by fire : and in murder the crime extends never further then the design , whereas in fire-raising , the merciless element which is imployed , debords oft beyond its commission , and involves in the common misery those against whom the fire-raiser had no design , with those who were his known enemies . and therefore those who raise fire within a town are burnt ; whereas those who burn only a house are not so grievously punished . i. a fire-raiser , or incendiarius , is by lawyers defined to be he who of design raiseth fire , whether he kindle the same with his own hand , or commissionat another , or executes himself anothers commission . and because of the atrociousness of this crime , the attempt is punished , though the effect follow not , and threatnings , though nothing follow , are punished , damhaud . rubrica de incendiariis , but because this crime is of so high a nature , and that it is improbable that any would be so merciless to commit the same , therefore the law requires that the fire-raising which is punishable , be committed dolo malo : and with us it is required they be combustores domorum nequiter & malitiose , as skeen translates it , ad cap. . malcolmi . and wilful fire-raising is only declared punishable by death , cap. . parl. . i. . ii. but since design and dolus are acts of the mind , therefore they are inferr'd from presumptions , and what presumptions are necessary in this case , are very well related by far. quest . . cap. . and iohn meldrum was execute upon presumptions , aug. . where he being pursued for burning the house of frendrick : the only presumptions adduced against him were , great threatnings , capital enmity , his contradicting himself in his own examinations , common brute and open fame , that he was the burner . but i think that case very hard , and not to be drawn in consequence , for though the dolus and design may be proved by presumptions , because that is an act of the mind , yet the burning it self being an external act , should only be proved by witnesses and confession . . seing probatio praesumptiva is but fi●titi● , it were hard to allow both th● burning it self , and quo animo the fire was raised to be proved by presumptions against that common rule in law , that duae fictiones non cadunt in candem rem . . lawyers are positive , that dolus debet possit probari manifeste , bertez . consil . . iii. it is doubted among the doctors , whether he that burns his own house may be punished as incendiarius , since quilibet est rei sua arbiter ; and dominion is defined to be the using of any thing as we think fit . but since fire-raising is oft-times punished , not only for the prejudice it hath done , sed quia flamma potuit longius è vagari , therefore fire-raising should be punished in this case . and as it is not presumable that any man will burn his own without design , so if this were not punished , men might upon the pretext of burning their own waste and destroy their own , and ruine their neighbouss . and he might very well be presumed to have had a design against his neighbours ; but though the immediat dominion belong to private persons , yet the king has also an interest , & dominium directum . and as no man can kill himself lawfully , so neither can he burn his own house , except he can instruct that he did the same upon a just and reasonable cause . iv. the punishment of fire-raising by the civil law , was various , and suitable to the several degrees of the crime ; for raisers of fire within a town were burnt alive : those who burnt corns beside houses were bound and beat , and then burnt , but not burnt quick , as we speak , lex . parag . incendiarii ff . de poenis , but the burning of a house or village was not so highly punish'd . and clarus quest. . thinks that the statutory pain of fire-raising , if it be capital , should not take place in small fire-raising : but since a small spark may kindle a great fire , this conclusion seems very unwarrantable , if the fire was designedly rais'd . v. according to our law , the burning of folks in their houses , and corns , and wilful fire-raising , is treason : and laese majestie , ia. . p. . cap. . from which act it is to be observed , . that the particle and , is not here copulative , but a disjunctive , for either of these cases , viz. the burning of corns is per se treason . . it is observable , that all fire-ra●sing is not treason ( though the rubrick of the act bear , that all fire-raising is treason ) which may be concluded by these reasons , . that all punishments should be commensurat to the delicts and crimes which are punished ; and therefore since fire-raisings are very various , it were unjust that they should be all equally punished , especially the punishment here being treason , which were too severe for burning peets in a moss , or a little cottage standing in a moor , where the guilt is so small , that the offenders in these cases should be capitally punished . and in a case pursued against mackenzie of suddie , upon the . iuly . for burning some fewel standing upon a moor , the justices would not sustain this as treason . . if all fire-raising were by this act treason , there needed not a posterior act have been made , cap. . p. . ia. . declaring that wilful fire-raising in coal-heughs , upon malice and despite , is punishable as treason . . by the foresaid act of k. ia. . it needed not to have been said that the burning of folks in their houses , and the burning of houses and corns should be treason , if generally all fire-raising were treason . for the better understanding then of that act , we must consider that there are three several species of fire-raising declared to be treason by that act : the first is , the burning folks in their houses , which must be interpret likewise to be the burning of dwelling houses , though the people were not accidentally there , or were possibly there , and escaped . which species of fire-raising is most severely punished , both because fire-raising was of all others the most horrid , & domus sua est unicuique tutissimum refugium , and because ordinarily the burning of all the persons dwelling in the house is thereby designed , as well as the burning the house it self . the second species is , the burning houses and corns , which is suitable to the foresaid . law ff . de poenis , where it is said , that qui acervum frumenti juxta aedes positum combusserit , vinctus , verberatusque , igne necatur . the third species is , willful fire-raising , which differs in this from burning , that burning is of a particular place , with design to destroy no more : but fire-raising is the burning a particular place , with design to burn more ; as to kindle a little corn upon design to burn the whole field . vi. the other act making the burning of coal-heughs to be treason , was practised upon iohn henry , . iune . who was hang'd thereupon . and the reason of this law was founded upon the favourableness of that manufactory , which some do ruine by putting fire in them , which is so easie , that nothing could defend against it , but the severity of such a law as this , and upon the greatness of the hazard which did arise by such fires as this , which could never be quenched when once kindled . vii . i was once consulted whether the drowning of coal-heughs was treason by this act , since erat eadem ratio utrobique , but i thought not , because penal laws , especially in which the punishment is so severe as treason , should not be extended , as is elsewhere largely debated . and the hazard of drowning a coal-heugh is not equal to the burning of it ; for drowning can be easier removed , and cannot spread so far . viii . so odious is this crime , that it is expresly provided it shall be one of the four points of the crown , and so can only be cognosced by the justices ; and all remissions granted for fire-raising are declared null : but this last is not in viridi observantia . and fire-raising being included in the earl of caithness remission , it was sustained , though thir acts were objected . ix . if dole and design canot be proved in the fire-raising , so that it were accidental , sed si culpa incendio causam dederit , there is a civil action , by the civil law allow'd , ex lege aquilia : but for the further understanding incendii culpas , the more exact doctors do distinguish betwixt incendium ex culpa lata , ex culpa levi , & ex culpa levissima commissum . and since culpa lata aequi paratur dolo , therefore they make it to be corporeally punishable , though in that case the punishment is not extended to death ; but if the same be committed only ex culpa levi , then it is to be punished by a fine : but if the committer have not wherewith to pay his fine , he may subsidiarly be punished in his person : but if the fire be raised per culpam levissimam , then the committer can never be punished corporeally , even though he want money wherewith to pay his fine , dicunt tamen aliqui culpam levissimam in faciendo , aequiparari culpae levi in committendo , alex. con . . ix . by our law , he who burns a house in a town by misgovernance , and not of set purpose , as the act sayes , he shall be punished at the sight of the magistrats of the town , and his goods , shall be given to him who suffers the prejudice , and shall likewise be banished for three years ; and if he have no goods , he shall be scourged at the mercat cross , and thorow the town , and shall be banished for seven years ; but if he who owes the house , do either by himself , his wife , or bairns , ( id est negligently ) burn his own house , albeit no neighbour be thereby prejudged , yet he shall be banish'd the town for three years : and if he to whom the house is set burn the same negligently , he shall repair the dammage , and be baninished for three years : or if a stranger , or traveller , burn , as said is , he shall be arrested , and repair the skaith , which if he be not able to do , he shall abide in sickerness ( id est , in prison ) at the king's will : and if the governours of the town be negligent in the execution of their office , they are to be unlawed in ten pounds : and if fire happens in husband-towns , in barronies , they are to be punished by the lords , id est , barrons in like-manner as magistrats do within burgh , ia. . parl. . cap. . by this act likewise , no fire is to be carried from on house to another , but in a covered vessel , under the pain of an un-law ; but since this un-law is not exprest , it is therefore arbitrary to the judge to raise it as high as his jurisdiction will suffer , though in justice he should proportion it to the crime , especially since it is not tax'd here of design , that it may be proportioned , as said is . upon this act there may be several doubts raised , as first . what is meant by the word misgovernance , for clearing whereof , the common distinction made by the doctors , and related by alexander consilio . would be considered . and it appears that misgovernance in this case does include culpam levissimam , the meanest fault , because the act bears misgovernance , and not of set purpose ; so that whatever is not of set purpose , or designed , is punishable by this act. likeas , the word recklesly , which is likewise used in this act , as exegetick of the former , may be properly enough extended to culpa levissima ▪ but yet it may be argued upon the other hand , that since the punishment of servants raising fire by misgovernance , is to be scourged publickly , and then banished , and that masters are punished if they burn their own houses , after that manner , it were hard to extend this punishment ad culpam levissimam : and as the law interprets obligations to give wine or corn , neither to be extended to the best , nor worst of that species ; so in this case , misgovernance should be interpret , as that it may properly neither be meant of culpa lata , nor levissima , but of culpa levis , which is media : and the word misgovernance properly doth imply a fault that is considerable , & verba poenam imponentia , sunt strictissime interpretanda , as lawyers observe . . it may be doubted , whether if children who are not come to that age at which they are only punishable themselves , should burn the fathers house , if the father be punishable by this act , eo casu ; and albeit it would seem that he is , seing accident without judgement is punished in this case , by repairing the dammage done , yet it is more suitable to reason to conclude that he is not , because . he who hath no government by law of himself , or any thing else , cannot be said to do any thing by misgovernance . . children in law are equiparat to fu●ious persons , or idiots ; and as the father could not be punishable for what is done by his children , being furious , and idiots , so neither can he be punishable for what is done by them whilst they are impuberes . . quia accessorium sequitur naturam sui principalis , & subsidiarium naturam ejus cui est subsidiarum , and therefore , where the child himself cannot be punished , we ought to conclude that the father ought not to be punished for him . xi . the doctors do conclude that the master of the family is bound not only for his own , but likewise for the fault of any of the family who raiseth fire , for having choos'd them himself , he ought to be lyable for their fault , and he ought to blame himself for not choosing of better servants . but this is to be restricted to the injuries done by the servants in their respective imployments to which they were made overseers by masters : as for instance , if the cook should leave the fire securely at night in the kitchin , but a laquie belonging to the house should thereafter come in to the kitchin and scatter it so as that both their masters and the neighbours house were burnt , they conclude that the master would not be lyable to make up his neighbours dammage , since the master was not to be blamed , the person choos'd by him having done his duty , carpz . part . . quest . . num . , & . but this seems unreasonable , for it may be alledged that the master should not have choosed any such servants : and it is all one to the neighbours , by whom the prejudice is done , or whether it was done without the committers office , or not . and therefore it were fit to consider whether the person who did the injury was known to be a profligat or vicious person before he was imploy'd . and it seems that this may be the interest of the common-wealth , because it would secure neighbours , and be advantagious for the common-wealth , that none should imploy servants who are not sufficient . title x. witch-craft . wierus arguments against the punishing of witches , with the answers thereto . . some observations which may perswade a iudge to be cautious in judging this crime . . upon what presumptions witches may be apprehended . . who are iudges competent thereto . . paction with the devil . . renouncing of baptism . . the devils mark . . threatning to do mischief ; how punishable . . malefices where there are no conection betwixt the cause and the effect . . the useing magick arts for good ends . how punishable . . consulting with witches how punished . . what the being defamed by the witches imports . . a witches confession not punishable , except the thing confest be possible , & de succubis & incubis . . whether the transportations confest , be real , and though real , whether punishable . . whether a witch can cause any person be possest . . whether penetration be possible . . whether transformation be possible . . whether he can make bruits to speak , or raise storms . . whether witches may transfer diseases , and whether it be lawfull to seek their help for this . . whether witches may kill by their looks . . whether they can procure love by their potions . . how they torment men by their images . . whether confessions before kirk sessions be relevant . . who can be witnesses in this crime . . the punishment of this crime by the civil law , and ours . . the punishment of it by the law of england . that there are witches , divines cannot doubt , since the word of god hath ordain'd that no witch shall live ; nor lawyers in scotland , seing our law ordains it to be punished with death . and though many lawyers in holland , and elsewhere , do think , that albeit there were witches under the law , yet there are none under the gospel ; the devils power having ceased , as to these , as well as in his giving responses by oracles . i. wierus , that great patron of witch-craft , endeavours to maintain his opinion by these arguments , . that such as are accused of witch-craft are ordinarily silly old women , whose age and sex disposeth them to melancholy , and whose melancholy disposeth them to a madnesse , which should render their confessions very suspect : and in this crime there are seldom other prooves ; whereas the things confest are so horrid , that it cannot be imagined any reasonable creature would commit them . . god can only work the miracle ascribed to witches ; he who is the author of nature being only able to alter or divert its course . and the devil doth but delude the fancy of poor creatures , as feavers and melancholy misrepresent objects : nor are such as are cheated in the one more guilty then they who are sick of the other . and it is severe to burn men and women for doing that which is concluded impossible to be done by them . . it is unjust to punish them for doing ill by charms , except it could be first proved that these charms produc'd the effects that are punishable ; and lawyers should argue thus , those who kill or hurt men or beasts by unlawful means , are punishable by death . but so it is , that witches and charmers kill men and beasts by unlawful means , and therfore charmers ought to be punished by death . off which syllogism wierus denyes the minor ; for it can never be proved that verses , crosses , or laying flesh in the threshold , &c. can destroy men or beasts , these being causes very disproportionable to such effects , there being no contract betwixt the agent and patient in these cases . . these who execute the will of god are not punishable , for that is their duty , and so cannot be their crime . but so it is , that whatever the devil or witches do , is decreed by god either for tryal or punishment expresly , and without his permission nothing can be done . and if the devil were not acting here by obedience , or were at liberty , he would not leave any one man undestroyed , or any of gods works undefaced . but that there are witches , and that they are punishable capitally , not only when they poyson or murder , but even for enchanting and deluding the world , is clear by an express text , exod. . vers. . thou shalt not suffer a witch to live : and it is observable , that the same word which expresses a witch here , is that which is used in exod. . to express those magicians who deluded only the people by transforming a rod into a serpent , as moses had done , though no person was prejudged by their cheat and illusion . likeas , lev. . and . it is ordained that a man or a woman that hath a familiar spirit , or that is a wizard , shall surely be put to death ; they shall stone them with stones ; their blood shall be upon them . which laws were in such observation amongst the jews , that the witch of endor , sam. . was afraid to use her sorcerie before the king , because the king had cut off those who had familiar spirits and wizards out of the land. and so great indignation did the eternal god bear to this sin , that he did destroy the ten tribes of israel because they were addicted to it . not were the jews only enemies to this vice , but even the henthens following the dictats of nature , punished witches as enemies to the author of it ; for the persians dashed their heads against stones , as minsing observes , ad § . item lex cornelia inst . de pub . jud . and tacitus lib. . annal. tells us , that publius marcius and pituanus were execute for this crime : for which likewise valerius maximus , lib. . eap . . tells us , that publicia and lucinia were with threescore and ten other romans hang'd . but since it is expresly condemned in scripture , and by many general councils , such as aurelian , toletan , and anaciritan , it should not be lawful for us to debate what the law hath expresly condemn'd , by the same reason , that we should deny witches , we must deny the truth of all history , ecclesiastick and secular : and plutarch , lib. . sumps . cap. . observes , quodammodo philosophiam tollunt qui rebus mirabilibus fidem non habent opportet autem qua ratione aliquid fiat , ratione tractare , quod vero id fiat , ex ratione est sumendum . it is sure that the devil having the power and will to prejudge men , cannot but be ready to execute all that is in witch-craft : and it is as credible that god would suffer men to be convinc'd by this means , that there are spirits , and that by thir means he would give continued proofs of his power in repressing the devil , and of the necessity that silly men have of depending upon his infinit power . to the former arguments it may be answered , that as to the first , all sins and vices are the effects of delusion ; nor are witches more deluded by melancholy , then murderers are by rage or revenge . and though it hath never been seen that persons naturally mad , have been either guilty of , or punished for this crime , the devil designing in this crime to gain only such as can damn themselves by giving a free consent . yet if madness could be proved , or did appear ; it would certainly defend both against the guilt and punishment : and therefore such a series of clear circumstances should concurr before a person be found guilty of this crime , as should be able to secure the pannel , and satisfie the judge fully in the quaerie . but since daily experience convinces the world that there may be such a crime , and that the law exacts either confession , or clear proofs , who can condemn the law as rigorous in this case , since without believing these there could be no justice administrat , and whilst judges shun'd to punish it in some cases , they behov'd to suffer it from the same arguments to go unpunished in all cases . to the second , it is answered , that though neither the devil nor witches can work miracles , yet the offering to cheat the world by a commerce with the devil , and the very believing that the devil is able to do such things for them , should be a sufficient crime ; but much more when they believe all those things to be done by themselves , they giving their own express consent to the crime , and concurring by all that in them is to the commission of it . likeas , it is undenyable that the devil knowing all the secrets of nature , may be applying actives to passives , that are unknown to us , produce real effects which seem impossible . to the third , though charms be not able to produce the effects that are punishable in witches , yet since these effects cannot be produced without the devil , and that he will not imploy himself at the desire of any who have not resigned themselves wholly to him , it is very just that the users of these should be punished , being guilty at least of apostasie and heresie . the fourth argument is but a meer and silly sophism , for though god in his providence permits at least all things that are done , to be done , yet such as contemn either the commands of him or his vicegerents ought to be punish'd . i cannot but acknowledge that there are some secrets in nature which would have been lookt upon in the first authors as the effects of magick : and i believe that in the duller nations a philosopher drawing iron with a loadstone might have run a great risque of being burnt ; and it is hard to give a judgement of naudeus learned book in favours of the persian magicians , the assyrian chaldeans , the indian gymnosophists , and the druids of the gauls ; for it cannot be denyed but that many true mathematicians and physicians have past for magicians in the duller ages of the world , but as to this , there is now no fear since learning hath sufficiently illuminat the world , so as to distinguish betwixt these two . but i am still jealous of those sages who were frequented by familiar spirits , though they were otherwise very excellent men , such as porphir . iamblicus , plotin . and others , who pretended by the purity of their lives to be so spiritual , as to deserve the friendship of spirits : for besides that the primitive fathers and doctors of the church have testified against such , as meer magicians . it is not intelligible how those spirits which frequented them could be good , since they were tempted to fall from the true religion to paganism , and did offer such sacrifices as the true god did never allow ; and if such impostures were allowed , it were easie for any to defend themselves , being truly witches . ii. albeit witch-craft be the greatest of crimes , since it includes in it the grossest of heresies , and blasphemies , and treasons against god , in preferring to the almighty his rebel and enemy , and in thinking the devil worthier of being served and reverenced , and is accompanied with murder , poysoning , bestiality , and other horrid crimes . yet i conclude only from this , that when witches are found guilty , they should be most severely punished , not with scourg●ng and ban●shment , as the custom of savoy was related to be by gothofred , hoc tit . but by the most ignominious of deaths . yet from the horridness of this crime , i do conclude , that of all crimes it requires the clearest relevancy , and most convincing probation . and i condemn next to the witches themselves , those cruel and too forward judges , who burn persons by thousands as guilty of this crime , to whom i shall recommend these considerations , . that it is not presumeable that any who hear of the kindness of god to men , and of the devils malice against them ; of the rewards of heaven , and torments of hell , would deliberatly enter into the service of that wicked spirit , whom they know to have no riches to bestow , nor power to help , except it be allowed by permission , that he may tempt men : and that he being a liar from the beginning , his promises deserves no belief , especially since in no mans experience he hath ever advantag'd any person : whereas on the contrary , his service hath brought all who entered in it to the stake . ii. those poor persons who are ordinarily accused of this crime , are poor ignorant creatures , and oft-times women who understand not the nature of what they are accused of ; and many mistake their own fears and apprehensions for witch-craft ; of which i shall give you two instances , one of a poor weaver , who after he had confess'd witch-craft , being asked how he saw the devil , he answered , like flies dancing about the candle . another of a vvom●n , who asked seriously , when she was accused , if a vvoman might be a vvitch and not know it ? and it is dangerous that these who are of all others the most simple , should be tryed for a crime , which of all others is most mysterious . iii. these poor creatures when they are defamed , become so confounded with fear , and the closse prison in which they are kept , and so starved for want of meat and sleep , ( either of which wants is enough to disorder the strongest reason ) that hardly wiser and more serious people then they would escape distraction : and when men are confounded with fear and apprehension , they will imagine things very ridiculous and absurd , and as no man would escape a profound melancholy upon such an occasion , and amidst such usages ; therefore i remit to physicians and others to consider what may be the effects of melancholy , which hath oft made men , who appeared otherwayes solid enough , imagine they were horses , or had lost their noses , &c. and since it may make men erre in things which are oblivious to their senses , what may be expected as to things which transcends the wisest mens reason . iv. most of these poor creatures are tortur'd by their keepers , who being perswaded they do god good service , think it their duty to vex and torment poor prisoners : and i know ex certissima scientia , that most of all that ever were taken , were tormented after this manner , and this usage was the ground of all their confession : and albeit the poor miscreants cannot prove this usage , the acters being the only witnesses , yet the judge should be afraid of it , as that which at first did elicit the confession , and for fear of which they dare not retract it . v. i went when i was a justice-depute to examine some women , who had confest judicially , and one of them , who was a silly creature , told me under secresie , that she had not confest because she was guilty , but being a poor creature , who wrought for her meat , and being defam'd for a witch she knew she would starve , for no person thereafter would either give her meat or lodging , and that all men would beat her , and hound dogs at her , and that therefore she desired to be out of the world ; whereupon she wept most bitterly , and upon her knees call'd god to witness to what she said . another told me that she was afraid the devil would challenge a right to her , after she was said to be his servant , and would haunt her , as the minister said when he was desiring her to confess ; and therefore she desired to die . and really ministers are oft-times indiscreet in their zeal , to have poor creatures to confess in this : and i recommend to judges that the wisest ministers should be sent to them , and those who are sent , should be cautious in this . vi. many of them confess things which all divines conclude impossible , as transmutation of their bodies into beasts , and money into stones , and their going through walls and closs doors , and a thousand other ridiculous things , which have no truth nor existence but in their fancy . vii . the accusers here are masters , or neighbours who had their children dead , and are engaged by grief to suspect these poor creatures . i knew one likewise burnt because the lady was jealous of her with her husband : and the crime is so odious that they are never assisted or defended by their relations . viii . the witnesses and assysers are afraid that if they escape that they will die for it , and therefore they take an unwarrantable latitude . and i have observed that scarce ever any who were accused before a countrey assize of neighbours , did escape that tryal . ix . commissions are granted ordinarily to gentlemen , and others in the countrey who are suspect upon this account : and who are not exactly enough acquaint with the nature of this crime , which is so debateable amongst the most learned : nor have the pannels any to plead for them , and to take notice who are led as witnesses ; so that many are admitted who are testes inhabiles , and suspect : and albeit their confessions are sent to , and advised by the council before such commissions be granted , yet the council cannot know how these confessions were emitted , nor all the circumstances which are necessary and cannot be known at a distance . very many of these poor silly women do reseal at the stake from the conf●ssions they emitted at the bar , and yet have died very penitent : and as it is presumeable that few will accuse themselves , or confesse against their own life , yet very many confess this crime . . the method i shall use in treating of this crime shall be , . upon what suspicion witches may be apprehended . . what judges are competent . . what ditty 's are relevant : . what probation is sufficient . . what is the ordinary punishment . as to the first , i know it is ordinary in scotland not only that magistrats do apprehend witches almost upon any dilation , but even gentlemen , and such as are masters of the ground , do likewise make them prisoners , and keep them so till they transmit them at their pleasure to justices of peace , magistrats , or to some open prisons . but all this procedor is most unwarrantable , for gentlemen , and such as are vested with no authority , should upon no account without a special warrand apprehend any upon suspicion that they are witches , since to apprehend is an act of jurisdiction ; and the●efore i think no prison should receive any as suspect of witch-craft , until they know that the person offered to them be apprehended by lawful authority . . since imprisonment is a punishment , and constantly attended with much infamy to the name , and detriment to the affairs of him who is imprisoned , especially in witch-craft : i do conclude that there must some presumption preceed all inquisition . for the meanest degrees of inquisition , though without captour , does somewhat defame . and that the person should not be apprehended except it appear by the event of the inquisition , that she lyes under either many or pregnant suspicions ; such as that she is defamed by other witches ; that she hath been her self of an evil fame ; that she hath been found charming , or that the ordinary instruments of charming be found in her house . and according to delrio's opinion , lib. . sect. . ad assumendas informationes , sufficiunt levia judicia , sed gravia requiruntur ad hoc ut citetur reus , & ut judex specialiter inquirat . iv. witch-craft was crimen utriusque fori , by the canon law : and with us the kirk-sessions use to inquire into it , in order to the scandal ; and to take the confession of the parties , to receive witnesses against them ; as is clear by the process of ianet barker and margaret lawder , decemb . . but since so much weight is laid upon the depositions there emitted , kirk-sessions should be very cautious in their procedors . by the act of parliament q. m. . parl. . act. all sheriffs , lords of regalities , and their deputes , and all other judges having power to execute the same , are ordained to execute that act against witch-craft ; which can import no more , but that they should concur to the punishment of the crime , by apprehending , or imprisoning the party suspect : but it doth not follow , that because they may concur , that therefore they are judges competent to the cognition of the crime ; since the relevancy in it is oft-times so intricat , and the procedor requires necessarily so much arbitrariness , and the punishment is so severe , that these considerations joyntly should appropriat the cognition thereof solely to the justice court. nor find i any instances wherein these inferior courts have tryed this crime . and albeit the council do oft-times grant commissions to countrey-men , yet that seems dangerous ; nor can i see why by express act of parliament it should have been appointed , that no commission should be granted for trying murder , and yet witch-craft should be so tryed by commissions . the justices ●hen are the proper judges in witch-craft . v. as to the relevancy in this crime , the first article useth to be paction to serve the devil , which is certainly relevant , per se , without any addition , as is to be seen in all the inditements , especially in that of margaret hutchison , august . . and by delrio , carpz . p. . quest . . and others ; but because the devil useth to appear in the similitude of a man , when he desireth these poor creatures to serve him ; therefore they should be interrogat , if they knew him to be the devil when they condescended to his service . paction with the devil is divided by lawyers , in expressum , & tacitum , an expresse and tacit paction . expresse paction is performed either by a formal promise given to the devil then present , or by presenting a supplication to him , or by giving the promise to a proxie or commissioner impowered by the devil for that effect , which is used by some who dare not see himself . the formula set down by delrio , is i deny god creator of heaven and earth , and i adhere to thee , and believe in thee . but by the journal books it appears , that the ordinary form o● expresse paction confest by our witness , is a simple promise to serve him . tacit paction is either when a person who hath made no expresse paction , useth the words or signs which sorcerers use , knowing them to be such , either by their books , or discourse ; and this is condemned as sorcery , can. . quest . . and is relevant to infer the crime of witch-craft , or to use these words and signs , though the user know them not to be such ; and this is no crime , if the ignorance be probable , and if the user be content to abstain , delrio , lib. . quest . . vi. renouncing of baptism is by delrio made an effect of paction , yet with us it is per se relevant , as was found in the former procels of margaret hutchison : and the solemnity confest by our witches , is the putting one hand to the crown of the head , and another to the sole of the foot , renouncing their baptism in that posture . delrio tells us , that the devil useth to baptize them of new , and to wipe off their brow the old baptism : and our witches confess alwayes the giving them new names , which are very ridiculous , as red-shanks , serjeant , &c. vii . the devils mark useth to be a great article with us , but it is not per se found relevant , except it be confest by them , that they got that mark with their own consent ; quo casu , it is equivalent to a paction . this mark is given them , as is alleadg'd , by a nip in any part of the body , and it is blew ; delrio calls it stigma , or character , lib. . quest . . and alleadges that it is sometimes like the impression of a hares foot , or the foot of a rat , or spider , l. . sect. . num . . some think that it is impossible there can be any mark which is insensible , and will not bleed ; for all things that live must have blood , and so this place behov'd both to be dead and alive at once , and behov'd to live without aliment ; for blood is the aliment of the body : but it is very easie to conceive that the devil may make a place insensible at a time , or may apply things that may squeez out the blood . this mark is discovered amongst us by a pricker , whose trade it is , and who learns it as other trades ; but this is a horrid cheat : for they alleadge that if the place bleed not , or if the person be not sensible , he or she is infallibly a witch . but as delrio confesses , it is very hard to know any such mark , à nevo , clavo , vel impertigine naturali , and there are many pieces of dead flesh which are insensible , even in living bodies : and a villain who used this trade with us , being in the year . apprehended for other villanies , did confess all this trade to be a meer cheat . viii . threatening to do mischief , if any evil follow immediatly , hath been too ordinarily found a relevant article to infer witch-craft with us . thus agnes finnie was pursued in anno . upon the general article of having witch'd several persons ; and particularly for these articles , . that william fairlie having nick-named and called her annie winnie , she sware in rage he should go halting home , and within . hours he took a palsie . . that beatrix nisbit refusing to pay the said agnes the annualrent of two dollors owing by hector nisbit her father , she told her she should repent it , and within an hour thereafter she lost her tongue , and the power of her right side . . that ianet greintoun having refused to carry away two herrings she had bought from the said agnes , and to pay for them , she told her it should be the last meat she should eat , and within a little after she fell sick : against which articles it was there alledged that this libell was not relevant , and could not go to the knowledge of an inquest : . because no means were condescended upon from which the witch-craft was inferred : and if this libell were relevant , it would be relevant to libell generally that the pannel were a witch . . assizers are only judges to the matter of fact , and not to what consists in jure . but so it is , that if this libel were to pass to the knowledge of an inquest , all the debate in jure behoved to be before the assize before whom the pannels procurators behoved to debate how far minae & damnum sequutum are relevant , and how far any person is punishable as a witch , though no charms or other means commonly used by witches be condescended upon ; and as to the threatnings , they were not relevant , seing they had not all the requisits which are exprest by the doctors as requisite , for they were not specifick , bearing the promise to do a particular ill , as that fairlie should take a palsie , or nisbit lose her tongue . . there was not a preceeding reason of enmity proved , nor is it probable that for so small a matter as a herring , or the annualrent of two dollors , she would have killed any person , and exposed her self to hazard ; nor was the effect immediat , nor such as could not have proceeded from any other natural cause , without all which had concur'd . delrio lib. . sect . is very clear , that minae etiam cum damno sequuto , are not so much as a presumption : but though all these did concur , it is very clear , both from delrio ibid. and farin . quest . . num . . that all these threatnings are not sufficient to infer the crime of witch-craft . lastly , it was offered to be proved , that some of these persons died of a natural disease , depending upon causes preceeding that threatning : notwithstanding of all which , the libell was found relevant , and she was burnt . but i think this decision very hard , and very contrary to the opinion of all received writers , who think , that albeit minae be adminiculatae with all the former advantages , & probatae de ea quae solet minas exequi , yet the same are only sufficient to infer an arbitrary punishment , not corporal , but pecuniary ; and certainly such a wicked custom as threatning , is in it self a crime : and thus it was only well found to be crimen in suo genere , in the process led against katherin oswald , novemb. . . ix . sometimes articles are libel'd , wherein the malefice hath no dependence at all upon the means used : and thus it was libel'd against margaret hutchison , august . . that iohn clarks wife being sick , she came to the bed side when all the doors and windows were fast , and comb'd her head several nights ; and the last of these nights she came to the bed side , and put her hand to the womans pape , whereupon the child died , which article was found relevant per se. and it was libel'd against ianet cock , september . . that a woman called spindie being at enmity with her , she gave her a cuff , whereupon spindie immediatly distracted ; and being reproved therefore by the minister of dalkeith , he immediatly distracted ; which article was likewise found relevant , being joyned with fame and dilation : which decisions are in my opinion very dangerous , for they want a sure foundation , and are precedents whereby judges may become very arbitrary . and against these i may oppone a third alledgiance used in the former process against agnes finnie , wherein it was alledged , that the conclusion of all criminal libels should be necessarily inferred from the deed subsumed , and that conclusio semper sequitur debiliorem partem : nam libellus est syllogismus apodicticus ; sed non probabilis ; and therefore except the libel could condescend upon some means used by the pannel , from which the malefice were necessarily infer'd , it could not be concluded that these malefices were done by her , or that she was guilty of the wrong done . thus bodin lib. . does conclude , that veneficae non sunt condemnandae licet sint deprehensae cum bufonibus , ossibus , aliisque instrumentis egredientes exovili licet oves immediate moriantur . and perkins cap. . asserts , that neither defamation nor threatnings , albeit what is threatned does follow , nor mala fama , nor the defuncts laying the blame of their death upon the person accused ( called inculpatio by the doctors ) can infer this crime , though all these be conjoyned ; for in his opinion , nothing can be a sufficient ground to condemn a witch , except the pannels own confession , or the depositions of two famous witnesses , deponing upon means used by the pannel . and it is remakable , that in the chapter immediatly subsequent to that wherein witches are ordinarily to be put to death , god hath expresly ordained , that out of the mouth of two or three witnesses every word shall be established . and in the process deduced against isobel young for witch-craft , feb. . . and against katherine oswald , novemb. . . this point is likewise debated , it being libel'd against the said katherine , that by her witch-craft she caused a cow give blood instead of milk ; and caused a woman fall and break a rib in her side . against which it was alledged , that there was no necessar connexion there , inter terminum à quo & ad quem inter causam & effectum : but on the contrary , the cowes giving blood for milk might proceed from another natural cause , viz. from lying upon an ant or emmot hill ; and therefore i think that because we know not what vertue may be in herbs , stones , or other things which may be applyed , it were very hard to find cures performed by the application of these , without the using charms , or spells , to be witch-craft : but when these outward applications are used , to do hurt ; as for instance , if the said margaret wallace , being at enmity with iohn clark , and after she was forbidden to frequent his house , did continue to frequent the same , and did throw in blood or any unusual thing upon his wifes pap : if the child who suck'd the same had thereafter died , i think this article , joyned with preceeding defamation of her by another witch , might have been found relevant , because she was there in re illicita . and since the law cannot know exactly what efficacy there is in natural causes , it may very well discharge any such superstitious forbidden acts , as it pleases , under the pain of witch-craft . nor can these who are accused , complain of severity , since sibi imputent , that use these forbidden things against the express commandment of the law ; and therefore since the law and practick hath forbidden all charms , it is most just that these who use the same should be severely punished , whatever the pretext be upon which they are used , or after whatever way or manner , or to whatever end , whether good or bad . x. albeit per leg . . cod. de mal . & math. these magick arts are only condemned , which tend to the destruction of mankind , but not these whereby men are cured , or the fruits of the ground preserved ; yet i have oft-times imputed this constitution to tribonian , who was a pagan , and a severe enemy to christians , or else that it behoved to be so interpret , or that thereby remedies , assisted by godly prayers , were allowed , else what mean these words , suffragia innocenter adhibita . but since i am informed from the ecclesiastick historians , as zozim . lib. . that constantine was not yet turn'd christian when he past that constitution ; but however this constitution is omitted in the basilicks : and the gloss sayes , that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , it was not thought fit to be mentioned , in the repurgation of the law : and that constitution was very well reprobat by leo's . novel . and by the canon law , tit . de sorti-legiis : and the general sanction of the former act of parliament leaves no place for this distinction . suitable to all which , iohn brough was convict for witch-craft , in anno . for curing beasts , by casting white stones in water , and sprinkling them therewith ; and for curing women , by washing their feet with south-running water , and putting odd money in the water . several other instances are to be seen in the processes led in anno . and the instance of drummond is very remarkable , who was burnt for performing many miraculous cures , albeit no malefice was ever proved . xi . consulting with witches is a relevant ditty with us , as was found against alison iollie , per. octob. . and this is founded upon the express words of the act. the professing likewise skill in necromancy , or any such craft , is by the foresaid act of parliament a relevant article . for the full clearing of which act , it is fit to know that divination was either per daemono-mantiam , the invocation of pagan gods , or nanganiam , which was the prophecying for invocation of some sublunary thing . mangania is divided in necromantiam , which was a prophecying by departed spirits , udromantiam , which was a divination by water , &c. all which species and kinds of divinations by any thing , is comprehended under the general prohibition of necromancy , and such like acts : so that predictions and responses by the sieve , and the shear , and by the book , and all such cheats and species of sorcery are punishable by death in this act : yet these forbidden practices may sometimes be excused by ignorance , or if it can be cleared by circumstances , that the user designed nothing but an innocent jest or recreation , delrio lib. . cap. . quaest . xii . the last article in criminal libels useth ordinarily to be the being delated by other witches , which the doctors calls diffamatio , and we common bruit and open fame , which are never sustained as relevant , per se , but only joyned with other relevant articles , as is to be seen in the foresaid process of margaret hutchison , though i think that interloquutor very severe , since if any of the former articles be per se relevant , they need not the assistance of fame and delation . sometimes likewise , but with much more reason , articles that are of themselves irrelevant are sustained relevant , being joyned with fame and delation ; an example whereof is to be seen in the th article of the inditement against ianet cock , septemb. . . in which article she was accused for having recovered a child by charms , with the help of another witch ; which other witch had confessed the same when she was confronted with the said ianet : likeas both of them were found lying above the child , whispering one to another , and the blood of a dog was found standing in a plate beside them ; which article was not sustained relevant per se , but was found relevant , being joyned with same and delation . xiii . the relevancy of this crime being thus discussed , the ordinary probation of it is , by confession or witnesses ; but the probation here should be very clear , and it should be certain that the person who emitted it is not weary of life , or opprest with melancholly . . albeit non requiritur hic ut constet de corpore delicti , this being a crime which consists oft-times in animo ; yet it ought to be such as contains nothing in it that is impossible or improbable . and thus albeit isobel ramsay did upon the . of august . confess that the devil gave her six pence , and said that god desi●ed him to give it her : and at another time a dollor , which turn'd thereafter in a slait-stone ; the justices did not find this confession , though judicial , relevant . and to know what things are of themselves impossible for the devil to do , or at least what is believed to be impossible , may be seen very fully treated of in delrio's second book , where it is condescended that succubi & incubi sunt possibiles , id est , that the devil may ly in the shape of a man with a woman , or in the shape of a woman with a man , having first formed to himself a body of condensed air ; and upon such a confession as this , margaret lawder and others were convict . it is likewise possible for the devil to transport witches to their publick conventions , from one place to another , which he may really do , by carrying them : and sundry witches were in anno . burnt in culross upon such a confession as this . xiv . it may be , i confess , argued , that spirits and immaterial substances cannot touch things material , and consequently can neither raise nor transport them : but if we consider how the adamant raises and transports the iron , and how the soul of man , which is a spirit , can raise or transport the body ; and that a mans voice , or a musical sound is able to occasion great and extraordinary motions in other men , we may easily conclude , that devils , who are spirits of far more energy , may produce effects surpassing very far our understanding . and yet i do not deny but that the devil does sometimes perswade the witches that they are carried to places where they never were , making those impressions upon their spirits , and acquainting them what was done there , which is done by impressing images upon their brain , and which images are carried to the exterior senses by the animal spirits , even as we see the air carries the species of colours upon it , though in a very insensible way : and thus we see likewise , that the sumes of wine or melancholy will represent strange apparitions , and make us think them real . nor ought it to be concluded that because those witches are only transported in spirit , or in dreams , that therefore they ought not to be punish'd , since none can be punished for dreaming ; and that because those witches desire to have these dreams , and glory in them when they are awake : nor have any these dreams but such as have entered into a preceeding paction . i know that the canon episcopi in the council of anacir , ( or the aquilean council , as others call it ) does condemn these transportations , as false and meer delusions , which are imprest upon the fancy of poor creatures by the devil , & cum solus spiritus haec patitur , nec non in animo sed in corpore inveniri opinantur , but that act of that council does not assert all transportations to be imaginary , and dreams , but only declares those who thought they follow'd diana and herodias to these publick meetings , to be altogether seduced , for these indeed were seduced ; for herodias being dead long since , could not be at their meetings . but from that it is unjustly concluded , that there are no real transportations , there being so many instances of these transportations given , both in sacred and prophane story ; and persons having been found wounded , and having really committed murders and other insolencies , during these transportations . xv. whether it be possible for a witch to cause any person be possest , by putting devils into their body , may be debated ; and that it is possible , appears from the history of simon magus , and many others , and is testified to be true by st. ierome , in the life of st. hilarion . and since witches have confest that there are devils who obey one another , and that there are different degrees amongst them ; why may not those of an inferiour degree be forced , by vertue of a paction with those of a superior order , to possess men and women at the desire of witches ? witches themselves have confest that this hath been done . and i find by a decision of the parliament of thelodus , that devils have been heard to complain in those that were possest , that they were put there by the inchantment of such and such women : but upon the other hand , it is not to be imagined that devils would obey mortal creatures , or that god would leave so great a power to any of them to torment poor mortals : and the devil , who is a liar from the beginning , is not to be believed , in saying that he is put there by inchantments ; and though he make such promises to witches , yet he does in these but cheat them : and if the devil could possess at pleasure , we would see many more possest then truly there are . xvi . the devil cannot make one solid body to penetrat another , quest. . and therefore i think that article libel'd against margaret hutchison , of coming to iohn clark's house , when doors and windows were shut , should not have been admitted to probation , since it is very probable they would have searched the house after the second or third nights fear ; and she could not penetrat doors nor walls . xvii . the devil cannot transform one species into another , as a woman into a cat , for else he behoved to annihilat some of the substance of the woman , or creat some more substance to the cat , the one being much more then the other ; and the devil can neither annihilat or creat , nor could he make the shapes return , nam non datur regressus à privatione ad habitum : but if we consider the strange tricks of juglers , and the strange apparitions that kercher and others relate from natural causes , we may believe that the devil may make a woman appear to be a beast , & è contra , by either abusing the sense of the beholders , or altering the medium , by inclosing them in the skin of the beast represented , or by inclosing them in a body of air , shap'd like that which he would have them represent , and the ordinary relation of the witnesses , being wounded when the beast was wounded , in which they were changed , may be likewise true , either by their being really wounded within the body of air in which they were inclosed , or by the devils inflicting that wound really himself , which is delrio's opinion . but it would seem hard to condemn any person upon the confession of what seems almost impossible in it self : and i cannot allow instances in the journal books , where poor creatures have been burnt upon such confessions , without other strong adminicles . xviii . the devil may make bruits to speak , or at least speak out of them , quest. . he can also raise storms in the air , and calm these that are raised , quest. . and yet it being libel'd against ianet cock , that she said to these who were carrying a witch to be execute , were it not a good sport if the devil should take her from you ; likeas a great storm did overtake them when they were carrying her to the place , it having been a great calm both before and after ; yet this article was not sustained relevant , since it might have proceeded from folly , or jest , or van● jactantia : xix . the devil may inflict diseases , which is an effect he may occasion applicando act va passivis , and by the same means he may likewise cure : a clear instance whereof appears in the marriage-knot . and not only may he cure diseases laid on by himself , as wierus observes , but even natural diseases , since he knows the natural causes and the origin of even these natural diseases , better then physicians can , who are not present when diseases are contracted , and who being younger then he , must h●ve less experience . and it is as untrue that divus thomas observes , who asserts that cures performed by the devil cannot continue , since his cures are not natural . and since he both may make sick , and may make whole , it follows that he may transferr a disease from one person to another . and i find that it being libell'd against margaret hutchison , that she took a disease off a woman to put it on a cat : it was alledged that this article was not relevant ; because , . una saga non potest esse ligans & solvens in eodem morbo . . that in such transactions as these , the devil never used to interpose his skill , except where he was a gainer ; and therefore though he would transfer a disease from a bruit beast to a rational creature , yet he would never transfer a disease from a rational c●eature to a bruit beast ; both these defences were repelled . many witches likewise confess that they cannot cure diseases , because they are laid on by witches of a superior order , who depend upon spirits of a higher degree . some think that they may innocently imploy a witch to take off the disease imposed by another , and lay it upon the witch who imposed it , even as men may innocently borrow money from an usurer , to be imployed for pious uses , or may cause an infidel swear by his false gods , for eliciting truth : and that in this manner devils are rather punish'd then serv'd . but since all commerce with devils is unlawful , this practice is justly reprobated by d , autun , p. . discourse . but yet it is thought lawful to all who are bewitched , to desire the bewitchers to take off the disease , if it can be removed without a new application to the devil , but only by taking away the old charm ; or it is lawful to any to remove the charm or sign of it , if it be in their power , d , autun . pag. . xx. witches may kill by their looks , which looks being full of venomous spirits , may infect the person upon whom they look , and this is called fascinatio physica , sed fascinatio vulgaris , quae dicitur fieri per oculos tenerorum puerorum vel parvorum porcorum vana est & ridicula , del. lib. . q. . sect. . i know there are who think all kinds of fascination by the eyes , either an effect of fancy in the person affected , or else think it a meer illusion of the devil , who perswades witches that he can bestow upon them the power of killing by looks , or else the devil really kills , and ascribes it falsly to their looks : whereas others contend that by the received opinion of all historians , men have been found to be injured by the looks of witches : and why may not witches poyson this way , as well as the basilisk doth ? or why may not the spirits in the eye affect as well as the breath ? or why may not looks kill as well as raise passions in the person lookt upon ? nor can it be denyed but that blear'dness is begot by blear'dness ; and that menstruous women will spoyl a mirrour by looking upon it . likeas there seems even some ground for it in scripture ; for , deut. . . it is said , that a mans eyes shall be evil towards his brother . and some likewise endeavour by consequence from matth. . . is thine eye evil : the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifying in scripture both to bewitch and to envy . some likewise think that st. paul gal. . . alludes to this received opinion , but conjecture doth so much over-rule all this affair , that it were hard to fix crimes upon so slender grounds : and therefore though where witches confess that they did kill by their looks , their confession and belief may , if they be otherwise of a sound judgement , make a very considerable part of a crime , where it is joyned with other probabilities , yet per se it is hardly relevant . xxi . it may be also doubted whether witches can by amorous potions inchant men or women to love : and though it may seem that these being acts of the soul , cannot be raised by any corporeal means , yet l. . c. de malef. & mathemat . makes this possible , and punishable , eorum scientia punienda , & severissimis merito legibus vindicanda , qui magicis accincti artibus pudicos ad libidinem de fixisse animos deteguntur : but this law speaks only of lust , and not of love , as i conceive . nor can it be denyed , but that not only witches , but even naturalists may give potions that may incline men or women to lust . and therefore the question still remains , whether witches may incline men or women by potions to a fancy and kindness for any particular person ; and though potions may incline men to madness , yet it doth not follow that therefore they may incline them to love . and though d , autun doth bring many arguments from history , and pretends that the devil may raise and excite the old species of love which ly hidden in the body , and may thereby form a passion , yet these are too conjectural grounds to be the foundation of a criminal sentence . the basilicks make the punishment of this to be deportation , and so supplies the former law. xxii . witches do likewise torment mankind , by making images of clay or wax , and when the witches prick or punse these images , the persons whom these images represent , do find extream torment , which doth not proceed from any influence these images have upon the body tormented , but the devil doth by natural means raise these torments in the person tormented at the same very time that the witches do prick or punse , or hold to the fire these images of clay or wax ; which manner of torment was lately confess'd by some witches in inverness , who likewise produced the images , and it was well known they hated the person who was tormented , and upon a confession so adminiculat , witches may very judiciously be be found guilty , since constat de corpore delicti de modo de linquendi & inimicitiis praeviis . xxiii . it is ordinarily doubted whether confessions emitted before the kirk sessions in this case be sufficient : but this i have treated more fully in the title of probation by confession . only here i shall observe , that christian stewart was found art and part of the bewitching patrick ruthven , by laying on him a heavy sickness with a black clout , which she her self had confest before several ministers , nottars , and others , at diverse times ; all which confessions were proved : and upon these repeated confessions she was burnt , novemb. . margaret lawder was convict upon confession emitted before the magistrats and ministers of edinburgh , albeit past from in judgement , decemb. . . see that book of adjournal , pag. . and if the confession be not fully adminiculat , lawyers advise that confessors should be subjec●●d to the torture , which is not usual in scotland . and it is very observable that the justices would not put iames welch to the knowledge of an inquest , though he had confest himself a witch before the presbytery of kirkcudbright , because he was minor when he confest the crime , and the confession was only extrajudicial , and that he now retracted the same ; but because he had so grossely prevaricat , and had delated so many honest persons , they ordained him to be scourged and put in the correction house , april . . it was proved against margaret wallace , march . . that she said that if it could be proved that she was in gregs house , she should be guilty of all the ditty ; and therefore it being proved that she was in gregs house , that probation was alledged by the advocat to be equivalent to a confession , as was found against patrick cheyn : to which it was replyed , that this could amount to no more then a lie ; and in my opinion , it could not have even the strength of an extrajudicial confession , but rather imported a denyal of the crime . xxiv . the probation by witness in this crime is very difficult , and therefore socii criminis , or other confessing witches are adduced ; but though many of them concur , their depositions solely are not esteemed as sufficient , ne vel ad poenam extraordinariam imponendam , though some think the same sufficient to that end , because of that general brocard , ex multiplicatis indiciis debilibus resultare indicia indubitata : but delrio asserts , that the conjection of such testimonies is not sufficient , nanquam enim , saith he , quae sua natura dubia sunt possunt facere rem indubitatam ut nec multa aegraunumsanum nec multa non alba unus album nec multa tepida anum callidum . and that the testimony of one confessing witch was found not sufficient to file the pannel , is clear by the process of alison iollie , who was assoilzied pen. octob. . albeit ianet hepburn another witch confest that the said alison had caused her bewitch isobel hepburn , whereof she died ; but though vvitch-craft cannot be proved per socios criminis , though dying and penitent vvitches , yet it may be doubted if the consulting vvitches may not be proved by two vvitches who were consulted : for if this be not a sufficient probation , it would be impossible to prove consulting any other manner of way . the persons to whom the injuries are done by the vvitches are admitted to be vvitnesses : thus katherine wardlaw was admitted against margaret hutchison ; but sometimes they are only admitted cum nota , if the probation be not otherwise weak , and thus william young and agnes hutchison were only admitted cum nota against beatrix leslie , august . and in that process likewise they received only agnes ross cum nota , because she was the mistriss of the two vvomen who were maleficiat . neilson was admitted to be an assizer against margaret wallace , though he was brother in law to iohn nicol , who had given information for raising the ditty , because the ditty was not at nicols instance ; and yet starling was set from being an assizer , because moor who was alledged to be one of the persons maleficiat was his brother in law. march . . dickson was there likewise admitted to be an assizer , though he assisted the bailie in taking her , which was found the office of a good citizen , and though he had deadly fead against her husband , since it was not proved he had any against her self . women are received witnesses in this crime , as is clear by the process against margaret wallace , and all the processes in august . the not shedding of tears hath been used as a mark and presumption of witch-craft , sprenger . mal . malef . p. . q. . because it is a mark of impenitence ; and because several witches have confest they could not weep : but the being accused of so horrid a crime may occasion a deep melancholly ; and melancholy being cold and dry , hinders the sheding of tears : and great griefs do rather astonish then make one weep . xxv . the punishment of this crime is with us death by the foresaid act of parliament , to be execute as well against the user as the seeker of any response or consultation , & de practica , the doom bears , to be worried at the stake , and burnt . by the civil law , consulters were punished by death , l. . c. de mafef . & mathem . nemo aruspicem consulat , aut mathematicum nemo ariolum , angurum et vatum prava confessio nonticescat sileat omnibus rer petuo , divinandi curiositas . in which law , fortune tellers are also punishable : though with us , dumbe persons who pretend to foretel future events , are never punished capitally , but yet i have seen them tortured , by order from the council , upon a representation that they were not truly dumb , but ( feigning themselves to be so ) abused , and cheated the people . the forsaid law is renewed in the basilicks l. h. t. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . but farin . and others thinks , that where no person is injured , death should not be inflicted ; and tha● imprisonment and banishment is now practised by all nations in that case , lib. . tom. . quest . num. . & clarus . § . heresis num . ult . but perezeus thinks this too favourable a punishment except the users of these curious arts were induced thereto , out of meer simplicity , & sine dolo malo ; but with us no such distinction can be allowed by the justices , who must find all libels relevant , which bear consulting with witches , and that ditty being proved , they must condemn the pannel to die ; albeit i think the councel may alter the punishment , if it be clear that the user of these acts had no wicked designe nor intercourse with the divel therein . xxvi . by the law of england witch-craft was of old punished sometimes by death , and sometimes by exile ; but . iac. this following statute was made , which i here set down , because it is very special . if any person or persons shall use , practise , or exercise invocation or conjuration of any evil and wicked spirit , or shall consult , covenant with , entertain , employ , feed or reward , any evil or wicked spirit ; to , or for , any intent or purpose , or take up any dead man , woman , or child , out of his , her , or their grave , or any other place where the dead body resteth , or the skin , bone , or any part of a dead person , to be imployed or used in any manner of witch-craft , sorcery , charme , or inchantment ; or shall use , practise , or exercise any witch-craft , inchantment , charm or sorcery , whereby any person shall be killed , destroyed , wasted , consumed , pined , or lamed , in his , or her body , or any part thereof : that then every such offender or offenders , their aiders , abbetters , and counsellors , being of any the said offence , duely and lawfully convicted : and attainted , shall suffer pains of death , as a fellon , or fellons , and shall lose the priviledge , and benefit of clergie ; and san●tuary . if any person , or persons , take upon him or them , by witchcraft , inchantment , charm , or sorcery , to tell or declare , in what place any treasure of gold , or silver , should or might be found , or had in the earth , or other secret places : or where goods or other things lost , or stoln , are become : or whereby any cattell or goods of any person , shall be destroyed , or to hurt or destroy any person in his , or her body , albeit the same be not effected or done ; being therefore lawfully convicted , shall for the said offence suffer imprisonment by the space of a whole year , without baile or mainprise . once every quarter of the year these mountebanks are to mount the pillory , and to stand thereupon in some mercat toun six hours , and there to confesse his or her errour , and offence . title xi . murder . . the etymologie of murder . . self defence defined , and whether it be punishable . . how moderation in self defence is said to be exceeded . . how self defence must be proponed . . how it ought to be proved . . what is casual homicide . . whether he who was doing what was unlawful , may defend himself as only guilty of casual homicide . . whether he who is only guilty of casual homicide may be fined . . what is homicidium culposum , or faulty homicide . . what wound is to be judged mortal . . how the designe of murdering or forethought fellony , is to be cleard . . homicidium in rixa when many are conjunct actors , how punishable . . the killing of thieves , or such as resist authority ; how punishable . . whether it be lawful for a father to kill his own daughter , if he find her comitting adultery . . assasination , how punished . . murder under trust , how punished . . what is art and part of murder . . how such as kill in the execution of law , are punishable . . whether it be lawfull to kill a rebel . . the life-rent escheat of murderers falls in some cases . . murder is one of the pleys of the crown . . how sheriffs and other iudges ought to prosecute murderers . . whether remissions can be granted in case of murder . god almighty did to the honour of impressing man with his own image , add as a second obligation , a natural horror in every man to be in any accession to the defaceing it ; so that he has consulted his own glory , and our security , joyntly in these severe laws which he has made against murder . and his divine finger is not seen so apparently , in any discovery , as in that of murder : and it is very remarkable , that these barbarians , who saw the viper fasten upon pauls hand , did instantly conclude him guilty of murder , because he was ( to their apprehension ) so miraculously punished . i. murder comes from the dutch word moorde , which signifies , caedem ex jusidiis vel proditorie factam . math. h. t. and murder is properly different from slaughter , the one being committed per seloniam , the other per infortunium , leg. malc . c. . and therefore when our law forbids killing under trust , ia. . pa. . ch . . it calls it murder under trust . but when it speaks of killing by accident , or in self-defence , it calls it slaughter , or homicide . c. . par. . k. ch. . ses. . and by this it seems that this crime is better writ murder then murther , though murther be the ordinar way of writing it , especially in our old law. the civilians define murder to be the killing man by man unlawfully . and they divide it into that which is committed casually , in defence , culpable , or wilfully . ii. necessarium homicidium , or homicid committed in self-defence is when a man being pursued or reduced to inevitable necessity , has no way left him to evit his own death , but by killing the aggressor : this is in law called inculpata tutela , or moderamen in culpatae tutelae within which moderation , if the defender contain himself , he is no way punishable , but if he exceed the same , yet so favourable is self-defence , that the exceeder is not lyable to the ordinar punishment , but is ordinarly punishable according to the excess , at the discretion of the judge . with us likewise self-defence is only punishable at the arbitrement or discretion of the judge by the . act . sess. . pa. . k. ch. . but seeing that act ordains it to be punisht at his discretion , it may be doubted if in all cases self-defence be not some way punishable . and i remember that captain barclay being assoylzied in decemb. . because the assyse found that the killing sinclar was in his own defence , the pursuers were to petition the council ( which is the ordinar way of taxing arbitrary punishment in this case ) that he might be fined . and very learned lawyers , were of opinion , that self-defence was in all cases punishable , though attended with the most favourable circumstances of innocency ; from whom i differed upon these reasons , . by the civil law and the opinion of the doctors , if the defender contain himself exactly within that moderation , he is no way punishable , as is clear by farin . part . . quest . . part . . . self-defence is a duty , and so not punishable ; for it were against reason that the law should punish what it doth comcommand . . the law sayes that omni culpa caret qui se desendit , and in our law it is called murthrum justum . leg . malcol . c. . and so to punish him who necessarily defends himself , were to inflict a punishment where the law acknowledged there were no guilt . . it should be in the power of every malicious rascal to wrong the most innocent , for either he behov'd to suffer himself to be killed , or to be punished by defending his own life : and by the said act , it is only declard leisum to punish , but not necessary . and yet by the law of england , murderers se defendendo for fault their movables , and both in that and in murder , upon misadventure ( for so they call casual homicide ) the murtherer must have a pardon , statute . e. . cap. . so great a regard , sayes bolton , the law hath to the life of a man , cap. . num . . and by the law of savoy he who kills , though in self-defence , needs a pardon , but the prince in that case cannot refuse to grant a pardon . and therefore their lawyers call that pardon gratia justitiae , cod. fabr . lib. . tit . . but with us , no pardon is requisite , albeit it is most ordinar to take remissions in such cases , bearing self-defence in their narrative . iii. this moderation is said to be exceeded in these three , viz. in armes , . in time . . in the measure of following , striking , &c. this moderation is exceeded in armes as if the aggressor have only a staff , and the defender wound him with a sword or pistol ; the defender is in that case punishable , for there we●e no reason in that case the defender should have had any fe●r of his life , nec erat in dubio vitae constitutus . and yet this conclusion is not infallible , for if the defender was much weaker then the aggressor , he might be excused to use such unequal weapons . the defender is said to exceed in time , if he strike the aggressor , ante quam sit in actu proximo occidendi , for else it should be lawful to every man , upon the first apprehension of fear , to kill the aggressor , which were very dangerous : and here it may be doubted , if when any aggressor threatens to kill , if the defender who knows not when the threat may be put in execution , may immediatly kill . there are probable reasons to be urged for either opinion : and albeit the punishment should in this case depend upon the arbitrement of the judge , yet if the aggressor be known to have any designe to murder , or be a person who uses to execute what he threatens , and if he have a sword , though not drawn , or a pistol , though not cockt : ( for if he have either of these , there is no doubt but he may be lawfully killed , because he is in actu proximo offendendi , and no man should wait till he be killed ) i think that though the aggressor be killed , yet the defender hath the benefit of self-defence ; and albeit he may be arbitrarily punisht , yet he cannot be punisht with death : and many lawyers are of opinion , that he who threatens to kill , may be killed , which opinion they found upon these reasons , . because the law looks upon that which is unlawful , as done , if it was intended to be done , and that in odium of him who designes what is unlawful . ● . there is greater fear from some threats , then from wounds ; and therefore , seeing it is lawful to kill these who assault us with wounding , why not , and him who threatens ? d. per. l. . c. quando licet cuique , &c. mortem inquit imperator quam minabatur accipiet & id quod intendebat incurrat , nor can the friends of the threatner complain , seing the aggressor was in effect author of his own death , and it is clear that the defender had no design to kill . yet the justices would not sustain , minae per se , to be a sufficient qualification of self-defence , but sustain'd it joyntly with the aggressors fyring a pistol , though it mis-gave , and though the defender might have fled , ianuary . sinclar contra barclay . and albeit by the canon law , insultatus debet fugere . and that by the law of england , he who is invaded , is oblieged to flee as far as he can , as to a wall or ditch , bolt . cap. . num . . yet by the opinion of the civilians , a person invaded is not oblieged to flee far , farin . quest . . p. . it may be probable , that if the defender was alone in a house , or place with the aggressor , and could expect no help , that upon threatning or other probable designes laid against his life , he may kill the aggressor ; and from which may be deduced , that the actus proximus which lawyers speak of , must not be interpret , only the having a sword drawn ; for if a stronger man have a weaker in a lockt house , and threaten , he may kill him , though asleep , if he cannot otherwayes escape . the defender is said to exceed in the measure ; also if he killed him for wounding , whom he might have shun'd : or if he followed the aggressor , which though it be not fully lawful , yet fugientem persequens dumodo in ipso actu non punitur paena ordinaria licet occiderit , boer . decis . . novemb . and albeit much be left to the arbitration of the judge , as to all the three , arma tempus & modus : yet the general rule is , that if the defender exceed only in either of the three , as , v. g. in the armes , or time , the excess is said to be culpa levissima , and no way punishable : if in two of these , as in time and arms , then it is accounted culpa levis , and is somewhat ●●nishable : but if the defender exceed in all the three , as in time , arms , way of prosecution , then it is culpa lata , but yet he is not punishable , as if he had dolose murdered , for though it be a rule in civilibus that culpa lata equiparatur dolo : yet it is a rule in criminalibus that culpa lata numquam equiparatur dolo ubi agitur de paena corporis afflictiva far. quest . . part . it i● also controverted amongst lawyers , if seing honour is as dear as life , it be lawful to kill him who asperses our honour , as it is lawful to kill him who assaults our life . and albeit farinacius be of the judgement , that he who is thus provockt , being a person of far more eminent condition , then the injurer killing him is not to be punisht as a murderer , sed pena extraordinaria licet injuria sit verbalis ; yet in my judgement he errs in that position ; for in effect , that is not self-defence ( because the verbal injury cannot be retreated , nor retain'd ) but it is revenge : yet dolor justus aliquando operatur ut paena ordinaria temperetur , boer . decis . but yet that is not allow'd in killing , and such other injuries , quae non possunt revocari , gothofr . prax . crim . § . homicida , n. . and albeit this hold in verbal injuries offer'd to our honomr , ubi nescit vox missa reverti : yet if the injury offer'd to our honour be real , and such as may be stopt , as by commanding an eminent person to loose down his breeches to be whipt , or do any most ignominously servile act to the aggressor , in that caise , i should think that the killer should not be capitally punisht , albeit he was in no hazard of his life . i likewise think that the fear of imprisonment by the defender , may excuse from capital punishment , seing liberty is as dear as life ; and no man can be secure of his life , if he be unjustly imprisoned , & sibi imputet aggressor qui occasionem praebuit . it is likewise lawful to kill such as would murder our friend , or fellow-traveller , which is accounted lawful , though not self-defence , which is extended also to the defence of all others , because we should love our neighbour as our selves . and it is lawful to kill a thief , who in the night offers to break our houses , or steal our goods , even though he defend not himself , because we know not but he designs against our life : and murder may be easily committed upon us in the night : but it is not lawful to kill a thief who steals in the day time , except he resist us when we offer to take him , and present him to justice . iv. this exception of self-defence , must be propon'd against the revelancy , and must be condescended upon , thus the pannal no ways acknowledging the killing ; yet if he killed , it was done in his own defence , in swa far as the defunct drew a sword , and thrust , or offer'd a pistol , &c. and the justices will not allow that it should be propon'd to the assize , as i have oft heard this press'd , but very unreasonably ; for this concerns the relevancy , to which the justices , and not the assizers are only judges competent : and it were very dangerous to refer to ignorant assizers , matters of such importance , and which are oft so intricat in iure . and whereas it may be urg'd , that art and part is referred to the assize , and is not condescended upon , and made relevant . it is answered , that the accuser cannot know the accession of the pannel , till the witnesses first condescend upon it : but the pannel cannot but know all the circumstances of his own self-defence , and is not to learn that from others : but yet though the proponer of a defence , do's in civilibus acknowledge eo ipso the lybel : yet in criminalibus , though the defender , or pannel prove not his exception of self-defence , he will not be condemned , except the pursuer prove the lybel . v. the way of proving this self-defence , was by raising a precept of exculpation , but is now only by a summonds , which expresses not so particularly the defence in all its circumstances , but that it may be hereafter help'd , which it seems is unjust , for the pannel should know what himself did : nor should a judge grant a precept for exculpation , till he see that there be some ground for craving it . this exception of self-defence is so favourable , that it may be prov'd by presumtions , by witnesses , otherways declinable , as cousens , servants , and witnesses who depone only upon credulity ; and the defence it self being once prov'd , it is presumed that it was done necessarily , and lawfully , & potius ad defensionem quam ad vindictam far. quest . part . § . . and yet our law allows no witnesses to be receiv'd in defence , but such as it allows pursuits and witnesses led in defence , are more to be suspected ; for men are naturally enclined to go all lengths in bringing off the pannel ; and for this cause it is , that we have assizes of error against such as absolve a pannel : but none against those who condemn him . before this act of parliament , self-defence was still sustain'd by the justices , to elide the lybel of murder , but it was oft ineffectual , seing there were no precepts of exculpation then us'd ; and consequently , except either the pannel could have prov'd the inculpata tutela by the accusers own witnesses , who were led to prove the murder ( which was not secure , seing these who saw the beginning of the scuffle , and first aggression , might have been absent when the aggressor was killed ) or that the witnesses would have voluntarly appeared ( which was a probable reason to set them , they being eo casu testes ultronii ) the defence could not have been proved . whether self-defence will defend , or is lawful in paricid . see more of this title exculpation . vi homicidium casuale , is when a man is kill'd casually , without either the fault , or design of the killer , as if an axe head should fall off , and kill a by stander : or a rider should kill with his horses feet : in which case our law appoints , that if the prejudice be done by the horses formest feet , then the ryder shall be forc'd to satisfy for the prejudice done : and these satisfactions are called croo or galnes ; but where it is there said , that he shall give croo or galnes , as if he had killed him himself ; it is to be interpret , not as if the rider should be punishable in that case , as if he had killed him with his own hand : but that the assythment shall be the same . but the rider is not lyable at all for what prejudice is done by the horses hinder feet , lib. . reg. maj. c. . casual slaughter , or homicide , then is that which is occasioned by mistake and just ignorance , for if it proceed from affected ignorance ; as for instance , if a man will not know what he may know , his ignorance in that case will not make the murder following upon it , to be constructed casual homicide ; but if it proceed from gross and supina ignorantia : it may be punishable by an extraordinary , or arbitrary punishment , but not by death . and since such ignorance is a fault , the murder occasioned by it becomes culposum , or faulty homicide ; as seems to me clear by c. continebatur &c. lator de homicid . it is then necessary , that the committer us'd all exact diligence to evite the crime , else he is not in the case of casual homicide . further instances whereof , are , if a mason before he throw down stones , advertise all below , though in throwing he kill , he is to be cleared as innocent . or if a hunter shoot at a beast , but a man come in the way and be killed : and yet if either the mason cry not , or if the hunter did shoot in a place where people use to be , he is guilty of faulty murder , in these cases which shews clearly the difference betwixt these two kinds of murder . vii . if the killer be imployed about a thing unlawful , either in it self , or unlawful to the actor , the murder ensuing is thought still casual murder , since murder was not design'd , if the committer did exact dilligence to shun all murder ; as for instance , to cary guns is unlawful with us : and to hunt is unlawful to priests by the canon law. if then a man having a gun illegally , should lay it up securely : or a church-man should kill a man , whilst he did shoot at a beast in a remote place ; these acts would not infer murder , because there was no act done there , with relation to murder , covar . ad clement . si furiosus , and yet the committer , versatur in actu illicito . but yet others are of opinion , that if the committer be doing what is unlawful for him , he commits murder , tho. aquix . quest . . act : because he do's not at all that he ought to do in that case , to evite murder , since what he do's is unlawful : but i think they may be thus reconciled , viz. if the committer do what is against the law of nature : or what is criminal , he should be lyable : or if what he do's , may probably produce ill consequences , and murder , though he design'd not the same : in all which cases he ought to be lyable . and it seems to me reasonable , that he who killed , when he was doing what was unlawful , may be arbitrarly punished , though he did exact diligence to shun killing . viii when homicide is casually committed , some think that because there is no design to kill , therefore the killer ought no way to be punisht . others think him lyable to an arbitrary punishment , or fine , & quod wergeldum solvere tenetur . we semb . parat . ad l. corn. de sicar . num . . a third sect of lawyers distinguish so , that if there proceeded no fault in the committer , then he is lyable in no fine , or to no punishment : but that he is , if any fault of his preceeded . but it seems that if any fault preceeded , the murder is not casual , but is culposum ; and so the distinction meets not the state of the question : and it seems to me . that by lib. . s. . ff . ad l. cor. de sicar . all casual homicide deserves some punishment . and since some lawyers think , that murder in self-defence excuses not from all punishment : much less ought casual murder , since self-defence wants not only a design to kill , but is a duty in it self . ix . homicidium culposum : or faulty slaughter , is where the murder was not design'd ; and yet it was committed meerly by accident , as if one should hound a dog at another , who should bite him at whom he was hounded , so that he should by thereby ; or if one should strike with a batton , when he had a sword ; in these and the like cases , the offender is to be punished arbitrarly : but because aberat animus occidendi , this is not properly murder , and so is not punishable by death ; but is punished according to the quality of these circumstances , which attend the fact. for clearing this difficulty , the doctors say , that either the killer is guilty only of culpa levis , aut levissima , and in that case he is no way punishable ; nor is there any difference , inter homicidium casuale & homicidium per culpam levem aut levissimam commissum , and this was found in the case of nicolson , who being pursued for murder , it was alledged that it was but homicidium casuale , or culposum , for in strugling , his gun being a half-bend , went off ; nor knew he ever the defunct , and so could have no malice against him . to which it was replyed , that the carying of guns is forbid by the law ; and he the defunct was in actu illicito : nor should he have carri'd a gun which used to go off , & versans in actu illicito nunquam excusatur : which reply the justices repelled , iune . . for they thought that the law against wearing guns , was in desuetude as to fowlers , whose trade it was , & omni culpa caret qui facit id quod omnes facere solent sed si sit lata culpa , it is to be punished arbitrarly , but not by death , nam lata culpa nunquam equiparatur dolo ubi agitur de paena corporis afflictivae . x. since the design of killing depends much upon the nature of the wound given , lawyers conclude , that whe●e the wound was not deadly , or vulnus lethale , as they call it , the infli●ter of the wound cannot be punished , though the party wounded thereafter died . and though some lawyers be of opinion , that if the party live three dayes after the receiving of the wound ; the wound is thereby presumed not to be mortal , accurs . in l. . c. de emendat serv. yet generally this is referred to the arbitrement of the judge ; who is in this to follow the opinion of physicians , or of one physician , if more were not present : but if they vary , then the judge should encline to punish , not by death , but by an extraordinary punishment : for murder is not to be inferred , but from a concluding probation , gail . observ . . lib. . and if the wound be but small , and a fever follow , then it is presumed that the party dyed rather of a fever , then of the wound ; especially if the person wounded walked a foot for fourty days , gomes var. resol . lib. . cap. . and yet in december . m r. william somervel was found guilty of the murder of bessy rentoun , though it was alledged that the said bailzie got only a wound with a batton , that she never took hed , but travelled five miles that night a foot , and served as an ordinary servant eight moneths thereafter , till she died of a fever ; with which her brother infected her : all which was repelled , because this alledgance was contrair to the libel : wherein it was expresly lybelled , that the wounds were mortal ; and though , where the wounds are not lybelled expresly to be mortal , such a defence might be admitted . and the judge ought to consider intervallum temporis , or supervenientia febris ; yet these , nor no presumptions ought to be received , where the wounds were offered to be proved to be lethal : but this decision was so ill liked , that the council recomended m r. william to his majesty , who granted him a remission . and since judges may be so arbitrary in so great a concern , i should wish that the various periods of nature , in its cures , and the various determinations of judges , were , as to the criminal procedor , fixed to some certain time . and that therefore , seing ordinarly wounds that are mortal , do kill the receiver in fourty days ; i wish that it were therefore generally concluded , that he who dies thereafter , dies not of his wounds , if he has walked a-foot till that time , vid. zack . quest. medicolegal : but by the law of england , if the person wounded die within year and day after his wound , it is presumed he died of his wounds , cook p. . there was another decision upon this subject , the . of iuly . iames mason being pursued for killing ralstoun , alledged that he could not be guilty of murder , since ralstoun followed him all that day from house to house , and having at last put violent hands in the pannel , he was forced to throw him off him , and his head fell upon a stool and bled ; which wound he took no pains to cure , but stayed in the streets in the night time : and though the wound was found not to be mortal by the chirurgians , yet by cold and drinking , he killed himself , ex malo regimine ; and when it was replyed , that this could not amount to self-defence , since the killer was not in periculo vitae constitutus : it was duplyed , that the violence done , was proportionable to the violence offered by the aggressor , and so exceeded not moderamen inculpatae tutelae ; for the said pannel struck not him with any mortal weapon , but only gave him a thrust with his hand , which was necessary to throw the defunct off him . upon which debate , the justices sustain'd the libel , only to infer paenam extraordinariam ; and remitted also the pannels defences of casual homicide , self-defence , and that the wound was not mortal , to the knowledge of the inquest . xi . it is here controverted , whether he who intended to kill one , by a mistake killed not him , but another , be punishable as a murderer ; seing as to the person killed , the murderer had no design : yet i think he should die , seing the design of killing a man , and not any one particular man , is murder ; and the killer intended to deface god almighties image : and to take from the king a subject . and i find that this is determined to be murder by bolton , cap. . num . . by whom likewise it is given as a rule , nihil interest utrum quis occidat an acausam mortis prabeat . and thus a son for having caryed his father ( being sick ) in a frosty night , from one town to another , was executed as a murderer , because the father died . and a harlot having exposed her child in an orchard , where a kite killed it , was execute as a murderer , also & ibi volunt as reputatur pro facto ; and if this were not murder , this crime might be palliated under other shapes . this defence , viz. that the killer had no design to murder , is a negative , and so can only be proved by presumptions , as if there was no deadly fead formerly amongst the parties . . if the parties were kins-men or intimats . . if the killer struck with a staff , having a sword or pistol , or having these struck only with the hilts of his sword , or with the head of his pistol : and generally it is rather presumed to be homicidium culposom , then dolosum & premeditatum nam nunquam praesumitur dolus . by our law , slaughter and murder did of old differ , as homicidium simplex & premeditatum , in the civil law ; and murder only committed , as we call it , upon fore-thought fellony , was only properly called murder , and punished as such , k. ia. par. . cap. . where it is statute , that murder is to be capitally punished : but chaudmella , or slaughter committed upon suddenly , shall only be punishable according to the old laws , vid. acts . . par. . ia. . & . par. i. & . par. . ia. . & act . par. . q m. the old laws to which these acts relate , are statute , william c. . stat. allexander c. . stat. rob. . c. . in which it is declared , that mu●derers who are guilty of fore-thought fellony , shall not have the priviledge and advantage of refuge in the girth● : but that such as are guilty of chaudmella , or casual slaughter , shall be sheltered in the girth . yet i find that none of these are in any other old statute , to determine punishment of casual slaughter , but that it was not punishable as murder ; is clear by the opposition . and in all our laws , betwixt single slaughter , and fore-thought-fellony : all casual slaughter was of old comprehended under the word chaudmella , which is a french word : chaud signifying hot , and mesler signifying to mix . but in effect , this melletum answers properly to rixa & homicidium , in rixa commissum , which is but one species , homicidii non dolosi . xii . by the late . act parl. . ch. . sess. . it is statute , that casual homicide , homicide committed in self-defence , and homicide committed upon thieves , shall not be punished by death . and seing this act mentions not homicide , committed in rixa , or homicidum culposum : and seing homicidium culposum differs from casual homicide ; it may be doubted , if under the one , the other may be comprehended : and it may be urged , that casual homicide is in this act a general term , comprehending all homicide , which is not committed by fore-thought fellony , because what is not designed is casual , and what is not fore-thought is casual : and the doctors do use the word casual oftentimes in this general sense ; as is clear by gothofred prax . crim . hoc . tit . and by the rubrick of this act , which bears an act concerning the several degres of casual homicide . it appears that the word casual , is taken there in a lax signification : albeit i confess , that the inscription is most improper ; seing homicide in self-defence , and homicide committed upon robbers , are not species of casual homicide : but whether homicide in rixa be comprehended under that act , was contraverted in william dowglas case : and by that decision it is clear , that in in our law , though murder was not at first designed : yet if it was designed the time the stroak was given , the killer is guilty of murder : that premeditation is requisit to make murder capital , being only such as antecedit actum licet non congressum . the civilians in the case of homicidium per plures commissum , state three questions ; the first is , where the murder was committed upon fore-thought fellony , and then indefinitly , all the assisters are punishable by death . the second is , when it is not certain , but it is only suspected , and presumeable that it was deliberatly committed , and then all may be tortured ; but if they deny the design , they are all only punishable by an arbitrary punishment , because of the uncertainty . the third is , when the murder was certainly committed , in rixa , or tuilzie ; and then either the author of the pley is certainly known , and he is punishable by death , in the rigour of the law , albeit many lawyers are positive , that no countrey uses this rigour ; i remember that in william dowglas's case , this was urged : for there several gentle-men having made a quarrel , which was only proved by one witness , they went to the fields of lieth , and hoom of eccles , was killed , but it was not proved who was the killer : and the quarrel was only proved by one witness ; who likewise proved , that spot had the quarrel with eccles , and that william dowglas had none ; and yet the assise found william guilty , and he thereupon died because present . xiii . homicide likewise committed upon thieves , and robbers , breaking houses in the night , or committed in time of masterful depradations , are free from punishment , by the foresaid act . and albeit it be declared lawful to the justices , to fine such as are assoilzied from murder , upon the defences of casual homicid , and homicide in defence : yet such as kill robbers , or night thieves , are free from all arbitrary punishment . by this act likewise , it is lawful to kill such as assist , or defend the depredators , or oppose their pursuit by force ; and by the . act of the second session of that parliament , it is statuted , that the parties whose goods are robbed , shall acquaint the sheriff , or justices of peace , of the paroch , who shall require all parties to concurr ; and if any of the concurrers , kill any of the robbers , they are declared free ; upon which it may be doubted , if such as kill robbers without acquainting the sheriff , or justices of peace , are punishable : and it seems they are , seing this act explains the other , and modifies somewhat the indefinite power given to private persons , who upon pretence of such invasions , which might prove very dangerous : and therefore the last did wisely require the concourse of the magistrate ; and upon this consideration , i know that it was consulted , that notwithstanding of this , such as had not acquainted the sheriff , or justices , could not be exculpat . and yet it may be argued , that this act narrates not the other , nor bears expresly a rectification of it ; but , without lessening the priviledge therein granted , adds a new one , and so being introduced in favours of possessors , should not be interpret to their disadvantage . by the civil law , licebat nocturnum furum occidere . and by the . act . par. ia. . it is declared lawful for the leidges to conveen , and execute thieves , and they are all made justices for that effect ; upon which act , a defence was propon'd , for the inhabitants of kintail , who took a robber , and execute him by their own authority , in a formal court. but by the civil law , and doctors , it was not lawful , furem vel predatorem diurnum occidere , except the thing stoln was of great value , and could not be otherwayes recovered ; or that he defended himself , and resisted his being apprehended : all which defences may be proved , by the assertion of the killer , farin . . part . . and if any other probation were requisite , the benefit of these acts were a snare , rather then an advantage : and necessity legittimats many things , which are otherwayes hard . xiv . by the civil law , it was lawful for the father to kill his own daughter , if he found her committing adultery , and to kill also her adulterer . l. part . . ff . de adult : which was allowed , rather in hatred to adultery , then because the law considered it was too hard for a father to restrain his passion in that case ; for if it had been allowed to the father only upon this last accompt , it had been allowed much more to the husband to kill his wife , if he found her committing adultery ; for his relation beeing nearer , and his honour more concerned then the fathers , his passion behov'd to be also more violent ; and yet the law being jealous of the husbands violence , does only allow the husband to kill the adulterer , if he be a mean person , but if the adulterer be a person of quality , or if the adulterer be found elsewhere then in the husbands own house , it it not lawful to kill them , for the injury is hightned by polluting the husbands own house , and becomes a kind of adulterous hamsuckin : and yet if the husband kill in either of these cases , that law ordained the husband only to be punished by some arbitrary punishment , but not by death . l. marito . ff . de adulter . but this last determination doth not satisfie justice , for it seems reasonable that it should be rather lawful to kill a person of quality , committing adultery , then a mean person , both because adultery is more ordinar amongst them , as having more ease , and being more luxoriously fed , and because the husband cannot be so easily presumed to have had former quarrels with a person above his rank , and so should be believed to have killed him meerly to satisfie his just revenge . as also since they can sooner prevail , they ought to be more rigidly punished . the law has deny'd this priviledge to women , who may not kill their daughters or husbands , the reason whereof i conceive to have been , that the law considered , that husbands were more prejudged then the wives , by adultery , since thereby , not only was their bed defiled , but their estate carryed away to another mans children , or else it thought women too passionat to be intrusted with such a licence , or that it was undecent to allow women the use of armes : and yet i believe their just grief would secure them against the ordinar punishment ; and though some prerogative be due to the man over his wife , but not è contra , yet women may complain that men being the only legislators , have taken too great a measure of favour to themselves in this law. i have not observed any decision of this in our law , and since our statutes have secuted murderers in other cases , as in self-defence , killing of thieves , &c. and yet have not priviledged this case , it may seem that the husband nor rather cannot kill by our law , and the most that they could expect , were , that after they were found guilty by the law , the council might either change the doom of death into an arbitrary punishment , or might recomend the party to his majesties clemency for a remission : but it were hard to punish with death amongst us , what almost all nations allow as lawful , and what may be yet a further check to that growing vice . and this seems juster then to allow with the civil law , that the husband or father , who are persons interessed , should be judges in their own concern , and should be judges when they are in passion , and because they are in passion ; nor can i see why the law should punish even him who possesses by his own authority what is truly his own , and yet should allow here the parties interessed to punish with death by their own authority : or that passion which only infers mitigation of the pain elsewhere , should here infer absolute impunity , for this were to make one irregular act legittimat another , since passion is a transgression against reason , as adultry is against law : but since this indulgence is personal , and only granted to the father and husband , because of their just passion and near relation , it is not reasonable that it should be extended to such as k●ll by the fathers or husbands command , which command none ought to obey , being contrair to law : nor ought this indulgence to extend to the father or husband when they kill ex intervallo , and not when they find the committers in the very transgression , for the law allows no passion to continue ; & therefore what ever revenge is allowed to it , is only allowed if it be executed immediatly , & ex in continenti . and though in civil cases that is said to be done ex in continenti , or immediatly , which is done before the doer go about any thing else : yet i conceive that interpretation would be too lax in this case , and that the killer could not plead this priviledge , except he killed them in the very act , or rising from it . homicidium deliberatum , or upon fore-thought fellony , is still punishable by death , and confiscation of the movables of the defunct for his majesties use , stat. rob. . cap. . and albeit lawyers say , that it is still rather presumable to be casual , then deliberat , and that by our law and custome , designe is still libelled , yet because it is impossible to prove design , which is a secret act of the mind . all killing is alwayes punishable by death , except some of the qualities of chance , self-defence , &c. be alledged upon by the pannel . it may be here asked , if by our law , he who strikes with his fist , or a batton ( which are of themselves no mortal weapons ) be punishable by death , though the party struct there by him dye : and it would seem hard that he should , seing no designe to kill can be here presumed , & maleficia voluntas & affectus distinguunt , and by the . cap. wil. reg. num . . it is said , that si quis interficiat cum pugno dabit regi . vaccas , & satisfaciet parentelae defuncti secundum assisam regni , by which it would appear , that striking with the fist is not capital , albeit death follow . murder premeditated , may be divided into that species which is simply such , assasination , murder under trust , and self murder . xvi . murder under trust , is with us , when a party who put himself under the assurance and trust of another , is murdered by him : and this is by a special statute punisht as treason , act. . p. . ia. . the words are ( where the party slain is under the traist , credit , assurance , and power of the slayer ; the party being tryed and found guilty thereof by an assize , it shall be treason , and the person found culpable , shall forefault life , lands , and goods ) what this credit and assurance is , hath oft been questioned , and it is reported that the origin of this , was to punish the murder of a gentleman , who invited his neighbour to a feast , and killed him and all his relations in his own house : so that invitation is one branch of this trust . . assurance signifies , that when two persons were at fead , and the one hath found borrows to one another , act . ia. . p. . . where persons at varience are under capitulation . this act has been stretcht to the conjugal trust betwixt man and wife , anno . . andrew row , and yet in the process intented against swintoun , for killing his wife , anno . . it being objected that this act extended not to such trusts as this , the pusurer restricted his libel to murder . and the lords of session , anno. . found that a sons killing his own mother , was not a murder under trust , punishable by this act : and yet it would appear , that both killing of wives and children falls under that branch of the act , where the party is under the power of the slayer . this species of murder was by the civilians , called proditio , which is designed to be homicidium sub praetextu amicitiae , v. g. dum sederem tecum in mensa vel amicitiam fingerem , which is punishable by a more severe death then ordinar murders . and in spain , the betrayer or proditor ( for even in propriety of speech , murder under trust is treachery , or treason ) trahitur ad caudam equi & postea furca suspenditur , gomez . by that act likewise , tryal should be taken by an assize ; and therefore the lords found , that though mr. iames oliphant had been guilty of killing his mother , and that it had been treason , yet his forefaulter could not fall to the king , upon a simple denunciation for not appearing to underly the law , because a tryal is requisite in this case . and by the . act . par. ia. . the killing any person in the parliament-house , during the sitting thereof , or the inner tolbuith ( id est , the inner house of the session ) during the sitting thereof , or the council-house whilst the lords sit , or kill any in the kings chamber , cabinet , or chamber of peace , or in the kings presence any where , infers the pain of treason . xvii . what is interpret to be art and part of murder , can hardly be defined , for it does depend upon the assize : a designe to murder , though no murder follow , affectus sine effectu punitur capitaliter , l. . is qui cum telo , c. ad corn. de sicar : yet by the custome of nations , the punishment now reaches not life , clar. hoc . tit . num . . and i find that mathew stewart , being pursued for contriving the death of thomas kennedie , came in the kings will , and was only banisht , mart : . as also i find , that though lawson was cleansed of the murder of her own child , yet she being referred , to the justices , because of the violent presumptions adduced against her , and that she her self had confest she bore a dead child ; the justices therefore did ordain her to be whipt and banisht , ▪ august . . and margaret ramsay having confest that she bore a dead child , and was advised to cast it into the north-loch , which she did not , though without her knowledge it was done by others ; the justices , though she was assoylzied by the inquest , ordained her to be scourged and banisht , . xviii . though such as kill in prosecution of law , are not punishable as murderers , yet if they exceed , they are punishable , not only quo ad excessum , arbitrarily , but even paena ordinaria , as murderers . an instance whereof was decided , the . of iune . in the person of mr. archibald beath , who being pannelled for killing allan gairdiner , alledged that the council had by their act and proclamation , ordained all meal brought from ireland to be seiz'd upon , and the boats wherein it was brought , to be sunk , in prosecution whereof gardiners meal being seiz'd , he broke the seizure , and being followed in a boate , by the said mr. archibald , and others , he was commanded to stay his boat , but was so fare from obeying , though commanded in his majestie 's name , that he had run almost down the pannels little boat , who was thereupon forced to shoot at them , and though this act , ex post facto , degenerat into an act of killing , yet no killing was at first intended ; and the rise of all such actions is to be first considered . to which it was replyed , that this act was to be understood civiliter , and did only impower the leidges to seize , but not to kill , and all mandats are to be so interpreted , as not to be extended , ad ea quae mandans in specie non mandasset , or quae solitus est mandare si aliquando mandat non mandat nisi certa forma servata , but it cannot be subsumed that the council would have allowed the importer of such victual , to be killed , nor do they use to intrust the execution of such laws to ministers ; and if they had designed that the execution of this prohibition , should reach death , they would have expresly allow'd the seizers to kill , as they use to do in such cases . to which it was duply'd , that though the minister was not obliedged to concurr because of his function , yet concurring as a subject , he is not punishable therefore capitally ; and if a minister should concur when the hue and cry were raised after a night thief , or if a minister did assist such as pursued rebels , and should kill in the pursuite , it were absurd to conclude that he should be punisht as a murderer , because he was not obliedged to kil : and it is not imaginable , but if it had been proposed to the council what seizers should do , in case of resistance , but they would have authorized them to kil ; nor could their act receive compleat obedience in case of resistance , for else such as resolve to contraveen , might secure themselves by their resistance , and the council by empowering to sink the boat where the victual is , does very clearly impower the killing of such as resist , for they might have been sunk in the boat , and he who is allowed to sink a boat , is allowed to sink all who are in it . notwithstanding of which defences , the said mr. archibald was put to the knowledge of an inquest , and after the verdict was ordain'd to lose his head , but the parliament having thereafter that same moneth allowed by their act , such as resisted to be killed , the said mr. archibald was thereupon remitted as to the crime , but was never readmitted to his church . some militia souldiers also being pursued for murder , . febr. . alledged that they could not go to the knowledge of an inquest as murderers , since if they killed , it was in prosecution of their officers orders , for they being sent to poynd , were resisted ; and though it was reply'd , that opposition to the poynding could not warrand killing , but they might have pursued a ryot : this was alledged not to be relevant , because , sibi imputent , who opposed , and souldiers must do effectually what is commanded : and their officers may shoot them if they return without effectuating what was commanded , and military commands must not be delayed , nor opposed , like other commands . notwithstanding of which debate they were found guilty . xix . it is much controverted amongst the doctors , whether it be lawful , occidere hannitum , a person at the horn , and by the civil law , non licet bart. in l. ut vim . n. . ff . de inst . & jure , but by the statutes of particular places , they all conclude , it may be lawful , ob quietem publicam : and by our old decisions , that the killing of such as are at the horn for slaughter , or other crimes , is not criminal , ianuary . guthrie contra iarden : but by the foresaid . act par. . ch. . it is declared , that the killing such as are denounced , or declared rebels , for capital crimes , or such as defend these rebels , may be lawfully killed ; whereby it is implyed , that such as are at the horn for other crimes , may not be killed ; and such could not be lawfully killed , who are only at the horn for pecunial causes , and any statute allowing to kill such , would be null , clar. hoc . tit num . . but it may be here doubted , what are these criminal causes , for which one at the horn may be killed ? for clearing whereof , it is fit to remember , that the doctors allow only such to be killed , who are banniti ob grave delictum , clar. num . . and in reason , it should be such a crime , for which the rebel hath deserved death , if he had appeared ; for it seems rigid and unjust , that wherever the conclusion of the summonds was criminal , the party being denounced , may be killed ; or that when ever the rebel was denounced for absence from a justice-court , he may be killed , seing the common-good , which is the reason inductive of this law , do's not require , nor in effect is not consistent with thir interpretations . . it may be doubted , if he who kills a rebel for private revenge , and not ob vindictam publicam , will have the benefite of this defence : of this we have an instance , anno . where robert auchmoutic being pursued for the slaughter of iames wanchop , it was alledged that the defunct was at the horn , for receipting a traitor : to which it was replyed , that the pannel killed him upon a private quarrel , for having conversed with the defunct long after he was at the horn , for that cause : but that he killed him in a duel , upon a privat quarrel : in respect whereof , the pannels defence was repelled , and he put to the knowledge of an inquest , and thereafter beheaded . and yet i find the doctors of opinion , that bannito occiso per inimicum occidens non reputatur homicida , and which is more , he will not have right to the reward promised for killing the rebel , caravet in prag . . de exul num . . and enemies are these who most probably will execute this publick justice , which the law designes . and seing our late act makes no distinction betwixt such as kill upon publick and private revenge ; i believe that the case now hath no difficulty , and that now the killer in both cases would be free from punishment . yet i think , that he who would kill a rebel in a combat , might yet be pannelled , for contraveening that act anent duels ; for though he might lawfully kill a rebel , yet he could not lawfully fight a duel . . it may be doubted , if he who was denounced rebel , was not lawfully denounced , v. g. if he was out of the countrey the time of the charge , or that the execution was not stamped , or wanted some solemnity , if eo casu , the killer would be guilty of murder : which defence , i find likewise propon'd in the former case , and yet repelled , and very justly , for a privat person is not oblieged to know these nullities . if any man resist the execution of his majesties laws , by messengers , or other publick servants , in that case , the messenger cannot proceed to kill , as was found in iohn mackintoshes case , may . . but if the resister do also proceed , to offer violence , by drawing upon the messenger , in that case the messenger may kill him lawfully , without necessity of proving that he would have been in danger of his life , if he had not killed ; though privat persons cannot kill when they are invaded , except they be by that invasion put in danger of their life . xx. albeit ordinarily death , and the confiscation of moveables , is the punishment of murder ; and that the life-rent of the murderer doth not thereby fall ; yet in some cases , the life-rent falls , as by the act . par. ia. . these who are denounced rebels , for slaying men in the church , or church-yard , in the time of prayer , preaching , or administration of the sacraments , their life-rents presently falls to the king ( though regulariter life-rent escheits fall to the respective superior , and the receipters do likewise loose their life-rent escheats ; declarator being first past upon the receipt . it may be here doubted , if these words , the time of divine service , may extend to slaughters , committed the time of preaching , &c. albeit there be no preaching , or prayer for the time there : the reason of the doubt is , seing the . act of the . par. q. m. anent removing , is so interpret : for by that act , warning of tennents should be used at the paroch church , the time of preaching or prayer : which words are thus interpret , the time that preaching uses to be , though there be none at the time . by the . act par. . ia. . if either the pursuer or defender in civil pursuits , kill one another , during the dependence , eo casu ; the killer being put to the horn , either for not compearance at the dyet , or for not finding caution , he loses his life-rent escheat immediatly upon the denounciation . xxi . murder is one of the four plea's of the crown , malcol . . c. . and therefore the cognition thereof belongs to the justices ; and commissions cannot be granted for tryal thereof , act . ia. . par. . albeit it be now most ordinar , to grant such commissions : and yet this act being alleadged against one of those commissioners , before the council , they did recall the same : but if the murderer be taken red hand , he may be judged by a barron ( having power of pit and gallows ) by a sheriff , or any other judge ordinar ; betwixt which , there is likewise this difference , that murder is bailable , ia. . par. . c. . but slaughter taken red hand , is not bailable ; but the committer thereof should be judged within that sun , ia. . par. . c. . . and if the barron or sheriff proceed not within that time , the cognition belongs only to the justices , for they are judges to murder upon citation . xxii . by several old acts , i find that the sheriff , when a murder is committed , may raise the kings horn ( id est , the hue and cry , hoesium , as the latine translation calls it ) upon the murder , and follow him out of his sheriffdom , and send letters to the next , and he to a third , and so till he be taken , and that when he is taken , justice should be done upon him , within fourty dayes , and that he should be sent from sheriff to sheriff , to the place where the crime was committed , which is now absolet ; for if he be not taken red hand , the sheriff cannot proceed against him ; albeit it would appear that he may , if he be taken within fourty dayes , ia. . par. . c. . which i find no where abrogated , nor any thing to the contrair , except only hops assertion , in his lesser practiques , and that may be interpret also of cognitions , after the fourty dayes are expired . by the . act of the . par. ia. . it is statuted , that sheriffs in the former case , may proclaim the murderer fugitive , and forbid all the lieges to receipt him , under the pain of losing life and goods ; but this power is also absolet . and the receipting murderers seems not any accession , except other presumptions be adduced , as if the murder was committed upon the receipters account : in which case , receipting , may be arbitrarlily punisht , but of this , i find no formal decision , only the registers mention , that thomas brice , being accused for receipting his own son , who had murdered fairhop : it was alledged , that the receipting his own son could be no crime , nam proximitas sanguinis tollit praesumptionem criminis hoc casu clar. quest . . num . . & l. . ff . de recept . and receipt could only be interpret to be a crime . in our law , after the committers are denounced , and letters of intercommuning obtained against them ▪ which defence was thought so relevant , that the justices demur'd upon it , but this received no decision . xxiii . when a man is killed by fore-thought fellony , the king can by our law grant no remission for the murder , ia. . par. . cap. . and ia. . cap. . cap. . but yet remissions are daily granted , for such murderers , and are admitted in the justice court , notwithstanding of this objection , as in the earl of caithnes case , in anno . and it is alledged , that these acts are by the stile , but temporary acts. but all such remissions are null , except the offender offer to assith the party : which assithment is modified by the council , and the party cannot propon upon his remission , till he find present caution , to satisfie what shall be modified , within fourty dayes , or else he must , during these fourty dayes , go to prison , and if payment be not made within fourty dayes , his remission is null , ia. . par. . cap. . assassinii crimen , or to kill a man by assassination , is to murder a man for money ; and this species was introduced , first , by the canon law , cap. . de homicid . cap. . and had its name from the assassini , who were a tribe of the phoenicians ; and who fain'd themselves to be christians , being truly mahumetans , that they might kill christians ; and therefore , and because the foresaid canon speaks only of christians , it is still concluded , that only such as kill christians , are to be repute assassinats ; and the killer of a jew was found no assassinate , cavall . h. t. num . . and yet matheus thinks , that all killing for money , is assassination ; for this crime being founded upon nature , to kill a jew is as far against nature , as to kill a christian . and it is a greater scandal upon our religion , to kill a jew , because it reproaches us amongst infidels . the specialities introduced in this crime , are , that the endeavour to kill for money , is a crime , though death follow not : and that assassination may be proved , by presumptions ; and that they cannot enjoy the benefite of a sanctuary , or girth , cabal . num . . . . and though the foresaid canon run only against such , as undertake to kill for money , yet the conducers , or such as intreat them to kill , are also assassinats , gomez . . resol . . num . . math. pag. . but these are not in observance with us , except as to the priviledge of a sanctuary : from which , all such as committed murder under trust , or per insidias ( which that act calls assassinium only ) are expresly excluded , act . part . . i. . title xii . of duels . . the several kinds of duels , allowed of old by other nations . . what duels were allowed of old in scotland . . how the giving and receiving challenges is punishable , though no combat follow . . the way of libelling used in this case . . whether duels for reparation of honour ; be lawful , where no other reparation can be had . . what must be proved in this crime . . whether he be not punishable who kills in a rancounter only , or he who tells the provooker that he is going to such a place . . the punishment of duels , and who are accompted art and part . duels are but illustrious and honourable murders . and therefore i have subjoyned this title to the title of homicide : this is that imperious crime , which triumphs over both publick revenge , and privat vertue , and tramples proudly upon both the law of the nation , and the life of our enemy . courage thinks law here to be but pedantrie , and honour perswades men , that obedience here is cowardliness . i. we find no such crime as this among the romans , because that wise nation employed their lives against their enemies , and not against their fellow-citizens : and the true tryal of courage among them , was fighting against the enemies of rome . duels are either judicial or extrajudicial : judicial duels were these which were allowed by law , for trying the innocency of such as wanted other legal probations . the longabards first did allow this way of duelling , by pulick authority , who did regulat it by twenty several determinations : and thereafter it was renewed by philip , the fair king of france , anno. . but was bounded with these four conditions , . that it should only be allowed in criminal and capital cases . . that it should only be allowed in crimes treacherously committed , where the truth could not be otherwayes found out . . where there did lye strong presumptions against the persons provocked . . where it was certain there was such a crime committed against the provocker . ii. with us in scotland , duels were allowed not only for clearing of innocence , as to crimes , but likewise in civil cases , as when an heir denyed that his predecessor granted a conjunctfie . r.m. lib. . cap. . v. . and when any thing was denyed to be lawfully bought by the owner , lib. . cap. . v. . but thereafter i find that by the . cap. stat. rob. . all duels are discharged , except in the four former cases allowed by phillip the fair . the solemnity of cartels used in such cases , was the casting of gloves to one another , as is clear by skeen , ad cap. . v. . r. m. duelliones in hoc regno hinc inde chiro thecas offerunt , which custome had its origine from the longohard law above cited , as is clear by long. de duel : and dumhaud . tit . cod . the place appointed by our law for such duels , was the bridge of stirling . cap. . stat. david . . and if the appealer in ordinar crimes was foil'd and worsted his pledges payed the king nine cowes and a colpindach , and satisfied for the calumny , stat. alex. cap. . but in treason the appealer worsted became in the kings will , and the party appeased , being worsted , was disherished . r. m. l. . c. . but these duels are discharged by the canon law. cap. monomachia . . quest . . & cap. ultim ext. de purg . vulg . though with us such judicial combats , by authority , are not absolutly discharged , for , by the . cap. . parl. i. . wherein singular combats are discharged , there is an exception made of such as are fought with his higness licence . iii. duels undertaken without publick authority , are thought by many lawyers , to be lawful , when undertaken by a person who is injured in his honour , if the party injured cannot be otherwayes repaird ; either because there is not a judge in the place , or else the injurer will not appear before him , or though he compear , the judges refuses to do justice , ubi enim deficit jus ibi suplet ensis & propria ultio . bart. in l. hostes num . . ff . de cap , & postlin . revers . and many are of opinion that these privat combats are lawful , for defence of our honour , and as we may defend our life by taking that of our neighbours , so we may defend our honour by the hazard of his life . but that duels are in themselves unlawful by all law , appears very clearly from these reasons . . that the law has justly thought fit that the magistrat only should do justice to all , and that no private man should revenge himself ; for in so far he commits treason , in assuming the power of the civil magistrate . . the power of taking and using arms , belongs only to the common-wealth , and consequently no private man should run to armes , upon an imagination that he is wronged in his honour . . there is no proportion betwixt the injury and reparation , in such cases a verbal injury being too severely punished , when punished by death , there being no proportion betwixt what may be helped , and what may not . . revenge belonging to god , it is an usurping of his power . it is the destroying that body which is the temple of god , the defaceing of his image ( whereas to deface even a princes , image , designedly is treason ) and it is a spilling of that blood for which christ shed his . . it is a crime against a mans self , and is in effect self-murder : nor need those who resolve to kill themselves , take a base way , since this honourable way is easy and patent , for he may soon make quarrels , and so kill constantly till he be killed . it is a crime against the common wealth , because it destroys its subjects , and makes the hateful sin of murder a desireable effect of glory . it is likewise a great offence against our friends , since it drawes them , though innocent , into the same snare , as seconds , assisters , and revengers : and it is dishonourable , because it wrongs a mans wife , by making her miserable , and notwithstanding of his many obligations to her . . it is an unjust decision of controversies , since strength , skill , or accident , prevail oftentimes against honour and innocence , so that this tryal should neither be allowed , by justice , nor honour : and therefore augustus being provoked by anthony , did nobly answer , that if anthony was weary of his life , he might take any other way to dispatch himself . and sertorius being provocked by metellus , answered , it was below a general to dye like a common souldier : and therefore it may be answered to the contrary arguments , that it is to be presumed the magistrate will do justice in repairing the fame of him who is wronged , nor can a duel restore the fame that is lost ; for a duel shews only a man to be resolute , or desperat , without being innocent , or generous : and it is more presumable , that the provocke was justly defamed , and finding himself unable to survive the shame , resolves to dispatch himself by this plausible way of self-murder , nor can a man take a more easy way of publishing that wherein he was defamed , then by killing the defamer , whereby he will both bring himself and the occasion of that accident into the mouths of the world . though that act discharge only singular combats : and that the word singular combat is properly only applicable to the fighting of two single persons , which is only properly called singulare certamen yet this singulare certamen , or singular combat is properly enough extended where moe fight on a side . cagnol . in l. favorabiliores . ff . de reg . jur . v. since fighting of singular combats is only declared punishable , therefore the giving or receiving challenges is not punishable by death , though even that be likewise punishable by the council arbitrarie , as ending to disturb the peace ; but since the very fighting is declared punishable by death , it follows necessarily , that such as fight combats , are punishable by death , though neither party be killed : and if only killing had been punishable by death , this act had been unnecessary , since that was punishable as murder before this act . vi. if any person be killed , the libel is founded both upon the acts against murder , and this act against duels . but the difference betwixt the way of libelling is this ; that if the libel be only founded upon the acts against murder , then self-defence is receiveable by way of exculpation to eleid this libel , because self-defence there , is not contrair to any quality of the libel , which must be expresly proved , for the quality of fore-thought fellony must necessarily be libelled in murder . yet it needs not be proved , and so the probation of the defence and lybel , are not contrary . whereas in duels an express provocation must be lybel'd and proved , and so the probation of the libel and defence would be contrary , as was found in the case of mackie , in iune , . where it was likewise found that a challenge given and accepted , did infer a duel and it was not sufficient , that the party provocked , coming thereafter to the field , was set upon , and put in hazard of his life by the provocker ; for though primus insultus , be sufficient to defend against fore-thought fellony in other cases , yet where there preceeded a provocation , it is not sufficient , because he who was provocked by going to the place , versabatur in illicito , and so should not have the benefite of self-defence . and if this were allowed , the party provocked might easily elude this statute , because he might accept the challenge : and yet when he is upon the place , refuse to fight , untill he were set upon by the other , and put even in hazard of his life by him , which method being followed by one robertson , a souldier in linlithgow's regement , he was notwitstanding found guilty of murder , in iuly . vii . from this it appears likewise that such as in answer to challenges , do declare , that they will be in such a place at such a time , and if the provocker attaque , they will defend themselves , they fall within the compasse of this act , since by declining a formal answer , they designe to cheat the law , for by assigning place and time , they in effect accept of the challenge ; & this can neither be called a meer rancounter , nor self defence , as is most justly debated by voet. de duel . cap. . quest . . but if any man getting a challenge , shall answer , that he will not transgress the law , but if the challenger shall attaque him , he will defend himself , if this person thereafter in defence kill , he will not be punishable by this act , for self defence does not leave off to be a legal defence , because the person attaqued promises he will defend himself . viii . both the provocker and provocked , killing , are by this act not only punishable with death , but by confiscation of their moveables ; and the provocker is declared lyable to such arbitrary punishments as his majesty shall think fit , because his guilt is greatest , for the party provocked hath still his guilt lessened with a shadow of self-defence . not only are seconds art and part , but even those who carried the challenge , though they were no seconds : and yet it may be alledged , that these cannot be punished with death , except they were present , since the carrying a challenge is but an incompleat act , & nudus conatus . but yet it may be answered , that if death follow upon a combat , wherein they carried the challenge , they are punishable as murderers , since the crime was compleated by their complices . in iune . . david hamiltoun was found guilty , though it was alledged that albeit he had come to seek the length of his gear who was to fight with his son , yet that was done but upon designe to terrifie the other to fight , as appears , not only by the strangeness of the expression , but because he did tear the challenge , how soon ever he got it in his hands : and albeit it was proved that he did trip up the mans heels who was fighting with his son , yet that was done meerly to end the combat , he having taken his own son in his armes immediatly thereafter . in this case it was likewise alledged , that those who were adduced witnesses could not be received , because they had come out of the house with the other party to the field ; and being very many in number , they might have stopt the combat , if they had pleased : notwithstanding of which objection , they were received . but i conceive , that since all men are oblieged , as farr as in them lyes , to keep the peace , and hinder crimes , it seems very reasonable , that if many who might hinder , do tamly look on , without offering to redd or separat the parties , they should be punished ; and this should hold not only in any of the kings officers who are present , or in any who are commanded by them whom cook observes to be fineable , pag. . but even in all who are present , though the punishment , as to them , sholud be lesse , then as to the others , idem est facere , & nolle prohibere cum possis : & qui non prohibet cum prohibere possit in culpa est . title xiii . self-murder . . despair , nor stoicism , cannot defend against self-murder . . furiosity does defend . . an endeavour to commit self-murder , is punishable . . self-murder may be committed by omission , as well as commission . . what declarator is to be pursued by the donators , of the self-murderers escheat , and how it is to be proved . i. god almighty has placed every man at his post here , and he who violently tears himself from it , deserves much worse , and is more guilty then a souldier , who deserts his station : and since princes punish as criminals , such as kill their subjects ; much more may the almighty punish him who kills himself ; for he who kills himself , kills gods subject , and therefore , nemo est dominus suorum membrorum . the law likewise considers him who would kill himself , as one who would spare none else , and condemns an humour which is so dangerous . upon these reasons , but especially , because god hath forbid man to kill , without making a distinction of killing our selves , or others ; all christian nations punish severely self-murder , as murder , for they confiscat their moveables , and deny them christian burials : to which some nations , for a further mark of ignominy , add the hanging them upon gibbets : but this last , our nation uses not . this crime was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by the greeks , and it was condemned by plato , l. . de leg . and was at first punished by the heathens , — virgil. lib. . aeneid . speaking of hell , proxima deinde tenent maesti loca , qui sibi laethum insontes peperere manu lumenque pero si projecere animas : the english call him , felo de se. the stoicks who had made their reason their god , and made their convenience their reason ; allowed the killing of ones self , either to shun thereby torture , or shame ; and thought death a door , which every man might open at his pleasure : for , since death may surprise a man when he is not ready , they resolved to be some way equal with it , in forcing it to be ready , whensoever they pleased . and from their practice ( for most of the romans , especially the gown-men , were of that sect ) flow'd these roman laws , l. . § . sic autem ff . de bon . eor . l. siquis § . ult . ff . de pen. by which they distinguisht betwixt such as killed themselves , to evite a just punishment of the crimes for which they were accused ; and such as killed themselves , taedio vitae , vel doloris impatientia : for the first , they punisht as murder , but the last , they favoured with a lesser punishment . nay , and in the primit●ve church , many for making themselves away , to evite thereby idolatry , or pollution● , have been accounted as martyres ▪ thus the wife and children of adauctus , having killed themselves , when they were to be defloured ; it was doubted , if they ought not to have been numbered amongst the martyres ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . cedren . pag. . and the like story is reported by euseb. lib. . cap. . of a noble lady , who was brought to maxentius . but our law is jealous , that such pretexts might be brought , to colour all base designs ; and allowing none to be their own judges , has made no such distinction , as was found in the case of thomas dobbie , cited by craig . diages . de regal . and to allow this , were to feed despair , and to make patience , and long-suffering , to be no vertues . ii. yet furiosity and madness , ought to defend against all punishment in this case , since a furious person has no will in the construction of law ; and the will is that which makes the crime : nor should they be more punished then infants are , to whom the law compares them . fury also defends against treason , blasphemy , and heresie , which are more atrocious crimes , then self-murder , & facti infelicitas furiosum defendere dicitur , l. infans ad l. corn. de sic : and therefore i cannot well understand , wherefore in dobbies case ( as craig relates it ) the lords repelled the defence of furiosity , and found that even furious persons ought to lose their moveables , if they killed themselves ; but i think , the fury there has not been strongly qualified , and that it has been but a species of melancholy : for the reason given for that decision is , because the lords thought no man would kill himself , if he were not distracted : and so it distraction could defend such as killed themselves , against confiscation of their moveables , it would defend all who kill'd themselves , and so the law should have no effect ; but this must be interpreted , of some degrees of madness , for sure no man kills himself , except he who is somewhat mad . nor does hypocondrick fits , or the first degrees of madness , defend against this confiscation , but a total aberration from reason , cannot but defend ; which is also clear from the law of england , bolton . cap. . lib. . and the difference betwixt these two must be inferred from the various circumstances , which attends such diseases , and from the declarations of physicians , who waited upon them . whether one who is mad , but has lucid intervals , is presumed to have killed himself in his madness , or lucid intervals , is not so clear , and depends much upon circumstances : but since none use to kill themselves , except under some distemper ; so therefore , it is more humane to refer this killing , to have been in the hours of madness , except it can be proved that the killer used even in his lucid intervals , to wish he were dead , or to commend self-murder , vid. cabal . cas . . iii. an endeavour to kill ones self is punishable , as self-murder , if the killer did all that in him was , to effectuat it ; as if he hang'd himself , but was immediatly cut down . and by the law of england , if a man wound himself mortally , though he live year and day thereafter , his goods falls to the king , bolton , lib. . cap. . iv. self-murder may be committed by omission , as well as commission , thus if a man would starve himself to death , he might be punisht by confiscation of his moveables ; but the design must be clearly proved , since as many innocent people might be alledged , to have killed themselves , whilst they have fasted , either through pain or necessity . v. when a man kills himself , his majesty gifts his escheat , and the donator pursues a general declarator thereupon , wherein he calls the nearest of kin , and he must prove there , that the person , whose escheat he has got , killed himself ; which must be proved , by clear and convincing evidences , such as the depositions of witnesses , or a paper under the defuncts hand , wherein he declares the reasons of his discontent , and why he killed himself , which is very ordinary in these cases , wherein they design thereby to justifie to the world , this horrid act : but i think , presumptions are not sufficient here , since this is a crime except they be very strong and violent ; but if they be such , it appears , they are sufficient to infer confiscation : for though presumptions be not sufficient to prove a crime , to infer capital punishment , yet they are oftimes sustained , to infer confiscation of moveables , or other civil effects . and if presumptions were not sufficient in this case , self-murder could never be proved , for the committers choose retired places , and quiet times , for executing their wicked designe : and who could say , but that if a man were known , to have exprest much dispair , and thereupon to have entered into a room , and were found with the door closed , and hanging in his own garter : but that these presumptions would infer confiscation of his moveables . by our practice , thir declarators have been sustained before the lords , upon probation of the self-murder , led before themselves , without any previous tryal before the justices : and some think such a previous tryal not necessar ; for all tryals before them , are by assizers , and dead men cannot be tryed by an assize : but it might be alledged upon the other hand , that such a previous tryal before the justices , is more suitable to the analogy of all other crimes , which are all tryed before the justices ; and though it may be alledged , that the lords jurisdiction is here founded , ratione incidentiae , and that many crimes are tryed before them , as falling incidently in other civil cases ; yet even in falshood , though the lords of session are judges competent to the deed it self : yet no mans escheat falls upon their decreet , though he be found a falsary by them , till he be also tryed by the justices , and the escheat falls , as an effect of their sentence only . nor has this exception been yet repelled , as to self-murder , so that res est ad huc integrae , especially if the persons whose escheat is craved , to be declared , be yet alive ; so that he may be tryed before an assize , for having endeavoured to kill himself : for some endeavours to kill ones self , are punishable by death , though prevented , as has been said formerly . and in that case , i conceive that a previous tryal before the justices , is necessar . title xiv . paricide . to what degree reaches paricide by the civil law. to what degrees by our law ? whether does the act . ja. . par. . extend to descendents ? whether does that statute extend to bastards . the punishment of paricide by that statute . the . act par. . ch. . concerning beating of parents , explained . how the murdering of children is punished . who are repute accessory in this crime , and how punished . i. paricide is a crime , which is committed by killing our parents , against which , solon refused to make any law , lest he should by forbidding it , teach the people it was possible . by the civil law , paricide was committed by killing ascendents , or descendents , in any degree : or collaterals to the fourth degree . the killing likewise of wife , husband , or patron , was paricide by that law , l. . ff . h. t. ii. with us , paricide is by the statute . ia. par. . punished only in him who kills his father , mother , good-sir , or good-dame ; and these are by that act , ordained to be disherished , and their posterity , in linea recta , are incapable of succeeding to the person killed : but the succession is devolved upon the next collateral , or nearest of blood ; the person guilty being convict by an assize . from which act , it is observable , that the statute is not exclusive of other punishments : but supposes that paricide is capitally punishable , according to the common law ; for it were absurd to think , the punishment here related , should be the only punishment , by which paricide could be reached . and women for murdering their children , are frequently either hanged , or headed , as other murderers . . this act reaches only such , as are convict by an assize ; and therefore ianuary . it was found , that sir iames oliphant being declared fugitive , for killing his mother , but not convict by an assize , his estate could not be gifted by the king : and in effect , though he had been found guilty by an assize , he could not have been forefaulted , for the nearest collateral would seclude the fisk. it was likewise found in that case , that the son could not be forefaulted , as having murdered his mother , under trust , for they found that , not to be the murder , which is declared treason by the . par. cap. . ia. . for the trust there mentioned is , when such as came under the trust of others , were persons who would not have come within their reach , without special assurance of indemnity , and protection ; and it is related as a received tradition amongst us , that this act were first made upon mack-donald , his killing the laird of mack-clane , who came to lodge with him , upon such assurance ; notwithstanding of the feids which were amongst them . it were likewise improper to say , that the mother was under the power and assurance of the son ; and if the power , and assurance betwixt parents and children , could fall under that act , par. . ia. . this act had been unnecessar , and there could have been no place for the pain therein contained ; for the estate of the traitor belongs to the fisk , and not to the nearest collateral . iii. it may be doubted , if this act should be extended to parents killing their children ; and albeit the statute does not , in terminis , expresse descendants : yet it is probable they may fall under its sanction : even as the foresaid text , in the civil law is extended to equal degrees , with these exprest , ob paritatem rationis . and by that law , the killing of ascendents , or descendents , is paricide , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . and the rubrick of this act , runns generally against paricide : nor can it be denyed , but paricide is committed by mothers against their children , and women dayly are convict thereof . whether the foresaid statute against paricide can be extended , to degrees of affinity , as well as degrees of consanguinity ; so that to kill a father-in-law , may be punished as paricide , as well as the killing a father may be doubted : but i conceive it extends not to degrees of affinity ; because . laws against crimes should not be extended . . the statute discharging , fathers , brothers , or sons , to judge in the causes of these relations , is not extended to brothers-in-law & c. though that extension would be more favourable . . some of these relations in this statute , cannot in propriety of speech , be extended to degrees of affinity , for we say not good-sir , or good-dame in law , and albeit . § . . just . de publ . judic . uses the word adfinitatis in this crime , yet theoph. in his greek instit . eod § . expresses the same , by the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies affectionis & non adfini●atis , and with theophil agrees . eclog. tit . , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and this shews advantages by the greek lawyers . iv. whether it doth extend to bastards , may be doubted ; for though it be certain , that since they know their mother , it may be therefore extended against them , if they kill her , or she them . yet since their father is uncertain , nam sunt vulgo quaesiti , & patrem demonstrare nequeunt ; and since they have no advantage by their father in law , it were hard the law should punish them , as paricides . but yet lawyers conclude they may be punisht , for paricid . allex. ad lib. . de injur . voc . and since this is a crime against the law of nature , it may be punisht in bastards , who are natural children . v. this crime extends not to moveables by the act , but by our law ; wherever the law punishes by death , it implyes confiscation , for moveables followeth still the person . and by the law of france , ( from which we have borrowed this , and many other things ) qui confisque le corps confisque les biens . it is probable that upon this act , even absents may be convict of this crime ; as the lords then thought , if the certification of the letters , had born the penalty here exprest . for albeit probation cannot be led , in absence of the party , to fix a crime upon him , yet this seems to be a civil effect , which strikes not against the person of the committer . by the civil law also , all murderers were debarred from succeeding to such whom they murdered . l. cum ratio . § . sin . ff . de bonis damnat , which is yet observed in france , but though with us there be no contrary decision ; yet with us they are not debarred ; and seeing this pain is only statuted in the case of paricide , we may by a natural consequence conclude , that it should not be extended to ordinary murders . vi. by the act . parliament . . ses. . ch. . beating or cursing of parents , is declared to have been punishable by the law of god , with death : and therefore ordains , that whatsoever son , or daughter , above the age of sixteen , and not distracted , shall beat or curse his father or mother , he shall die without mercy , but if they be within the age of sixteen , and past pupilarity , they are to be punisht arbitrarily : from which it is to be observed , . that this crime is meerly statutory , and therefore should not extend beyond the degrees of the act to grand-fathers , or grand-children , albeit appellatione filii & nepos comprehenditur in favorabilibus . . that arbitrary punishment is opposed to death , and so never can be extended in other acts to death . . that those who are not above the age of pupilarity , are not capable to commit crimes , nor should be punished , for they are here accompted as distracted persons , and if they were punishable for any crimes , it behoved to be for such as are against the law of god. vii . it is very easy , and too ordinary for women who bear bastards , to murder them ; and therefore to obviat this , the law presumes so far , a woman who has born a bastard , and has conceal'd her being with child , to be guilty of paricide , if the child be found dead , that it punishes her by some extraordinary punishment , ( but not by death ) except she can prove that the child was born dead : thus it was decided in savoy . vid. cod. fab . de his qui parent occid . def. . and with us lawson , and ramsey , were both scourged , annis . and . even though they were assoylzied from the murder : but i think that this were severe , if the woman openly acknowledged that she was with child , though none was present when she brought it forth . and in all such cases women are admitted to be witnesses . the taking potions also , to make one part with child , abortum procurans , should be a species of paricide , in my opinion , since she thus endeavours to kill her own child : and by the civil law , it was punisht with death . l. cicero . ff . de paenis . and though the doctors distinguish here , betwixt the using such means after the child is quick , or before it , making it capitall in the one case , but not in the other ; yet they presume that the child was quick , quod fetus erat animatus , and that in odium delinquentis , and burden the delinquent to prove the contrair , gomes : de delict cap. . num . . asserts that this is presumed not to inferr death , but ecclesiastick punishment ; and since to prove the contrair , seems to me , impossible , i encline to gomesius , his opinion : but yet the using such means , even before the birth be quick , is arbitrarily punishable , as is even the using means to h●nder conception . marsil : ad l. si mulierem ff . de . sicar . and in these cases , both the physicians who administrats the cure , and the woman who takes , are equally punishable , marsil . ibid. viii . so horrid is paricide , that what would be but a degree of guilt in other crimes , makes a compleat crime here ; and thus a childs endeavouring to poyson his father , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. . basil. h. t. and to kill parents by giving them wounds , was punisht by death in savoy , c. fab . h. t. though the wounded parent interceeded to the contrair . and the son who bought poyson to poyson his father , though he was not able to give it : carer . § . homicidium . num . . for which crime , suffered with the son , the phisician who furnished the drugs , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . l. . basil : h. t. and the person who lent the son the mony to buy them : but regularly these strangers are not capitally punishable for such an accession , except the crime take effect : and this is the present custom of nations , though by the roman law , and the basilicks , they who were conscious , or lent the money , or were surety for money to be so bestowed , were guilty , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . and yet he who commands a son to kill his father , is not guilty of paricide , caepol . consil. . which may seem strange , since to give poyson to kill a father , seems equal guilt , to giving a son command to kill his father . as these circumstances highten paricide , so there are some which restrict the punishment , as if the father should find that his son had lyen with his own mother-in-law , and had killed him upon that accompt , though not in the very act , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : lawyers think , that he should be only punisht by banishment , but not by death , and that generally for whatever crime , or fault , a father may exheredat a son , that the same fault will excuse the father from death if he kill his son . l. divus ff . de paricid & cabal . cas . . some also think that a woman killing her husband who is banished , and upon whose head a fyne is put , is not punishable by death , because her husband is , nullus injure , and laws allow all to kill such a person , without any distinction betwixt wives or others : yet other lawyers have concluded , that she should be punished by death , since such sentences , loose not the wife 's natural obligations , but he is still her husband , and the law owns so far the relations , as not to punish her for omitting to kill him , or for cohabiting with him , cub . consil . . a father killing his son by accident , ought not to dye , and therefore , much lesse he who kills him in defence of his own life , for self-defence is a duty . this crime is so odious that is praescribes not . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 title xiv . incest , sodomy , bestiality . . what incest is , and the several kinds thereof . . the punishment of incest by our law. . sodomy , how punished . . bestiality , how punished . incest is defined by the civilians , to be , faeda & nefaria maris & f●minae commixtio , contra reverentiam sanguini debitam . incest is divided into two branches , viz. that which is committed against the law of nature ; and into that which is committed against the municipal law of the countrey . all copulation betwixt ascendants and descendants , such as grandfathe● , father , mother , son , daughter , &c. is by all acknowledged to be incest against the law of nature . but it is controverted , whether the brothers lying with the sister , be incest against the law of nature : and the roman catholicks alledge it is not , because it was allowed at the beginning ; and therefore they conclude that the pope may dispense therewith ; and this is the first difference betwixt that incest which is committed against the law of nature , and that which is committed against the municipal law. the second difference betwixt them is , that the pain of incest when it is committed against the law of nature , is death : but when against the municipal law , it is only deportation , l. . ff . de quest . the third difference is , that incest committed only against the municipal law , is excused ( in a woman , in figura matrimonii ) but ignorance of the law of nature is not ; but the man is inexcusable in either , matheus hoc tit . num. . the fourth difference is , that if a marriage contracted , be rescinded , as incestuous , all the committers goods are confiscat , if the incest be committed against the law of nature : but the tocher and joynter are only confiscat , if the incest be only committed against the municipal law , matheus . ii. our law does not observe the above-written distinction , but it is universally , statut. act . p. . i. . that whosoever pollutes his body with such persons in degree , as gods word doeth contain in the . of leviticus , shall be punished with death ; albeit by these words of the act whosoever abuses his body , it would seem that such as actually copulat , are only punishable by this act : yet i think nudus conatus , or endeavour , is punishable by death , as it is in sodomy ; in which , endeavour is punishable , by the opinion of the doctors , though by the law of england , sodomy requires habuisse rem veneream , & puerum carnaliter cognovisse , cook. p. . albeit the manner of death is not exprest in this act , yet practick hath determined the same , to be hanging ; as in the case of barnoch , who was hanged for committing incest with his own sister , decemb. . . and of ioan knox , who was hanged for committing incest with her husbands brother may . sometimes it is likewise punished with heading , as in the case of iames strang , who was beheaded for committing incest with his brothers daughter , the . of april . . iii. sodomy , is when a man lyes with a man , for which both are punishable by death , l. cum vir nubit . c. de adult . they are burnt in france and savoy , as gothofred observes . by the . act : henry the . sodomy is declared fellony , and the punishment of fellony by the law of england , is in all cases to be hanged by the neck till death . though carpzovius , and the other doctors , are of opinion , that confession alone is not a sufficient probation in this crime , except other presumptions concur for clearing that the crime was truly committed , yet with us the confession it self , without any other adminicles , is sufficient to inferr the punishment of death except the confessor be known , or at least suspected to be distempered . mastrupatio est ubi quis propriis manibus aliove instrumento se polluit & punitur ut sodomia . carp. part. . quest : . haec paena non est in usu apud nos . iv. bestiality is , when a man lyes with a beast , which the romans also punished with death , and in which some lawyers affirm the endeavour is as highly punishable , as the crime it self , effectus sine affectu , papon . lib. . tit . . art . . damhaud . cap. . n. . which opinion they found upon the attrocity of the crime : and it seems that he deserves not to live , who could harbour such horrid thoughts ; but especially if he did all that was in his power to put his design in practice , and was only letted by some interveening accident , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . but yet other lawyers conclude , that even in this crime the endeavour is punishable by a less severe punishment then death : which seems clear by l. . § . fin . ff . de extraord . crim . qui puero struprum abducto ab eo vel corrupto comite , persuaserit , aut mulierem puellamve interpellaverit , quidve impudicitiae gratia fecerit , perfecto flagitio punitur capite , imperfecto in insulam deportatur . and though in hotter countreys . where custome , and climat , lessens this crime , the crime is by their lawyers thought punishable less severely ; yet with us death ought to punish it , if the delinquent was only letted by others . and in both thir crimes of sodomy and bestiality , witnesses who are lyable to exceptions will be received , because of the attrocity of the crime . bos. de judiciis . we have no particular statute for punishing either sodomy , or bestiality , for they are crimes extraordinar , and rarely committed in this kingdom : but our libels bear , that albeit by the law of the omnipotent god , as it is declared in the . c. of leviticus . as well the man who lieth with mankind , as the man who lieth with a beast , be punishable by death . yet &c. the ordinar punishment in both these , is burning , and the beast is also burnt , with which the bestiality is committed : as in the case of iames fiddes , who being convict of bestiality , was ordained to be burnt in the last of may , . and major weir , april , . yet sometimes it is only punished by hanging , and thus iohn logie was only hanged in iuly , . and iames wilson was only hanged for the same crime , . feb. . which last sentence bore , that the execution should be very early in the morning , and ordained the mare with which the buggery was committed , to be drowned in any mosse or loach . title . xvi . raptus , ravishing . . the nature of a rapt described , and its punishment . . whether the violent lying with a woman , without the carrying her away , be a rapt . . if the carrying a woman away upon any other accompt then lust , be a rapt . . if the carying her away without lying with her , be a rapt . . if a womans carying away a man , be a rapt . . whether a subsequent consent purges this crime . . some instances of the punishment of this crime . . whether the parents consent , not being obtained , makes a rapt . . whether minors , and such as force common whores be punishable for a rapt . rapt or ravishing , is that crime , which is committed in the violent carrying away a woman from one place , to another , for satisfying the ravishers lust : and is in the civil law punishable by death , l. un . c. de rapt . virgin , &c. in our law , it is one of the four points of the crown , that is to say , the cognition of it belongs only to his majesties justices , and not to any other judge ; r. maj. l. . c. . n. . and is punishable by death , and confiscation of the committers movables . for albeit i remember not that the punishment of death be expresly appointed for it ; yet in the cap. l. . r. m. it is said expresly that it shall be punished as the other crimes above related , and these are murder , treason , and fire-raising ; which are all capitally punished . and by the act. . p. . i. . it is declared , that albeit the consent , and declaration of the woman ravished , declaring that she went away of her own free will , may free the committer from capital punishment : yet shall it not free him , from such arbitrary punishment as his majesty shall inflict , by warding , confiscation of their goods , or imposing upon them pecunial mulcts . which act insinuats that the crime is otherwayes capital , else that act had been unnecessar . ii. the definition given of a rapt , l. . c. . r.m. is , that it is the unjust oppressing of a woman , by a man , against the kings peace , in which it differs from the civil law ; at least from some doctors , who alledge , that lying with a woman , or abusing her body violently , is not a rapt , except she be carryed from one place to another : albeit they do confesse , that this violence is punishable by deportation , or banishment , and is , as some affirm , non raptus , sed stuprum , l. . c. de ad leg . iu l. de vi . but yet other lawyers , and chiefly mathaeus , doe conclude , that albeit the away taking , and the forcing , or violent abusing a womans body , be differently punished ; yet they are degrees of the same crime , and both are rapts : but according to our law , both are rapts , and both punishable by death . neither does our law make any distinction , inter raptores , & deforciatores mulierum , betwixt ravishers , and deforcers of women ; and it were most unreasonable , that he who defloures a woman violently , should not be as severely punished , as he who only caries her from one place to another : for as the person ravished looses more by that abuse , then by her transportation ; so it were absurd , that apparatus ad crimen , should be more severely punished , then effectus criminis ; that the accomplishment of the crime should be a lesse guilt then the preparations to it : amongst which this transportation is but one . iii. if the woman be taken away upon any other accompt then that of lust , it is not a rapt , and so if she be very old , or if the away-taker had a quarrel against her , it is not a rapt , decius concil . . iv. quae. what if the ravisher did not carnally know the person ravished , whether in that case , the away-taker be punishable as a ravisher capitally ? and albeit the ordinar distinction be , that if he did not , because he could not , then he is punishable : but if it was in his power to have defloured her , but abstained , then he is not to be punished capitally , but only arbitrarily clar. § . raptus num . . yet i think , that in our law he is in no case to be punished capitally , except he defloured her : for . in the foresaid . cap. l. . r. m. it is said , that affectus sine effectu , is punishable in treason , because of the great wrong done to the whole kingdom : but this reason ceaseth in rapts , and when rapts are spoken of , in the immediat next verse , this is not repeated . . the glosse upon the word , oppressed by a man , l. . c. . interprets oppression to be suppression , or corruption , and in the . verse of that chapter , it is rendered corruption , and it is spoken of there , as faedatio mulier is & pollutio . . by the norman law , with which our old customs have much contingency , rapt is called depucellement des femmes a force , l. . c. . yet i think that any such wrong done to a woman , is punishable , tanquam crimen in suo genere , and after the crime of rapts , or ravishing is spok of in that chapter , it is said v. . that if a woman accuse a man of any other wrong done to her body , she will be heard . in that chapter also , it is appointed the woman ravished go whilst the crime is recent to the next town , and there show to honest men the blood , or other wrong done her , and thereafter go to the mair of the lordship , or to the toscheoderoch , which skeen , ad . r. m. l. . c. . interprets to be serjandus curiae , but boeth . in his history calls them latrunculatores , or the maker of thieves : and thereafter to the sheriff , and last of all to the justice : but the form now is only to raise letters , as in other crimes , before the justice . and albeit of old , she was obliedged to insist within . hours , intra unam noctem , else not to be heard , c. . l. . r. m. yet that is now antiquated by custome ; albeit it was a strong presumption in the opinion of the doctors , and is so in our practick , that the pursuit is malicious , when it is delayed ; for it is most presumable , that a woman would not conceal any time such an injury . v. it is doubted much among the doctors , if women who ravish men are punishable as ravishers ; and albeit our law speaks still of ravishing women , yet i think that as women are guilty of man-slaughter , so women may be guilty of this crime : and by the . v. c. . r. m. it will appear that this was designed for both sexes : albeit i think it be not punishable by death , seing it cannot take effect , except the man pleases , & affectus sine effectu non punitur capitaliter , in hoc crimine . vi. by the opinion of lawyers , the subsequent consent of the women ravished , did not absolve the committers , cin. in l. un . h. t. and albeit by the council of trent , marriage may be contracted lawfully betwixt them , yet the committer is still punishable ; and by the foresaid law c. de raptu , the words are , nec sit facultas raptae raptorem suum sibi maritum exposcere . but by the foresaid act. i. . p. . this question is determined with us , for that consent only saves from capital punishment , for the committer may be put to the knowledge of an inquest , either at the instance of his majestie 's advocat , or the parents or nearest kin , from which act it may be observed . . that the advocat or nearest of kin may insist , without one anothers concurse . . that if the nearest of kin do not insist , they who are in remoter degrees cannot insist in this case , and crave that the ravisher may be put to the knowledge of an assize , although the woman declare that she was not ravished . albeit i think that before any such consent be declared , any of her friends may insist , l. un . c. de rapt , & si pater injuriam remiserit extraneus reum postulare poterat . . except it be proved that the rapt was committed at first , without consent of the woman , and nearest of kin , it is most punishable . it may be argued , that if either the nearest of kin , or she , consented before the rapt , it is not punishable : and it is probable , that if the nearest of kin consented , though the woman did not , the away-taking is not capitally punishable ; for where the nearest of kin , and parents consent , the ravisher deserves not so severe a punishment as death . . because the womans consent is so hard to be known , for she might have at first consented , albeit she cryed or resisted upon designe : therefore i think her oath should be first required , and if she be content to swear that she went willingly alongst , that should , in my judgement , preclude the pursuers from any further pursuit ; or if they can prove that there was any designe of marriage amongst them , previous to the away-taking , marsil : consil . ibi & boss. de rapt . n. . . since by the foresaid act , it is said , that if any be pursued as art and part of rapt , the womans consent in that case shall free them from capital punishment : it may be doubted if the womans consent will free from capital punishment , him who is pursued as principal actor , since the act is not express as to him , and since he deserves not so much favour as the complices do : but yet i conceive the same favour should be extended to him , both because our law equals principals and complices , and because the doctors , and the laws of other nations extend this : before this act by the . cap. r. m. l. . and yet it is declared there , that it shall be lawfull to the pairties to marry with his majesties consent . the arbitrary punishment allowed his majesty by the foresaid act of parliament , i. . is not interpret so , that his majesty should be personally consulted , but his majesties council supplies that in his absence ; as was found in the baxters case , . albeit this crime be capital , and that william bannatine was hanged for taking away the laird of achingters , daughter , . iuly . yet i find that iohn kincaid having come in the kings will , feb. . for ravishing isobel hutchison , a widow , the king only fined him in merks . hary speed was hang'd . feb. . quia laceravit pudenda pueri , which crime , iul. clar. gothofred , and others , affirms to be also capital in their countries . i find one leivtenent ker , pursued for ravishing and away-taking robert cuninghame , . feb. . but this is rather a species of plagium then of rapt . vii . since minors are punishable by death for adultery , much more ought they to be punishable by death for a rapt , since the injury is there both more attorcious , and more unnatural ; and carp. part . quest. . gives us several instances where this crime was capitally punished in minors , where he likewise tells us , that to force even a common whore is capitally punishable , though it may seem that they are infralegum observantiam , and they ought not to have the protection of the law , who offend against it . title xvii . adultery . . the definition of adultery , and whether the lying with an unmaried woman , or with a whore , be adultery . . the punishment of adultery , by the law of god , and our law. . the differences betwixt single and nottour adultery . . whether death can be inflicted for single adultery in scotland . . whether the mariage ought to be proved . . who can be punished as accessories in adultery . . what probation is requisite in adultery . . whether a dicreet of devorce before the commissaries is sufficient to prove adultery in a criminal case . . whether he who hearing his wife was dead , maried another , be punishable as an adulterer . . whether a pursuite being intended for nottour adultery , and single adultery , only proved , if the single adultery can be punished in that case . . how adulterous children succeed . adultery is a sin , whereby men not only violat the second table , in wronging their neighbour , by stealing from him his quiet , his good name , the affection and person of his wife , endeavouring also ofttimes to steal his estate for the adulterous children ; but is likewise a breach of the first , in breaking of that vow which was made to god in marriage , and contemning that holy and mighty majesty , who was then called upon , as judge and witnesse . i. adulterium est vitiatio alterius thori , the violation of anothers bed , and is committed by a married persons lying with an unmarried , or an unmarried person lying with one who is married . for albeit by the civil law when a man who was married , did lye with a woman who was free , that was judged to be no adultery ; and albeit the lying with a whore , by the civil law , was judged no adultery , l. . cod. hoc tit . si ea quae stupro tibi cognita est & passim venalem formam exhibuit ac prostitutam meritricio more vulgo se praebuit adulterii crimen in ea cessat . upon which law the doctors conclude , that though he who first debaushed a woman with adultery , be punishable as an adulterer yet these who did thereafter debaush her , cannot farr . quest. . num . . yet this is against both the law of god and our law , for the lying with another mans wife is still adultery , but so it is , that though she be a whore , yet she is another mans wife . nor is the marriage disolved by the adultery ; and yet i think , that if the woman with whom the adultery is committed , was at the time when the same was committed , living as a common whore , and the committer was a single man , who knew not of her being married , his punishment should be somewhat moderat upon that accompt ; but if the committer was married , the crime is the same , whether the woman was a whore or not , since it is still a violation upon the mans part . to lye likewise with a mans bethrothed , or promised spouse , or as we say , his affidat spouse , is adultery , nam . nec violare licet matrimonium , nec spem matrimonii l. . § . diu . . ff . h. t. which agrees , as i conceive , with deu. . . where he who lies with a betrothed virgin , should be stoned as an adulterer , because sayes verse . he lies with his neighbors wife . and he who lies with a betrothed virgin , who is to be shortly married , renders the succession as doubtful as he who lyes with a married wife . the punishment of adultery by the civil law , was death , as some think , by the julian law , relegatio , or banishment , as others think ; but certainly the pain of death was the punishment to be inflicted , by that excellent constitution , leg . quamvis cod. hoc . tit . albeit thereafter iustinian did by the . n. cap. . remit to the woman the pains of death , and ordain her only to be imprisoned in a monastry : by the law likewise of most nations , adultery is only punishable by pecuniary mulcts : albeit by the law of god it was punishable by stoning both man and woman to death , . deut. . which punishment some think likewise to have been abrogated by our saviour , because when the woman accused for adultery was brought before him , he did dismisse her without any punishment ; but this is very groundless , for our saviour came not to be a judge in such causes , as himself declares : and though he had been a judge , yet she wanted an accuser . iii. our law divides adultery , in that which is notour adultery , and single adultery . notour adultery is by the . act parl. q. mary , declared to be punishable by death , after premonition is made to abstain from the said manifest and notour crime ; which premonition had its origin from auth. si quis c. ad l. . de adult . by which it was lawful for the husband to kill him who was thrice premonish'd not to converse with his wife . and in effect , the design of that act was only to punish a horrid abuse , which was then ordinar , viz. the taking away other mens wives , and keeping them openly as their own , to the great contempt of law. yet by the explication of this act , which is given by the . act , . parl. i. . that is only declared to be notour adultery , where , . there are bairns one or moe procreated betwixt the adulterers . . when they keep company , or bed together notoriously known . . when they are suspected of adultery , and thereby gives slander to the kirk , whereupon being admonished to satisfie the kirk , they contemptuously refuse , and for their refusal they are excommunicat : if either of which three degrees be proved before the justices , the committers are punishable by death . from which act it is to be observed , . that though by the first act premonition to abstain was still to be made in all cases , yet in neither of the two first cases here related it is declared necessary . but since it was not lawful to kill him who was premonished , and thereafter conversed , except they conversed in suspect places , gribald . de homicid . num . . it seems that in neither of these statutes conversation should be criminal , even after prohibition , except it be in suspect places . . the justices are only declared to be judges to the notoriety of adultery , and therefore it may be controverted , if lords of regality be judges competent to the cognition of it . . this act does not exclude capital punishments in other cases of adultery , but only ordains that these three degrees shall be punished by death . and since there are other cases more grievous to the party injured , and more scandalous to the common-wealth ; it may be argued , that the punishment of death should likewise be extended to them ; as for instance , to commit frequent adulteries : and it appears it is upon this account that the sentence of death was pronounced against sir iohn stewart , for three adulteries , . august , . as also , isabel hamiltoun being pursued in iuly , . for adultery , and having enacted her self never to return , under the pain of death ; she having thereafter returned , was immediatly , without any other process , by an order from the justices , execute in anno . iv. and albeit there be no express law for inflicting death in other cases , upon ordinary adulterers , yet i see no reason why the justices may not as well , for the good of the common-wealth , inflict death , without any express law here , as they do in theft , and other less crimes : and in effect , adultery includes theft , as i said formerly ; and albeit inclusio unius est exclusio alterius , and that it may be argued , that by the former act , appointing death in the cases above-cited , the punishment of death is thereby excluded in other cases : yet to this it may be answered , that the foresaid rule is only a brocard , and hath only the strength of a presumption and therefore take only place in favourable cases , but should not be extended in prejudice of the law of god , which expresly ordains adulterers to die . and in the foresaid . act , . parl. q. mary , it is declared that this act shall be but prejudice of all other acts and laws already made , with all rigour ; but i can find no other act made prior to that anent adultery , whereby the punishment is limited ; and therefore i believe that that act relates to the punishment related to by the law of god : at the least i think that the magistrate is left to his own freedome to consider circumstances . and whereas it may be alledged that if single adultery were punishable by death , these acts had been needless . to this it may be answered , that the design of the former acts was to necessitat the magistrate alwayes in the cases exprest in that act to inflict death , and not to impower them only to do so : and seing single adultery is punishable by the magistrate , sometimes by banishment , as in the case of an english woman , in december . sometimes with scourging , as in the case of ridpath , december . and sometime with fining , as in the case of that woman who committed adultery with george swintoun , in anno . though there be no express law warranting them to inflict these punishments , and whereupon the pursuer is forced to found his summonds upon the law of god , and law of nature , upon which law they are sustained , without citing any municipal law , as in the case of that english woman : i see no reason why they may not by the same laws inflict likewise the punishment of death . albeit the foresaid punishment of death be appointed in cases of notour adultery ; yet the council does use to mitigate the punishment , and so they ordained only ridpath a tinker , though he was found guilty of double adultery , in keeping another tinkers wife two years , to be only scourged , banished , and burnt on the cheek , decemb. . . but the reason here was , because tinkers are in effect vile persons , who are seldome ever lawfully married : and in such i find of old , adultery was not punished by death , as l. . c. h. t. where adultery committed with a taverner is not punished severely , quas vitae vilitas dignas legum observatione non credidit , & erant infra legum curam . and some respect was likewise had here to that absurd custome amongst tinkers , of living promiscuously , and using one anothers wives as concubines . the council sometimes do likewise banish persons for adultery , without suffering them to come before a justice court , even where notour adultery might be proved against them , as in the case of ieals thyre an english man , for committing adultery with margaret hamiltoun , who at her death confessed that the said thyre had lyen several years with her , and that he had alienat her affection from her husband , which induced her , though without his accession , to kill her husband , and that she had several children by him ; all which in effect were great aggravations of the crime , and he deserved well to have dyed . from this it appears that the punishment of ordinary adultery is arbitrary , and useth to be inflicted , either by banishment , whiping , fyning , or imprisonment . if a person be only banished for adultery , and return again without leave here , she may be execute ; and thus the justices found by advice of the council , in the case of grissel hamiltoun , decemb. . or if adultery be complicated with any other crime , the guilt is thereby aggraged , and the crime may be capitally punished ; thus margaret thomson was execute for committing adultery with a minister , and for falsifying a testimonial , to the end she might get her child baptized , may . . v. since adultery is only committed betwixt married persons , it is therefore requisite that the libel in adultery bear , that such persons were married ; and one of the ordinary faults committed by the pursuer in this crime is , they seldome ever lead witnesses for proving the marriage , without which be proved , or be notour to the assize , they should not fyle the pannel , though copulation be proved . but though the marriage be not just , but only a supposed marriage , or matrimonium putativum ( as lawyers call it ) yet the violation even of that marriage , will infer adultery . as for instance , if a man not knowing the relation , should marry within the degrees de fendant ; though there be in that case no lawful marriage , yet if either of these parties who are married , should ly with any other , they will be guilty of adultery , cravet . consilio . num . . the reason whereof is , because the committer did all that lay in his power to commit adultery , which is the main thing to be looked to in crimes , nam proposita maleficia distinguant . and from this i am much inclined to think , that conatus , or an endeavour to commit adultery , if the adulterer did all that in him lay to accomplish the said design , makes the committer guilty of adultery , if that design was brought the length of being in actu proximo , as lawyers call it : though in that case i think the rigour of the ordinary punishment should be somewhat remitted : & haec attentatio est punienda paena extraordinaria judicis arbitrio . tira-quell . de panis , cas. . & . he who allow'd his house to the adulterers for perpetrating their crime , is punishable as an adulterer , and he who gave them the use of his house for consulting about the committing of it , though it was not committed , is punishable as an adulterer , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , basil. l. . h. t. he who retains his wife , after he finds her committing adultery , and le ts go the adulterer , is punishable as a pimp , l. . ibid. but this is not in observance with us , except the husband took money to conceal the adultery , and therefore that law doth well determine , that he who remits the injury for money , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is punishable as an adulterer , but not he who remits it freely . vi. he who gives warrand , and order , or hires others to commit adultery , is guilty , and deserves the same punishment with the adulterer , according to the opinion of all lawyers . and in effect , he is more guilty , seing he wants the natural tentation of the adulterer , and commits the crime in effect out of meer malice , and in contempt of the law : and therefore lawyers conclude , that the husband hounding out , or hyring others to commit adultery , cannot pursue his wife for that adultery which he occasioned : and yet it being alledged against rocheid that he could not pursue elizabeth muir his wife , because in effect he had hired others to lye with her , and so was leno . it was answered , . lenocinium was only in the case , ubi maritus quaestum facit de corpore uxoris , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or keeps a bordel , or prostitutes her for money . . this exception could only exclude the husband from pursuing a civil suit of divorce , but not from pursuing a criminal suit for adultery . . though it excludes the husband from a criminal pursuit , it could only exclude him from such a criminal pursuit , as was intented upon these acts of adultery to which she was tempted , or which she committed with her husbands consent , but not from pursuing her upon such acts as she had committed formerly , without her husbands knowledge . . the advocat concurred in this case , who , nor the publick interest could not be prejudged by any connivance or crime of the husband : in respect of which reply the defence was repelled . but to examine this interloquutor , it is certain that the fourth reply was per se relevant , for certainly the advocat might have concurred without the husband , the lybel being conceived in the advocats name , as well as the husbands , but not other wayes : but as to the other replyes , i think they were not relevant per se , for it were most unjust that the husband should have liberty to pursue that as an injury , which he himself had occasioned , nor should he be allowed to call that an injury done to his wife , the like whereof he himself had solicited with money ; and seeing in law , that husband who consents to his wifes adultery , is called leno , or pimp , much more should he be repute guilty of being a pimp or baud , who invites and hires others to lye with his wife ; and certainly as it is a greater crime to hire others to lye with a woman , then to lye with her himself , because there is not so great temptation in the one as in the other , so certainly there is more of crime and malice in giving money , then in taking money in this case , since money may be taken out of poverty , whereas it never can be given without malice . lawyers relate , the case of a french man , who to prove adultery against his wife , did geld himself , and did let witnesses see he was gelded , whereupon his wife being with child . moneths thereafter was pursued by him for adultery : but since this was an unlawful mean of probation , i would not have allowed it , if the pursuit had been at the husbands instance , and though it had been at the fisks instance , yet since the woman was so much tempted , i would only have punished her moderatly . vii . adultery is ordinarily committed so privatly , and so removedly from all witnesses , that the law allowes it to be proved by strong and violent presumptions , as the being in bed together alone , and being naked , farin . quest . . cap. . and the ordinary presumptions probative in this case are , the being oft alone together , gifts , love-letters , closs doors , the wifes being abroad all night , nudus cum nuda , & solus cum sola , the intertaining persons that are known to be pimps , cohabitation , all which are presumptions , which according to the opinion of the civilians , may inferr torture , though it be not used with us , yet it is most ordinary for assizes to fyle pannels upon those presumptions , with the assistance of any other probation ; and in george swintouns case , a woman was there filed of adultery , though nothing was proved but that the pairties were alone , and that the witnesses heard them in bed together , and the bed shake : and in the case likewise of elizabeth muir , it may be seen that she was condemned upon pregnant presumptions , without a formal probation . albeit women cannot be admitted witnesses , yet they are received in adultery , as in the foresaid process against elizabeth muir , anno , . and the lords of session after solemne debate , found that two witnesses seeing successively the crime committed , though they did not see it at one time , yet they were sufficient witnesses to infer the crime ; albeit it was alledged they could not be called contestes , feb. . lady miltoun against the laird . adultery may be pursued either civilly to obtain a divorce , or criminally , and when it is pursued criminally the pursuit tends either to a capital punishment , or an extraordinar and arbitrary punishment , and according to the different nature of these conclusions , require different probation , for in civil pursuite lawyers do allow : and the commissaries have found in the foresaid case of the lady miltouns , that witnesses deponing that they saw the persons lying together naked in a bed , and that one witness deponing upon an act at one time , and another upon another act committed at another time , did prove sufficiently , which ( as some think ) would hardly have been sufficient in a criminal pursuit , seing in effect these witnesses were but single witnesses , and their senses did not here agree in one and the same object , which is the reason why witnesses are believed . viii . it may be doubted here whether a decreet of divorce before the commissaries be sufficient to prove adultery in a criminal pursuite , as a decreet of improbation before the lords , is sufficient to inferr falshood : and for clearing of this question , it is answered , that . seeing the probation of single adultery is sufficient to inferr a divorce , it followes necessarily that the production of that decreet cannot prove notour adultery . and this was likewise found last iuly , anno . . in an action pursued by the kings advocat against alexander hay of dalgety : and certainly there was great reason for that verdict , seeing as is very well urged there , many probations will inferr single adultery , or a divorce , which will not inferr notour adultery and capital punishment : but yet i see no reason why a decreet of the commissaries should not inferr the punishment of ordinar adultery , and an arbitrary punishment , seing no probation is sufficient in the one case which cannot be allowed in the other , it beeing a rule amongst the doctors , that causa civilis & criminalis quo ad paenam arbitrariam aequiparantur quo ad probationem ; and whereas it may be objected , that probation in criminals , should be led in presence of the pannel , and the assize . to this it is answered , . the decreet of divorce is approbation . this may be likewayes objected in the crime of falshood , and yet the lords decreet is there admitted ; but betwixt these two decreets there is this difference , that the lords may punish falshood themselves , and so their decreet should be a full probation , because they are judges competent , even to the criminal part : but it is not so with the commissaries , who can inflict no criminal punishment at all for adultery . ix . the civil law did excuse a man from adultery , who apprehending upon just reasons that his wife was dead , married another , or the wife who married a second husband , l. . § . . ff . h. t. mulier cum audisset absentem virum defunctum esse alii se junxit , & fa●sis rumoribus inducta , & quia verisimile est deceptam eam fuisse nihil vindicta dignum videri potest , & l. pen. dicit adulterium sine dolo malo non committi : upon which arose a great debate , novemb. . . for iohn frazer being indited for notour adultery with helen guthrie , alledged , that he could not pass to the knowledge of an inquest , as an adulterer , because he had married this helen lawfully , after he had got testificats upon oath to prove that his first wife was dead in virginia , whereupon he got a warrand from the presbytery of edinburgh to marry , and was accordingly proclaimed and married : and if a false rumour was sufficient to clear from adultery , and that there could be no adultery without dole , and a fraudulent design , as is clear by the former laws , and by farin . de delict . car . quest . . he could not be guilty of adultery who had married , authore ecclesia , who is judge competent , and who was induced thereto , not only by report , but by testificats . to which it was replyed , that he is an adulterer who lyes with another woman whilst his wife lives ; and as rumours cannot dissolve marriage , so neither can they defend against adultery , and if this were allowed , it were easie for every man who were weary of his wife , to raise rumours concerning her death , and thereby authorize himself in marying another . . though rumours were sufficient , they behoved to be rumors constantly and commonly reported , but here was only one testificar , and this testificat could be no warrand , since it was but a single testimony , nor did it bear that the said margarat haitly , who died there , was known to him to be spouse to iohn frazer , but only in general , that one margaret haitly died there , and there might have been moe of that name . . though rumours might excuse , yet that could only be after a long absence , & longo tempore transacto as is clear by the law cited by the pannel , whereas here she was only absent three years ; and the ignorance behoved to be invincible , whereas here it was only ignorantia affectata , for it is offered to be proved that she stayed within twelve miles of the pannels fathers house , and was known by all the countrey to live there , and though her mother , and relations lived at edinburgh in one town with the pannel , yet he never asked at her mother if she was dead . . a man whose wife diverts from him , ought to summond her to adher , and so procure a divorce by the commissaries ; and though rumours and praesumptions could inferr a full probation , yet that must be only understood of what is led and proved before the judge ordinary , and the warrand of the presbytery is not sufficient , since they are not judges competent to the dissolution of mariages , and this was procured periculo petentis , no person being cited . upon which debate , the justices repelled the defence , and the said iohn frazer , being remitted to the knowledge of an inquest , was found guilty , but did thereafter procure a remission ; and thus it is clear that bigamie may be also pursued as notour adultery . but the woman who knew not the first marriage was not punished , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . basil. l. . hoc tit . x. it may be here doubted likewise , whether a pursuite being intented for notour adultery , and not for single adultery , & the probation which is led , be sufficient to inferr single adultery , though not notour adultery , if the assize should fyle or not . for the negative , it may be alledged , that single and notour adultery are different crimes , and the libels are different , and the lybell in this case is not proved , and therefore the assize should not file , and if they do , their sentence is null ; even as in the case of george grahame , where the verdict of the assize was reduced , because theft was lybelled and recept of theft only proved . as also in that case the defender is precluded of his defences , because he would have propounded defences against single adultery if it had been lybelled , which would either not have been relevant against notour adultery , or else he thought himself , in tuto , not to propone them , because he thought himself secure , knowing that the notour adultery libelled could never be proved : and it is an ordinar conclusion amongst the doctors , that si in libello qualificato omnes qualitates non sunt proba●ae reus est absolvendus . and albeit for eviting this difficulty , the conclusion in thir libels uses to be alternative , yet i think that the defender should be absolved , he taking instruments upon the libel as it is libelled , except the qualities be expresly proved ; though it be most ordinary to the justices to allow the parties to declare that they insist alternatively as said is . by our law , such as are divorced for the crime of adultery committed by themselves , cannot thereafter marry the persons with whom they are declared by the sentence of a judge to have committed adultery , and all such marriages are declared null , by the act. . p. . i. . which hath been introduced by our law , not only as a punishment of the adultery already committed , by lessening and narrowing their choice : but likewise as a mean to hinder any from committing adultery , in expectation ( as is too ordinary ) of enjoying in a future marriage the persons with whom they have committed it . and upon which expectation , the adulterers may be probably tempted to kill the lawful husband or wife of that person , with whom they have committed the same . in which our law agrees with the cannon law , by which non licebat ducere eam in uxorem , quam quis polluit adulterio . but it must be observed , that this only holds where there was an actual divorce upon the adultery , prior to the marriage . and therefore a present marriage could not be dissolved , by offering to prove , that the contracters had committed adultery during their former marriage . this act of parliament having declared such marriages unlawfull , it did very consequentially declare , the succession to be begotten by such unlawful conjunctions , to be unhabile to succeed as heirs to these parents . and i have heard it it doubted , whether they were capable to receive dispositions from their adulterous parents . but i conceive as to this there is no difficulty : for though the law make them uncapable to succeed as heirs , yet it does not make them uncapable to receive a disposition : and though it may seem , that this be a farther check upon the adulterers ; whose children could no way be gratified by those with whom they committed the crime . yet since quilibet est arbiter rei suae , it were hard to deprive a man of the use of his property , because he has committed adultery . i find that by the civil law such bastards as were born in adultery , or incest ( whom in the civil law calls nati ex damnato coitu ) could neither succed to their vitious parents , nor were they capable of any thing by their parents testament , cum ita facilius paterna libido coercere posses censeatur l. fin. c. de nat . lib. bald. ad l. . c. de jur . aur. nor could they be adopted by their parents , l. legem c. de na . lib. upon which principle our parliament has been induced to make the . act. par. . i. . but has streatched it a little further , then the civil law did . for by that statute , a woman divorced for her adultery , marrying thereafter the person with whom she committed the adultery for which she was divorced : or dwelling and resorting in company with him at bed , and buird , cannot dispone her lands , or set tacks thereof , in prejudice of the heirs , who would otherwayes have succeded to her . from which statute it is observeable , that since the woman is only incapacitat to dispone in this case ; that therefore a man though divorced for adultery , may lawfully dispone his land , in favours of the children procreat in that adultery , this prohibition being restricted to the woman because of the imbecility of her sex , who may be tempted , or seduced , more easily then men can be : and yet since the presumption did only runn against the adulterous children , procreat in the second marriage , whom it was probable the mother would have preferred to the children of the first , and slighted husband . it seems strange , why any deed done by her , in prejudice of not only those children , but even of any of her heirs : would be null , though done in favours , of neither the adulterous husband , nor his children ; but even in favours of meer strangers , whom the law needed not have suspected . but this was certainly done to prevent the mothers fraudulent convyances , who might have transmitted the estate to the adulterous husband , or his posterity or friends under borrowed names , the discovering of such contryvance being very difficult , and the hazard of not discovering being very great . i conceive likewayes for the same reason , that the granting of a personal bond upon which the estate was thereafter comprised from the mother may be quarrelled upon this statute . for else the law might be easily cheated : and the statute it self declares all deeds done to the prejudice of the saids heirs directly , or indirectly to be null , and yet since the mother remains still fiar , notwhithstanding of this prohibition ; i see not why a bond , and comprysing led thereon for debts truly owing by the mother , could be quarrelled , where nothing was fraudulently designed against this act . and though this act be only conceived in favours of the heirs of the prior marriage , or the womans heirs whatsoever : yet i see no reason , why this act would not militat in favours of the king , to reduce deeds done to his prejudice as ultimus haeres , since a last heire in the construction of law is a true heire . title . xviii . bigamie . what is bigamie by our law , and how punished . why bigamie was not punished as adultery . whether quakers may be punished for bigamie . vvhether long absence may excuse in this crime . vvhether the marriage sine concubitu infers bigamie . vvhether a woman devorced for adultery , marrying again , be guilty of bigamie . that a man might marry two wives , was allowed by many nations , and tacitus observed , that only the germans amongst all the nations were content with one ; but no nation allowed , that a wife should marry two husbands , which was done , either because men were the only legislators , and so were kind to themselves , in allowing themselves that liberty they denyed to poor women , or else this was not allowed , because a womans marrying two men prejudged the peopling the common-wealth ; whereas a mans marrying moe wives , was advantagious for it . and the law sayes , that more chastity is required in women then in men , and men being by nature hotter then they , bigamie is therefore more unnatural in women . i. yet in our law , either a man marrying two wives , or a woman marrying two husbands , commits bigamy ; and this is accounted by the . act . par. q. mary , a breach of the oath made at marriage , and therefore is punishable as perjury , by confiscation of all their moveables , warding of their persons for year and day , and longer during the queens will , and as infamous persons , never to bruik office , honour , dignity , or benefice in time coming . ii. it may be here doubted , why bigamie was not punisht as adultery , seing it may be notour adultery , and is ordinarly so : to which difficulty , i think the answers are , that it was contraverted amongst lawyers , whether bigamie was punishable as adultery , or as stuprum , or fornicatio ; that it was not adultery , they contended , because god allowed bigamie , but he never allowed adultery . . many nations allowed bigamie , who condemned adultery : and l. . c. de incest . nupt . where it is said , that uemini licet duas uxores ducere , the punishment of adultery is not subjoyned , but it is only said , that praefes provinciae hoc inultum non patietur , and it may be added , that their marrying shows some more respect to the law then adultery , & obfiguram matrimonii multa non adeo puniuntur . . when bigamie was by this act declared punishable , only as perju●y and not by death , even incorrigible and manifest adulteres were only punishable by confiscation of their moveables , is clear as by the subsequent act , and the act against notour adulterers to be punisht by death , was not made till the th . parl. q. mary ; i know , that menoch . de arb . cas . . thinks that big●mie should be punisht as adultery . and i do think , that if the marriage be contracted , upon design to palliate the adultery , it should be punisht more severely then adultery ; and though the offender cannot be punisht with death , as a bigamist , yet he may be punisht with death as a notour adulterer . the same may be likewise said , if the persons marry against express prohibition of the church , or it may be of friends , for thereby they are put in pessima fide , and want the advantages arising , figura matrimonii : and this statute punisheth only simple bigamie , which was , possibly contracted , when the wife belived the husband to be dead , or è contra , or when there was some other pretext for it , but excludes not a further punishment due from other circumstances , or complext crimes . and it were absurd to think , that incestuous persons , being forbidden to marry , because of their contingency in blood , or affinity , should not be punishable for incest . iii. it may be doubted , if quakers can be punisht as perjurers , seing they give no oath at marriage , and certainly they should ; seing marriage implyes a vow , though no implicit oath be given . iv. the husbands long absence may be a cause why the punishment may be mitigated , but takes not away the crime , seing death and not time dissolves marriage . and i remember of a minister , who was deposed for marrying a mans wife , after he was sixteen years absent , and albeit the first husband came home , yet the second husband still retained the wife , which certainly was adultery in him , after that knowledge , that she was another mans wife ; seing he wanted that pretext , for which bigamie is not punishable as adultery . from which likewise , that general conclusion may be drawn , that when the bigamist knows that the other person is married , if he continues , he commits adultery , and if he know that it is incestuous , he commits incest . v. it may be doubted also , if two persons marrying , be guilty of adultery , eo ipso , that they marry , though because of any interveening accident , as death , they bed not , and seing by the second marriage , they give contrary oaths ; certainly they are guilty of perjury ; for perjury being the medium peccati in this crime , and not copulatio , or coitus , as in adultery , reatus contrahitur per contraria vota , and he who lyes with another mans wife immediatly after they come from church , though before she hath bedded with her husband , does in our law commit adultery , which shews that mariage is contracted with us per 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or benedictionem ecclesiae & ante coitum . and if after coming from church the persons are married , certainly they are by that also guilty of bigamie , and from this principle also it may be inferred , that though the first marriage was null per frigiditatem , or maleficiationem , yet the other person who might have declared that marriage to have been null , marying another , before the first marriage was declared to have been null , though it was null ab initio , will be guilty of bigamie , because there are contraria vota in that case , and because he was not lawfully divorced ; for as a person who might have got a first marriage declared null ex capite adulterii , marrying again would be punishable , so it should be here ; and if it be urged that marriages are declared in frigidis & maleficiatis to have been null ab initio , and therefore there having been no marriage at first , the second was no bigamie , and the first oath not binding ab initio , for it was given upon the supposition that the other person was habilis to contract a marriage , that vow was null , and therefore there were no contrairy vowes in this case . it may be answered , that the law considers that first marriage as a sufficient marriage till it was declared null , and the other person who might have got the marriage declared null , would have been punished as an adulterer if she had lyen with another , ergo , she may be likewise punished as a bigamist . vi. the act adds , except the person were lawfully divorced , from which two questions may arise , . seing the party guilty cannot mary . v. g. if a woman be divorced for adultery she cannot marry . quaeritur , then if she marrying again , may be pursued as guilty of bigamie , and it may be alledged that it is not bigamie , seing the act sayes , that if persons not lawfully divorced marry , they commit bigamie , ergo à contraria , where the persons are lawfully divorced , they commit not bigamie , nor doth the law speak any thing of the difference betwixt the nocent and innocent parties . . if a person be divorced , and thereafter he marry , albeit thereafter that decreet of divorce be reduced , certainly the other party who married the person divorced , are not punishable , except the decreet were reduced upon his fault , but the first decreet of divorce being reduced upon his fault who obtained it , as if he had bribed the witnesses or judges , &c. eo casu , it may be alledged , that he knew that the first marriage was not lawfully disolved , and so the second marriage was bigamie , quo ad him , albeit upon the other hand it may be debated , that the first marriage being disolved authore praetore , it was no marriage at the time the second marriage was contracted , and so not bigamie , albeit the briber or forger may be punished for the crimes so committed . title xix . theft . . the definition of theft . . in what things can theft be committed , and whether it can be committed , in commodato & societate . . the law of burdein-sack , or theft committed for necessity . . whether the taking things belonging to no man , be punishable as theft . . the division of theft , in furtum manifestum & non manifestum . . whether theft ought to be punished by death . . the punishment of it by our law. . how three consecutive thefts ought to be punished , and how inferiour iudges proceed , in judging theft . . how the iustices proceed , in judging this crime . . how hareships , or abigeatus is punished . . how sacriledge is punished . . theft in landed men is treason . . how theft is aggravated from frequency , time , place , and other circumstances . . several extenuations of theft . . statutory thefts , such as breakers of yards , stealing fishes out of ponds , bees , &c. . art and part of theft , how punished . albeit at first , every thing was made common , so that then there could be no theft ; yet since by the common consent of all nations , property is introduced , theft was forbidden as an enemy to this property , and as destructive to that order and method , whereby god resolved to govern the world : and therefore the basilicks observe , that this crime is against the law of nature , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . i. theft is defin'd by lawyers , to be fraudulosa contractatio lucri faciendi gratia vel ipsius rei , vel etiam usus ejus possessionis ve , quod lege naturali prohibitumest , § . . inst de obl . ex del . by the word contrectatio , they understand , not only the away taking of a thing , for theft is committed , by concealing what was taken from another ; but likeways the using a thing depositat , or impignorat to other ends and uses , then was agreed upon : therefore theft may be described , to be a fraudulent away-taking , or using what belongs to another man , without the owners consent . ii. theft is only committed in moveables , and thence it is , that by the law of england , the stealing writs , which concern lands , or lead from a house , or fruit with the trees whereon they grow , is not punishable as theft , seing these things belong to heretage . nor is the taking away dogs , birds , or such things as serve for pleasure , accounted theft , seing it is not committed oblucrum , bolton . cap. . and theft is never committed without fraud . and albeit by the civil law , the keeping of a thing lent , longer then the time allowed , or imploying it for another use then that which it was first lent be theft by the civil law , just . de furt . autem , yet in our law it is not , l. . reg. maj. cap. . num . . and the reason there given is , because the intromission , and possession there , flowed originally from the master . and albeit it be a rule in the civil law , that initium unius cujusque actionis semper est attendendum : yet the former reason is not valid , because when a master gives money to his own servant , if he imploy it to any other use , then is appointed by his master , as if he should drink that which was given him to pay his masters merchands , or if he should sell his masters horse , with which he was sent to a friend ; these misimployments would certainly infer punishment , though the possession flow'd originally from the master . and i think that theft , in the case of a misimployed lend ; and the other cases above exprest , is more heinous then ordinary thefts , seing it is agradged by the breach of trust , or friendship , and it can likewise be less guarded against : for which two reasons ; domestick theft is still more heinously punished , then ordinary theft ; and servants committing theft in the cases foresaid , are hanged in these countreys , where ordinar theft is not capital . but i believe , the reason of our law above cited , is , because we thought that this furtum interpretativum , deserved not to be accounted such with us , where death is the punishment of theft . whereas , because in the roman law , theft was less severely punisht : it was therefore allowable , that it might be more extended ; and so i think that our law is more just then the civil law. and even according to the civil law , it were unjust that the person to whom the thing was lent , should be guilty of theft , for using it longer then was prescribed by the lender , except the lender had expresly required it ; for else by not requiring it , it seems that he hath tacitly consented to the farther use , sicut inta●itare locatione : and yet it may be answered , that there is a difference betwixt locatum & commodatum , as to this , seing locatio contrahitur utriusque gratia & locantis , & conductoris , whereas comodatum respicit tantum comodum comodatarii , and so he should religiously observe the conditions prescribed by the lender ; but yet i am clear , that if a person should borrow any thing , at first for an other use , then what he pretended , that eo casu , he is punishable . and i remember to have read of a banquier of paris , who was flea'd , and then quartered , for having borrowed vast sums , upon design to break with it ( which instance i have set down , for the merchants of our times ) and seing the lender is as much wronged , and the seeker of the loane shews as great fraud by this pretence , as in other theft : i see not why the punishment should not be the same . i find it observed by bolton , cap. . that though in glanvels time ( who is repute to be author of regiam maj. ) à furto omni modo excusabatur qui initium habuerit suae detentionis per dominum illius rei , yet it is not so now , for if a carrier take out a parcel of the things delivered to him , and fell it , he is guilty of theft ; but it is not theft in the carrier to give away , or embezle the whole as he received them , because it was delivered him in the same kind , stomf . . but this last part seems absurd , for the offender designs equally to offend , and the propriator is equally injured in both cases . it is doubted by lawyers , whether theft can be committed by one of these who are in a society , or who have right to a commonty of these things , which is the subject matter of the commonty . it is answered , that it can , if fraud be proved in either of these cases , l. si socius ff . de furto , and the reason is , because the using that which is common , or that as in which the society is constitute ; otherways then according to the rules , is in effect to imploy for on s own use , what belongs to another , which is theft ; and who doubts , if one of these who is in a society , as in beer brewing , would steal away in the night , considerable quantities of beer , out of the society , but he might be punished for theft , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . l. . basil. h. t. iii. according to the law of burden-sack , or ibur anaseca , no man can be accused for the●t , for as much meat as he can carry on his back , r. m. l. . cap. . but i think this should be restricted , by these two limitations ; . if the said theft was committed , to satisfie his necessity , l. verum ff . de furtis , which is the meaning of that expression , necessity has no law . and . if he could not intertain himself another way . and whereas skeen observes , upon the word burden-sack , the thief should in this case , pay a cow , or sheep to him , in whose land he was taken . i think that also unreasonable , seing that presupposes , that the thief is not in that absolute necessity , which should get him this priviledge : and whereas he observes , that he should be scourged , i th●nk ●t most unreasonable , because his necessity , makes it in effect , to be no theft : and it is contrair likewise , to the foresaid . cap. l. . reg. maj. that no court shall be holden upon burden-sack . by the civil law likewise , fraudantes filcum , or gabellum , the stealers of customes were punishable as thieves , far. quest . . but of this i shall treat hereafter . iv. by the civil law it was accounted no theft to intromet with , or abstract things that belonged to a succession , to which none had entered ; because , before the entering of an heir , these things could be called no mans , l. hereditarie ff . de furto . and for the same reason , the taking away rings , and other goods from off a dead person , out of a grave , is not counted theft by the law of england , as it was found in notinghames case , anno where this was only found a misdemeanour , and the defender whipt : but this holds not now in our practique , which is most reason●ble , for this is in effect greater then ordinary theft , because these things have none to guard them . and in our law likewise , he who finds a waise beast , which hath strayed from the owner , should cause cry it either in the court of his over-lord , or in the church , or else he may be pursued for theft ; and theft is likewise punishable , albeit the person be not known , from whom the thing was stolen , alex. concilio . and yet furtum non fit nisi sit cui fiat , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . l. . § . . basil . h. t. v. theft was divided by the civil law , in manifestum & non manifestum ; manifest theft , was when the thief himself was deprehended , in the very act , or if he was seen with it before he did arive , at the place , to which he did destinat to carry it . theft not manifest , was , when either the thief was not taken , or seen with it : and this distinction hath in my opinion , given occasion to the difference in our law , betwixt in-fang-thief , and out-fang-thief , which concerns only the jurisdiction where the thief is punished , but not the punishment it self , as shall be said hereafter ; but there are several other vestiges of it in our law , as cap. . l. . reg. maj. it is said , that he who is taken with nothing in his hand , may purge himself by men , and three thanes . and a burgess being accused of manifest theft , may purge himself by the oath of twelve ; the meaning whereof , is , that he shall give his own oath he is innocent , and shall get so many men to swear , that they believe his innocence , and this manifest theft , is called theft with red hand , stat. orcar . by a metaphor borrowed from murder . but with us , theft may be divided into common theft ( which is theft so properly called , or stouth-rife , which is violent theft ) and is a complex of theft and robbery . and receipt of theft , which distinction is hinted at , in all our laws , but most specially . act. p. . ia. . vi. as to the punishment of theft , it is much contraverted amongst lawyers , if the law-givers can justly pun●sh theft with death , and though i will not dispute the power of princes and states , yet i incline to think , that for simple theft , a thief should not dye . for f●rst , we find by the law of god , to which as the scripture sayes , nothing should be added , or paired , theft is not punishable by death , nor can this law be called only a judicial law fitted for the common-wealth of the jews : for that it is a moral law , according to its statutory part , forbidding theft , appears from its being insert amongst the commands , and why it should not be so , as to its sanction , and punishment like murder , incest , and these other crimes , i cannot see a reason . . we see that some thefts are capitally punished , as are the stealing things sacred , iosh. . and theft committed in the night ; exod. ▪ . and stealers of men , deut. . . by which it appears , that god almighty intended not that single theft should be punished by death . . there is no proportion betwixt the life of a man , and any mony , for all that a man hath will he give for his life . . the life of the malefactor is ordinarily taken , where the crime cannot be repaired , as in murder , incest , &c. but in theft it may , and the parties wronged , would in all probability , be far easier secured this way , seing many will rather want their goods , nor have a mans life taken . many thieves would restore , if they thought restoration might be made with safty of their life ; and the law would easilier sustain the pusuers probation , if the event were only to reach goods , and not life . . it seems absurd , that single adultery , which is the worst of thefts ( seeing the husband thereby is robbed of his estate , quiet , good name , and succession ) should not be punishable by death , and yet theft should be made capital , and that theft and murder which are not equal crimes , should have equal punishments , and albeit it be objected , that laban , gen. . . did vow that these who had stollen his goods , should be punished by death : yet the reason in that case will appear to be , because that the theft there mentioned , was sacriledge . and whereas davids oath to nathan , is , that he who had stolne his neighbours lamb , should die , is objected . it is answered , either that was spoken in passion , which the text bears ; or otherwayes that was suggested by a special providence to david , to the end he might be his own accuser . nor do i deny but there was a kind of communion of goods amongst the jews , more then in other nations , as appears by their jublee , by their not taking pledges , nor anual rent , so that there was less reason to make theft capital amongst them , then amongst us ; and that according as crimes grow more frequent , the punishment may be augmented , but i deny that they should be soaugmented , that suitable proportion should not be keeped . and it is known from experience , that many men fear hanging , lesse then being constantly keeped in correction-houses , or in the places where they may be kept working , as they do in holland , for the good of the common-wealth . vii . to descend then to our law , the custom is , that the justices do sometimes hang even for very small faults , as thomas neilson for stealing a horse , december . watson hanged for stealing . sheeps , though there was no probation against him , but his own confession , and though he had restored ●he things stoln . sometimes by banishment , as richard lauder , . febr. . and alexander cumming , and iohn tailer , . febr. . sometimes they are drowned , as grissel mathow , for stealing a coffer with writs , . iune . sometimes scourged , as iames wilson , . feb. . sometimes they are hanged in chains , if they be notorious thieves , as patrick roy macgrigor , may. . &c. it is thought that de jure there is no law in scotland for hanging a man for theft , which is a great mistake , for leg. burgorum . cap. . it is said , if a thief be taken with bread worth a farthing , and from one farthing to four , he should be scourged : for four farthings he should be put in the joggs , and banished ; from four to eight he should loose an ear : and if that same . thief be thereafter ta●●● with eight pennies , he should be hanged ; but if any thief should be taken with . pennies and an farthing , he may be hanged . . by the . act stat . da. . . ch . and cap. . l. . reg. maj. one defamed for theft , who cannot find caution , should be hanged , & cap. . it is said that no man can be hanged for lesse then two sheep : and by the law likewayes of birthinseck , a thief should not dye for as much meat as he can carry upon his back : and cap. . a thief being hanged and falling from the gallows , is no more to be punished . all which implyes clearly that theft is of its own nature punishable by death . . by the . act . i. . p. . stealers of pleugh graith , or breakers of mi●nes , are to be punished therefore , to the death , as thieves . but because our practiques , is in this , a little arbitrary and uncertain , it will be fit to know that theft in scotland , is either pur●ued by accusation , which is at the instance of a private accuser , or by way of inditement , which is at the instance of the procurator-fiskal . if the pursuite be intented , by way of accusation , it may be judged by barrons having power of pitt , and gallows , or as our charters call , foffa & furca , or by sheriffs : but if it be pursued by way of inditement , the cognition thereof belongs to the justice . reg. maj. cap. . num. . but this distinction , is not well observed , for the sheriffs do proceed to judge thefts even by citation , & though the thief be not taken with with the fang , which is certainly an error , for all processes upon citation against a thief , should belong to the justices , viii . in the procedor before these inferiour courts , they do not condemn to death , except upon three thefts , or that the person be taken with fang , and he be likewise famosus fur . as to the three thefts , i find no expresse law for it only , stat . da. . cap. . where it is said , if a thief be defamed at three barrons courts , and wants a pledge , or cautioner , then he may be hanged , or if he be defamed , and cited in two courts , or in one , and be of ill fame likewise ; or as we say , there be publick bruits and open fame that he is a thief , then he may be hanged . but simple fame is said there , not to be sufficient to infer death , except that ill fame were found by an assize upon oath . yet this is now absolet , for fame is in no case sufficient to inferr death . as to the three thefts , i find the civilians relate , that the third the●t , by the statutory law of most places , is capital , and it seems to be grounded upon very good reasons , for he who is oft found committing the same crime , is presumed by the law to designe to make it a trade , ang. ad l. . devi publica , where the committing of theft twice , inferrs this presumption . the law of holland provides , that a thief shall be hanged for the third theft , except it seem otherwayes just to the judge because of his age , or any other pregnant reason : and ordinarily three small thefts , are by matheus said not to be construed such , according to the law of holland , as deserves death : the civilians do upon supposition that the third theft is capital , conclude , that these three thefts should be distinct , even as to to the time , and that he is to be punished with death for the third theft , though he had been formerly punished for both the other two , or though the former two had been remitted to him by the prince : and albeit they use many distinctions for clearing whether a thief should be hanged for the third theft , where the first two were not committed within his territory or jurisdiction , and so could not be punished by him , yet since capital punishment is not inferred by a statute against the third theft , but that the third theft is only punishable with death , because the committer is presumed to be irreclaimable : therefore i think , that where ever the theft was committed , yet for the third theft , the thief should be hanged ; for albeit there be no express statute for that with us , yet , seing gomesius chasaneus , and other famous lawyers , attested this to be the general custome of the world ; i think it should be followed by our sheriffs and inferiour judges , who being determined by that number , have some certain rule whereby they may be both limited , and warranded , which is much safer then that they should be allowed scop , to break out into the extreams of either cruelty , or cowardliness . the law of england divides theft or larcenry , into petty larcenry , when the thing stoln , exceeds not twelve pence , and its punishment extends not to death , and grand larcenry , when it exceeds twelve pence , wherein the thief is punishable by death , except he be saved by the book : and if one steal to the value of six pence , at one time , and six pence at another time , then he is guilty of death , but if two steal to the value of eighten pence joyntly , each is guilty . common bruit , and open fame , of being an ordinary thief , is likewise a good ground of making theft puishable by death , the thief being taken with the fang , & hi fures famosi sive infamati de pluribus furtis , are ordinarily hanged likewise , as is clear by clarus . num. . hoc tit . menoch . arbitrariis casu . . and it is sufficient that witnesses depon of their credulity , and that they are informed by others , our law calls such de famiati de latrocinio ; and if he cannot find caution , the old law appoints , that he should be proceeded against as if he were a proven thief ; for latro defamatus & latro probatus , are still aequipollent in our law ; but i think these laws too severe , and they are not in use . ix . as to the procedor of the justices ; it is because their power is more eminent , that they are allowed to be more arbitrary ; but i think the distinction allowed by civilians , will be very reasonable , which is that , in furto simplici , in simple theft , the pain of death should never be imposed , but in qualified theft , if the quality be such as agredges the crime very much ; which aggravations are either taken from the thing it self , that is stoln , as in our statutes , the stealers of pleugh-graith , cutters and destroyers of pleugh , and pleugh-graith , in the time of telling ; and cutters and destroyers of growing trees , or breakers of milnes , or of leading co●ns , or fewel , are to be punished to the death , as thieves , . act. . p. i. and hoche●s and killers of oxen , horses , and other cattel , are punishable by death , and confiscation of movables , as well committers as recepters , act. . p. ia. . and upon this act were hanged , for killing drumlanerk's sheep , . feb. . albeit it would appear , that that act is only to be extended to labouring cattel . nota , this is a case wherein theft may be committed , without carrying any thing away ; for the doing of these wrongs , without carrying away the thing wronged , is constantly declared to be theft , & per constitutionem frederici secundi de stat . § . agricultores , the stealing pleugh graith , is punished , as a particular crime . x. herdships , likewise , which is , the driving away a great many cattle , called by the civilians , crimen abigeatus , is likewise by the law of all nations , and particularly by ours , punished with death ; but though lex prima dig . de abigeat : say that abigei ad gladium dentur . yet matheus doth interpret , that not to be meant , de ultimo supplicio , but only de ludo gladiatorio , and with this agrees . l. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : but if they went with arms , they were punished with death , as the scolia of the basilicks observe . it may be usefully observed , that those who drive away herdships , cum gladio , with arms , are punished by death , because they are rather robbers then thieves . . these who drive away great cattle , are more to be punished , then these who drive away the lesser , l. . ff . de abige . . these are to be most severely punished , who live in a countrey , where that crime is most frequent ; and therefore our highlanders are most severely punished . . these that drive away cattle from the fields , are more to be punished , then these who drive out of the houses , because cattle in the fields have no guard but the law. xi . the stealing likewise of a thing consecrated to god , aggrages so the theft , as to make it punishable by death , and this was called sacriledge by the civil , and cannon laws , and was distinguished into several degrees , as . if a thing sacred was stoln out of a sacred place . . if a thing sacred was stoln out of any place . . if a thing not sacred was stoln out of a sacred place : but thir two last are not properly sacriledge . with us there are no formal consecrations used of churches , vestments , cupps , &c. and so we have no such formal crime , as sacriledge ; nor have we any act against it . yet i think , to steal any thing destinat to gods service , and even to steal any thing out of a church , deserves to be punished with death . and this theft is aggraged with us , not only from the nature of the thing stoln , but more from the place ; and thus also murder , or mutilation , committed within the church or church-yaird , is more severely punished then other murders ; and with us these who steal out of churches , are still hanged , or who steal what is dedicated to , or serves the church , as basons . &c. xii . the next aggravation of theft is from the person who commits it , and thus theft , when committed by landed men , is punished with us as treason , act. . p. . i. . the words are , that if it shall happen any landed man to be lawfully and orderly convict of common theft , recept of theft , or stouthreif he shall incur the crime and the pain of treason : the reason inductive of this act was , because it was easier for landed men to commit theft , then for any others , and so it should be more severely punished , and these also wanted all pretext of necessity , or rusticity , and must be presumed to be extreamly mean and malicious persons , whom the common-wealth might well want , and whom they should not suffer : but it may be here doubted who are these , who are by this act to be accompted landed men ; and it would appear , . that only such as have themselves , or their predecessors , been infest , are only such , for , nulla sasina nulla terra , and so a disposition or charter or a resignation in favorem , makes not a thief to fall under the compasse of this act. yet some think an heir served and retoured , doth fall within this signification , though he be not infest , because his lying out is his own fault , and so should not defend him . . i think that a person who was once a barron , if he be thereafter denuded , falls not under it , for albeit semel baro is semper baro in our law. yet that maxime holds only presumptive ; and if it be proved that he was actually denuded , that will liberat him from vitious intromission , much more a crime that deserves forfaulter and statutory crimes , are not to be extended . by ordinary theft in this act is meant , theft without any aggravation of violence , herships , &c. by stouthreif is meant violent and masterful theft . and as this kind of theft hath the disadvantage of being treason , so it is just that it should participat of all the advantages which are allowed to those who are pursued , as traitors , ( & quem sequuntur incommoda eum debent sequi commoda ) and therefore no inferiour judge is judge competent to a process founded upon this species of theft , as was found in iuly , . where a process intented against a landed man , before the sheriff of wigtown , was advocat to the justices upon this reason ; albeit it was alledged that this act being conceived in odium , and for repressing of theft , it was unreasonable that it should not be quarrellable before every judge , for thereby many would be deterred from pursuits against landed men . and albeit the punishment was in this theft , greater then in others ; yet the relevancy and probation was no more intricat here then in other cases . . it was alledged that the pursuer restricted his libel to ordinary theft , which the justices found he could not do , because the relevance , and probation would be , eadem utrobique ; and albeit the pairty would restrict as said is , yet the kings advocat might , at any time thereafter , found a process of forefaulter , and needed no more probation : as in the case of iohn wauch , though the sheriff of selkirk had only fyned the thief , yet the lords sustained a declarator of escheat upon that same verdict , whereby the thief was found by them guilty of theft ; for the lords thought that privat parties could by no declaration nor deed of theirs , prejudge his majestie 's interest , so that from this ground , it may be debared , that when a landed man is pursued for theft , the pursuer cannot restrict his pursuite to a pursuite of common theft . as also , that the pursuer failzieing to prove , in this case commits treason , because he who pursues any man for treason , if he be found calumnious , commits treason . it may be doubted also if the council can mitigat the punishment here , seing they cannot remit treason : yet in thir statutory treasons the council ordinarily mitigats or converts the punishment . nor see i any reason , why it may not be alledged that theft in landed men , is not made treason by this act , but is only declared punishable as treason , and theft , that is not to be judged as treason , though it should be punished as such , for these two are differrent . xiii . this crime of theft becomes sometimes atrocious , and so should be punishable by death , because of the irreclaimablenesse of the offender , and triple theft is capital in inferiour courts , though the things stoln be very inconsiderable , because this shews a habit or double these , if the thing stoln be of great moment . and by the first statute , da . § . . a thief banished , being taken again in these territories , from which he was banished , may be proceeded against with all severity ; and the breaking of pink dove coats , &c. is punishable by death at the third rime , act. . i. . p. . the way likewise whereby the theft is committed , makes it oft deserve to be capital , as the stealing by false keys , or breaking houses , and inchantments , and if it be committed masterfully , ( as we use to speak ) which is called stouthreif with us , and roboria , by the doctors then it dese●ves to be capitally punished ; but of this afterwards . theft is likewise aggraged from the time , as stealing in the night is punishable by death , if the theif defend himself , and be armed . l. furem . ff . ad l. corn. de sicar , but with us generally a thief breaking houses in the night may be killed by the person invaded , act . ch. p. . loss . . which may be extended also to such thieves as are preparing to break the house , of who have done it already , and to steal any thing in the time a house is burning , or when a ship is wrackt , or in time of tumults , or general desolation , were highly punishable by the civil law , either paena fustium cum relegatione vel in metallum . and with us i think such thieves should dye , for both they add affliction to the afflicted , and so shew very much malice . as also the committing theft is then very easy , and to these cases i may adde theft committed in time of pestilence . xiv . as theft is aggraged by these , so it is extenuat by other circumstances , as . in case of necessity , as said is , . a wife stealing from her own husband , is not so severely to be punished as in other cases , for in effect she hath some interest , and therefore by the common law this was not pursuable as theft , sed actione renum amotarum . l. qui servo . § . item placuit . ff . de furt . but with us , the kings advocat may pursue either wife or husband stealing from one another , though the parties cannot . for it is to be presumed that there is too much malice in such pursuites , and that the pursuer designs in that case rather to be free from the marriage , then to have the crime punisht . . he who steals from his debitor , who will not pay him , or steals what was robbed from him , is punishable , but not by death , clar. num . . de furt . . he who steals a thing of small value , de minimis non curat lex , of which formerly . . if the party from whom the thing was stoln , declare that it was not away-taken without his consent ; some lawyers think the crime is thereby purged : which opinion others allow not except it be also proven , that there were presumptions of a prior consent , as the stealers good fame , his friendship to the party accused , the relation by affinity , or consanguinity , &c. but with us if the informer swear not the libel , and depon that the thing was stoln , for ought he knows , the libel will not be sustained . . if the taker had probable reasons , to presume the things taken by him to be his own , then he is excused from criminal punishment , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , ad civilem questionem transmittitur , l. . § . ult . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . xv. there are with us other statutory thefts , which are not so of their own nature , but are to be punisht as such , as the breaking of milnes , &c. act. . p. . i. a salter , or coalyer also , leaving his master without a sufficient testimonial , or at least a sufficient reason given for his removal , and attested by the bailie , or magistrat of the place , are to be repute and punished as thieves , act. . p. . i. . but it would appear that such only as receive fee and wages from others , are only punishable as such , but not otherwayes ; and really it were unreasonable , that a poor coalyer or salter might not leave that trade , either to take another trade , or for sickness , or any other cause , and that act seems only to hinder their going from one master to another . stealers of pyks out of stanks , breakers of dove-coats , orchards or yards , stealers and destroyers of hives , are punishable as thieves , and this is ordained to be a point of dittay , and the unlaw to be ten pound , and mends to the party , conform to the skaith , act. . p. . i. . but by the . act. . p. i. . stealing of green wood by night , or peilers of barks of trees , should pay fourty shillings to the king , and assyth the party , act. . . p.i. . but thereafter by the act. . p. i. . the breaking of dove-coats , coney-gairs , parks , or stanks ( i. e. ) ponds , is declared to be punisht as theft ; but seing that appoints not that it shall be theft , it may be doubted if it should be repute as theft , as to the other disadvantages . i find that upon the . of iuly , . two fellows called raith and deane , are ordained to be hanged for breaking of yards , stealing of bee-skeps , and stealing of sybows . by the . act , . p.i. . the destroyers of planting , haining-broom , pollicie , are for the first appointed to pay to the owner the avail , and ten pound for the second , the avail and twenty pound for the third , the avail and fourty pound , and if they be not responsal , to be put in prison , and in the irons for eight dayes , for the second , fifteen dayes , for the third a moneth , and to be scourged at the end of the moneth . by which act likewise , the breakers of dove-coats , conyingairs , and parks , are to be punished the same way , if they be not responsal , they are to hanged for the third fault . it is observable , that though these persons abovenamed were hanged for breaking of yards , yet there is no warrant , therefore by that act , though there be for breaking of dove-coats and parks , and so we may perceive , that the former act is not abrogated by this act : and this act declares , that the punishment here prescribed shall be without prejudice to call the defenders at justice courts , and all the innovation introduced by this act , is that the offender may be tryed in thir cases , by the barron , or lands-lord , within whose lands the wrong was committed , if the offender be taken reid hand , ( whereas land-lords are not judges competent ) and by the sheriff if they be not taken reid hand . . there is allowed by this act , a power to land-lords , to judge in the case of wrongs done to their own tennants , which regulariter was not lawful . it is likewise observable , that this and the act , i. . p. . adds still without the good-will of the owner . so that i think , that albeit the owners declaration be not sufficient to absolve the thief in other cases , yet i think it is in this case , and that for these two reasons , because this statutory theft , is only introduced in favours of the owners , and this clause had else been uncnecessar . . it is presumable that the owner would not refuse his consent to kill a deer or coney , and this we may observe , that the words invito domino , in the definition of theft , are not absolutly ●●●ecessary , as many lawyers carpingly observe , and that in some cases , the consent of the owner may defend the party . . it may be observed from this act , that theft should be proved by confession or witnesses , and though other crimes may be proved by presumptions , yet this should not , seing death is so exorbitant a punishment . . it is observable , that the sheriff-depute , or other deputs , may sit in cases belonging to the sheriff himself , and that the declinatur which is sufficient against the one , excludes not the other . to take doves also , which belongs to their dove-coats , or to kill them , is repute theft , l. pomponius . § . pomponius ff . fam . erisc . and by the doctors , chass . fol. . for seing these creatures are ordinarly tame now , and that by the custome especially of the low countries there are few or no wild doves , it follows that it should be unlawful to kill or shoot them , as it is to shoot or hunt other wild beasts : the stealing likewise of bees , which are kept in hives , was accompted theft , l. pomponius . § . pomponius . ff . fam . erisc . and by the law of germanie , berlich . conclus . . for which though an arbitrary punishment should be regularly inflicted , yet if the bees stoln be of great value , or if the committer has been frequently deprehended in the like guilt , then the doctors are of opinion , that even stealing of bees may be punished by death , iac. de bellovis . pract . crim . cap. . num . . but i think our law juster , which considers more the habit of the offender , then the greatnesse of the offence . stealers likewise of pyks out of stanks , was forbidden , but not punished by the civil law , but by the custom of all nations , it is now punished arbitrarly according to the differing circumstances . berlich . conclus . . xvi . art and part depends in this , as in other crimes , upon circumstances , but the ordinary rules prescribed by farinaicius quest . . are , . that he who gives counsel , or perswades to steal , ●●●unishable as the thief . . he who assists , especiall● 〈◊〉 partake of the theft , is guilty , though he be not actually present . . he who recepts the thing stoln by the civil law , conatus , or a designe and essay to steal , if no theft was committed , was not punishable as theft , l. vulgaris ff . de furt . where it is said , that he who entred another mans closet upon designe to steal , if he touched nothing , is only punishable actione injuriarum si sine vi , vel de visi , vi intravit . and with us , i think that essaying to steal , should not be punished with death , seing the essayer might have repented , and seing furtum est contrectatio rei alienae , so before he touch any thing , i think he cannot be called , nor conscionably punished as a thief . he who shews the way to a thief is not a thief , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . but with us this might be esteemed art and part by that law likewise , if one broke the gate upon revenge , and another entered and stole , the breaker of the gate would not be lyable for theft , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , l. . basil. h. t. and yet i think , that he who brake the gate would be lyable for the price of the things so stoln , because he occasioned by unlawfull means the things to be stoln : law has determined generally , that ut furtum nemo facit sine dolo malo ita nec opem , & consilium fert sine dolo malo , & is consilium dat qui furtum persuadet , & is opem fert qui ministerium furto praebet , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . and i conceive that there is in law and reason , a great difference to be put betwixt these crimes , which are only committed against our fortunes , and in cases which may be repaired ; wherein actual loss should be more considered then attempts , and these which are irrepairable , when committed , and are attrocious , and concern the safety of our persons , wherein attempts should be highly punished . if he whose goods are stoln , does require the master of the thief , or him in whose obeisance he is or with whom he is found , to deliver him up to him , tha●●●●tice may be done upon him , the master or sustainer of the thief , should either deliver him up , or present him to justice , else he is guilty of the crime , and art and part thereof , i. . p. . act. . and albeit the word obeisance , here used , would seem to include vassals , yet it should not extend to these , seing it is restricted by the act to masters and sustainers , and by sustainers , are meant such as entertain the thief at bed and board . title xx. theft-boot and recept . . what is theft-boot , and by whom committed . . what is recept of theft . . how recept of theft is punished . . the principal thief ought to be discust before the receptor . . how the husband is to be punished for what is found with the wife , & è contra . . how servants are punishable for the masters theft . . how buyers of stoln goods are lyable . theft-boot is committed by securing a thief against the punishment due by law , and properly it is when sheriffs and other judges who sell a thief , or fyne with him in theftdome , committed , or to be committed . p. . i. . act . and the lord of regality , committing this crime , losses his regalities and barronies , id est , his offices and jurisdictions , as lord of regality , and as barron , and the justices and the sheriffs loss life and goods . theft-boot is also committed by any other person who takes a ransome from a thief , when he finds him with the fang . . when a party who was leas'd , transacts with the thief , and passing from the pursuite which is punishable , because the publick being by the crime wronged as well as he , and his majesty having jus quaesitum to the moveables of the offender ; it is unjust , that any private party should have it in his power to indemnify the transgressor : and albeit thir two last species of theft be not expresly contained in the act , yet seeing the act bears , that lords of regalities , sherriffs , nor others , shall not sell , &c. under the word : others generally all transgressors are comprehended , and by the . act . p. i. . it is declared , that he who transacts with a thief , for theft committed against himself , shall be guilty of theft-boot , and shall be punishable as the principal thief , from which it appears , that the punishment of theft-boot in private persons , is the same with the punishment of the thief , whereas in the first act. p. . i. . there is no punishment statuted against private persons who are guilty of theft-boot , only against judges transacting or ransoming , and skeen , verb. bote. defines . theft-boot to be when any person agrees with a thief , or puts him from the law. and yet i remember that in ian. . angus mackintosh , being pursued by the sheriffe depute of inverness , for theft-boot , as he who had componed with a thief who had stoln some meal from him ; the lords of session did advocat this pursuite to themselves , because they thought this crime of theft-boot in desuetude , and therefore they resolved to hear it themselves , that they might clearly determine what theft-boot was , and how far it was to be extended . ii. the civil law knew not such distinct crime as recept of theft , but it was comprehended under the definition of theft , for recept is defined to be occultatio latronum vel malt ●●oorum ab eo qui latronem apprehendere poterat pecunia vel surreptorum parte accepta , l. . ff . de recept : it is the wilful concealing or protecting a thief by him who might have taken and apprehended him , and that either for money , or a part of the stoln goods , from which definition it may be inferred , . that such as lodge thieves in inns , are not lyable for recept , except it be likewise proved that they knew the person lodged to have stoln goods , which ignorance will not excuse , if it be affected and designed ignorance , as if all the neighbours knew , or if it was intimat to them , or if any person offered to inform , and the inn-keeper would not know , or if the guest offered an extraordinary reward , or offered to bribe servants , or kept a very jealous watch , which presumptions may infer an arbitrary punishment , but not death . . it may be inferred that the lodging a kinsman , a wife or husbands entertaining one another , will not inferr recept , because that is presumed to be done rather , out of love , then avarice or dole , l. ff . de recept , which was extended as chassan . observes , rubr . . § . . n. . to a mistris concealing her sweet-heart : in all which cases the receptors are only to be excused , if they communicat not in the theft , for else they are to be punished as thieves , for that is not the effect of love , but of fraud . iii. recept of theft with us , is punishable as the principal thief , stat. . alex. . where it is said , that whosoever shall recept the thing stoln willingly and knowingly , he shall be punished as the principal thief ; and from this it may be concluded , that recept with us , is properly , when the thing stoln is recepted , and not when the stealer without the theft is receipted ; for to as the recepting of the thief , it appears only to be punishable , when letters of intercommuning are published , prohibiting all the leidges to recept or fortifie a malefactor , else letters of intercommuning were unnecessary ; nor see i why the receptor of a thief should be in a worse condition then the receptor of a murderer ; and our practice speaks still of recept of theft , not of thieves , at least recept of this nature falls not under this special crime , but only under the thief general crime of recepting malefactors , but if the receptor of a take money , or good deed , for the recepting even his person , eo casu , he is guilty of theft-boot , but by the . act p. . i. . it is declared , that whosoever intercommuns with thieves , or assists them in their theftous stealings , or deeds , either in going , or coming , or gives them meat , harbour , or assistance , or trysts with them any manner of way , they shall be pursued , either civilly , or criminally ; but this act strikes not against such as have entertained the thief any considerable time , after the committing of the theft , and before letters of intercommuning were execute . iv. the receptor with us cannot be punished , or thole an assize , till the principal thief be first convict ; for if he be assoilzied , the receptor cannot be punished , stat. david . cap. . but by the . cap. quon . attach . it was only declared that the receptor should not be punished till the principal was either convict or attained , i. e. accused with us . now it is inviolably observed , that the principal thief should be first discussed , as was found 〈…〉 and in anno . a verdict against george grahame , before the justices , finding him guilty of fraudulent using of a bond , was rescinded , because the principal thief was not first discussed : the case was this , achmuty , granted a bond to the lady bairfoot , for eight hundreth merks , she assigned it to george , but thereafter payed him another way , and retired the assignation , and after this she put both bond and assignation in a bonnet case ; and george having come by the bond ( as he pretended from mistris billing , daughter to the lady , who alledged she had got it from her mother for debt ) he sends it to ireland , and recovers payment , whereupon he was pursued for fraudulent using , and recept , and his discharge of the former assignation was produced , and the bond was proven to have been in the ladies custody . whereupon he was convict by the assize , but this verdict was rescinded with the justices interloquutor , because the libel was not relevant , till master and mistris billings , had been first discust , and the verdict was unjust , because it was not proved that they saw george grhame deliver back the bond , and the general discharge might have been given , spenumerandae pecuniae : and if such using as this might be termed theft , all actions of exhibitions would be turned in pursuits for theft . but it may be doubted , whether if the principal thief dye , the receptor may be punished , seeing after death the principal theft cannot be enquired into , for though that priviledge be granted , quo ad the discussion , yet it inferrs no indemnity to the receptor ; and we see , that where the benefite of discussion is granted to heirs or cautioners , he who hath the benefite may be pursued , if the party who would have been first discust , be , in solvendo , and the reason of this maxim should hold , when the principal thief is alive , and not when he is dead , is , because it is presumable that the pursuer is malicious against the receptor , for else he would doubtlesse pursue the malefactor who did the most immediat wrong to him , which it is probable the receptor knew not . it may be also doubted , if the thief dwell in england , or in france , whether the pursuer must first discusse him . v. if the thing stoln by the wife , be found with the husband , he is not to be punished , except he expresly promise to defend his wife , or warrand her ; but if the thing stoln by the husband be found under the wifes keys , or under her care , she is punishable as a thief , stat. wil. c. . & quon . attach . c. . but these chapters are confused , and de practica both man and wife are lyable , if they were accessory to any other thefts , but no otherwise . albeit the concealing of theft be criminal in others , yet it is not so in a wife , ibid. and yet the husbands authority is said not to be sufficient , to defend her in atrocious crimes , though she be obliedged , generally to obey him , ibid. from which it may be observed , first , that theft is accompted an atrocious crime , for that chapter treats of theft , albeit this be much controverted amongst the doctors , who after a long debate , whether statutes ordering the procedor in atrocious crimes , generally should be extended to theft , which they refer to the arbitration of the judge , who is to judge according to circumstances . and certainly , picking , or petty theft , is not an atrocious crime , except where the thief made a trade of it ▪ amongst other instances of this , i shall only cite robert lauder , who was only banished for theft and pickry , anno . but theft joyned with violence and rapin , stouth-reif is atrocious . . it is observable from that text , that in crimes that are not atrocious , per argumentum à contrario , obedience to the husband , excuses the wife . vi. it is statuted , v. . that servants are obliedged to reveal their masters theft , else they are guilty . from which it may be debated , that a servant who left his masters service immediatly , though he was in company with him at the cōmitting of theft , is not punishable for his being in company , since he might have been brought upon the place without knowing his masters design , and being there , durst not to have refused concurse upon such accompt . i saw some servants assoilzied by the council from death , they having left their masters service , as said is , though they revealed not the theft , which they might have omitted , either through fear , or want of probation . vii . recept then is punished as theft , which must be meant only of immediat recept , for the mediat sellers of goods belonging to thieves or inobedient persons , who dare not come to mercat themselves , are only punishable by banishment , and confiscation of their moveables , the half whereof is to belong to the king , and the other half to the suiter . and from this act may be raised these two doubts , . if this act should strike against the receptors of any other goods , then these of highland thieves , seing the act speaks of thieves who cannot come themselves to lowland mercats , whereby the acts made against sornars of clans , cannot be put to execution , yet surely this act strikes against all sellers of goods belonging to any thieves , seing the reason is the same , theft being thereby promoved , and the statuto●y words run disjunctively against the sellers of goods belonging to thieves in general , & ubi lex non distinguit nec nos , or inobedient persons and clanns . . it may be doubted , if this act should reach the sellers of goods belonging to any other malefactors , seing the rubrick speaks generally of sellers of goods belonging to malefactors : and some think , that if any malefactor be at the horn , the sellers of his goods may be punished by this act . title xxi . hame-sucken . . what priviledge the romans gave to a mans own house . . what is hame-sucken , and the several kinds thereof . . the punishment of this crime . . how hame-sucken is punished , when it is only pursued by way of aggravation . by how much the person offended lives securely , by so much all invasions made upon that security are the more severely punishable ; and therefore , seeing a man expects more security , and is least guarded against violence , whilst he lives peaceable at home , the law punishes more severely injuries done him there then elsewhere : and it is very presumable , that no person would enter anothers house , with a designe to offend him , or would offend him there upon any accompt , except he who had very much malice and prejudice against him : for by injuries committed against a person in his own house , not only the publick peace , but even the lawes of hospitality are offended . i. according to the civil law , no man could have been drawn out of his ownhouse , nor could have been cited therein , l. ff . . de injus vocando plerique putaverunt nullum de domo sua injus vocare licere & quia domus tutissimum cuique refugium receptaculum est eumquequi inde in jus vocaret vim inferre videri . but i believe the reason of this law was , because vocatio in jus , was at that time used , not by a simple citation , as now , but obterto collo , and by dragging the defender to the court. for else it is not imaginable how the citing a person at his house could infer violence , or ryot against the citer : but though this law is now so farr antiquated by custom , that any person whatsoever , may be cited in his own house , and may be violently drawn forth thereof by captions in civil cases , and warands in criminal : yet so pungent is the reason insert in that law , that domus cuique tutissimum refugium atque receptaculum est , which is likewise repeated , l. . c. de pretor & honor , pretor : that it being joyned with the former reasons above expressed , hath introduced that by the statutes of the greatest part of the world , gravior estimatur injuria alicui facta in domo sua quam alibi & ideo ut plurimum duplicatur paena malificii commissi in domo offensi , cabal . consil . criminal . casu . which is likewise consonant to the civil law , whereby of old , the entering another mans house , invito domino , was punishable as a crime , l. corn. de injuriis , and thereafter was punishable , actione injuriarum , l. . ff . de injur . ii. the invading a person in his own house , with us is called hame-sucken , and is defined to be , when any person violently enters into another mans house without licence , or contrary to the kings peace , or seeks him , or assaults him there , and comes from a dutch word haime , which signifies a house , and sucken , which signifies to seek or pursue : concerning which crime it is observable , that . it either may be pursued as a seperat crime , or as the aggravation of another crime ; when it is pursued as a formal crime , the pursuer must libel that he was invaded violently , or sought after in his own house : for if the offender did come in upon invitation , or accidentally , and thereafter upon an emergent offended or invaded the master of the house , this is not properly hame-sucken , seing the offender did not invade or sease . . the wrong must be done to a person in his own house , that is to say , where the pursuer was staying , lying or rising night and day , reg. maj. l. . cap. . v. . upon which place skeen observes , & qui insultum fecitjuxta domum hac lege punitur bartol , in authent . de appell . § . ad haec . and i find that clar. quest . . determins that a statute which doubles the pain of invasion , when the invasion is made in the house of a judge , or magistrat , takes place not only against invasions made in the house it self , but likewise made in the confines thereof ; and albericus de statutis , l. . quest . . extends to crimes forbidden in places , to crimes committed within the confines thereof , which though it be contradicted by vincen. de fran . decisione . . because rigid and special laws are strictly to be interpret ; yet i think , that if the invasion was made in any place that properly belonged to the house , such as the porch , court , inner court , or office-houses , that invasion should be punished as hame-sucken , because a man is said to be at home there , and expects as much security there ( which is the reason inductive of the law ) as any other else . and thus the ordinary form of libels with us bears , that the pursuer was invaded within his dwelling house , or precinct thereof . thomas crumbie , was hanged , and his movables escheat , for offering to strike my lady traquair with a drawn sword in her garden , . feb. . but if the place wherein the invasion was made , was no inclosure , and so adjoyned to the house , i think that though it was at the very doore of the house , that bart. his oppinion of juxta dominum , does not hold : and thus a gentle-man being pursued upon the . of iuly . for hame-sucken , in swa far as he came to alexander provests dwelling house , and there called him out , and forced him to yoak his carts , and scourged him ; the justices would not sustain the libel as hame-sucken , because it was not committed in the pursuers house , though it was done at the house door , but sustained it as oppression : and yet i think that if it had been alledged in this case , that this invasion was hamesucken , because the person injured was called out of his own house by the offender , and so quo ad him must be repute as if he had been in it ; the justices would have sustained this to have been hame-sucken , if it could have been proved that the wrong was done immediatly without any preveining provocation ; for the law would have presumed that the person was called out of designe to evite the quality of that crime , nec debet fraus sua quem libet adjuvare . it is doubted if a mans shop is to be accompted his house , to inferre this crime , and though it may be alledged , that the security is to be expected , as well in the one , as in the other ; and that it is as much the publicks interest , that shops be not entered , and persons disturbed therein , as houses , for thereby publick commerce is leised , as well as privat safety ; yet upon the other hand it may be alledged , that by the foresaid c. . v. . that is only called a mans house , where he uses to rise and lye : and amongst the different opinion of lawyers , i find this reconcealing distinction used , that if the shop be adjoyned to the house , and be not repute a different house , that eo casu , invasions in the shop inferr hame-sucken , otherwayes not , cabal . ibid. where he likewise cites saliset , albericus , and others , determining , that if a man have two houses , in one whereof he dwells not with his family , that his being invaded in that house makes it not hame-sucken , which is most consonant to our own law above-cited , which requires lying and rising ; and thus i remember that in iune . thomas sydserf , having pursued mungo murray , &c. for invading him in his play-house , that invasion was not punished as hame-sucken , but with imprisonment . nota , the former law against hame-sucken takes place as well when the invasion is committed in a mans hyred house , as his own , if he and his family live there , skeen ibid. & bartol le . ad legem jul . de adulteriis . it may be likewayes doubted , whether the beating a man in his own ship , can be punished as hame-sucken , since a man has not his family there , and so it cannot be called properly his name . but yet , i belive it should be punished as such , since it is the ordinary place of a sea-mans residence : and thus it hath been found with us , that a skipper may prove an injury done to him in his own ship , by his own servants ; though servants cannot prove regulariter for their master , except in the case of hame-sucken . it hath been likewise doubted , whether an injury done to an inn-keeper , can be punished as hame-sucken , when done to him by such as lodged in his own inn ? and though it was alalledged , that this was a greater crime , then if it had been done by a person who lodged not there , because that was a hame-sucken against hospitality : yet because an inn is a publick house , and belongs as well to the lodgers as to the master . the justices did only sustain this as a great ryot , but not as hame-sucken , in the case of meor of penniglen , anno . iii. the punishment of this crime is the same with the ravishing of women , r. m. l. . cap. and . and therefore the laws made against ravishing of women , are ordinarily libelled upon , there being no special punishment exprest in the laws against hame-sucken , should be pursued within a night after it is committed , which time is allowed for getting the advice of friends , ibid. and yet in the former case of the lady traquairs , it was sustained after two moneths time , and doubtlesse that short prescription is now absolet , and the reason of it has been , because it being punishable as ravishing of women , it hath borrowed from that crime , the necessity of being recently pursued . and i think , that though the foresaid short prescription be not allowed by present custome , yet the judge should consider whether any considerable time hath interveined , for else , per intervallum tempóris videtur dissimulari sicut injuria dissimulatur . nor is it probable that the person offended would have sitten long with such a wrong , and since that crime which was not capital of its own nature , does become such by the circumstance of the place , it is reasonable that the person accused should not lye long under the hazard , & gravatus in uno levandus in alio : this crime hath likewise this priviledge , that it may be proved by the pursuers own servants , friends , or other witnesses , who are otherwise lyable to exception , which is introduced not only upon the accompt of necessity , but likewise in odium of the offender : not were it possible to prove crimes of that nature by others then are in the family . iv. when hame-sucken is pursued only as an aggravation , it is libelled that such a thing was done by way of hame-sucken , and the punishment thereof is arbitrary , eo casu , and this is so old an aggravation of a crime , that david , sam. chap. . vers . . aggravats the death of ishbosheth , because they had slain him in his own house , and upon his own bed . the libel in hame-sucken runs thus , that albeit by the municipal law of this kingdom , the committers of the crime of hame-sucken , that is to say , who ever invades any of our peaceable subjects and liedges violently with weapons , within their own dwelling houses , or precinct thereof , contrair to our peace , shall incur and underly the pain and punishment of death , as our saids laws and acts of parliament in themselves proports ; notwithstanding whereof , it is of verity , that upon last by-past the forenamed persons above-complained upon , being bodden in fear of war , with sword , and other weapons invasive , came under silence and cloud of night , about ten hours at even , to the said a. b. his dwelling house , where he was quiet and in a sober manner for the time , &c. title xxii . breaking of prison . . the punishment of breaking of prison by the civil law , and ours . . how the going out of prison , when broke by another , is punishable . . whether he is punishable , if he return . . how an endeavour to break prison is punishable . . how the master of the prison is punished , if the prisoner escape . prisons are ordained to keep prisoners till they be tryed , and therefore he who breaks them , does more then tacitely acknowledge the guilt , since it is to be presumed that if he were innocent , he would think himself oblidged in honour , as well as interest , to wait till he were absolved judicially : and since prisons are the greatest securities of the publick peace , therefore to break them is a kind of sacriledge : and as the walls of our cities are sacred , because they defend us against our enemies , so should prisons , because they defend us against our wicked countrey-men , who are the greatest enemies of the common-wealth . his majesties advocat did also in the case of hiltoun , well call breaking of prison a publick hame-sucken . i. the breakier of prison ( whom the civil law , calls effractor carceris ) was punished paena capitali , l. . ff . de effractor : but by that punishment was meant not death , for that were too severe , but capitis diminutio est mors civilis ; and in effect he was arbitrarly punishable , except he were a souldier , for souldiers breaking prison were punished by death , l. . ff . de re milit . because souldiers having ordinarily more courage , require that they should be over-awed by greater punishments . and yet i know , the learned matheus thinks , that quilibet effractor carceris , is punishable by death : but i think not his arguments concluding , for though ulp. l. . ff . de effract . says that suplicium est sumendum , yet it follows not , that by supplicium is meant death , since all the glossators make supplicium a genus ; and when lawyers mean death by it , they say , ultimum simplicium . and though cicero sayes , that exilium non est supplicium sed perfugium & portus supplicii , he speaks there as an orator ; and indeed as to these who deserv'd to die , banishment is a harbour and happiness . nor does his other argument brought from the above-written law , concerning souldiers , conclude , for souldiers , as i observ'd , are more severely punishable then others , because of the hazard of the event , and strictness of discipline , and because , as i observ'd , they fearless , and so ought to be more threatned then others ; but what need was there to have made a special law for souldiers , if all breakers of prison were punishable by death ? and it is against the nature of arbitrary crimes ( such as this is confessed to be ) to be punishable by death : and the word capite punire , should alwayes be interpret in the meekest sense it can bear : nor see i why the law would have spoke so generally , if it had design'd that severity . by our law breakers of prison are punish'd by banishment , or fyning , according to the nature of the offence , but there is no express statute determining the punishment . ii. he who fled out of prison , when it was broke by another , should in the judgement of iulius clarus , be punished in the same way , as if he had been found guilty of the crime it self , because he confesses the crime , and flight is a presum'd acknowledgment , far. quest . . num . . but this seems to me too severe , for flight is a presumption ; and it is unjust to condemn upon presumptions , and were it not absurd to condemn a man to die for a crime of which he is found by the tryal of others to be innocent : and men may flee out of prison , rather because of the inconveniencies of restraint , then out from the conscience of guilt , vid. pegner . quest . . crim but if there had been no violence used , a person imprisoned for a criminal cause , may escape lawfully , perez . ad tit . c. de custod . reor . because he may redeem lawfully his own blood from hazard . if the person incarcerat was incarcerat only for a civil debt , he going out of prison , was even in that case found punishable only by an arbitrary punishment , iuly . . in the case of francis irving of hiltoun , who was pursued for breaking the prison of aberdene , where the libel was founded upon the common law , and the laws of nations , and upon our municipal law and custome , without citing any particular law : and subsuming that he being incarcerat for a civil debt , he and others brake the prison , at least escap'd , the prison being broken , and therefore concluded an arbitrary punishment , and payment of the dammage done to the tolbuith . against which libel it was alledg'd , . that it was not relevant , since it condescended upon no statute ; nor had we any statute or practick making the going out of prison , when it was broke by another , punishable , and when the imprisonment was only for a civil debt : nor was this a crime by the civil law , which punisht only effractores carcerum , but not eos qui evaserunt : for nigrum nunquam excedere debet rubram , that is to say , nothing in the title should exceed the rubrick , and therefore the inscription or rubrick being de effractoribus , only such were criminal by that title , as were effractores . and as perez . observes , num . . si absit violentia potest reus aufugere à carcere quem apertum vidit : and the reason of punishing effractores carcerum does not militat here , since there is no prejudice done to the prison , nor violence committed against authority . and it is lawful , because natural to every man to recover his natural liberty ; nor was it ever heard that a man running away from a messenger , was punish'd as effractor carceris , and yet that is the same guilt with what is here pursued . . the libel concluding art and part of the breaking of prison , because he escap'd out of prison , when broken , is most irrelevant , since the one may exist without the other ; for one may escape and not break , and therefore the one cannot be necessarily illative of the other . . the paying dammage cannot be concluded against one who only went out , since he who goes only out of prison occasions no dammage , and consequently ought to pay none . to which it was replyed , that as to the first , it hath been the constant opinion of lawyers , that going out of prison that is broken is a crime , since the prisoner ought to have taken no advantage of another mans crime , but ought rather to have hindered the breaking of the prison , and to have cryed and advertised the keeper , whereas here the prison was broke by a long and daily work , and yet no notice was given ; likeas , skeen in his annotations upon the . chap. stat. david . observes , that qui effracto carcere aufugerit capite punitur , which is consonant to . ff de re milit . & l. . ff . de paen . to the . it was replyed , that the prison being broke in the night time , the pursuer could not distinguish who broke it : and if it were necessary to prove breaking , it should be impossible to prove the crime ; and since the pannel might have stayed and have cleared his own innocence , it was just that the law should conclude him guilty ; and except the pannel could by way of exculpation alledge that it was broke by another , and offer to prove by whom it was broke , he who goes out should be concluded to be art and part . upon which debate the justices sustain'd the libel to infer an arbitrary punishment : but yet the assize assoilzied the pannel , though it was proved that he was in prison , and that the prison was broke , and that he came down upon a rope , for they thought that since his breaking of prison was not proved , he ought not to be concluded guilty , but here the verdict was contrair to the interloquutor . if the prisoner was unjustly detained in prison , clarus thinks that he is not to be punish'd , though he break prison , ques● . . num . . but this opinion is most absurd , for he ought not to be judge to the lawfulness of his own imprisonment , but ought to apply to the lawful authority for redress . and l. . ff . de custod . reor . doth expresly determine , eos puniendis esse quamvis innocentes inveniantur ex eo crimine propter quod in carcerem impacti sunt . as also , it is very clear , that l. nihil interest , c. de captiv . upon which the doctors found their opinion , is only to be understood of such as broke the enemies prison . iii. he who fled , having broke prison , is not thought punishable as a breaker of prison , if he return , boer . decis . . clar. num . . but this also seems debateable , since no man can give himself a remission : and there being jus quaesitum fisco , by the guilt once committed , it cannot be taken off without some deed of the power offended ; and we see that murderers and others as punishable by death , though they put themselves in prison , liminuit non tollit crimen . iv. these who broke not prison , but essayed to break , are to be more meekly punished then these who broke prison , clar. num . . which is also observed in scotland . not only these who break prison , but these who assisted them , and the keepers , by whose contrivance or negligence they escaped , are punishable , l. . . & . ff . de cust . reor . v. if a prisoner escape , the master of the prison is oblidged to purge himself by oath , that he escaped without his will or consent , stat. david . cap. . num . . and by the . chap. num . . stat. rob. . the keeper of the prison is to answer for the malefactor , either in body or goods ; which takes only place where the keeper was negligent in his duty , for else he is not lyable , as was found the . of november , . in the case of captain martine , who being imprisoned by the lords of session , for not finding caution in a pursuit before the admiral against him , for taking free ships , he escaped in womens cloaths ; and the keepers being pursued , it was alledg'd for him , that keepers were only depositarii , prisoners being depositat in their hands , that they might thereby be reserved to a publick tryal , & depositarii tenentur tantum , de dolo , & lata culpa . and farinacius tells us , that it was so decided at rome , where a person escaped thus in womens cloaths . to which , though it was answered , that servants , getting a fee , are lyable , ad exactissimam diligentiam , without which , privat diligence , and publick revenge , might easily be disappointed : yet the lords , upon tryal of the keepers innocence and diligence , did assoilzie him . but i have seen that sisters have assisted their brothers , and wives their husbands , to escape , even for crimes , without being punished ; and per l. . ff . de recept . the receptors of such near relations are conniv'd at , so gentle is the law , and so much it both follows and pardons nature . breaking prison in the night , is a great aggravation of this crime , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. ult . basil. h. t. title xxiii . de dardanariis , or , fore-stallers . . what fore-stallers are , and the several species of this crime by the civil law. . the difference betwixt fore-stallers and regraters . . the first branch of this crime , by our law , is the buying up corns to a dearth . . the second is , the buying corns coming to a mercat . . the third is , the advising others to commit these crimes . . the fourth is , the buying commodities in a mercat , upon design to sell the same again at any other mercat within four miles . . the punishment of this crime . men having gathered themselves into societies , they did for their own conveniency and provision grant many priviledges to mercats and to such as frequented them , and that all persons might be the more equally provided , they did lay such restrictions both upon buyers and sellers , as they thought fit for that design . for albeit it be lawfull for every man to use his own as he thinks fit , and to sell his commodities where and to whom he pleases , yet seeing common justice is to be preferred to private advantage , it was the interest of the common-wealth , as upon that accompt , they will not suffer any man to abuse his own , to the detriment of the common-wealth , ( as is to be seen in these laws which concerns interdictions ) so much lesse will they allow men to wrong the common-wealth for their own private gain . the great instance whereof is seen in this crime of fore-stalling , or regrateing . i. fore-stallers were by the romans called dardanarii à dardano , ( a merchant who was famous for that crime ) and by the civil law these were accompted dardanarii properly , who huirded up their own corns or bought up the corns of others , of design to keep them to a dearth , but improperly these were likewise called dardanarii , who did buy up any other commodity unlawfully upon that design , which kind of merchants were more properly called panto poli , by the novel of valentinian , which crime as it was punished per legem juliam de anona , so the punishment of it per l. sextam , ff . de extra . crim . est . aurei & puniri extra ordinem . a third sort of dardanarii , numbered amongst the doctors , are these who properly are called revenditores & qui emunt ut carius vendant ex raritate raritatis raritatem affectantis tholosanus cap. . num . . matheus also makes monopolist a fourth branch of these , and surely they are equally guilty of prejudging the common-wealth with these above relaited . ii. though fore-stallers and regraters be ordinarily taken for one and the same , yet there is this difference betwixt them , that regraters are only those who buy goods , that they may sell them again at a dearer rate : but fore-stallers are such as buy goods before they come to an open mercat ; but seeing custom uses these words promiscuously , we shall divide fore-stallers or regraters into these several species or branches , iii. the first species or kind of fore-stallers , is of such , who either privatly , or by entering into societies , buy up all goods upon designe , that by making themselves master of the commodity , they may exact such rates for them as they think fit . and this is very fitly made a crime , because it is absolutely destructive to the conveniency of the people . but because this ( as all designs are ) a latent act of the mind , and so is hard to be proved , where the fore-stallers have not entered into a society , therefore this guilt is quo ad this qualification and design inferred from presumptions , as if a person should offer to buy all the salmond in scotland , and deal with all persons who have any to sell , that they should not sell to any other . . if any of these universal buyers should give extraordinary prices , which is presumed he would not do but upon some design . . if he should boast that none else had that commodity to sell , or such other words as might be ground for a judge to infer the design ; yet it may be doubted here , if the universal buying of any of these commodities , in order to a forraign transportation , and where none of them are vended at home within the countrey , can inferr the crime of fore-stalling , seing strangers are only prejudged by hightening the prices in that case : but seing the countrey would be likewise thereby prejudged by being absolutely deprived of that commodity , certainly the guilt will be extended even in that case , which will hold likewise in strangers , who buy up the commodities of the countrey upon that design , who may be likewise therefore punished within the countrey where they commit the guilt , being lyable to that jurisdiction , ratione loci delicti . iv. the second kind of fore-stallers is of these who buy any goods coming to mercats , before they come to the publick stall or place where they should be vended , and this is the reason of the denomination : and the reason why this is made a crime , is , because mercats being institute for the good of the common-wealth , every thing by consequence behoved to be discharged , which is absolutely destructive to it ; and the buying any thing before it come to the mercat , is such . but it may be doubted here , whether commodities may not be bought by merchands in publick burgh , though they be going to the mercat of another publick burgh ? as for instance , if a merchand in burntisland may not buy skins there from one who sayes he is carrying them to the mercat of kinghorn : and if this were not allowed , it would occasion much trouble both to sellers and buyers . . it may be upon the same ground doubted , if one may sell , finding that he is not able to stay to a mercat day , which it may be , will be but once in a week in some places . as to which difficulty , my opinion is , that these can only be accounted fore-stallers , against whom something of design against the common good can be proved : as if the burgesses of one town should be proved to have entered into a contract to buy up the commodities which were going to another adjacent town , or should stand in the way every mercat day upon deesign to buy up the commodities that were going to the next adjacent town . and i know this to have been the opinion of some learned lawyers , in a case betwixt the new and old towns of aberdene ; but to make , that the buying of things generally before they come to a mercat , should infer a crime , were most hard and inconvenient . and because the design is the great thing to be look'd to , non effectus sed affectus , therefore both the act of parliament and criminal dittay in this case , speak only of fore-stalling and regrating ; for by the doing any thing of this nature commonly and frequently , animus delinquendi , is most probably inferred . and by the same reason , i conclude it probable alwayes for the defenders in this case to alledge by way of exculpation , that what they did , was done either ignorantly , or necessarily , or generally , alio animo quam delinquendi , v. g. if one in burntisland were pannel'd for buying skins that were coming to the mercat of edinburgh , he might alledge , that being oblieged under a failzie to deliver such a number of skins betwixt and such a day , that therefore he was necessitate to buy ●hefe : or if any were alledged to have bought stockings that were coming for a mercat , he might alledge that he bought them for his own use , or that he knew not there was a mercat upon the place . and i conclude generally , that the buying any thing for our own privat use , makes not the buyer in no case culpable of this crime , since he does that tanquam qui libet & non tanquam mercator , and fore-stalling is a crime in merchandizing . v. the third degree of it is , the advising these who are to sell , to hight the price , or the disswading the sellers to come to any particular mercat . vi. the fourth is , the buying commodities in a mercat , of design to sell the same again in the same mercat , or in any other mercat within four miles thereof . vii . all which species are expresly enumerat , cap. . parl. . k. ia. . by which the punishment is appointed to be imprisoning of their persons , and the escheating of their goods bought and sold , the two part thereof belongs to the king , and the third to the sherriffs , or other judge by whom they are condemned . from which act it may be concluded , that any judges are competent to punish fore-stalling albeit of old , the chamberlain was , in his chamberlain air , the proper judge of fore-stallers , as is clear by the chap. . st . k. wil. vid. & . cap. . leg . burg . and in the . act , par. . k. i. . where the punishment is ordained to be . pound for the first fault , . pound for the , and escheat of all his moveables for the third . i find several persons convict of this crime , as cairncrosse and others , . iune . anderson . iune , young and others , . of iune , that year ; and halyday , . august , . but i find no punishment to have followed in this , or any other case : though this crime cannot be said to be in desuetude , seing thre are some instances of it . yet mitius puniri debent , because these cases are so few , and no punishment has followed upon them . i find it was alledged for young , iune , and halyday , . august , foresaid , that the lybel was not relevant , not condescending upon the persons to whom the goods fore-stalled were sold , nor the place , nor time , which was repelled , because fore stalling was unlawful in all places , and all times . but certainly this reply was not relevant , for else neither time , place , nor person needed be condescended on , seing these are still unlawful at all times . but i think the true reason why it should have been repelled , was , seing common fore-stalling and regrating was libelled , which is nomen habitus , and not founded upon any particular act , and therefore the particular acts needed not be libelled , though even in this case they must be expresly proved . but certainly , sometimes the time , and place is necessary , as where it is libelled , that goods were bought , and presently sold , or within four miles of the place where they were bought : for the crime in this case is inferred from the speciality of time and place . it was alledged , that confiscation of moveables could not be inferred , though for the third and fourth fault , except the pannel had been convict for the first two : which was spelled likewise , because the king could not be prejudged in his interest , quo ad , the confiscation by the negligence of his advocat , or any privat informer , by not pursuing : nor could that negligence purge their guilt , or procure them an impunity . and it were absurd , ( seing crimes and punishments are to be commensurat ) that these who had continued in that guilt for many years , should be no more punished , then these who had but once incurred the same . title xxiv . usury . . in what contracts usury may be committed . . the taking of more annualrent then the quota stated by law , is the first branch of usury . . the second is , to take annualrents before the term of payment . . the third is , to take wodsets in defraud of the law. . whether a clause not to redeem for a long time , be usury . . the probation of this crime . . the punishment of it . usury is that crime , which is committed by taking more annualrent for any sum lent , then what is allowed by the law of the kingdom . i. this crime is committed properly in money , & in mutuo : but yet it is both by our law , and the civil , and canon laws , extended to other contracts : for with us , it is committed in bargains of victual , or tacks , as shall be cleared by the subsequent acts ; and therefore lawyers divide usury , into that which they call direct usury , quae obtinet tantum in mutuo ; and indirect usury , which takes place in other contracts . usury is also divided , in usuram manifestam & velatam ; which co-incides almost with the former distinction . by our old law , usury could not have been pursued in the usurers own life , but he might have repented him of it , at any time before his death ; so that it was not the commission of the crime , but the continuance in it , which was punishable : but if he repented not , his heirs might be forefaulted , l. . reg. maj. cap. . and this , skeen observes , to be consonant to the law of england , whereby the penalty of a living usurer , belongs to the king , but of a dead usurer , to the church . ii. the true method in this title , is , to clear the several kinds of usury , determined by our statutes . the first species thereof is , whoever receives more annualrent , then ten for each hundred , shall be punished as ockerers , or usurers , conform to the laws of the realm , already made , par. . k. ia. . cap. . and yet i find no prior law to this , expressing the punishment of usury ; only it is said , par. . ia. . act . that keepers of victual to a dearth , shall be punished as ockerers , and this is properly usury . by act of parliament , . it is appointed , that the annualrent of money , should be at six per cent , conform to which act , all annualrents were payed in scotland , till . at which time the parliament , . was rescinded ; whereupon it was debated , in hugh roxburghs case , march . . whether the taking of more annualrent , then six per cent , after the year . could infer usury ; and that it could not , was urged from these reasons , . that where there was no law , there could be no contempt : but so it was , that the acts of parliament . were no laws , that parliament being rescinded , ob defectum authoritatis , and without any salvo , as to what was past . . the liedges might as well be punisht now for transgressing the penal statutes , made by the usurpers , seing these were binding , the time of the transgression , and both want authority equally . . by the act betwixt debitor and creditor , . session . parl. k. ch. . such pactions are only declared usurious , quo ad futura & inclusio unius est exclusio altetius . to this it was answered , that the parliament . was in vigor till the year . ergo , before that time it was usury , to take more then the annualrent therein prohibited ; and albeit the defect of authority might be pleaded , where the crime committed , depended meerly upon the authority contraverted . yet in this case it could not ; seing usury was a crime , which was prohibited by all laws . and as to the quota , which was all that was determined by the parliament , . it was no such thing as concerned the rebellion , for which that parliament was rescinded ; but was a reasonable , and universal good for the kingdom , and approved by the present parliament . and those who took annualrent during that time , at more then six per cent , did in so far oppresse their debitors beyond others , and so should be punished . . by the act anent penal statutes , . usury is excepted from the penal statutes therein abridged , which needed not , if the taking more then six per cent , for the years immediatly preceeding , had not been usury . . the lords of session did still restrict the annualrents , even during these years , to six per cent , which they could not have done , if that law had not warranted them ; as in the case betwixt wauchop and lawder , . for if that act was in force then , it was a crime to take more then was therein commanded , if it was not abrogated ; then the former act , . appointing eight per cent , was in vigour , and so the lords could not restrict the annualrent to six , against an expresse law. this case was not decided , but the justices inclined to think , that though the act . was abrogated ; yet it was a sufficient warrand , to regulat the decision of civil cases , because all bargains were then made , with respect to the quota , thereby determined , & erat lex habita & reputata : but that being abrogated , it could not found sufficiently a criminal action , to infer so severe a punishment , as that of usury ; for a crime is mainly such , because authority is contemned , and contempt is the essence of a crime ; but so it is , there could be no contempt where there was no authority . but it may be doubted , if a merchant who was to imploy his stock upon merchandize , whereby he might have got far more then the annualrent of his stock , should at the desire of his friend , then in great straits , lend him his money , for more then the ordinar profit ; if in that case he could be punishable as an usurer ? and albeit our law be general , yet here ab est animus faenerandi : and there was no advantage taken of the debitors necessity ; for which , usury is mainly punishable . and i find , that abbas c. naviganti de usur . num . . & socin . tract de usur . num . . do conclude this to be no usury . yet i know , that some judicious lawyers with us , did at a consultation upon this same case , conclude , that the justices could not receive this exception , seeing they were tyed to strict law ; but they thought that the council might allow some mitigation . iii. another species of usury by our law , is , to take annualrent before hand ; that is to say , before the term of payment , which was ordinarly done , by retaining a years annualrent , when the money was first lent , and this is determined to be usury , by the . act parl. . k. ia. . and thereafter by the . act. parl. . k. ia. . by which last , it was likewise statute , that whosoever shall detain the time of the lending , or shall exict , crave , or receive from the debitors , annualrent at the time of the lending , or add the same to their principal summes , or whosoever shall exact , or crave annualrent , shall commit usury . and this seems to be founded upon that principal of the civil law , whereby puniebantur qui plus petebant & plus tempore petere dicebatur qui petebas ante tempus debito constitutum . upon these last words of the act of parliament , forbidding the exacting , or craving annualrents before the term of payment , there was a dittay founded against purdie , in the year . for taking ten pounds scots , as the annualrents of fifty merks , upon the . of iuly , whereas no annualrents was due , till martimas that year . against which dittay , it was alledged , . that this species of the dittay was meerly statuto●y , and so was not to be extended , either beyond the interest of the leidges , to salve which , it was inferred , or beyond the expresse words of the act ; but so it is , that it was only the interest of the leidges , that they should not be forced to pay interest before hand ; but that they might voluntarly pay their annualrents , without any danger to the receiver , which may sometimes be for the advantage of the payer ; as for instance , if a person who were lyable for annualrents at martimas , might be for his own advantage desirous that his creditor might receive his annualrents in september , because he would not have the conveniency of paying them at martimas , and might be either at expences , or in hazard to send them . and therefore , seeing the receiver here had raised no charge of horning , nor used no other diligence for compelling the debitors to pay the annualrents , his voluntar offer of them should not prejudge the receiver , especially seeing by the narrative of the act , it will appear that the eviting of oppression , in exacting money before the term , was that against which the act of parliament intended only to guard . . though by the first part of the act , exacting , craving , or receiving annualrents at the time of the lending , be expresly forbidden : yet when the craving annualrents before the term of payment ( which is the clause founded upon , in this dittay ) the act speaks only thereof , craving , or exacting , but doth not forbid simply receiving . . consuetudo etiam mala & injusta excusat usurarium à pena bar. in lege siquis fugitivus , ff . edil . edict . socinus consilio . and it was very notour , that in this caise there was nothing more ordinar , then for honest and just men in scotland , to take annualrent before the term , from willing debitors , either to supplie their own necessity , or to gratify their debitor upon occasions . and it were very unjust , that the pannel who was a poor merchant should ensnare himself , in apicibus juris , thinking himself warranted in what he did , by the practice of the countrey , and of the most intelligent persons therein . . de minimis non curat praetor , nor should severe and statutory punishment be inflicted for errours , where no person is any way considerably prejudged . and in which , it cannot be presumed there was any guilt , seeing the advantage was so small , for the only share the pannel reapt of this , was the annualrent of ten pound , from iuly to martimas , which could not exceed three shilling scots ; so that to conclude , an honest sincere merchant , who was otherwise intigerrimae famae , guilty of usury ; and to infer confiscation of all his moveables , and infamy , which is the punishment of usury , is against all sense and reason , who are not ( as the justices ) tied to strict law. notwithstanding of all which , the justices did find the dittay relevant , as founded upon the above-written clause of the foresaid act ; but the grounds above related , being represented to the council , they rescinded the justices interloquutor ; and yet the justice did again condemn hugh roxburgh , . of november , . upon the same act , and like dittay ; but that interloquutor was likewise stopt by the council . iv. the third species of statutory usury with us , is committed by these , who to cheat the law , colour their fraud by taking , not more anualrent directly , then that is prescribed by the lew , but taking wodsets of land from the borrower , for more then their annualrent can extend to , and set back-tacks to them for payment of what is agreed upon . to prevent which , and all such usury ( which is called by the law , usura velata ) it is statute by the . act parl. . k. ia. . that whoever receives such wodsets , or enters into any such bargains , for which more is taken , either in money , or by any other transactions , whereby any thing that is taken , may be reduced in money , to more then the ordinar annualrent , upon whatsoever colour or pretext , shall be guilty of usury . and by the . act par. . k. ch. . it is declared , that for the future , it shall be usury to receive proper wodsets of lands , and others , exceeding the annualrents of the sums , and bearing by expresse provision , that the lender shall not be lyable to any hazards of the fruits , tennents , warr , or trouble ; for clearing of which act , it is necessar to know , that wodsets with us , are either proper , or improper ; proper are these , wherein the wodsetter runs all hazard of the lands wodset to him , and is to expect no more annualrent for his money , then what fruits of the lands remains after all hazards . improper wodsets are these , wherein the wodsetter is only countable for what rent he receives from the lender ; nor is he lyable to the hazard of bankrupt-tennents , warrand pestilence , which distinction , founded upon these hazards , is very agreable to reason , and the common law ; for usury being a certain gain , he who gets for his money but a hazard of gain , commits not usury , for that is emptio jactus retis , as if i should lend money , and get for my security the hazard of what rent could be collected from a loading of timber coming from norway , &c. and upon this ground , the law allowed fenus nauticus , to be much greater then all others , seeing the lender run the risk therein of all sea hazards . but if the hazard be not so great as may compense the excess of the annualrent taken beyond what the law allows , eo casu , it excuses not from usury , as if a wodset be granted of a miln , or salmond fishing , if the said rents do ordinarly exceed the annualrents , by any considerable excess , then the receivers of the wodset commit usury , notwithstanding of the hazard . and this brings to my memory , a case debated upon the . of ianuary , . wherein a gentleman being pursued as an usurer , in so far as he had taken his debitor obliedged to pay him a boll , for the annualrent of every hundred merk , which according to the feir of the year did , for the two years of his wodset , extended to five pound the boll , and so exceeded the annualrent , by twenty shilling every boll ; yet this was found no usury , because he in that case , took his hazard of the feir of the year , which might have been much lower : and because that the price of victual varies much , according to the several shires , and years . and lest the people should be at an uncertainty in criminal cases , which were dangerous ; therefore by the . act ia. . par. . it is appointed , that no man shall take more profite , then according to ten pound , for the hundred pound , or five bolls of victual , which the annualrent being then , at ten of the hundred , and now at six , doth allow according to that probation , two bolls for the hundred merks , whereas there was but only one boll taken here , for the annualrent for the hundred merk ; nor was this act abrogat by the act . par. . because , though that be posterior , yet it doth not expresly abrogat this act , nor ought it to have been abrogat for avoiding of uncertainty , as said is . and for the same reason , the undertaking of hazard hinders the taking of advantagious tacks , to infer usury , as was decided september . wherein robert lawder was pursued as an usurer , because he had taken a tack of two buts of land , and a dovecoat for four years , which payed fifty merks yearly , communibus annis , and that for satisfaction of the annuulrents of an hundred merks , which tack did bear this clause , that if the first year robert were payed , he should defalck so much of the annualrent proportionally ; notwithstanding of which clause , he refused to compt : it was alledged for the defender , that the tacks-man had run a hazard , because he might have been disappointed of all duty , quo casu , he would have got no releif . to which it was duplyed , that the same hazard was in wodsets ; and yet the taking a wodset for more then the ordinary annualrent , made the wodsetter incur the crime of usury . nor could this hazard defend , because it was not great , and there was scarce any hazard in it ; not could the danger be here objected , seing after expiring of the years , the receiver offered to compt with the lender , and to allow him both principal sum , and annualrents ; to which it was triplyed , that the act of parliament , discharging usurary , wodsets doth not discharge tacks ; and there is a great difference , as to usury betwixt tacks and wodsets : for wodsetters have the liberty to require their money from the debitor , so that they lose not the sum , though they lose their rents ; but tacksmen lose all , if their tack duty be not payed : and as to their offer of compting , that being only competent after the first year , it could not be objected thereafter , and the danger was past before the offer . the fourth degree of usury with us , is to take budd or bribe for the loan of money , or for continuing it , when it is lent , whereupon many debates do arise . the cause why the debitor gives a gratuity to his creditor , being oft , actus animi , is hard to be proven . but generally it is sustained that a proceeding treatie must be proved , or else it must be proved , that the receiver is manifestus , that is an ordinar usurer , for else to receive a gratuity is no crime ; and it were against reason , that by lending money to my friend , i should become uncapable of a donation from him . v. the common law also sustains it to be usury , if a man wodset his lands , and in the wodset provide that it shall not be lawful to redeem betwixt and a definit time , for in that case it presumes that the wodset granter adjects this because of some known advantage , and this is to take more advantage for money then the annualrent . molm. de censu . but this the lords would not sustain to be usury . nor did they find it an unlawful paction , in the action betwixt , sir iohn drummond , and achtertyr . and in effect these pactions are allowed by act . p. . k. c. . s. . by the civil law , it was usury to take annualrent for annualrent ; at least it was declared unlawful , l. ult . c. de usur and i conceive that to swell up annualrents thus , beyond what the law allows , would infer usury with us : for else the law might be thus cheated . but though by the civil law it was unlawful , and usury , to accumulat annualrents with the principal sums ; and to make both bear annualrent ; which was called anatocismus , and is discharged , l. . c. de usur . yet with us , such pactions are most lawful : for since , if the annuals had been payed , they had born annuals , why may they not be lent out to the debitor , as well as to others . vi. the probation of usury is , either by writ , witnesses , or oath , as to writ it may be doubted , how the pursuer may recover it for instructing his libel , the writs being ordinarily in the usurers own hand , and nemo tenetur edere instrumenta contra se. and yet i find lawyers very clear , that hoc casu tenetur edere contra se bartol . & doctores ad l. praetor § . is etiam ff . de edendo arelat . de heretic . notabil . . and seing with us , usurers are obliedged to swear against the common criminal rules , because of the obscurity of the crime , why should they not be oblieged to produce ther writs , for the same reason ? and as to the former maxime , that nemo tenetur edere , &c. it may be answered , that it holds not in criminalibus , for we see that in improbations , the pursuer will force the defender upon an alledgeance of falshood to produce all his writs , and why not in usury ? yet i know that it is ordinarily advised in such cases to raise an exhibition . as to the probation by witnesses , it is doubted if the debitor who lent the money may be received as witnesse ? seing he is socius criminis , it being unlawful to take as well as to give upon usury , but with us these are received , as hissleside in somervel's case , . ian. . but thereafter the justices declared that they would not sustain the debitor to be a witnesse . november , . his majesties advocat contra wilson , and that because by the . act , p. . k. i. . it is appointed that usury shall be proved by the oath of the party receiver of the unlawful annualrent , and witnesses insert , without receiving the oath of the giver of the unlawful annualrent , for eviting perjury . nor will the justices sustain as a reply , that the giver of the unlawful . annualrent in this case had payed the sum , and so was no more debitor , and could expect no advantage , and so the fear of perjury ceased . and as to the foresaid seventh act , it was answered , that it was only made not to exclude the debitor absolutely , but to correct the . act , . p. k. i. . whereby the oath of party was declared to be receivable as decisive of the cause . as to other witnesses , our ordinary distinction is , that pactions in usury are either extrinsick to the bond , or writ , as are the taking bud or bribe for continuing a sum , and these may be proved by any witnesses ; albeit by the foresaid . act. it is said that usury shall be proved by the oath of the party , and witnesses insert . but pactions which concern the writ it self , as that whereby more is promised then is contained in the bond , these cannnot be proven , but by the witnesses insert , for else writ might be taken away by witnesses . as to oath of party , it is ordained to be taken by the former acts against the common rules of law , by which , nemo tenetur jurare in suam turpitudinem : and the justices accordingly do force the pannels to swear , as in the case of wilson above cited . but it may be doubted if this act should not extend only to civil , and not criminal cases ; for that act sayes , that litis-contestation being made , it shall be lawful to receive : but so it is that there is no litis-contestation in criminals . go . this act cannot be extended to these cases . vii . usury was allowed by the civil law , as the proper product , or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pecuniae , but by the canon law it was punished , and most lawyers think it may be punished criminally , decius consil. . and it is called crimen utriusque fori , because it is punishable civilly and ecclesiastically . the pain of usury with us , is , that the debitor shall be free from his obligation , or have back his pledge , or if the debitor conceal , then the revealer shall have right to the sums , act , . k. i. . par. . and by the act , p. . k. i. . it is appointed that the usurary bond or contract shall be reduced , and being reduced , the sums shall belong to his majesty , or his donator ; and the party to have repetition of the unlawful annualrent payed by him , in case only he concur with the donator in the reduction . title xxv . the dribing , partiality , and negligence of judges . . what is bribing by the civil law. . what by our law , and how our law punisheth it . . crimen repecundarum & barratriae . . whether arbiters , deligats , or assessors , be punishable for taking bribes . . how negligent iudges are punishable . it is to no purpose to make good laws , if the execution of them be not committed to just and diligent persons , as it is to no purpose to have an exact ballance , if that ballance be not put in a good hand : and therefore , as the law hath been very liberal of its priviledges , to just judges , and severe in punishing such as offended them ; so it hath punish'd with the same rigour , such judges as transgress either by bribing , negligence , or partiality , which are three distinct species forbidden by the common law and ours . i. bribing is the taking of money , or other good deed , either for doing of justice , or committing of unjustice . there are indeed some lawyers who think , that a judge taking money in a civil cause , to do justice , doth not thereby commit a crime , but is only lyable to restitution , menoch . . arb. . n. . but this is expresly contrary to sound reason , since if taking upon any terms be allowed , the law may be eluded , and judges will be thereby tempted , not only to take bribes , but to take pains to justifie what they have done : but yet i think that this opinion is neither proved , per l. . ff . de l. jul . repetund . for there it is not only said , non excipiet quo magis aut minus quid ex officio suo fecerit , which prohibits only an excess in justice , and not the doing justice for money , nor perl . . c. eod . since that law doth only in the general forbid the taking of money , but this is expresly forbidden , l. . § . ff . de condict . obturp . caus . where it is declared a crime , but the punishment there seems only to be litem suam facere , and skeen ad stat. . wil. says , that non licet judici vendere judicium justum . ii. by our law , the kings judges were to those an assize upon what they had done as judges ; and if they were convict , they were to be punished by the king and his council , according to the measure of their fault , cap. . stat. rob. . and the judges of inferior courts , such as regalities , were to those an assize before the justices , and if they were found either culpable or remiss , they were to escheat their moveables , and their life to be in the kings will , or in the will of the lords of the regality , cap. . ibid. and by the . act , ia. . parl. . a sheriff , or any other officer of fee , that is to say , any heritable officer , is to be put from his office for three years , if he be found partial , and an ordinary judge , if he be found partial , loseth his office forever . and though his person 's being punished at the king's will , and the paying of the expence of the party injured , be only added to the pun●shment , expressed against a judge who is not heritable yet i conceive , that being added in the last place , it is applicable , both to the heritable judges , and others . likeas , it is observable , that though by all these acts , the king and his council are only exprest to be the judges competent ; yet de practica , the justices are judges competent , if partiality be committed in any criminal cause , as for instance , if a sheriff should execute any pannel , upon a crime proved only against him , by the pursuers brothers , or other inhabile witnesses , or upon a libel , which were palpably irrelevant ; in these and in such other criminal cases , the justices and not the council , would be only judges competent ; nor is partiality in civil cases , a crime by our law , though it be punishable by this act , paena arbitraria : and by resounding of the dammage sustained by the pursuer . the foresaid laws strike only against partiality , in general , but bribing is expresly discharged , by the . chap. stat. k. william , but there is no punishment there exprest ; and therefore skeen adds in his observations , the punishment of l. . cum aut hent . c. de paen . judic . and thereafter , by the . chap. . stat. rob. . all judges are forbidden to take land , or any thing else , to champart , either for giving , deferring , or prolonging of justice : and the offenders are to be in the kings will , and to lose their office for all their life , champart is a french word , signifying part . du champs , a part of any land ; so that by a metaphor , the taking any part of the advantage , arising by any plea , is forbidden by this statute , which the civilians call pactum de quota litis , by the . act . parl. i. . consulting , or giving partial judgement , is declared bribing in a judge , and such as diffame them as bribers , are punisht , legetalionis . but because these acts were not clear against bribing ; therefore by the . act. . parl. i. . the taking of bribes , is discharged to the lords of session , their wives , and servants , under the pain of infamy , deprivation , and confiscation of all their moveables ; to all which , an arbitrary punishment is adjected . it is very observable , that by this act , not only the taking of bribes is discharged , but even the taking any goods or gear , during the depending of a plea ; or from such , as shall have causes depending for the future : and though it seem'd very reasonable , that men should not be discharged of the effects of their friends liberality , and should not be , by being elected lords of session , put in a worse condition , then the other subjects ; yet so jealous is the law of bribing , that it is afraid , that if judges be allowed , to take at any rate , or upon pretext of their friends liberality , they might abuse this pretext , to meer bribing , l. ult . c. h. t. l. . ff . eod . and yet the glosse , ad l. . ff . h. t. allows a judge to take from his relations , within the sixth degree ; nor is it lawful to take any thing , even by way of remuneration , though remuneration be rather a paying then a gilting , matheus p. . but i conceive , that this must be understood , of a remuneration made for services , done during a plea , or upon the accompt of a plea , or upon any publict accompt . but it seems against reason to think , that if a brother , or brother in law , should entertain his brothers family , whilst he is a judge , that he may not receive a remuneration for that , or the like kindnesse . the second observation from this act , is , that it is not lawful for their wives , or servants , to take bribes , or good deeds , which is consonant to l. . c. h. t. by which the judge is lyable to pay the quadruple of what his servants take ; but it would appear , that none is lyable by this statute , for what his servants take , except he know that his servants take by command , or ratihabition ; for this statute discharges judges to take by themselves , or their wives , or their servants , which implyes some act of the masters ; for qui facit per alium facit per se , but he who is absolutely ignorant of what his servants doth , cannot be punished for anothers fault , against the common rules of law , else the master should be made a slave to his servants , who might at his pleasure force him to what he decided , or else by taking bribes , might ruine both his masters estate and reputation . since this statute discharges only the lords of session , it may be doubted , if it should extend to bribes , taken by other judges . for laws in criminal cases , use not to be extended ; and since the lords of session may by bribing , do mo●e unjustice , and prejudge the leidges more then others , it may be alledged , that other judges ought not to be so severely punished as they ; and yet since the crime of bribing is punished by the civil law , and law of nations , in all judges , it seems just to extend this act to all judges ; and the other , because though , lex julia was made contra principales magistratus , yet it was by the roman customes , extended , ad magistratus urbanos , math. p. . iii. the taking of bribes , or good deeds , was punished by the civil law , per. l. jul . repetundarum . by which , tenebatur qui in magistratu , potestate , curatione legatione vel quo alio officio munere ministeriove publico quid acciperit quo magis aut quo minus officium faceret , l. , , , . ff . de l. jul . repet . the punishment of crimen repetundarum , was death , if money was taken , to pronounce a capital sentence unjustly , l. . or banishment , and confiscation of goods , in case no such criminal effect followed , ff . . de paenis , and though some doctors teach , that albeit it be capital to condemn an innocent man , yet to absolve a guilty man who deserved death , is only punishable by banishment : but if the judge received money , or committed gross iniquity , that should be punishable by death also , for l. . h. t. doth not distinguish these two cases . this crime is by the doctors , called banatria , nam baratriam committit qui propter pecuniam justitiam baractat . farin . q. . art . . and they conclude , that by the present customes of nations , it is only punished arbitrarily , not exceeding banishment , boss. de offic . corrupt . num . . he also who corrupts the judges , is punishable with the punishment of falshood , gloss . ad l. qui explicandi , c. de accus . which holds , though the judge accept not the bribe , he is punishable , if the endeavour pervenit ad actum proximum , menoch de arb . cas . . he also who corrupts the judge , or clerk , loses the cause , far. num . . but i differ from him , in that he thinks , that a pannel who corrupts the judge in a criminal cause , ought not there after to be allowed a liberty of proponing a defence : for an innocent man may by fear , be driven to offer to redeem his own life , to which inclination , the law indulges very much . the judge who judges unskilfully , per imperitiam , is punishable by a fine , beside that , he payes the expences of the plea , l. fin . de var. & extr . crim . but bossius and others , are of opinion , that he is never to be corporally punished ; and by the . act . p. ia. . only such judges are to be punished , as trespasse wilfully in their office . arbiters bribing , are punished as other judges ; but some docto●s do justly conclude , that arbiters are not liable for their unskilfulnesse , since they were choosed by the parties , who should blame their own election . delegat judges , such as these , to whom the lords recommend perambulating of marches , are punishable for bribing , but for the same reason , they are not punishable for their unskilfulnesse . assessors taking bribes , are also punishable , but some think them not pun●shable for unskilfulnesse , since the judge is not obliedged to follow their opinion : and though some think , that an assessor , gett●ng a sallary , is liable even for his unskilfulnesse , curt. iun. ad l. . ff . quod quisque juris , and he should have known that he was named assessor , to supplie the unskilfulnesse of the judge . yet i differ , for he gives only his advice , and so is liable only as an advocat is . v. judges negligent in putting laws to execution , are punishable for their remissnesse and negligence , c. . r. . by the escheating of their moveables , and their life is to be in the kings will , which seems too severe a punishment for meer negligence ; but by the . act . par. ia. . a iudge found culpable ( which word may comprehend negligence ) is to be put from his office for three years , if he be an heritable officer : and if he be not heritable , he loses his office . which distinction , i find also observed by bald. ad l. manicipia , ff . de serv. fugit , where he says , that pro negligentia judex removetur ab officio , sed hoc non tenet in judice perpetuo , and farin . q. . n. . , is of opinion , that majores officiales non removetur sed minores facile removeri possunt . title xxvi . deforcement . . to whom was the execution of law committed by the romans and to whom by our law. . what is d●forcement , and what are the several degrees thereof . . the messenger must have his blason , and give an execution of deforcement . . whether may a messenger be deforced , who wants his caption , or transgresses his power . . what witnesses can prove a deforcement , or if the messengers execution can prove it . . these who deforce , may be pursued civilly for the debt . laws are only the idea or picture of justice , but execution is its life ; and though those who have the execution of laws and sentences committed to them , be ranked but amongst the lowest servants of justice ; yet they have the happinesse to be these who compleat that great work , and amongst whose hands it becomes perfect ; and therefore the laws having committed its most excellent part to them ; it should be , and is , in a most eminent way careful of them , and in providing for their safty , it secures its own honour . i. the execution of sentences was committed amongst the romans to the apparitors mention'd of the codex , in three several titles , and these were erected in a colledge , which was stiled , collegium , or familia apparitorum , as our heraulds are in a fraternity , by the . act. parliament , . k. i. . the italian doctors call them now , beroarii , so that these who would know what the doctors hold in cases of deforcement , must look to the indexes , at these words . according to the roman law , it was a species of laesae-majestie , to resist the execution of sentences , l , quisquis ad l. iub . majest . l. iulianus . ff . de officio ejus cui mandata est jurisdictio and guid. pap. quest . . observes , that from these laws does rise the practique of france , qua puniuntur capitaliter verberantes apparitores , in exe cutione officii nam qui mandata principum exaequuntur videntur vivae principium imagines ac adeo graviter puniri debent ac injuriantes statuas principum . with us the execution of sentences , is committed to heraulds , pursevants , messengers , macers , and the execution of sentences of inferiour courts , to the respective officers of these courts ; and the resisting , beating , or wounding , of these , in the execution of their office , is in our law that crime which we call deforcement , leg. burgal . cap. . ii. deforcement then is defined to be that crime which is committed in opposing macers , messengers , or any others , who use to execute sentences , whilst they are executing their office ; and upon that accompt , so that if either the officer was not in execution of his office , or if the officer be beat upon any other accompt , as if a scuffle should arise , occasioned unjustly by himself , this would not infer a deforcement , as shall be said hereafter . though this crime be amongst the most attrocious , because the king and soveraign power is in their person despised , and therefore this crime is called dispectus regis stat . williel . cap. . verse . and justice is after much pains taken by the judges , and expences layed out by the parties disappointed ; yet it is only punished by confiscation of moveables , and an arbitrary imprisonment , and the one half of the moveables so escheated , falls to the king , and the other half to the party at whose instance the letters were execute , i. . p. . cap. . the words whereof are , if an officer of armes , or sheriffs in that part , or other person whatsoever be deforced , molested , invaded , or pursued , to the effusion of their blood , by any person or persons , whom they shall summond , or others of his causing and command , the time he is executing of any summonds , letters , or precept direct by his highnesse , or other judges that he shall loss , &c. from which act it is to be observed , . that deforcement is committed by troubling of any officer belonging to any court. . that those words , ( to effusion of their blood ) seem to be a quality put in a sentence by it self , and so may be thought to relate to all the former words , molested , invaded , or pursued , yet the words of the act are only wrong pointed , and these words , or pursued to the effusion of their blood , should all be put in one sentence , for , de practica , simple opposing , or molesting the messenger , though without blood , will infer a deforcement . . though by the act it would seem only these against whom letters , and charges are raised , or such as they hound out , can be guilty of deforcement , yet if any others do deforce a messenger , though they be neither the parties interested themselves , or hounded out by them , yet they are likewise guilty of deforcement : as is clear by the . cap. stat . williell . vers . . and by the . act , . parliament k. i. . and seeing the crime lies in the opposition to the messenger , whoever is guilty of that act commits this crime . . though this act make only causing or commanding a crime , yet certainly if any person interested does ratihabit the deforcement committed by any other person , by either giving him good deed , or by receiving his letters , or blason taken from him , he is eo ipso guilty of deforcement : as the council found in the case of the earl of seafort , against the lord mackdonald , anno . . upon full debate : in which 〈…〉 lords in the highlands should be lyable for deforcement committed upon the grounds , if they did not deliver up the offenders . . though the execution be disappointed and stopped , yet is declared by the parliament to be as sufficient as perfected : and it were unjust , that the party having done all that in him say , that the disappointment , eo casu , should be prejudicial to him . . seing the punishment of this act , is only confiscation of moveables , and imprisonment ; whereas by the act . . parl. k. i. . the lives and goods of the offenders were to be in the kings will ; it may be doubted whether the judge may punish by either of the acts , seing the last does not expresly abrogat the first ; or whether both should stand in vigour and force . concerning which question , the general lawyers have very many learned debates , but the most solid and approven conclusions are , that when a crime is punished by several pains , in several laws , or acts , which acts do not derogat one from another expresly , that it is in the election of the judge , to punish the delinquent , by either of the pains , l. quoties ff . de actionibus & obligationibus . but the judge making election of one of the pains , cannot thereafter make use of the other : l. ff . senatus de acusationibus , vid. cabal . resol . criminal . cap. . where this general question is fully handled ; and to the considerations there adduced by him , i would adde this , that where there are several punishments appinted by laws , whereof the one derogats not from the other , that the judge should follow that of the two which is most in use : and therefore seing confiscation of moveables and imprisonment , is alwayes used in this case , that punishment should be certainly followed by the juge : for since custom may antiquat laws , and is a warrand for a judge , to proceed criminally where there is no law ; it should much more determine betwixt two laws , which of them should be followed : but there is the less difficulty in this case , that none of the acts makes deforcement to be capital . and these words , that their lives shall be in the kings will , do not infer , de jure , the pain of death , as is elsewhere fully debated : but it may be doubted , if their persons may not likewise be punishable , seing not only by the former act are their lives to be in the kings will , but likewise by the seventh act , . parliament , i. . it is declared , that deforcement of officers shall be punished by the escheat of their moveable goods , and punishment of their person according to the laws of before : so that there is geminatio legum , which makes the law much stronger : and i remember that some sea men in bruntisland , having rowed off their boat when the customers officers were about to poynd some unfree goods , bought out of captain dewars ship , by rowing off , of which boat the messenger who was to poynd , fell in the sea : the commissioners of the thesaury did summarly in iuly , . ordain the sea-men to be whipt , which was accordingly done . iii. messengers have as the badge of their office , a blason bearing the kings armes , and a wand of peace if they bear not the blason , it is believed ( and that is the first objection against the conception and relevancy of the lybel ) they may be deforced , because by that act only people are obleidged to know that they are messengers , and the wand of peace is that whereby they touch a rebel , and declares him to be their prisoner , and when they are deforced , they use to break the wand of peace ; but though their libel bear alwayes that the wand of peace is broken , yet if the troubling of the messenger be proven , though this quality be not proven , the assize will still find guilty , as was found in the case betwixt murray and french , . iuly , . where it was likewise found that albeit ordinarily the messenger who was deforced , doth give in with his libel , an exemption of deforcement , wherein after the ordinary form , he relates how he execute the letters , and how and by whom he was deforced , yet that execution is not absolutely necessary for proving the deforcement , but that the deforcement may be proven by witnesses ; for else there could be no deforcement , if the messenger were killed , so that he could make no execution : or if he were bribed by the deforcer , and so would give none , but that an execution of deforcement was only necessary to the effect the letters might be repute as validly execute , as if they had been really execute . it uses sometimes to be alledged against the relevancy of the libel in this crime , that the libel is not relevant , because it bears not that the messenger had the letters of caption in his hand , and shew them to the party whom he apprehended be vertue of that caption , for without seeing of the letters , the party is not obliedged to obey , and if it were otherwayes , any man might take a free liedge , and keep him till he should get a caption , though he had none at the time of the execution . but upon the . of february , . gordoun of braco was found guilty of deforcement , though the messenger his having a caption , was neither libelled nor proved , and that because the rebel did not crave to see a warrand , and the messenger was answerable if he did execute without a warrand : neither did the lords think that the messenger was bound to put the warrand in the rebels hands , left he should destroy it : but he was bound to shew it to any disinteressed person who was present . in the same process it was likewise found , that a messenger might execute a caption under silence of night , though it was pretended that this might give a colour to robbers to enter in to honest mens houses under night , upon pretext of executing of captions ; though poyndings indeed cannot be execute after the sun is set , because a poynding is a sentence , and requires formam judicii ; and no court can be kept under silence of night . some judges ordain officers to take raes from a mast , and arrest ships , without a written order , the haste of the execut●on so requiring ; and therefore i think that though such have not a written warrand , they cannot lawfully be opposed : for it is the duty of all good subjects to enquire first if he who pretends to have authority , have it already , though he see no written warrand , but not rashly to oppose what may be lawful . another ordinary objection against the libel is , that the messenger and his assisters did transgress their power and warrand , and so it was lawful to resist them : and thus upon the . of novemb. . mr. archibald borthwick being pursued for deforcement , it was alledged , that he compeared as procurator for the lord borthwick , who had arrested sandilands , and the tennents corns , as master of the ground , and so alledg'd the messenger could not poynd the corns till the master was payed , wherein the messenger did unjustly , and so he had good reason to stop the poynding : this alledgiance was found relevant , but if justly , it may be doubted . and lawyers are very positive , that no man can stop any execution , upon such pretence of unjustice , where the unjustice can be no otherwise redressed , by appellation , or otherwise : which they call resistentia licita per subsidium , menoch . de recup . possess . remed . . num . . & . cabal . resol . crim . cas . . and their opinion seems most just ; for it were dangerous , to make private persons , and such also as are interessed , judges to the justice of what is done against themselves . . nunquam recurrendum est ad remedium extraordinarium , quamdiu locus est ordinario ; but so it is , that if a messenger do any wrong in the execution of his office , he is lyable therefore , ad damnum & interesse , and finds caution for that effect to the lyon at his entry . . messengers are judges in poyndings , and it is not lawful to resist judges upon pretence that they judge unjustly : and this suggests to me another distinction , which is , that either a messenger or executer doth wrong the party interessed , via juris , as in omitting formalities , and repelling just allegiances , & eo casu he cannot be resisted : or else he does wrong , via facti , by beating the party he cites , or giving him opprobrious speeches , by apprehending him without a caption , or after a suspension is produced by him , or otherwise giving rise to the violence used against him , & eo casu he may be resisted , as was found , mart. ● . and is clear from the doctors , cabal . ibid. it hath been alledged that there could be no deforcement at the messengers instance against the pannel , for stopping him to poynd goods , because the messenger was the person at whose instance the letters of poynding was raised , and therefore he could not execute them himself , seing no man can be judge in his own cause , and the messenger is judge in all poyndings ; but this was repelled , because the letters of poynding are alwayes blank in the p●rsons name to whom they are direct , and so the messenger might fill up his own name , and no messenger was excluded , and if the executer did any wrong , he was lyable to a spoilzie , and his sentence was reduceable ; but this wants not its own scruple , seing messengers are judges when they poynd , and no man can judge in his own cause . . it was here alledged , that the letters upon which execution were used , were suspended , and so could not be put to execution , which alledgiance was repelled , because the suspension was not intimate , and so the messenger nor party was not thereby put in mala fide , mart. . though this be the punishment of deforce , when it is purely such , and is not aggraged with other hainous circumstances , yet if a messenger were executing letters of caption against a traitor for treason , any who would deforce him would commit treason , and that were to be art and part of treason : and so in other crimes ; but whether deforcement may be punished in our law , as breaking of prison , i doubt very much , though it be a rule amongst the doctors , that eximens aliquem ex manu familiae , & ex carcere à pari procedunt , & carceratus dicitur non solum qui in carceris mansione dagit , sed & qui satellitum custodia , & in familiae manu reperitur : nam eodem modo utribique leditur majestas principis , & offenditur ministerium justitiae , cabal . resol . crim . cent . . casu . . v. deforcement then is proven as other crimes , by witnesses , and who ever may be witnesses for proving other crimes , are admitted here , but it hath been oft doubted , whether the witnesses who were carryed along with the messenger for verifying his executions , may be sustained as witnesses to prove the deforcement : and the reason of the doubt was , because ordinarily they are injured themselves in such cases , yet at last it was decided in march , . that they were very receiveable witnesses , because without these , deforcements could not be proved : and since the execution could be proved by them , why not deforcement . but it is a necessary caution in that case , that no injury be pursued as done to the witnesses , for if that be once libelled , they become parties , and will not thereafter be received as witnesses , though they should offer to pass from the injuries , as done to themselves . and these witnesses are so receivable , that in the case betwixt murray & french , iuly , . it was found that though they were within the degrees defendant to the pursuer , yet they might be received , because in effect they were testes instrumentarii , beeing witnesses contained in the execution of the deforcement ; but i think , this is debateable , because testes instrumentarii are only allowed in obligations , though within degrees , quo casu , they are to be presumed to be chosen with mutual consent , which cannot be alledged here , seing the messenger only chooses such witnesses as he pleases . whether the execution of deforcement , will prove that the messenger was deforced , without leading any other witnesses , may it be doubted ; and that it should , appears from these grounds , . that it is a principle in law , that creditur nunciis , in his quae spectant ad ipsorum officium . . in civilibus , the execution of a messenger is alwayes believed till it be improven . . lawyers are very clear , that creditur nuncio , si referat se fuisse percussum vel verberatum in ipsa executione , which guido papae decis . . declares to be the custom of france in dauphmie : and this is enacted by a statute of florence , . iune , . yet by our law the ex●cution of deforcement , will not prove that the messenger was deforced , and caballus declares this likewise of most other nations besides these abovecited , casu . according to our law , the messengers who were deforced , cannot be led even as single witnesses , though the pursuite be not at their own instance , but at the instance of the party injured , or his majesties advocat ; in which case it seems that all their interest ceases ; but the reason of this is , because it is presumable that the parties who were wronged will still retain a resentment against the injurers , and so wil stil be prejudicat witnesses in that case . but yet according to the doctors , this is doubted , and many of them conclude , that creditur nuncio se verberatum fuisse , nam creditur ei secundum omnes in iis quae pertinent ad suum officium & hoc est connexum relationi executionis sibi demandata . menoch . de arb. cas . . alii vero credunt casum hunc esse arbitrarium . and according to our law , such as were witnesses , chosen by the messenger to go alongst with him in useing the execution , will still be received witnesses , though they were themselves beat in the deforcement , and so are lyable to the former suspition equally with the messenger : and the only reason of difference that can be assigned , is , that the messenger is himself said in our law to be deforced , and so is the person formally interested , but witnesses are not in our law said to be deforced , and though they be received ordinarily , yet it is given as a caution that they shall not depon upon any wrong done to themselves , for if they do , it will make them though otherwayes habit , to be rejected from being witnesses , and the law will eo casu look upon them as persons that remember too much the injury 〈…〉 though the witnesses taken along by the messenger to the execution , cannot be rejected upon that accompt , after they have purged themselves of partial counsel and malice , if they may not be rejected , if before they be sworn they confesse they continue to have a resentment of the injury done them . and in my opinion , if this beating and injury suffered by them , be confest by themselves , before they be purged of partial counsel , they should be rejected , though the parties interested , and at whose instance the letters were execute , cannot be received witnesses to prove a deforcement , even though they should declare that they would never pursue the deforcement , ad proprium interesse & vindictam : yet such as were within degrees defendant to the party , were received witnesses , even where the pursuit was pursued by their own friend , . iuly , . murray against french. upon a new pretext , that brothers and servants , &c. are habil witnesses , where they are testes instrumentarii , and witnesses in executions are testes instrumentarii : but in my opinion there is a great difference betwixt these two , for the reason why testes instrumentarii , are received , though they be otherwayes in habiles , is because they are chosen of common consent of both parties who are present at the subscription ; but that cannot be alledged in such as are witnesses in executions , who are only chosen by the messenger himself . after this crime is proven , the ordinary verdict is , the assize finds the pannel guilty of deforcing such a messenger . but yet where the assize find only the pannel guilty of troubling the messenger in his office , and would not find him guilty of deforceing : the justices finds these termes to be equivalent , and punished the pannel as a deforcer , in the case of robert herris , iuly , . vi. the party deforced , has beside this criminal action , a civil action for deforcement , against such as have been accessory to the deforcement , for payment of the debt : which debt is ordained by the . act , . parl. ia. . to be payed , together with the modification of his expences out of the first and readiest of the deforcers escheat : and it is declared , that he shall be preferred to the king. from which act these two doubts may arise , . since by the act it is declared that the persons convict of deforcement , shall be lyable for payment of the debt , by this civil action , that therefore this civil action is not competent , until the parties pursued be first found guilty of deforcement : but yet it was found , the . of iuly , . in the case of david mitchel , that the party injured might pursue , either civilly , or criminally ; and that this priviledge was introduced by that act , as a further advantage to the party deforced ; but because this action was founded upon a criminal ground , therefore they ordained the deforcement to be proved by most unsuspect witnesses . the second doubt is , whether by this act , the deforcers other estate be lyable to this action , as well as his moveables ? and though it may be urged , that that act appoints only the creditor to be preferred to the king , and to be payed out of the first end of the deforcers moveables . yet it was found , the . of december , . in this case , murray against french , that this act did allow action for payment , simpliciter . for the lords thought , that the act did in the first place ordain payment of the debt , and expence ; that the preferrence was a new superadded priviledge : and it were against all reason , that the creditor should be frustrat of his action , because the deforcer had no moveables , though he had an opulent heritable estate . in this case it was likewise found , that the party deforced might pursue , either ad vindictam publicam , criminally , or might pursue civilly this action for dammage and interest ; and that the one action did not consume or exhaust the other : and therefore though the pursuer here had prevailed in a criminal pursuit against this defender , quo ad vindictam publicam , that yet he might pursue this civil action for dammage . title xxvii . falsum , falshood . . the several species of falshood by the civil law. . the producers , or users of false writs , commit falsehood . . the punishment of falshood by our law. . the lords of session are only thereto in the first instance . . the lords proceed in the tryal of falshood , either summarly , or by way of action . . the direct and indirect manner of probation . . after the writs are improved , the forger is remitted to the iustices . . false witnesses , how punished . . false coyners , how punished . . false weights , how punished . . the assuming a false name , & suppositio personae falsae , how punished . falshood is by the civilians , defined to be a fraudulent suppression , or imitation of truth , in prejudice of another ; it was by them divided , in falsum quod ipsa lege cornelia vindicatur , & quasi falsum quod senatus-consulto & constituti●nibus vindicabatur , matheus hoc , tit . but suitable to our practice , i shall divide falshood in these four branches , . that falshood , which is committed in writ . . that which is committed by witnesses . . the forging and falsifying of money . . the using of false weights , and measures . i. as to the first branch , he commits falshood , who either expresseth in writ , that which was not done , or omits to expresse that which was done . so that falshood in writ may be committed , either in commission , or omission . falshood is committed by commission , either by fabricating a false writ , or by signing it , or causing another sign it , qui instrumentum falsum dolo malo scripserit , signaverit , vel signare curaverit , recitaverit , mutaverit , subjecerit , amoveritcelaverit , deleverit , interleverit , resignaverit , all which species of falshood , are enumerat by ulpian . leg . . ad leg . cornel. . § . penult l. paulus cod. ad legem cornel. de falsis , which are prettily exprest , but much more fully l. . basil. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . in these termes . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , with which , theophil . differs much , inst . § . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . and the punishment of falshood , was very different , according to the several kinds and degrees of guilt , as will hereafter appear . ii. falshood in writ , is committed by producing a false writ , if they know it to be false , which some doctors think punishable only , if the writ produced by them was suspect ; and it is said to be suspect , if either it appear vitiat by occular inspection , or if the writer or producer used to produce false writs , or if it contain things that are improbable . the user of false writs is said to commit falshood , l. majorem cod. de fals . which only holds , if he knew the writs produced by them to be false ; and therefore clarus relates a caution used by the practitioners , which is , that the user of the writ gets a dyet affixed to him , to deliver at , if he will abide thereby , and at the day affixt , he must either simply abide thereat , without any qualification , quo casu , if it be improven the user is punished as a forger . albeit the doctors commonly are of opinion , that even in that case , the user is to be more meekly punished then the fabricator , paena foilicet relegationis , which caution is likewise in use with us , but in this we differ , that by our practique , the user will be allowed to abide by the writ , though not simply as a writ true , yet as a writ really made over to him ; and in the forging whereof , he had no interest , as in the earl levins case , . but though this qualified abiding at the writ , be allowed in an heir , or singular successor , yet that it is only allowed where there is some person extant , who abides simply at the writ , as true as kennedy did in this case , for else the user , though a singular successor , must abide at the writ , as a true writ simply ; without which , any false writ might be vented securely . the counterfeiter of the king's letters , for which binnie was hanged . the opener , and unsealer of privat letters , from which bart. likewise concludes , that advocats , writers , and others who reveal their clients papers to their adversaries , and , the sealing other mens letters with the sealers own seal ; and revealing the secrets of a town , commit likwise● falshood . . a nottar who draws any unlawful writ , verb. gra . an usurary contract , commits falshood , but not in scotland . . a nottar who expresseth any thing that is false in an instrument , commits falshood , as if he say the money was numbred where it was not , or if he marked persons to be present , who were not , but with us , a nottar commits not falshood , though he say in the writ which he draws , that the money was payed , whereas it was not . i find that iacob . de sancto georgio ad l. de quibus ff . de legib. observes , that consuctudo loci excusat notarium à paena falsi eo casu . iii. falshood in writs is committed by omission in not setting down what the nottar was desired to set down in his instrument , or omitting to express the day and place when the omitting thereof might have been disadvantagious . in our law he of old who falsifyed the king , or his superiors charter , committed treason ; but he who falsified only the charter of a private man , was only to be punished by loss or mutilation of a member , reg. maj. l. . cap. . num . . & . or should be in the kings will , lib. . cap. . but therefore it is determined , stat. alexander . that the forger of a charter is to lose the right hand ; and clarus tells us , that in the dutchie of millan , and several other places , a false nottar is only punished for the first crime , by losse of his hand , but all this is innovat with us , by the . parl. . act ia. . whereby it is appointed , that those who make false instruments , or causes them be made , or uses the same wittingly , shall be punished for the same in their person , and goods , with all rigour , according to the disposition of the civil and common law ; but because that act punished only false notars , and exprest only false instruments , therefore by the . act . parl. q. m. it is extended to all evidents , but it would appear that it is not extended to all persons , but only to nottars , both by the rubrick and body of the act ; from which it may be inferred , that in criminalibus non est argumentandum à pari ultra casum à lege definilum . and that criminal laws are to be most strictly interpret , for else the former law against instruments , might well enough have been extended against other false writs , which are oftimes of greater consequence , then instruments are . . the reason why nottars are more severely punished then others , was , because they were more trusted then others , for of old they were church-men , and hence springs that custom , that they yet design themselves , ego , a. b. notarius pub . dioceseos . andreopolitanae rossensis , &c. and any paper subscribed by them was sufficient , though not subscribed by the party . . the punishment is declared to be prescription ( which is an error of the printer , put for prescription ) banishment , and dismembering of hand or tongue ; but because it is received amongst the doctors , that a statute punishing falshood in a nottar , cannot be extended to any other person who is a forger , fulgos consil . . therefore by the act . parl. . ia. . it is statuted , that whosoever maketh or useth a false writ , or is accessory to the making thereof , shall be punished as a committer of falshood . and that these and all forgers of writs may be punisht , albeit they declare in judgement , that they passe from , or will not use the writ quarrelled . from which it may be inferred , that seing the forger is only not allowed by this act to passe from the writ , after it is used and produced in judgement , that before it be used in judgement , it may be past from , and as the using in judgement is a further prejudice , and degree of impudence , then a simple forgery which may be repented of ; so in all tryals of falshood , and particularly in barclay's case , the lords took great pains to enquire , if the writs quarrelled were produced in judgement , or made use of before any court , which had been unnecessar , if simple forging had been sufficient , to infer falshood : but although this may be alledged , for mitigating the punishment , yet dempster was condemned for counterfeiting a subscription , in a reversion , though he never used the same , to the hurt of any person whatsoever , nor would abide thereby ; and a sentence was founded upon this act , . april . . these who give a false testimonial to any man , whereby it may be used as another mans testimonial , or forges one to himself , is punishable by death , act , . parl. . ia. . but this act seems only to relate to the borders , and such fugitives , as run in from scotland to england . though england and some other nations , punish theft with death , and falshood only by the pillary , and confiscation of moveables : yet our own law seems much more reasonable , which punisheth falshood with death . since falshood is a theft , and a degree of that crime , which deserves a much severer punishment , then ordinary theft , because i can secure my goods against a thief ; but no man can against a forger . and a thief can but at most steal our moveables . whereas a forger can by a false writ , take away the property of our lands , and things of the greatest consequence . by the civil law , l. . ff . de l. cornel. de falsis , § . ult . paena falsi , vel quasi falsi , deportatio est , & omnium honorum publicatio : & siservus corum quid admisserit , ultimo supplicio affici jubetur , which is in terminis , renewed in the basilicks , only in place of publicatio omnium honorum , the basilicks have plenae publicatio , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . but theophil . ommits absolutely , publicatio honorum , and makes it to be simply , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or capital ; the reason whereof seems to be , because capital punishment included necessarly publication , or escheat of goods , l. . & . ff . de bon. dam. and albeit the former punishment exprest , l. . holds generally in falshood ; yet there are some kinds of falshood otherwise punished , because in effect , they fall in to be branches of other crimes . thus the assuming of false arms , aut qui militiam confinxit concutiendi causa is capital , in matheus judgment , per l. . h. t. because it is a kind of laese-majestie . but i find by the law it self , that the pain of death is not exprest in that case , sed pro admissi qualitate gravissime puniendus est . and by the basilicks , there is no punishment exprest , to that special kind of falshood , and so it is left only punishable , tanquam falsum . and though matheus doth infer this to be capitally punished , from l. . l. jul . majest . yet i think there is a great difference , betwixt a mans pretending falsly that he is a souldier , which is that crime , which is punished l. . h. t. and the taking up arms against the state , which is punished , dicta , l. . iv. because the crime of falshood , doth oftimes arise upon papers produced before the lords of session , and because the tryal thereof , requires an exact , and long , and a much more tedious search , then the forms of the justice court can allow ( whose dyet is peremptor ) therefore by the acts foresaid , it is declared , that the lords of session are judges competent , to the tryal of falshood . and albeit that act doth not expresse their jurisdiction to be exclusive of the justices , yet i remember , that in an accumulat accusation of theft and falshood , pursued by the lord blantire , against m cculloch , his servant , it was found by the justices , that they would not proceed to judge the falshood , but remitted the same to be tryed before the lords , in an improbation : and i believe , that the tryal of falshood , in prima instantia , doth only belong to the lords , as that of divorce doth to the commissaries , for else most of all falshoods would be only pursued before the justices , seing the tryal there is much shorter , and lesse expensive , than before the lords ; whereas i find not any action of falshood , in prima instantia , recorded in all the books of adjournal . v. the lords do sometimes proceed to the tryal of falshood , summarie per modum simplicis quaerelae , upon a bill , without any formal summonds ; and thus they found binnie , a falsary for counterfeiting the signet , iun . but this they do only in two cases , . when the falshood is committed , by a member of the colledge of justice . . when the signet or any part of a pro●esse is ex recenti , falsified . the way of procedor in this crime before the lords , is this ; a summonds of improbation is raised , and continued , and three terms of old , but now two only are by the regulations given to the defender , to produce the writ called for , to be improved . if the papers called for be not produced , certification is granted against them , whereby they are declared such as can never be made use of , as true papers , in any time coming ; but upon this presumptive improbation , whereby the writs are only perfictionem juris , declared null , the party who is called to produce them , is not repute a forger , or punished as such , for non constat eo casu de corpore de licti , or that ever there were any such paper , as is called for : nor was there ever certification granted , or any further inquiry made , into the falshood it self , till november . at which time , certification having been granted against some papers , made by the tutor of towie , to captain barclay , the lords found they might proceed a little further , by examining the witnesses , albeit it was alledged , that this had never been done . . that non constabat de corpore de licti . . that by the certification , res erat judicata , and so the lords , functierant officio . . that the writs being improved , were no longer dangerous , non erat amplius nociva & nullus potest puniri defalso ubi falsum non erat nocivum ; and albeit , it was alledged that it would be very prejudicial to the common-wealth , if a person who falsified writs , might destroy them , when he found they could not be advantagious , and so escape ; it was answered , that there was no hazard in this , because , if the forger used them not , the common-wealth , nor no person could be prejudged ; but if he did , the party injured might force him to leave it in the clerks hands , and intent and improbation . by the . act. . parl. q. m. the judge is allow'd to exact caution from such as propon improbation , and though some doubt whether this caution may be exacted , as well when improbation , is proponed by way of exception , as when it , is pursued by way of action : yet since the danger is the same it both , and that by the act , this is declared to extend as well , at the raising of the summonds , as at the proponing of the objection , and that lex non distinguit , i see no reason for this doubt : and this , it was decided the . of iun , . the sums for which caution is to be found in this case , is left to the arbitrement of the judge , and though this statute appoints only caution to be found , yet the lords doth ordain the money oftimes to be consigned . vi. there are two ways of improving a writ , viz. the direct and indirect manner , the direct manner of improbation , is by the writer and witnesses insert , the indirect manner is by witnesses not insert but by presumptions and other extrinsick arguments . but it is a rule in our law , that whilst the direct manner of improbation is extant , that is to say , whilst writer and witnesses insert are alive , no tryal can be taken by the indirect manner . as to the direct manner , we have this general maxime , viz. that such witnesses as are dead , are proving witnesses , but this holds only presumptive , for if of five witnesses insert , two should improve , the other three being dead , the writ will be declared false ; whereas , if these three were alive , and did formally approve , the writ would subsist , though improven by two . to prevent falshood in all manner of evidents , our law in place of seals ( which were used of old , and which might have been easily counterfeited ) did by the . act . parl. i. ● . require that all evidents should be subscribed by the party , and witnesses , and by the . act parl. . ia. . all writs of importance , are ordained to be subscribed by the principal parties , if they can subscribe , or by two famous notars , before four famous witnesses , denominat by th●● special dwellings , or by some evident token , by which the witnesses may be known , and though usually men take writs of the ●reatest importance , subscribed before any witnesses , yet there is nothing more imprudent for if i take a gentlemans two servants , or a fathers two sons ( when the master or father are disponers ) witnesses to their disposition , or bond of the greatest importance , and one of these should deny his subscription , the writ would be null , as was found in commissar fleemings case ; and if both denyed their subscriptions , the writ ought in strict law to be declared false ; but yet if there were pregnant circumstances , and adminicles to astruct the truth of the subscriptions i conceive the writ could not be improven , even though these interested witnesses should deny their subscriptions . from the foresaid acts of parliament it is clear , that the witnesses should be specially designed , to the end they may be known and examined ; and therefore the lords . feb. . littlegil contra somervel ; found it not sufficient that a witness in a bond craved to be improven , was designed indweller in edinburgh , but ordained even the assigney to condescend more particularly though the assignay contended that he being a singular successor , who had got a right to the bond , he could not know who were the witnesses made use of , nor was he obliedged to consider any more when he got his assignation , but that the bond had witnesses , without requiring who these were ; and so though the cedent who had gotten the bond might be oblieged to condescend , yet he could not ; and yet improbation being pursued against a bond granted by sir lewis stewart to his son kettlestone , in which bond one of the witnesses was designed iohn carnagy servitor to the earle of southesk , though there were many moe iohn carnagies who then served the earle . the lords found that kettlestone was not obliedged to designe more particularly which of the iohn carnagies wrot the bond , and that it was relevant for the improver to offer to prove that at the date of that bond the earle of southesk had no servant who could write such a bond , . february , . another great errour committed by such as take men to be witnesses to the writs and evidents delivered to them , is , that they imploy witnesses who has not seen the party subscribe , nor has not so much as inquired at him whether that was his subscription , whereas if that paper were challenged as false or null , it would be declared null , if not false , though the witnesse should depone that he was in the next room , and it was brought to him immediatly whilst the ink was not yet dry , and that he knew his masters subscription , if he could not positively depone , that either he saw his master subscribe , or that his master had declared to him that that was his subscription . and this remembers me of this pretty case wherein i my self was consulted : a gentlewoman being to subscribe her contract of marriage desired that because she was ashamed to writ before so many friends , she might have the paper delivered to her to be subscribed in another room , and the same having been sent with her to the other room , she caused her sister-in-law who went alongst with her , subscribe the same , for her pretending that she could not write well , and returning thereafter , she told the witnesses that that was her subscription ; which contract being thereafter quarrelled upon the nullity of not being truly subscribed before witnesses , the lords sustained the contract , the matter of fact above specified , being offerred to be proved , though it was alledged that this was in effect to make up an obligation of great importance by witnesses . in the indirect manner , the lords use to consider the presumptions adduced for the improver in his indirect articles of approbation , and for the party accused , in his articles of approbation , amongst which indirect articles , the chief are , alibi , a false date , and comparatio literarum . if the party who has been said to have subscribed the writ , be proved to be elsewhere ; as for instance , to have been at edinburgh , whereas the writ is alledged to have been subscribed that same day by him in cathnes this is a very concluding presumption of falshood , since a man could not by the swiftest journey be at both these places in one day , and therefore this is a most concluding presumption to annul the bond , but i think it is no convincing argument which can inferr that the bond is false , since people by errour or mistake , may , and do oftentimes insert a wrong date , neglecting the date , as a matter of no importance ; and therefore the lords did very justly assoilzie from an improbation of a writ , which was proved to be false in the date , since the witnesses insert were alive , and did depone upon the verity of the subscription , . may , . lord may , contra rosse , and upon the . of iuly . gardner contra colvil , a writ was not improven , though it was proved not to have been subscribed of the date that was insert , in respect there was a writ of that same tenour , truly subscribed that day , which being a-missing , the granter a long time thereafter subscribed another of the same tenour and date , and the first being thereafter found , and both produced , the user abode by the first simply , and by the last as to the verity of the subscription , but not of the date , which was so insert for the reason foresaid ; so that though the date be amongst the substantial solemnities requisite to a writ , as is clear by the foresaid acts of parliament , and by the . act , . parliament , iam. . so that the improver may force the user of a writ , to condescend upon a particular date , if the date be blank , and that the falsenesse of the date will inferr the writ to be false , except this presumption can be taken off by a strong contrary probation , yet that it may be so taken of , is clear from the cases foresaid , and in this sense craig is to be understood , who sayes , pag. . si falsa data apposita sit , totum instrumentum vitiatur , nam quod in ea data quae exprimitur non est verum , etiamsi aliam datam substituere velit , is , qui eo utitur , non est audiendus , & quod in data falsa non fuit factum , nunquam factum praesumitur . if the writ craved to be improven be unlike in its subscription , to the other subscriptions used by the subscriber at the time when the paper quarelled is said to be subscribed , then it is most suspect , and if both the subscriptions of the witnesses and granter , be found to be one hand writ , but all of them are unlike the true subscriptions , then the writ will be improven by occular inspection : as was found in the earle of w●ymes case , contra gall , iuly . but yet it were hard to infer the corporal punishment of falshood from this probation , which is but at best presumptive , for the granter of a bond or other writ , might upon designe subscribe to strangers his name , far otherwayes then he uses to do , meerly that he or his heirs , may thereafter quarrel the same , and therefore cravet . consil. . concludes , that comparatio sola non relevat in criminalibus , and all lawyers conclude , that recognitio scripturae privatae insert plenam probationem si jungatur cum uno teste vel alia somi plena probatione , alex. consil . in the indirect manner , the lords uses to receive witnesses ad futuram rei memoriam , and to receive witnesses sometimes by commission , as in captain barclayes case . albeit it was there alledged , that witnesses in the indirect manner of improbation , are only received ex nobili officio , which could not be committed or delegat , and which seems stranger , the lords uses to take the oath of the defender himself , albeit regularly in crimes the defender is not obliedged to swear . before any debate upon the indirect manner , the lords use to ordain the pursuer to give in his articles of improbation , and to ordain the defender to give in his articles of approbation . and albeit there be not publicatio testimoniorum in our law in civil cases , yet because improbations have a criminal effect , and tend to take away the life of the defender , therefore the lords use in this case to ordain the depositions of the witnesses to be seen by both parties , and both parties being fully heard to debate in praesentia , the lords do either improve or assoylzie . if the lords improve , they have by the foresaid acts of parliament power to impose an arbitrary punishment suitable to the crime . and therefore they do sometimes ordain the forget , to be taken to the crosse with a paper hat , if the cheat was but small , or the person in great necessity . and sometimes they only ordain the forger to be imprisoned , and rebuke him without discovering the falshood , as they did lately to a gentleman , who being otherwayes very discreet , was by his poverty driven to counterfit the subscription of his friend , to a bond of suspension . sometimes likewise they refer the forgers to the council , who upon that reference , use either to condemn the forger to perpetual imprisonment , as they did captain barclay , or else they use to send them to the mercat crosse with a paper hat , as they did tulloch a nottar for forging a charter , . iuly , . but this mitigation is only allowed , when the forger hath been induced to commit that crime by the perswasion of others , or by his own simplicity , and hath ingeniously confest . vii . the ordinary way of procedor taken by the lords , when they have improven the papers , and found them to be false , is to remit the forger to the justices , against whom an indictment being drawn up , and the assize sworn , the lords decreet is read , without repeating any further probation , and the assize must condemn thereupon , else they will be pursued for errour . and therfore the verdict eo casu bears , finds the pannel guilty in respect of the decreet of the lords of session . upon this verdict the justices are tyed expresly to condemn the defender to be hanged , as halyday for counterfeiting a discharge , . february , . iames tarbet for being art and part of counterfeiting a false charter , . february , . and if the falshood be atrocious , they sometimes before the execution ordain the right hand to be cut off . if the lords remit not the case to the justices , when they find the papers to be false , they ordain the papers improven to be cancelled in their own presence , but if they remit the forgers to the justices then the papers are carried to the justice court , and when the sentence is pronounced there against the pannel , the papers are likewise cancelled at the command of the justices . viii . the second species of falshood , is that which is committed by witnesses in their depositions , which may be many wayes comm●tted : as . by taking money to depon or not depon . si quis pecuniam ad dicendum vel non dicendum testimonium acceperit , l. . ff . h. t. . by concealing the truth , or expressing more then the truth , though they received no money , l. § . ult . hoc . tit . . by deponing things expresly contradictory , but in this case the contradiction must be palpable , and not consequential , nam omnis interpretatio praeferendo est ut dicta testium reconcilientur . witnesses either are such as were sworn , and if they swear falsly , eo casu , they are guilty of perjury ( vid. tit . perjury ) or else they are such as are false witnesses , without an oath , as witnesses in papers , and these are punishable , tanquam falsarii , bart. ad l. si quis ff . ad l. corn. clar. hoc tit . num . . and of these i design to treat only at least principally in this title . he who depones falsly in one point , is repute false in all his deposition , whether the points be coherent or not ; but he who depones falsly only in extrinsick circumstances , is not to be equally punish'd , as if he had depon'd falsly upon the substantials of what is interrogat ; and yet in both cases he is falsarius . and thus the lords ordained one of barclays servants to be sent to the cross with a paper hat , because he prevaricat only in his deposition about the carrying of a letter , though that was extrinsick to the debate , and was mainly used to try the witnesses honesty . oblivion or forgetfulness excuseth sometimes , à paena ordinaria falsi , if it be invincibly or strongly founded , but not otherwise . witnesses deponing falsly , and such as induced witnesses , were by our law punished according to the disposition of the common law , act . parl. . i. . but thereafter by piercing their tongues , and escheating of their moveables to the kings use , and are never to brook honour , office , or dignity , and are to be further punish'd in their persons at the sight of the lords , according to the quality of their fault , q. m. parl. . cap. . by the lords in this act , are meant the lords of session , who may punish witnesses ex incontinenti , during the dependence of the process before themselves , wherein the witnesses depone falsly ; but if either the falshood was committed by deponing in another court , or if the lords be functi officio , as to the process wherein the falshood was committed , eo casu the lords cannot judge the falshood , or punish the false witnesses . sometimes the lords ordain the witnesses to be remitted to the council ; thus the lords ordain'd the witnesses , who had confest that they subscribed witnesses to a disposition granted by the tutor of towie to his nephew , to be remitted to the council , who ban●sh'd them : and sometimes they themselves ordain them to be banish'd , or to have their tongues pierc'd , or to be set upon the cock-stool , with a paper hat ; yet they cannot ordain them to die , because the arbitrary power granted by this act , cannot in law be extended ad infligendam paenam mortis , as is fully cleared else-where ; and therefore the lords use to remit the falsarie to the justices , if the crime deserve death . but it may be questioned , if the justices can inflict the pain of death in any case upon false witnesses , since that crime is not declared capital by any act ? but to this the answer is , that they may , and do infl●ct capital punishment upon the committers of this crime , in some cases . and by the foresaid act ia. . it is declared punishable , according to the disposition of the common law , by which is meant the civil law , & de practica , wit●esses have been hang'd for bearing false witness , as croy , and for suborning others to bear false witness , as cheyn , march . . and grahame , march . . at which time also dunlop and some others were hang'd for offering themselves to be false witnesses , albeit they did not actually depon , because they were not received , the offer having before their examination come to light . ix . the third kind of falshood is committed by falsifying money , falsum nummartum , which is accounted so great a crime , that it is commonly excepted out of remissions , as may be seen in crightouns remission , march . . this crime is committed , . by forging true money without authority . . by coyning false money , and impressing copper , lead , or any base mettal , with the stamp of the prince , or of other currant money . . by mixing and allying worset with nobler mettals , in currant coyns . . by venting and passing , or out-putting ( as our law terms it ) the adulterat money coyned by others , or intertaining the forgers , or being art and part redde , or of the council with the coyners . by the civil law , qui probos nummos cudunt sed non in officina publica tenentur lege cornelia nummaria , l. . c. de falsa monet : qui adulterinos cudunt & qui veros adulterant , radunt , fingunt , l. qui cunque & l. seque ff . hoc tit . qui nammos probos lavant constant aut vultu principum signatos reprobant , l. . c. de vet . numis . pot . by our law , every burgh should have a clipping-house , ( which was a house for trying money , for the tryal was by clipping ) and sworn men , who should clip evil money , who are to have a penny for ilk pound that is clipped , and the haver was to tyne the false-money , i. . p. . c. . and the clipped money , if it be evil stuff , or false coyn , should be returned to the owners , i. . p. . act . they who falsifies money , or counterfeits the kings irons , are to be justified ( id est punished ) according to the old law , act . p. . i. . by which act , though it be added according to the old law , yet we have no law , de falso nummario , prior to this , except act . p. . i. . which punisheth only the home-bringers of black money with death . by the act . p. . q. m. the home-bringers of false coyns , or lay-money , should be dilated , and the dilater is to have the half of all his goods , moveable and immoveable , for his revealing : and it seems by that act , that it is made treason , for confiscation of lands or moveable goods , is only in the case of treason ; and i find no other act that can be the foundation of drummonds conviction as a traitor . et de practica , this crime hath been diversly punish'd : reid was hang'd for forging false money with the kings irons , iuly . . drummond burnt for forging false money , novemb. . . and his brother patrick drummond bu●nt also for art and part , red counsel and concealing the treasonable forging , coyning , and out-putting ( for venting is still a crime , and is designed out-putting in our stiles ) of false money . meinzies also was hang'd for art and part , as said is , iune . . thomson was hang'd and forefault for bringing home and out-putting false money , ianuary . . x. the fourth species of falshood , is false weights and measures , adulterinae staterae , which are punish'd per l. corneliam , l. annonam , ff . de extraord . crim . & falsae measurae , which are punish'd per relegationem , ibid. with us the using false measures or weights of old was punish'd by a fine , leg . burg. cap. . and the bailies of the burghs were declared judges competent thereto , for the first three faults , but the fou●th was declared to be only punishable by the justices , because the committers life was to be in the kings will , cap. . ibid. but now such as use false measures or weights deceiving the people , are to be indicted as falsars , act . p. . i. . by which act , havers cannot be punish'd , except they use , since the act ordains users to be punish'd , and mentions only such as deceive the people , which is not done without using : and by the . act , parl. . ia. . the users of false weights and measures are to tyne their hail goods and geir ; which punishments derogats not from the former act inflicting the punishment of falsit , as hath been debated more fully in the title of deforcement : de practica , i find that brown was fyn'd for false measures by the councils warrand in . merks , pen. iuly , . and that porteus was found guilty , though using was not proved , since having of false weights in the shop presumes using , except this presumption be taken off , as by alledging that the we●ghts were presently bought , or borrowed , or laid aside , as light , may , . by the foresaid last act , the sheriffs , lords of regalities , and stewarts , are declared judges competent to this crime , but their commission there is only tempory for a year , and therefore it may be concluded that these are not otherwayes judges competent to this crime , else this commission had been unnecessary . the using also a longer ell or yard , is also punishable , though it would appear that here the merchant himself is only prejudged , for he may receive as well as give out by it ; nor doth the law presume that a man would keep any measure to his own disadvantage . i find also that there was a merchant in elgin pu●sued before the justices , iuly ult . . for false weights , in swa● far as he going to a mercat , dragg'd his tobacco after the boat in the salt water , which made it weigh more then otherwise it would have done , and so the people were cheated : but the dyet was deserted , and though the defender alledg'd that this was done for keeping the tobacco from drying too much , and mouldering into pieces , yet the magistrats of elgin had fyned him formerly for the same fault in . pound scots , even for the ill example , paena falsi arbitraria tenetur qui in sua mercatura addit inutile ut pulverem arenam , &c. aut species aridas detinet in loco humido carp. pag. . xi . falshood is also committed by assuming a false name , vid. stellionatum , and by presenting one person for another at the subscribing of papers , suppositio salsae personae , which is punished tanquam partum sui positum , by the civil law. i find one david donaldson hang'd for this imposture , having made use of a false person , who design'd himself to be the person who should by the agreement have subscribed the assignation , decemb. . . the svpposing a false birth , that is to say , the laying in one child for another , is punishable as a false deed , with the punishment of falshood , since thereby men are cheated out of their estates , l. ad corn. de fals . the words whereof being , periculum capitis subeat , is found to extend to death , boer . decis . . and the mid-wife who brought in such a false child , is pun●shed by death , pegner . decis . . but i find that farin . relates , that periculum capitis , was in this case extended no further then scourging : but yet , since this was a great cheat , and doth steal away an estate from the righteous heir , and adulterats the off-spring , it ought to be panish'd as severely as their , especially since it can be committed only by such as being trusted , aggrage their guilt by their unfaithfulness . this crime is called by the latins , partus suppositus , and by the basilicks , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 title xxviii . stellionatus . . the several kinds of stellionat by the civil law. . what it is , and how punishable by our law. the heart of man is deceitful above all things , and such as have been conversant in businesse and courts of justice , have found that cheats do amongst men multiply , and vary themselves into so many formes , that legislators were forced to invent this general name of stellionat ; under which they might range all cheats , and thence sprung that maxime , l. . ff . hoc . tit . ubicunque titulus criminis deficit illic stellionatum objiciemus : which must be interpret and restricted in its generality , by the preceeding words , stellionatum objici posse his qui dolo quid fecerunt ; so that to infer this crime , it is requisite that there be a cheat or fraud used , and that the cheat want an other name , for there are frauds which cannot be comprehended under this title , as falsifying w●its , counterfeiting seals . the ordinary species of stellionat in the civil law , are to sell , or impignora● , or to give for payment fraudulently of our debt , these things which belong to others ; and to corrupt or change merchandise , which we formerly sold : to exact likewise debt which was formerly payed , and known to be payed , is stellionat . l. . ff . mandati , but the craving of it is most criminal , if recept of what is craved follow not upon it . bartol . ibid. and so far is receiving criminal , that the receiving payment of a debt formerly payed , is stellionar , though simple craving without receiving will not infer it ; but it is most observeable , that fraud is still requisite to the construction of this crime , and its essence . ii. by our law we have no expresse statute against stellionat , except only act . p. . i. . which bears , that no duty shall be disponed to two sundry persons which is crimen stellionatus of the law ; from which act it is to be observed , that our law presupposes the civil law to be our law , as to that crime ; for it does not determine what is to be accompted stellionat , or appoint a particular punishment for stellionat , but only clears declaratorly , that the disponing duties or rents of lands to several persons , shall be accompted stellionatus ; and therefore what ever was punished as stellionat by the civil law , may be punished as such by ours ; not only à pari , or by extension , but by approbation ; the roman law having by the allowance of that act become ours ; and therefore the making of double assignations or dispositions of lands , or of any thing else besides rents mentioned expresly in that act , is punished as stellionat in our practique , which is warranted likewise by the . act , p. . i. . by which act , though stellionat be not mentioned , yet it is thereby punished , for it is there declared , that whosoever makes double dispositions of lands , he shall be called at the kings instance , and punisht at the kings will. but it may be doubted , why double alienations should be punished as stellionat , seing qui rem unam duobus vendit falsi est reus , l. qui duobus , ff . ad l. corn. de falso ; in answer to which , i conceive , we must distinguish betwixt these who whilst they are selling , being desired to clear , if the thing offered to be sold , hath been formerly sold , or not : say that it was not , in which case he is guilty of a manifest lye , and so of falshood ; but if he only sell one thing twice , without denying that it was formerly sold , or was not his own , then he is only guilty of stellionat , seing though there be a cheat in this case , yet there is no lye : an instance whereof fell out into my own experience , for there being two writers to the signet of one name , and money being directed to one of the two , the bearer delivered it to the other , as due by his master to him , which case was thought by those who consulted it , to be stellionat , seing though the receiver had not said to the bearer that his master was his debitor , yet he should not have received the money , for he was obliedged to know that the same was not due to him ; and yet according to farinacius opinion ( who thinks that dolus in committendo tantum insert stellionatum , sed non dolus in ommittendo ) it might be debated that this case was not stellionat , seing the receiver of the money was only guilty of omission , in not clearing the bearers mistake : but i differ in this from farinacius , for seing dolus in ommittendo , may be a great cheat in it self , and that the party wronged is as much lesed thereby , i know no reason why the one may not infer stellionat as well as the other : and albeit dolus in ommittendo , were not stellionat , yet this case was , seing the recept of money sent to another is more then omission . by that act iames . it is likewise declared , that superiors receiving double resignations , shall be punished as these who grant double dispositions : and certainly that part of the act was most just , seing if the superior was conscious to the design of making these double resignations , he cannot but be art and part of the cheat of making the double dispositions , whereupon the resignation flowed ; and so should be equally punished ; and in effect , a superior granting new infestments , upon divers resignations , to divers persons , does grant double rights : for to grant a new right upon the old vassals resignation , is to dispon . and seing the buyer is prejudged more by these resignations , then by these dispositions , upon which they slowed , ( that being a more compleat act then the other ) it were unreasonable that the superior should not be punished as well as the seller ; and yet because it is not presumed , that any would cheat where there is no gain , and that the superior in receiving resignations , in favorem , gains little , therefore this part of the act is now in desuctude . i find likewise , that other species of stellionat are punished by our law , as in anno . iames clerk was pursued , because a sword being sent by cuthbertson to moubray a sword-slipper , clerk did say to the bearer that he was moubray , and so took the sword , which libel the justices would not sustain , to infer falshood , but tanquam crimen in suo genere ; and yet , l. . ff . ad l. cor. de falso assumptio falsi cognominis est crimen falsi . the punishment then of this crime could not be certain and determinat , seing the crime is various in its own nature , but it is arbitrary and punishable at the discretion of the judge , according to the circumstances and measures of the fraud committed . and it is called stellionat , from a serpent called stellio , which is beautified by starry spots , stellatis guttis distinctum , and is the most subtile of all serpents , plin . lib. . nat . histor . cap. . title xxix . perjury . . what is perjury , and the several kinds thereof . . whether he who swears only that he believes what he depones to be true , be punishable for perjury . . whether he who promises upon oath , and performes not , be punishable for perjury . . whether these who perform not their parents oaths , are punishable for perjury . . whether witnesses who depone falsly , can be convict of perjury , upon the depositions of other witnesses . . whether a iudge or advocat violating his oath , de fideli , be punishable for perjury . . the punishment of perjury by the civil law , and ours . since witnesses can by their depositions , take away the lives , or ruine the estates , of such as are the greatest men , or have the greatest fortunes ; the law which reposed that trust in them , doth very justly over-awe them , in deponing by the reverend fear of an oath , and by threatning them with the severe punishment of perjury , if they swear falsly . i. perjury is defined by lawyers , to be a lie , affirmed judicially upon oath ; but because it is not presumeable , that any person would both be so mean as to lie , and so wicked as to call god to be a witness thereto : therefore lawyers have very justly delivered us a brocard , that perjury is not committed without fraud , interpretatio facienda est ut evitetur perjurium ; and from this principle they have deduced , that . he who swears that which is false , believing it to be true , is not to be punished as a perjurer ; for in effect he doth not then lie , add ad clar. num . . . if the perjury could have prejudged no man , clar. num . . because it is not be presumed , that a person would perjure himself , while he could have no design : and from this may be likewise inferred , as a consequence that perjury should be hardly fastned upon any person , for matters of very small consequence , seing as de minimis non curat praetor , so it is not presumeable that a man , especially of any integrity or honour , would incurr that guilt , and this was alledged , for mr. iames row a minister , when he was pursued for perjuring himself , by sir thomas stewart , in anno . for the matter of five pound scots ; but this point was not decided . and albeit i think where this is joyned with other circumstances , which may render the decision dubious , the council may either mitigat or remit the punishment ; yet if the perjury be clearly proved , i think it should be punished : and in no case should the justices refuse to put the pannel to the knowledge of an assize ▪ because the matter wherein the perjury is alledged to have been committed , is very small : but it is punishable , if at first it might , though thereafter , ex eventu , it proved not prejudicial , as if the writ was improven by a certification ; yet the false witnesses are thereafter punishable , though at the time of the inquiry , that paper could prejudge no man , because of the certification . it was found in barclay's case , february . . where the matter is difficult , it is presumed that the swearer did not understand then that he did perjure himself , clar. num . . but if the swearer did not take pains to understand the matter upon which he was deponing , i think the difficulty should hardly excuse him . ii. it is controverted among the doctors , if he who swears per verbum credo , i believe , can be punished for perjury . and in mr. iames row's case , it was alledged , that it should , because in effect all oaths are but oaths of credulity , where the matter falls not under sense ; and in this case where it was referred to his own oath , if he was payed of his stipend , and he deponed upon oath , he believed he was not payed , hoc casu , the word , believe , should have inferred perjury , because he should not have believed except he had certainly known , and belief presupposes a certainty , for faith and belief are all one , so that in effect , to depon , he believed it was payed , was to depon , it was certainly payed , or that in faith it was payed , either of which would have inferred perjury . but . perjurium est affirmare quod dubit as arg . l. vinc . ff . nihil nov . apel . & indiscrete jurare est instar perjurii . gregor . tholosan . h. t. and if the adjecting such a dubious word as this , were sufficient to evite perjury ; that crime should never be incurred , and certainly it is in it self a great undervaluing of the diety , ( quod est medium inductivum hujus criminis ) to depon without information , where information may be had ; and it is very presumable , he would litle value perjury , who did value litle to get such information , as was requisite for satisfying the judge , in clearing what was just : and seeing the law designs by punishing perjury , to come to the exact knowledge of all privat cases , wherein judgement is to be given , to the end judex may ubicunque suum tribuere , it follows necessarily , that it should very severely punish such as depon without previous information , especially where the matter of the deposition is in facto proprio , as in this case , for by this rash , or affectate omission , both the law and the judge are equally disappointed of their ends , as much as if the deponer had willingly perjured himself . . a witnesse deponing falsly , per verbum credo , is in law punished with the punishment of falshood . bald. salicet in l. de tut . c. de in integrum restitut . alexander concis . . vel . angel. consil . . the deponing per verbum credo , would have gained the deponer the cause ; and assoilzied him from the pursuite ; and therefore it should infer perjury against him , because the reason why perjury is punished , is that there may be something to over-aw such to whom the verity of any cause is referred . . it is doubted amongst the doctors , if he who promises upon oath in a bond , to pay a sum , or perform a deed betwixt and a day , be guilty of perjury if he failzie , and math. de aflictis , relates a neopolitan decision , wherein it was found , that perjury could not be inferred upon the breach of such an oath as this , the words of the obligation being to pay , sub fide dal gentilhomo , because sayes he , this is fides and consequently cannot be punished , but only paena extraordinaria , though bertrand be of another opinion , consil. . iii. but the question remains yet intire notwithstanding of that decision , whether they who promise under an express , formal , and religious oath , as that by god himself , or holy trinity , they shall pay a sum , or do such a deed , betwixt and a perfixed day , may not be pursued for perjury : and that they should not , may be argued from this , that these being extrajudicial oaths , the law should not incourage the giving , or exacting of them , so as to punish the not implement of them with perjury ; for this would make every man exact an oath of his debitor when he lent him money , or upon every slight occasion , which were most inconvenient . . the laws do not punish extrajudicial oaths , given in depositions of witnesses , & sic testes deponens in judicio contrarium ejus quid dixit extrajudicium non punitur de falso . alexander lib. . consil. . covar . in repit cap. quantis de puit vid. monoch de arbitrar . cas. . much lesse should it such extrajudicial promises : yet some think even such contravertions as these , should , ob despectum numen , be punished arbitrary , but if this promise be given judicially , as in cautione juratoria , in removings , whereby the party obliedges himself to remove , and pay the violent profits , or whereby he binds himself to report the criminal letters to the justice-clerk , in these & such other cases . i think the not implement of the promise , unless a reasonable cause can be assigned , should infer perjury , both because this is a judicial oath , and because in contemplation thereof , the law remits the necessity of finding another cautioner , and the party concerned has no other security nor what is founded upon this juratory caution . iv. . it is doubted among the doctors , whether these can be accompted perjured , qui non impleverunt vota parentum juramento confirmata , who perform and fulfil not their parents oaths . in which cases grotius distinguishes betwixt those oaths , whereby the father bound himself only to god , and in these the son for not implement , is not guilty of perjury , because in effect , illud non est onus haereditatis , but is personal , and so the son represents not the father in it , but if the vow were made to a particular person , then that vow being in unus haereditatis , the not implement of the fathers vow , will infer perjury , for quo ad the estate haeres & defunctus sunt una & cadem persona . matheus distinguishes in this case , si juramentum parentis sit in rem conceptum & eo casu tenetur sed si non fit in rem conceptum sed in persona tenetur , arg . l. . . part . ff . de part . it may be likewise doubted upon the same ground , whether the oath of any people in publick affairs , relating to the state , doth tye their children , & the example of saul's being punished for not observing the oath whereby the people of israel were tyed to the sam. . seems to evince , that the contravention of these national oaths given by parents , is punishable upon children , in foro divino , but whether the civil punishment can be inflicted for contravention of national oaths , such as the covenant and declaration , either in the case where the oath is given , either by the predecessor , or the giver himself , is not decided . and i should incline to think , that the contravention of these national oaths , cannot infer the civil punishment of perjury , both because the design of perjury is only to punish such as do prejudge the privat interest of these , concerning whom they swear , and such a contravention cannot be properly called mendacium , the swearer having designed at that time to fulfil what he swore , though he thereafter alter his judgement : nor can dolus be alledged in this case , nor that the interest of a third party is thereby prejudged , all which are requisite for inferring perjury . v. . when witnesses depon with us in any privat case , it was of old doubted , whether the depositions might be reprobated , and themselves punished for perjury , by the depositions of other witnesses , and of late these conclusions seem to be regularly allowed . . that a witness deponing verba initialia falsly , such , as of what age he is , whether he be married , or where he dwels , eo casu , he may be punished for perjury , if if he depon falsly , for these questions are proponed , not only to the end it may be known what age the witnesses are of , but likewise to the end it may be known whether the deponer be a person of such veracity , as may be trusted , and that by these , his veracity may be traced and examined . . that a witness may be convinced of perjury by writ . but . whether a witness may be convinced of falshood and perjury , by the deposition of other witnesses , was contraverted in the case of balcanquel against rig a minister , and that he could not , it was urged , because if this were allowed , daretur progressus in infinitum , for else if two witnesses deponing that such a thing were done , might be convinced of perjury , by other two or moe witnesses , these witnesses might again be convict by others , and those by other , in infinitum , for the other part , it was alledged , that . there being nothing to overaw witnesses in scotland , but the fear and hazard of perjury to free witnesses from this tryal , was in effect to render them libertines , and to incourage them to depon falsly . . it was absurd to think , that if two witnesses should depon that which were notourly false , as that such a man was killed , who thereafter was seen by a whole judicatory , and all the members of session and parliament , to have been alive , that eo casu , witnesses should not be found guilty of perjury . . assizers who are in effect witnesses , as well as judges , and may proceed to a sentence upon their own privat knowledge , may be tryed by an assize of error consisting of twice as many ; whereas , if the depositions of witnesses could not be reprobated by other witnesses , no assize could be convict by an assize of errour , as temere jurantes super assiza . to the foresaid argument it is answered , that . the same did only evince the probation , should be more exact in that then in other cases , but did not at all conclude , that such witnesses could no wise be convinced of perjury ; and the ordinary rule given by lawyers , is , that twice as many are requisite to reprobat , as to prove : which conclusion could not take place , if the reprobation of witnesses by witnesses were not sustained . . this argument would evince , if it had any weight , that even , circa initialia , witnesses perjuring themselves , could not be pursued for perjury , because these might be convinced by other witnesses , and these by others , & sic daretur progressus in infinitum , so that either witnesses cannot be convict of perjury in no case , or else they may be in every case , where they swear falsly : notwithstanding all which the justices by interloquutor found , that witnesses could not be pursued for perjury , upon the deposition of other witnesses , upon the day of . but yet it remains doubtful , whether one witness may not be pursued for perjury , upon the deposition of others , though two cannot , because the joynt depositions only make a full probation . . clarus , num . . § . perjurium , is of opinion , that when any thing is referred to oath judicially , that eo casu , the party who swears , can never be challenged for perjury , sed iohan , deum habet ultorem ; which boerius doth also assert to be the common opinion , decis . . and the reason which moves them to this , seems to be , that a party having made his antagonist absolutely judge of his own cause , he has , as it were , submitted to him , & juramentum debet esse ultimum refugium , and this seems to be the case decided , per. l. . c. de rebus credit : religionem contemptam juramenti satis deum habet ultorem sed majestatis crimen vel periculum corporis & si per principis venerationem quodam calore fuerit perjeratum , inferri non placet , for in the immediatly preceeding law , it is said , that causa jure jurando ex consensu utriusque partis delato decisa , nec perjurii praetextu retractari potest , so that adding both laws together , the sense is , that when the cause is referred to any parties oath , it being decided conform thereto , that decision can neither be retracted upon pretext of perjury , nor can the perjurer be corporally punished . and this seems a much more reasonable answer , than those many given by the doctors ; but yet i cannot assent to the conclusion it self : nor is it at all conform to our law , nor perhaps to reason ; for interest and avarice are sufficient baits to perjury , though impunity be not thereto added , and when the party defers an oath , he intends thereby to submit finally to him , to whom the famine is deferred ; but not so , but that if thereafter the swea●er shall be found perjured , he may be still challenged : nor perhaps would he have deferred the oath , if he had not concluded himself secure , as to what should be deponed , not only out of respect to religion , but likewise because of the hazard of perjury ; and seing in this case , there is mendacium juramento affirmatum , i do not see how it should not be perjury : is there any ground why at least his majestie 's advocat should not be allowed to pursue it , for the reason which is urged for the speciality in it , ceaseth in him . and as there is no decision in favours of clarus his opinion in our law , so in mr. iames row's , and other cases , where this might have been proponed , this defence was never proponed ; yet in some cases , the deponer , in juramento delato , craves that the lords may declare , that he shall not be liable for perjury , when any oath is necessarily so deferred to him , which the lords in some cases use to grant , as in facto antiquo : and by so doing , they show that perjury is punishable , regulariter , even in him to whom an oath is deferred : but i believe , that the doctors have more justly concluded , that where an oath is deferred in criminals , though the pannel needs not swear , yet if he do swear , he is not punishable as a perjured person , though he swear falsly , quia licet cuique suum redimere sanguinem , clar. num . . and yet it may be debated , that this holds not with us in usury , and other cases , because there the law obliedged him to give his oath ; and matheus doth think , that it should in no case , but rather that the perjurer should there be punished with a double punishment , both for concealing the crime , and also perjuring himself . and it may be alledged that this is rather punishable then ordinary perjury , because the defender needed not swear , and was in no hazard by not swearing , and the less the temptation be , the sin is alwayes the greater : nor needed the defender redeem his own blood by swearing , as is pretended , or at least , licet hoc liceat , licere tam debet per modum licitum , sed non perjurio . vi. it may likewise be doubted in some cases , whether the violation of an oath doth infer perjury , as when a judge gives his oath that he shall administrat justice impartially , or an advocat that he shall be honest in his imployment , without discovering his clients secret , or betraying his business ; if that judge , taking money as a bribe , or that advocat thereafter prevaricating , may be upon these accompts pursued for perjury . and this was , i remember , controverted in the case of one of his majesties officers of state , who was pursued upon the foresaid act of queen mary , for perjury ; because he was alledged to have taken money from the defenders , in cases wherein they were pursued at his majesties instance ; and that this could not infer perjury , was argued from this , that our law having made some particular statutes , as to perjury , it designed thereby , that the subjects of this nation , should not in this crime be left to the common law ; and seing it had only punished perjury in the case of witnesses , assizers , and bigamy ; it did clearly follow , that perjury deum tantum habet ultorem , in all other cases . . if perjury were punishable in this case , tutors and executors who find caution , might be always punished for perjury , where they are pursuable for mal-administration , which were absurd , and was never practized in any nation . . when such oaths as these are given , these words , as ye shall answer to god , are ordinarly adjected , rather to impresse a fear of the deity upon the swearer , than to subject him by the oath to the hazard of perjury : and the fear of perjury is neither thought upon considered by the administrator , nor the swearer , so that non de hoc agitur , at that time , which is one of the many things , that is always looked to in punishing of crimes . . if consequential perjury had been punishable as formal perjury , there needed no act to have been made , declaring that bigamy should be repute , and punished as perjury , seing it was such by consequence before that act. for the better clearing of this case , it will be fit to divide perjury in formal and consequential perjury : and to conclude that formal perjury , which is in these cases declared perjury by an expresse act , should be punishable as a crime ; but that consequential perjury , as may be instanced in the cases above-written , should not be punished as a crime , but as an aggravation : for seing in these the perjurer did not formally design to commit perjury , is were not very rational to think , that he should be punished by the formal punishment of that crime : which distinction , i find likewise allowed by the civilians ; for albeit formal perjury was only punishable by banishment , and infamy : yet if any man died by that perjury , as in false-witnessing in capital crimes , the perjury was eo casu , punishable by death ; and if it was mixt with treason , it was punishable as treason . margaret wood was in february . pursued , for having perjured her self as a false witness , in so far , as she having been cited before the privy council , and examined by them , she had deponed many false things against the laird of pitcaple , and richard mowat : against which pursuit , it was alledged for her , . that she could not be pursued as a false witness , because a woman in our law cannot be a witness , and consequently she cannot be a false witness . . she did not depon upon oath before the council , and consequently she cannot be guilty of perjury , since , nemo sine juramento est perjurii reus ; nor is a person deponing for the information of the council , oblieged before an oath be administrat , to consider what she is deponing , as lyable to the certification of perjury , and if it were otherwayes , there needed no oath be administrat ; so that before the administration of an oath , the deponer being neither a witness , nor sworn , can neither be guilty of perjury , nor false witnessing : much less can she be guilty of perjury , in having deponed falsly , which is a complicated crime , made up of perjury and falshood . . she is but one single witness , and so could not have prejudged by her testimony , the persons against whom she deponed , & semper perpendendum est damnum , quod ex perjurio resultat , carpz . quaest . . n. . likeas , here she retracted her own deposition her self , before any pursuit was , or could be intented against those gentlemen : and that she deponed was the result of the confusion she was put in , by her appearance before the council , being a young girle , not exceeding . so that her age and sex should excuse her , si quis calore iracundiae , aut forte lingua lapsus , aut praecipitatus , perjurium commisit , ei eo casu ignosci debet , rens . lib. . decis . . and there is nothing more natural , or less dangerous , then that a guilt arising from a deposition , and meer words should be taken off in the same way , especially , before any person be thereby prejudg'd , as in this case . . this libel could not be warrantably founded upon the act of q. m. which punish'd only perjury committed in marrying two wives , but no other species of perjury . to which it was answered , that as to the first defence , it was not relevant , since she being cited before the council , ought to have depon'd truly , even for informing the supreme judicatory of the nation , who use , and must examine women for the good of the common-wealth : especially in such atrocious and occult crimes , as in the burning of the house of frendraught . and though the defender may in some cases cast a woman from being witness , yet that excuses her not if she be examined . to the . lawyers are clear , that a witness may depon without being sworn , for the swearing them is not essential , since the pursuer may remit it : and yet the witness who depones falsly , even though not sworn , is a false witness , bart. in l. si quis ff . ad l. cornel. de fals . clar. h. t. num . . to the . it was not relevant , since she inform'd against these gentlemen in a treasonable point , and might have prejudg'd them : nor did her retraction proceed from repentance , but confrontation ; nor did she accidentally only , or by confusion lapse into this error , she having spread these misreports before she was cited , and having reiterated her confession after citation . to the . the practice of the kingdom was oppon'd , which is the best interpreter of laws . and in anno . grahame of long-boddom , and in anno . turnbul of belshes , and lately dempster of muresk , were punish'd with death for deponing falsly , or seducing others to depon . but these points were not decided . vii . the punishment of perjury by the civil law , was banishment , l. ult . ff . de crimine stellionatus & fustigatio , or scourging , l. si duo § . si quis perjuraverit . by our law , act . parl. . q. mary , bigamy is declared punishable as perjury , which is declared to be confiscation of all their moveable goods , warding of their person for year and day , and longer during the kings will , and that as infamous persons they shall never be able to bruik office , honour , dignity , nor benefice in time coming . as to which act , it is observable , . that perjury is not formally punishable with us , but only declaratorly perjury being in it self so heinous a crime ; but the reason of this seems to be , that perjury was before this act punishable , after this manner , for by the . cap. lib. . reg. maj. it was appointed , that temere jurantes super assisa spoliabuntur mobilibus & in carcerem detrudentur per annum & diem adminus & infamiae notam incurrent & amittent legem terrae , which skeen interprets to be , non habère personam standi in judicio , and not to be receivable as witnesses , either in judicio , or extrajudicium , which act is likewise ratified , by the . act , parl. . k. i. . where it is said , that wilful or ignorant assizers , man-swearing shall be punished after the kings old law , in the first book of the majestie . where perjury is to be inferred from a deposition , either as party or witness , it is necessar , that the deposition be subscribed by him ; and the lords found that mr. iames row could not be convict of perjury , upon his deposition subscribed by the clerk. sometimes the council change the punishment of perjury into banishment ; as in the case of galbraith , who came in will for perjury . . iuly . . title xxx . of injuries , personal , and real ; and of infamous libels . . injuries are either verbal or real . . the requisits in libelling verbal injuries . . what are real injuries . . who are iudges to verbal or real injuries . . infamous libels , how punished . . leasing-makers , how punished by our law. i have oftimes thought that men should walk legally , not only in obedience , but gratitude to law , since the law takes so much pains to secure not only our lives and estates , but even our honour and reputation , and will humour us so far , as that because we will think railery a misfortune , it will therefore punish even these who offend our imagination . i. injury then , in its more comprehensive sense , may give a name to all crimes ; for all crimes are injuries , but injury as it is the subject of this title , is the same thing with contumely or reproach : it is divided by lawyers , into such as are committed by thoughts , deeds , words , and gestures ; but the more received division is , that injuries are either verbal , or real . ii. verbal injuries are these which are committed by unwarrantable expressions , as to call a man a cheat , or a woman a whore ; but because expressions vary according to the intention of the speaker , therefore except the words can allow of no good sense , as whore , or thief , or that there ly strong presumptions against the speaker , the injuriandi animus , the designe of injuring , as well as the injuring words , must be proved , and the speaker will be allowed to purge his guilt , by declaring his intention , l. . § . octavo , ff . de injur . and his declaration will , without an oath , be sufficient , except the offender be burdened with contrary presumptions , berlich . conclus . . num . . lawyers therefore require in libelling injuries , . that the particular expressions be distinctly condescended upon ; nor is the general , you called me a cheat , or said some such thing sufficient , seing not only words but even the pointing of them does alter the estimat of injuries . . the pusuer should libel the design of injuring , except the words infer so clearly an injury , that there is no necessity to libel the design . . that the pursuer who was injured , did presently resent the injury , and took what was spoke for an injury , which the lawyers call revocatio injuriae ad animum . and it is sufficient , that this dissatisfaction be signified either openly and expresly , or by some other acts which testified discontent , ex incontinenti quis injuriam debet ad animum revocare alias ex intervallo nihil facit sed injuria remissa censetur . § ult . just . de injur . and the reason of this seems to be , because the essence of a verbal injury consists in dissatisfying the person to whom the words were spoken , and words are only injuries , if they be so taken , and therefore if they were taken at first to be no injury , they were then no injury : and if they were not then an injury , they could not afterwards become such . since then injuries are estimat according to the design of the offender , it follows naturally , that men who are fools , idiots , very young , or very drunk , are not punishable for verbal injuries , except the offender did become drunk upon design to offend , si non ex proposito sed ex impetu deliquit . and great passions which break off all designing , justa & non affectata ira excuses also in this case . as also for the same reason , the objecting true crimes are no injury , if the objecter designed principally not to offend the person guilty , but to inform the common-wealth , or to defend the speakers own honour . and upon the first accompt , it was found , that the detecting what the common-wealth was not much concerned in , was an injury , cravet . consil . . and upon the last accompt , it is thought , that to give a man the lye , is an injury , but that it is no injury to say you speak not truth ; for in the one we defend our own honour , but in the other we offend the honour of the speaker : and custom has made the expression passe for an expression to be used when we design to offend . the relating likewise what we heard from good authors , who designed no prejudice , is sufficient also to defend against the punishment due to injurers , as was found in the court of savoy cod. fab . de injur . def . . yet sometimes injuries are inferred not only from expresse words , but even from the presumptive meaning of the speakers ; as to look in a mans face , and to say , i am not a lyar as others are , afflict . § . injuria . tit . de parjur . firm . or to say , flauntingly , you are a fine church-man , iacob . de bello visu lib. . cap. . num . . iii. real injuries are committed , by hindring a man to use what is his own , by removing his seat out of its place in the church , by giving a man medicaments which may affront him , by arresting his stoods unjustly , by wearing in contempt what belongs to another man , as a mark of honour , by razing shamfully a mans hair , or beard , by offering to strike him in publick , or by striking him , or riving or abusing his cloaths , or his house , and many other wayes related by berlich . conclus . . vi. according to our law , verbal injuries , are punished only by the commissars , who are judices christianitatis : scandal being a church censure , and the commissars do inflict pecuniary mulcts , and make the offender do pennance at church doors , or otherwayes : nor , do ordinarily the lords of session either advocat such actions , or modify their penalties . the council do use to remit to the commissars such pursuits , and refuse to try verbal injuries done to privat persons , as in the case of strauchan and straiton ; but if the verbal injury was done to a magistrat , as if any man should call him a knave , or a fool , then the council use to fyne and to punish even verbal injuries , as in the case of george campbel , and the bailiffs of inverary , . or to a privy counsellour , as in the case of mr. alexander spotswood and the justice clerk. and though verbal injuries are extinguished by the civil law , if they be not pursued within a year , or by posterior friendship ; for the law is most desirous to pass by such imaginary crimes , yet in george campbels case , a subsequent reconciliation was not sustained as a relevant exception , because it was not very expresse , they punish also scandalum magnatum . the criminal courts likewise punishes verbal injuries , if against magistrats , but will not sustain a pursuite against privat persons , for though ii. of november , . aikman against carnagy ; nor would they sustain a criminal pursuit , for calling a minister perjured , vid stock . decis . . where he tells us that it is the present custom of brabant not to sustain criminal actions for words , except they be spoken against mag●strats in the exercise of their imployment , vid. l. ult . ff . de priv . delict . real injuries may be pursued before the council , or justice court , and the punishment is arbitrary . v. infamous libels , libelli famosi , are the most permanent of all injuries , and therefore are most severely punished ; and in it the offender , shews more design , and therefore is more guilty . he who writes , dictats , or affixes infamous libels , or causes writ , dictat , or affix them , is punishable . he who finds an infamous libel , and shews it , though to one only , is punishable , if malice or design can be proved , else not ; for there is nothing more ordinary , nor more innocently done for the most part , then to shew such libels : whether dolus malus & animus iniuriandi , ( a design to offend , ) be presumed in this delict , or must be proved , is much contraverted , bertaz . consil . . affirms that it is presumed . farin . quest . . affirms it is not presumed , but must be proved . and i incline to this last opinion , seing infamous libels are not now so much resented as formerly , custom having much allayed the picque which used to ensue thereupon , and that custom defends from all guilt in this case , is most learnedly maintained by coler . decis . . where it was found that stationers were absolved , though they sold infamous libels , because all stationers use to sell such . many things do likewise in this case lessen the punishment , as that the pannel is a minor , was provoked , did tear it before it was fully written , or after it was affixt , or confest his fault , and said he did it only out of passion , or curiosity , or if what was said was true , berlich . conclus . . the punishment of this delict was of old arbitrary , paul. lib. . sent . tit . . but was made capital by the edict , valentiniani & valentis l. unic . c. de famos . libel . but clar. makes it arbitrary by the present custom of europ ; and so it is with us at present in scotland , except where the prince is abused , or where a capital crime is alledged against any man , for eo casu , infamous libels are justly punishable by death : and thus fleeming was hanged for saying that he wisht that the king would shoot to dead and dye of the falling sicknesse , . may , . but in this the words were maliciously spoken , for the speaker utterred them because he had lost a plea. but sometimes the speaker is only scourged and banished , as tweedy was . march , . for abusing constables and bidding the king , the council , and them , kiss his arse , and swearing he cared not a fart for them , which words appeared both by the speaker , and the contexture of the words , to have rather flowed from folly , then design . and spotswood in his history , relats , that the school-master of edinburgh was hanged for dispersing libels against the regent , wherein he charged him with being guilty of capital crimes . leasing makers . vi. like to this crime , if not the same with it , is leasing making , whereby hatred and discord may be raised betwixt the king and his people , which was punished with tinsel of life and goods , by the . act , parliament . king iames the . likeas any misrepresentation ( or evil information , as our law calls it ) of the king to his people , is punishable in the same way , by the . act , parliament . king iames the . and though the slandering of his majesty might have been punished , by the reason of the first act , yet we see that our predecessors did not think paritas rationis sufficient in punishing crimes ; upon which acts a great person was found guilty of death , for writing a letter , wherein the parliament was slandered , anno . but this was thereafter rescinded by his majesty . likeas by the . a. of the . p. ki . . the hearing and not revealing , and not apprehending of such leasing makers , if it be in the hearers power , is equally punished with the leasing making ; but because these acts could not reach to slanderers of his majesty to his people in england , or misrepresenting them to the king , or abusing any privy counseller of that kingdom , therefore the misrepresenting them is declared punishable at his majesties pleasure , by the . act , . par. k. ia. . by the same last act , dispersing or making cockalands , or other infamous libels against counsellours of england , is punished as leasing making . title xxxi . poinding of oxen , in time of labouring . . how this crime is punished by our law. . how by the civil law. . the explication of our act of parliament in this case . . how the civil law and ours differs in this point . by the . act . parl. ia. . it is statute , that no sheriff , or officer , shall poind , or distreinzie the oxen , horse , or other goods , pertaining to the plough , and that labours the ground , the time of the labouring of the same , where any other goods , or lands are to be apprized , or poinded , according to the common law. ii. the common law , to which this relates , is l. . c. quae res pig . oblig . possunt , pignorum gratia aliquid quod ad culturam agri pertinet auferri non convenit , and by the subsequent , authent ibid. agricultores terrarum securi sunt , ita ut nullus inveniatur tam audax ; ut personas boves & agrorum instrumenta aut si quid aliud , quod ad agrorum rusticorum operam pertineat invadere aut capere praesumat : & siquis hoc statutum violare praesumpserit , in quadruplum ablata restituat & infamiae notam ipso jure jucurrat , imperiali animadversione nihilominus puniendus , and maranta de ordine jud . part . . act . num . . relates , that this law is confirmed in sicilie , by an expresse statute ; and all these laws seem to be founded , on deut. . vers . . no man shall take the upper nor nether milstone to pledge : for he taketh a mans life to pledge . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . as grotius observes , out of philo. which are called mola & catillus , l. cum de lanionis § . idem consultus . ff . de instructo vel instrumento legato . iii. by the foresaid act of parliament , the poinding of such goods is forbid , in the time of labouring , but it is not declared to be a crime ; and the lord renton haveing , in ianuary . pursued the officer of the court of coldinghame , for poinding one of his plough oxen , when they were labouring , before the criminal court , is was alledged that no criminal pursuit , could be founded upon this act , seing nothing could be criminally pursued , but that which was made a crime , by a special statute , and to which a special sanction was annex'd . likeas by the constant custome , many actions of spoilzie were founded upon this act ; but no criminal pursuit was ever thereupon intented : to which it was replyed , that the contempt of a law , was in it self a crime ; seing disobedience to authority , was in effect the basis of all crimes . . illegal intrometring with another mans goods , was a crime , especially ubi lex non solum non assistebat , sed & restistebat , for theft is nothing else but an unwarrantable intromission , and as the taking of his majestie 's free liedges is a crime , where the same is not warranted by law ; so the poinding of these goods should infer a crime , that being another species of unlawful execution . . this act discharges such executions , conform to the common law. and by the common or civil law , this is a crime , as is clear by the law above cited ; and whereas , it was alledged that no sanction was annex'd : it was replyed , that where the law annexes no sanction , the punishment is there arbitrary ; and there are many crimes , both in the civil law and outs , to which no sanction is annext . the justices sustain'd the libel , and ordained the pannel to go to the knowledge of an inquest : the expresse words of the interloquutor were , that the poinding an oxe , in the time of labouring , is an injury and wrong , punishable by the law , paena aplicanda filco . and thereafter , the three pannels were found guilty , though it was not expresly proved , that the oxe was labouring actually , the time of the poinding , but only that he used to labour , and was in the plough the week before , and the countrey was then labouring , all which are necessary qualifications of this crime , and so are necessary interrogators after pronouncing of which doom , the justices fined each of the three pannels , in fourty pound scots . and yet in iune . a reply against lawfully poinded , being proponed in a pursuit for theft ; the case was by the justices referred , to be first civily pursued . it was here also alledged , that by the . act. . parl. i. . where crimes may be criminally , and civily pursued , the civil pursuit ought first to be discus'd , which was repelled , because , though a civil pursuit of spoilzie were intented , there could no defence , such as lawfully poinded , authore praetore , &c. which are usual in other cases , be proponed here , seing though the executions were formal , and the decreet whereupon they proceeded irreduceable ; yet to poind a labouring oxe , in labouring time , is in all cases unlawful , & itacessat hoc casu ratio legis . . the defender could not plead the benefite of this act , except he first acknowledged , that the wrong here committed was a crime , for the act runs only in such cases , as may be civilly , or criminally pursued . iv. it is observable , that albeit this act relate to the common law , yet they differ in many points , as . the persons of labourers could not be apprehended by that law , but by ours they may . . by that law no distinction is made , whether there were other poindable goods or not ; but by ours , these particulars may be poinded , or lands may be apprized ; and therefore such as raise criminal letters upon this act , should libel , that such goods were poinded in labouring time , and that the owner , or debitor had other goods and lands , against which the creditor could have had execution : albeit i think , he is not obliedged to prove this ; but that this is , ex eorum numero quae allegari sed non probari debent , yet if the messengers execution be produced , bearing , that he searched , and could find no other moveables , i think , that eo casu , the messengers execution should make faith , except the pursuer offer instantly , to condescend upon these other moveables , that were extant , and be ready to prove the same . i find , that if the messengers executions bearing in an apprizing , that he searched , but could find no moveables , they are so far believed , that no contrary probation will be received , for else all comprizngs might be reduced ; yet i think , that the case is not alike here , for the act being so expresse , it should be sufficient to defend against a crime , ( though not to reduce a real diligence , ) that other moveables were extant . under the prohibition of this act , are comprehended , not only the goods that are in the plough , but these horses which lead foggage , for without these , land cannot be laboured ; and so the reason of the law extends to them : likeas , the act of parliament expresses separatly , and distinctly , goods pertaining to the plough , and that labours the ground : nor are these words that labours the ground , exegetick only . by these words , in time of labouring , are mean'd , not only when the beasts are actually labouring , but the season of labouring , and that from the time of strieking , to upseed time ; and therefore goods that had once tilled , though in october , seem not poindable , for then labouring is as necessar as in the spring ; and yet the contrary was found , the . of november , . and the . of november , . because as is there alledged by durie , october is not the season of labouring . it may be doubted , whether horse leading foggage in iune and iuly , can be poinded , for that is the season of that kind of labouring . title xxxii . bearing of unlawful weapons . . what is the punishment of this crime by our law. . what by the civil law. . who are iudges competent to it . i. bearing of hagbuts , pistols , and other fire-works , were punished of old by amputation of the right hand , but by the . act , parliament . ia. . the bearing of such weapons is forbidden , though no prejudice be done by the wearers , who may be pursued , either before the council , or justice court , and the punishment by the council is declared not to be corporal , but only confiscation of their moveables , or syning and imprisonment ; but prejudice of any pursuite before the justice court , who it appears may inflict the former punishment of cutting off the right hand . it would seem that by this act the pannel is oblidged to give his oath before the justices , which is not usual in any crime , except that of usury , for the probation by oath is indefinitly subjoyned to pursuits before the justices or council . and albeit the council does immediatly preceed , yet that probation by oath seems not to relate solely to the procedure before the council . for when the procedure before the council is repeated , the probation by witnesses is only there mentioned . yet i think there is an errour in the printing of this act , for it is very unreasonable , that when this crime is proved before the council by witnesses , that no amputation shall be remitted , and yet this priviledge should not be extended to those against whom it is proved by their own oath . it is observable from this act , that the council may force such as are pursued before them to give their oaths , albeit it may be alledged , that nemo tenetur crimen contra se probare . by this act likewise , all licences to bear thir weapons are ordained to be past in council , and to pay a composition to the thesaurer , and to passe his register and all the seals , else to be null . ii. by the civil law , the bearing of these weapons was a crime also . l. . c. ut armorum usus and by the feudal law , c. . § . si quis . de pace tenenda . & tenebatur paena legis juliae de vi publica , which was arbitrary : and the glosse observes , that the carrying of such arms was repute publick violence , though no prejudice was done , which is consonant to the act of parliament . but it is strange that only fire-works , or ingines should be forbidden by that act. nor can the carrying pikes , swords , or any other weapons , be punished by that act. by the civil law likewise , the prohibit arms were confiscat , and marsil . in prac . § pro complemento , n. . carerius & clar. declared , that by the custom both of spain and other places , the arms are confiscat , albeit there be no expresse warrand for that confiscation by the statute , but it may be doubted if the true owner having lent them without being conscious to the crime , will losse them , and i think , not but keeping of such weapons at home is not punishable neither by the foresaid act , nor common law , by which likewise it is lawful for such as travel to bear such weapons , for their own preservation , & generaliter licet portare arma defensiva ; but our law allows no such distinction . and i remember that iohn macknaughton , being pursued before the council for bearing forbidden weapons , they repelled this defence , viz. that he was travelling ( unlesse the journey could have been alledged necessary , for else the act might stil be eluded ) and that it was the custom of the highlands to go still well attendded and armed , which defence seemed to some ill repelled , for self-defence , and the custom of the countrey , excuses still from this crime , farinac . de diver . crim . questi . . by the common law , offensive arms , such as swords and pistols , were forbidden , and the bearers punished , albeit no prejudice followed ; but the carrying stones and trees , and such other things as were not , ex sua natura offensiva , was only punishable , if violence was done by the bearers , l. armorum ff . de verb. sig . iii. thir pursuits are more ordinarily before the council , than the justice court , and is ordinary libelled as an aggravation , rather then a crime . thus i find william hamiltoun pursued for wearing of pistols , and presenting one to the provost of edinburgh , whereupon he came in will , and was banished the realm during his lifetime , . novem. . the prosecution of this crime concerns only his majestie 's interest . and therefore the dyet was deserted , because his majesties advocat , nor none to represent him , did not concur , nor was the libel raised at his instance , . iuly , . mr. iames leask , against andrew red. title xxxiii . beggars and vagabonds . . how beggars and vagabonds are to be punished by our law. . how by the civil law. our law hath been so charitable , as to provide for beggars , by special statutes , ia. . parl. . cap. . ia. . parl. . cap. . ia. . p. . parl. cap. . ia. . parl. . cap. . but sturdy beggars ( our law calls them egyptians oftimes , as the french calls them bohemians ) and vagabonds should be proceeded against by the sheriffs , and other judges , and they may exact caution of them , and if they find none , they should be denounced fugitives , ia. . parl. . cap. . and may be sent to publick work-houses , or put in the stocks , ia. . parl. . cap. . . and . item . ia. . par. . cap. . and if they be recept after they are denounced fugitives , their receptors are lyable for the prejudice sustained , and the parties damnified , will have action against the magistrates , within whose bounds or jurisdiction these vagabounds are recept wittingly , ia. . parl. . cap. . but this act determines not , whether this wittingly relates to the receptor , or magistrat ; yet by the common law , the adverb scienter , is still applicable to the person , against whom the penal statute runs ; so that except the magistrat know that the vagabond was harboured within his bounds , it were severe to sustain action of damnage and interest against him , though the receptor knew the vagabond , and did wittingly recept him . but i think , that if the magistrate did either omit his duty , he will be liable , nam scire & scire debere aequiparantar , or if he was willingly ignorant . i find that a. b. — being pursued criminally , for general recepting vagabonds , this action was not sustained , but he was referred to the kirk session , which it seems was done , because of the . act , parl. . ia. . whereby ministers , elders and deacons , may nomin●t any two of their number , to enquire into this crime , and whom his majesty makes , and constitutes justices as to that effect . it appears by a proclamation , emitted by the council , in anno . these egyptians were ordered to leave the kingdom , upon pain of death , which is ratified by the . act parl. . ja. . and upon that act of parliament , moses shaw and other egyptians , sorners and vagabonds , were hanged the last of iuly , . ii. our law has in this , followed exactly , the civil , for there is a title in the codex , de mendicantibus validis , our sturdy beggars : and the novel . . this crime was also called by the athenians , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sive otii ignavi de quo vide heigium , l. . quest . . title xxxiv . robery , oppression , vis publica & privata . . the several epithets given to robbery , and how it is distinguished from other crimes . . common theft , and stouthrief , how punished by our law. . several decisions , as to this crime . . how the assisting of robbers is punished by our law. . in what cases is it lawful to joyn against robbers . . the punishment of oppression by our law. . in what cases the civil right is to be discussed , before the violence can be criminally punished . . how oppression was termed by the civil law , and how it was thereby punished . . what concussion is , and how punished . . black mail how punished . men may by dilligence and circumspection , defend themselves against theft , and these who steal clandestinely , shew a reverence , even to that law which they transgress ; but robbery and oppression are crimes , against which there can be no fence : and in which , these who violat the law , contemn the legislators . to defend them against these , men did associat themselves under government , and renounced their native liberty , for the protection of law : nor can law justifie the severity of its punishments , and the great exactions it requires , but by returning to these it commands , a sweet and pleasant security , against all rapine and violence . i. when theft is aggraged by violence , it is called robbery , from the germane word raube ; and is with us called stouthrieff , stouth signifying theft , and rieff signifying violence : in which crime , our persons are endangered as well as our estates , and so is ordinarily punished by death , even in these countreys , where theft is only punishable by pecunial mulcts , or whipping , and thus it was punished with death amongst the jews , as is clear , by davids answer to nathans parable , though theft was only punished by restitution ; and though calistratus , l. . § . grassatores , ff . de paenis , seems to make such only punishable , if they robb frequently , and in high wayes , and with arms , grassatores qui praedae causa id faciunt proximi latronibus habentur ; & si cum ferro aggredi & spoliare instituerunt capite puniuntur . utique si saepius atque in itineribus hoc admiserunt caeteri in metallum dantur , aut in insulas relegantur . yet by the custome of all nations , robbery is punished with death , though it be not reiterated ; and i think , that law must be only understood of such , as designed to robb , qui instituerunt , who are punishable , though they actually robb'd nothing , and had no design to kill , but to plunder , predae causae , if they went out frequently , and to high wayes with that design , for if they actually robb'd , or had a design to kill , though they killed not , yet they are still punishable by death , by all laws , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . ii. the quality of frequent and common committing theft and robberies , is not only a quality that raises the crime of theft alone , from being punishable by restitution , to be punishable by death in other nations , but by the . act , . parl. i. . it is declared , that landed men who are convict of common theft , recept of theft , or stouthreif , shall incur the crime and pain of treason ; upon which act , it was contraverted , whether the word common , was a quality and adjunct to be added to the recept of theft , and stouthreif as well as theft , since the act sayes but only common theft , not common recept of theft , nor common stouthreif ; and it was urged , that it was reasonable , that this should be understood of all , seing it was that quality , which rendered them treason . for simple recept , would not have been declared treasonable of it self ; and by the foresaid l. . the reiterating this crime , aggraged it from banishment , to death , and in the o●dinary way of speaking , men cease not to repeat such words : likeas it was just , that as the crimes were in landlesse men punishable , only by restitution , or death , if repeated so in landed men , the punishment should grow proportionally , and infer death or treason , if commonly committed . to which it was answered , that the words of the act of parliament , are conceived disjunctively ; likeas it seems , that if the parliament had designed , to add the word common , to receipt and stouthreif , they would have added the same to prevent this objection : and it seems indeed , that stouthreif , which is that species of theft , that we call robery , deserves to be punished as treason in landed men , though they do not commonly commit the same , because it being easier for landed men to commit robbery , and it being more probable , that they would rob than steal , this crime ought to be as severely punished in them , as common theft ; and accordingly the foresaid alledgiance being proponed for iames wood , the . may . it was repelled . iii. in this process likewise , the said iames , having been pursued for robbing the writs and evidents belonging to bonitown , it was alledged , that the pursuer ought to condescend upon the lands , to which these evidents belonged , because if that were condescended on , the pannel would prove , that the said lands , and consequently , the evidents did belong to himself , which alledgiance was likewise repelled , nor was it found necessary , that a civil precognition should proceed in this case ; and in iune . it was found that a libel was relevant , bearing in general , that jewels or pearls were stolne , without condescending upon the particular number of them ; and it being alledged for the macgibbons , decemb. . . that the libel was not relevant , not condescending upon the persons from whom the goods were robbed , nor what goods were robbed , but only in the general , that the pannels did frequently rob the houses of garntilly , and strathurds tennents . to this it was answered , that though where privat parties pursue , ad interesse privatum ; such a condescendance is nessary , because the informers may know , nor can the private damnage be repaired , except his losse be liquidly proved ; yet when the pursuit is at his majesties instance , and that an habitual , and constant trade of robbing , and sorning , is libelled , it is sufficient to libel in general , and if the speciality be not proved , the pannels have no prejudice , for they will not be found guilty , nor will the probation be conc●uding ; but it is all one to his majesty , which of his subjects be robbed , or what be taken away , it being his majesties interest , that no constant , and habitual robbery be committed in his kingdoms ; nor is there any thing more ordinary , then to sustain libels against such as are guilty of open rebellion , without condescending upon the particular persons who were killed or robbed in that rebellion . and whereas it was urged , that if the particular goods alledged to be robbed , were condescended on , the libel might be elided by this suitable defence , viz. that they had a right to the goods , or had the consent of the owner ; it might have been answered , that they were not precluded from such defenses , by the generality of the libel , for the pannels might alledge that the taking away of such and such goods could not inferr robbery , because they had a right to these goods , or were warranted to take them away by the consent of the owner . the justices sustained this libel , notwithstanding of the generality foresaid . alexander steil being pursued in august . for stealing and robbing , evidents , writs , and cloaths , out of captain barclays house , who was his master at that time . it was found that the pursuer , behoved to prove , that the saids evidents were taken away by force , or breaking up of doors , and that the servants having of them was not sufficient to infer theft , though he had delivered them to a third party : and albeit this should be proved , yet the justices found this alledgeance relevant , viz. that this deposition alledged to be stollen , being given to the pannel , that he might counterfeit the subscription , and he having no freedome to comply therewith , he did run away to the lord fyvie , and delivered up the same to him without any reward , which alledgeance was found relevant , as said is , though it seems to be contrary to the libel , and as to the wearing cloaths , the libel was not found relevant , except it had been proved that they belonged to captain barclay , and were under his locks at the time , since it was offered to be proved , that the servant had worn these cloaths publickly in his masters service , which purged the presumption of theft . it may be doubted what a poor servant could do , if he had broken up the doors really at his masters desire , who had sent him home to bring papers , though he could not prove the command otherwayes then by his masters oath , for his master might alwayes easily prove the breaking up of the doors . iv. so odious is this crime , and so frequent was it , that by the . act , parl. . ia. . all such as recept , fortifie , maintain , or give meat , harbour , or assistance to any such robbers , are declared art and part , but it would appear that this act strikes only where there are letters of intercommuning , and that because the act it self bears , to the effect it should be known to what purpose they intercommuned , and because it were too severe to punish men as thieves , except they were put in mala fide , so to do , by publick proclamation , or letters of intercommuning . v. by the . act , parl. . i. . it is declared ( for the same hatred against robbers ) lawfull to all his majesties leidges to concur and joyn against clann and border thieves , and to take and execute them ; all magistrats and free-holders , being made justices for that effect , by the said act. but this part of the act is now in desuetude ; and it appears to have been but temporary , quo ad the power of executing , but robbers may be lawfully seized on without authority . vi. oppression is ordinarly but a quality of other crimes , but yet there are sometimes special dittayes founded thereupon , per se ; and there are some particular acts declaring several species of it to be punishable , as reif , or by other specifick punishments mentioned in the saids acts ; and thus it is oppression to compel the kings proper tennents to ride , or do service of avarage , carriage , shearing , leading , &c. and should be punished accordingly , act . p. . i. . it is oppression to take caups ( that is to say , a duty for protection to be given by privat men to such as thieves , and other great men ) acts . and . parl. . ia. . vid. de verb. signif . it is oppression for a crafts-man to take custome , or any other taxation , from another of that same craft , or for them to make privat acts among themselves , prejudicial to the people , acts. . and . parl. . iames. . act. . parl. . i. . and act. . par. . ia. . it is oppression for customers to exact more then their due , act. . p. . i. . it is oppression to molest magistrats of burghs , and other merchands to use their priviledges and liberties , act. . parl. . ia. . it is a kind of oppression , to exact more fraught from passengers , or greater prices for weavers and handy-work , then what is allowed and usual . acts and . parl. . q. m. it is oppression to stop or make impediment of common high ways , to , or from burghs , act . parl. . q m. it is oppression for officers to extort the leidges , act . p. . i. . & act . parl. . i. . or to put out , or put in the roll of assizours given to him by the pursuer . act . parl. . i. . in which last act common oppressors are punishable by death : oppression is also punishable by death , act. . parl. . ia. . act . parl. . ia. . vii . because oftimes in thir cases , the pannel pretends , that what he did take by force , was his own , or that he had a right thereto , therefore except the violence be very great , the justices use to ordain the matter of right to be first discussed before the civil judge , as was found in novemb. in the case of inglis of east-sheilds , and in many other cases : and by the . act. . parl. i. . it is declared , that as for depredation , masterful reiffs , and spoilzies , particular dyets shall be set therefore at the discretion of the lords , the matter being first civilly discussed before them . upon which act it is oftimes alledged before the justices , that the cause must be civilly discussed before the session , in all masterful reiffs , before they can proceed to cognosc thereupon ; but notwithstanding of this the justices do constantly sustain criminal processes for reiffs and robberies , without any previous civil precognition ; and they find this act to be now in desuetude , as in the case of monimusk . of november . and i think , that by lords , in that act are not meaned the lords of s●ssion , for that act is two years prior to the institution of the session , but that by lords , there , are meant the justices themselves , for there being no session at that time , the justices were judges competent to many civil cases , originally such as perambulations , &c. and to all civil cases , if they had a necessary connexion with , or dependance upon criminal cases . and therefore , where the person who was alledged to have committed masterful reiffs , or spuilzies , could pretend that what he did was in prosecution of his own right . the justices had a latitude to try the matter of right , first civilly , but this was never necessary , for it is by the act left to the discretion of the judge . it remains then , to be considered , how far the taking away by violence what is really a mans own , can infer a guilt against him . which difficulty may be cleared in these few conclusions , . that the thing violently possessed , though by a common spuilzie , and much more by a masterful reiff , ought to be restored , nam spoliatus est ante omnia restituendus , and that though he who took away what was his own , could instantly prove his right ; and since this holds , where the violence was only committed by a simple ryot , it should by a stronger consequence hold , where the thing was taken away by such violent means as amounted to a crime , and so this should be no good defence , either against a criminal , or civil pursuit . . not only ought the thing to be restored , but even the true proprietar who intrometted with his own , by open force & violence is punishable , for the law will not allow that any man should be judge to himself , but much lesse that he should use violence , & force upon any accompt , and this were to invade or assume jurisdictions , which is in it self a crime . the third conclusion is , that if any man do by force or violence , extort from another , a writ , or obligation , which he could have obliedged him in law to grant , that force is not only punishable criminally , but the deed so extorted is reducable by a civil pursuit : as was found in ianuary . though it was alledged there , that such force might be criminally punished , yet the deed so granted could not be reduced , since such deeds were only reduceable , where something might be restored , but here nothing was to be restored ; since the deposition alledged to be extorted by force , depended upon a former minut , by vertue whereof the granter could have been compelled to have granted the same ; and this was the same case , as if a creditor should compel his debitor by force , to pay him what was his own , in which , though the force be punishable , yet the debitor could not repeat what he had justly payed , as is clear , not only by common sense and reason , but l. . ff . quod met . caus . iulianus ait eum qui vim adhibuit ut debitori suo ut ei solverit hoc edicto non teneri propter naturam actionis metus causa quae damnum exegit quamvis negari non possit in iuliam eum de vi incidisse & jus crediti amisse . to which it was answered , that there could be nothing more disadvantagious to the interest of the common-wealth , nor a greater usurpation against authority , then that every man should be his own judge , and force the executioner ; and the law justly presumed , that he had no legal right , who would not pursue i● in a legal way , and if this were allowed every man would discusse his own suspension himself , by forcing his debitor to pass from it , and would force the heir of his debitor , to give him bond , or his debitor himself , to fulfil all minuts without any regal pursuits ; every master would thus thrust out his tennents , and every creditor force his debitor to pay , by carrying him away prisoner , and when he were that length he would alledge that nihil illi deest , and as to the former law , it was answered , that the civil law in detestation of force and violence , did allow three several remedies to the person violented . viz. edictum praetor is quod metus causa , &c. lex julia which punisheth the force as a crime , & decretum divi marci , all which three are expresly mentioned in that title , and though by the old edict , and the lex julia , he who forced his debitor to pay what was justly due , could not be by these remedies restored , quia nihil decrat vim passo , as the law formerly cited does prove ; yet , ex decreto divi marci , which was posterior to these remedies ( as marcus antoninus was long posterior to iulius caesar ) even he who took payment of his own , could not defend himself by alledging upon his right : which excellent law is set down , l. . ff . quod motus causa . quisquis igitur probatus mihi fuerit rem ullam debitoris vel pecuniam debitam non ab ipso sibi sponte datam sine ullo judice tempore possidere , vel accipisse , isque sibi jus in eam rem dixisse , jus crediti non habebit . and faber upon that law doth excellently conclude , that this was a just supplement of the former law : and cujacius allows this remedy , not only to the publick , but even to the privat party , for qui sibi jus dicit jus crediti non habebit , which implyes an annulling of the deed , quo ad privatum interesse . and cujacius observes well that the party forced , potest condicere , and how can it be imagined , that the law would ordain the extorter to be punished , and yet not restore that which was extorted , the publicks interest resulting only from the privat injury done to the party , and as the fisk uses not to pursue without an informer , so the privat party injured , would not inform , nor concur , since he could not expect any reparation , and thus the crime and injury would remain unpunished : but even according to the l. . and . so much founded on , it is most clear , that they were not in the case of these lawes , but on the contrary , that even by these lawes , the foresaid principle is just , since restitution is still to be granted , ubi actori aliquid abest & ubi damnum intervenit ; but so it is , that in this case the pursuer is extreamly prejudged by this disposition craved to be reduced , ex capite metus , since if it were reduced , he would easily defend himself against the alledged minut , upon many grounds then represented . it was also urged , that though in the restitution of minors , the law restores them only when they are leas'd , since that remedy is mainly introduced for their advantage ; yet in reductions , ex capite metus , the law designs mainly , that no man should have advantage by his own oppression , nor no man be obliedged without his own consent , and so it rescinds the deed , though the party be not leas'd , and the edict it self sayes , quod metus causa gestum erit ratum non habebo , without considering laesion , & quod ratum non est , irritandum est , that is to say , is reduceable . and whereas it was pretended , that the former brocard , spoliatus est ante omnia restituendus , did only hold where the thing was taken away , vi ablativa , because that could be easily proved , but not in deeds extorted , vi compulsiva , which force depending upon inward acts of the mind , could not so easily be discovered , and could be easily mistaken . to this it was answered , that though those two differ in themselves , yet either of them infer restitution , as we see all alongs the title , quod metus causa , and in the practice of our reductions , ex capite metus . in both which , deeds extorted , vi compulsiva , are reduceable , and the persons injured restored against them , and since vis compulsiva , can infer more prejudice , then vis ablativa , since vis ablativa can only robb us of moveables , whereas vis compulsiva , can robb us of our estates ; it were strange that the law should not assist the injured persons , most where they may be most injured ; nor can it be denyed , but that compulsion , falls as much under sense , and so can be as easily proved as a spuilzie can . for though it may be doubted whether some degrees of force , should alwayes infer restitution , yet the probation of these degrees , if once admitted , is alwayes easy . the crimes answering in the civil law to oppression , were vis publica , vis privata , & concussio . those were punishable , l. julia de vi publicae , who raised arms , or did violently eject men out of their houses , or lands , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. . basil. h. t. these who assisted the oppressors with men , are guilty thereof , and the punishment was , aquae & ignis interdictio . these were guilty of vis privata , who oppressed upon a privat account , and the punishment was the confiscation of the third part of their goods , with infamy . concussion was that crime , whereby money or any thing else was extorted by open force , or who imployed their power and authority as the instrument of oppression . i have seen processes and remissions relating to this crime with us , and the punishment of it is arbitrary , both by the civil law and ours . the taking of black-mail , is a kind of concussion in our law , and by black-mail is understood , the paying of money , or any gratuity to thieves , for their protection , and by our law not only the takers but the payers of black-mail , are punishable as thieves and robbers , by the . act par. . ia. . and dittay is ordained to be taken up against them , act . parl. . ia. . and the reason why the givers are liable , is because they maintain the thieves , and keep correspondance with them , and do not dilate them . but yet except there be something of complyance , or a long tract of payment libelled , the justices do not use to sustain payment of black-mail by it self , as a crime to infer any severe punishment , much lesse to infer the pains of theft and robbery , conform to the fore●aid acts , that payment being ordinarly more the effect of fear , then of complyance . title xxxv . art and part , ope & consilio . . these words , art and part , explained . . the act of parliament , ordaining that libels bearing art and part , shall be relevant , fully considered . . how far advice and counsel , do import accession . . how far the giving order to commit a crime , imports accession . . how far the command of a superior excuseth . . how far the command of a father excuseth . . who are constructed in law to be assisters . . how a crime may be ratified , and what is the import of ratification . . whether accessories can be pursued , till the principal actors be first discussed . . whether complices and accessories are to be punished by the punishment due to the principal malefactor . not only these who are the actual committers of crimes , but these by whose counsel , direction , or assistance , any crime is committed , are likewise punishable , else the law might be easily eluded , and the chief contrivers might escape . i. these who are assisters by counsel , or otherwayes , are in our law said to be art and part of the crime , by art is meant that the crime was contrived by their art or skill , eorum arte ; by part is meant , that they were sharers in the crime committed , when it was committed , & quorum pars magna . the civilians used in place of art and part , ope & consilio : and these who assisted , and are art and part , are by our law called complices , which word is borrowed from the doctors , for the call consiliarios fautores & instructores complices , carer . pract . crim . § . homicidium , num . . ii. by the . act , . parl. i. . it it ordained , that nothing can be objected against the relevancy of that part of the summonds , which bears , that the persons complain'd upon , are art and part of the crimes libelled ; by the relevancy of the libel , our law means that the libel is rite libellatus . and i find the term relevant , used by the doctors themselves , in the same sense that it is used by us : and thus gail . l. . obs . . judex debet tantum admittere articulos relevantes . the reason of the former act is there rendered to be , because diverse exceptions were formerly propounded against the relevancy of the summonds , whereby parties were frustrat of justice ; and it appears by that act , that the pursuer was before the making of that act , oblieged to libel , that the defender was accessory to the committing , and so guilty of the crime , in swa far as , &c. and so was forced to condescend upon the manner of the accession , which seemed unjust to the parliament , because ( as i conjecture ) the accuser could not know all the accession , before the examination of the witnesses ; for it is not lawful to witnesses , prodere testimonium , to declare what they will depon : and this made it impossible for the pursuer to condescend exactly ; whereas if he erred in exact libelling , the pannel or defender was assoilzied , because the probation did not quadrat with the libel . as for instance , if a person was accused for accession to the murder of one , in swa far as he gave direction to a. b. to kill him , possibly the defender was guilty of accession , though not by giving direction ; yet by counselling a. b. or by directing p. or any other , to commit murder . in these and the like cases , the pannel was guilty , and yet could not be condemned , because the libel was not proved . yet , upon the other hand , it seems hard , that such a general libel as this , should be relevant ; since it were as reasonable to libel in general , that a person is guilty of murder , which generality would not be allowed : likeas , the defender seems by this precluded of many defences , which would be competent to him , if the libel were more special . and by the practice of other nations , the libel must condescend specially upon the manner and nature of the accession : but that which seems to me most inconvenient , is , that the assizers are judges to the relevancy of the condescendency , which infers art & part . albeit many questions , in jure , are there started , which are very intricat , and which have troubled the greatest and most accurate doctors ; for by our practique , the pursuer , who libels art and part , will not be oblieged to condescend how the defender is art and part , or accessory to the crime committed , as was found in the pursuit at sinclars instance , against captain barclay : but the libel being relevant , when art and part is libelled , the defender must go to the knowledge of an inquest , and probation is thereupon led ; in which many impertinent and irrelevant interrogators are propounded ; whereas , if the justices were judges to the relevancy , no impertinent interrogator would be allowed , since nothing could be interrogated , but what were found to depend necessarily upon the accession , which was found relevant . as also , after the probation is closed , the advocats upon both sides are forced to debate the relevancy of the probation , and how far the accession is relevant ; and here laws , decisions , and doctors , are alledg'd to assizers , who understand neither . as for instance , if art and part of murder be libelled , probably the pursuer will interrogat if the witnesses heard the defender say , that it were no fault though the person who is killed were stab'd , or approve the murder , after it was committed ; upon which much debate might arise , for the defenders procurators would contend that the article was not relevant : and though the justices did allow , or the assizers did desire , that the witnesses should answer to these interrogators , as they usually allow all interrogators , reserving the relevancy to be debated after probation is concluded ; then a learned debate would ensue before the assizers , after closing of the probation , upon these points : so that the assizers are against the intention even of our law , judges to the relevancy , and to the points of law ; by whose ignorance also the liedges are oft-times much prejudged . but when the pursuer designs to have the relevancy of his condescendency judged by the justices , he uses to libel , that the defenders are art and part of the crime libelled , in so far as they gave order , or advised the committing of it , &c. quo casu , the relevancy of art and part being specially condescended upon , is decided by the justices , who are judges to all that is in the libel . though it be sufficient to libel generally , that the complices are art and part , yet the libel must bear expresly who are complices ; for it is not sufficient to libel who are complices generally , but their names and designations must be specified , k. ia. . parl. . act . because the assizers are judges to the relevancy of art and part , and that the debates made to the assize are not upon record , being only delivered , viva voce , therefore it is that there are but few decisions here adduced for clearing the relevancy of this part of the dittay . to the end that all the leidges who may be assizers , may understand what accession is relevant to infer a guilt , they will be pleased to understand , that one may be art and part by deeds preceeding the crime , either by counsel or command , consilio aut mandato , by deeds concomitating the crime , as by help , or by countenancing , ope & assistentia , or by deeds subsequent to the committing of the crime , as by ratihabiting or recepting , all which i shall treat separatly . iii. how far the advising , and counselling a man to commit a crime , is punishable as an accession , and art and part of that crime , is thus resolved by the doctors ; if ( say they ) the committer of the crime , would have committed it however , and though he had not been advised thereto , then the adviser is not liable , so as to suffer the same punishment with the committer , but it is to be less severely punished : whereas , if the committer of the crime would not have committed , and perpetrate the crime , if he had not received that advice , then the adviser and committer are equally to be punished , clar. quest . . but i am not satisfied with this opinion , for since the adviser did all that in him lay , to have the crime committed , and that the effect followed , he is surely as guilty , as if he had committed it ; seing in crimes we look to the design , and not to the event , in maleficiis spectatur voluntas non exitus & maleficia propositum distingut , at least the adviser is equally guilty , whether it had been committed , with , or without his advice , even as he had been guilty , in case of assistance , though the crime would have been committed without his assistance ; nor is guilt spared by lessening : and it is impossible to know whether the committer would have committed it , without the advice and counsel given . other doctors are of opinion , that in atrocious crimes , the adviser and committer are equally punishable , which certainly holds in treason ; but that in lesser crimes , the adviser is to be lesse severely punished then the actor : and this distinction i like better , and is more consonant to our practique . in our law advice and counsel comes under art , for advice is a species of contrivance and art ; and therefore advisers may appear in our law to be punishable , as the principal offenders , seing art and part is punishable , as the principal crime with us ; yet the council uses to mitigat the punishment , where the crime is not atrocius : and the judge should here consider , whether the adviser gave the counsel , upon the account of former malice , conceived by himself : or if it was only given in resentment of any wrong done to the committer , and he is to be more severely punished in the first case , then in the last . . in the case or advice , the advisers age is much to be considered ; for though minors , and these who are drunk , may be punished for murder , yet it were hard to punish them for advice . . the words in which the advice were conceived , should still be interpret most favourable for the adviser , for words are capable of several , and distinct senses , accordingly as they are understood by the speaker ; and words do vary by the accent , or punctation . . if the adviser retreated his opinion , he ought not to be punisht , if he thereafter disswaded the committer : but some require , that eo casu , he do intimat to the person , against whom the advice was given , what danger he is in , for else the advice once given , may occasion the murder , though thereafter disowned . iv. he who gives order to commit a crime , is in our law , art and part of the crime committed , as was found in iohn mackintoshes case , the . of may . and is in the civil law punishable , in the same way and manner , with the principal party , whether that principal , or chief committer , would have committed the crime or not , without that mandat , nam quando mandatum cadit in delictum non queritur an mandatorius perse commississet gomes . in § . penales just . de actionibus . and seing this distinction holds not , in mandato , i see no reason why it should hold , in confilio . not only if one give order to commit the crime , is he liable as art and part , but if he give order to do that which which is inseparably joined to the commission of it ; and even if he give order to do that , which being unlawful in it self , may produce the crime ; and thus , if one give order to wound a man , it is thought , that if the person die of the wounds he receives , the giver of the mandat is guilty of the murder , except the order be restricted to wound with a stone , club , or some such weapon , as is not mortal ; for in that case , the committer is only punishable , paena extraordinaria , and by an arbitrary punishment , not reaching death , clar. quest . . num . . what words will infer a command , cannot be determined ; but it was found in mackintoshes case , that his desire to bring druchdarg , who was killed , dead or alive , did not infer his being art or part of the murder ; for he having a caption against druchdarg , he might desire the messenger , or his sons to pursue him , if he resisted the caption . and yet if the words can import properly no other sense , then such as would infer a crime , the speaking of them will infer art and part ▪ and thus fraze● of culhockie , being pursued on the . of iuly . for deforcing a messenger , he was found guilty , because it was proved , that after he was apprehended by the messenger ▪ he cryed to his natural son to come up and help him , and to give these men their reward ; whereupon his natural son did invade the messenger , and he thereupon escaped . and in general , i think words should be very clear , and spoke too by a person , who hath previous malice , else they ought not to infer death , for words are oft spoke in jest , as when one of our kings desired those of caithness , to go and sup their bishop in broth. it is determined also by the doctors , that if the giver of the mandat refer the committing of the crime to a third person , and he to a fourth ; if the crime be committed by the third or fourth , that all of them are punishable , with the same punishment bald. in l. . § . nec autem , c. de cad●● . tollend . but seems hard , seing the person was not killed , in that case , by the order of the first committer , and possibly the discretion of the person , to whom the first mandat was given , was considered to be such , that he would not excuse the mandat ; and many cases may fall out , whereby it might have been , that the giver of the mandat , would not have given the mandat to any other , and therefore , capoll . gautela . . & menoch . de arb . caesu . . are of opinion , that if the murder was committed by any other then him , to whom the commission was granted , that the giver of the mandat is not liable in that case , and generally they conclude , that if the receiver of the mandat , did exceed his mandat any manner of way , that then , if the crime which was order'd to be committed , was a mean and small crime , the giver of the mandat is no way to be punisht : but if the crime was atrocious , then the giver of the warrand is to be punished , paena extraordinaria , by an extraordinary punishment , for he who gives order to commit as atrocious crime , incurrs a punishable guilt , in the very giving of the order , menoch . ibid. num . . they likewise determine from this reason , that the commanding to kill a. ● he be not killed , but b. be killed , is punishable by an extraordinary punishment : the like also holds , if the command 〈◊〉 mandat did bear to commit the crime in one moneth , and 〈◊〉 was not committed in that moneth , but many other , menoch . ibid. num . . though mandats in civil cases are only probable , scripto vel juramento , yet in crimes they are probable by witnesses , as all crimes , and art and part are . v. how far the mandat , warrand , or command of our superiours excuses , is variously debated by the doctors ; but their dictates may be resolved in these conclusions , . the commands of the prince excuses altogether in lesser crimes ; but in atrocious crimes , it excuses only from the ordinary punishment , metus paenam attenuat . non in totum tollit , for the committer in this case doth not commit the crime , dolo malo & quicitra dolum deliquit ordinaria paena non punitur & illi qui aliquid adversus suam voluntatem agit crimem non adscribitur sed cogenti , cap. , . & cap. . quest . . the command of the magistrat , acting as a magistrat , or a publick person , excuses or defends the committer , from the ordinary punishment , in atrocious crimes , and from all punishment in lesser crimes , l. quanquam & l. quod principis ff . de aqua pluv . arcend . a mandat given by a master to his servant , excuses him from the ordinary punishment , when the crime is atrocious , and the master is known to be cruel . and thus i have seen the servants of one who was hanged for robbery banished only , because they knew not that their master was a robber , and that was the first act ; whereas if these had continued in his service thereafter , they had been hang'd , notwithstanding of both his command , and known severity , seing how soon they knew him to be a robber , they should have deserted his service ; and by the . chap. num . . stat . will. the servant is punishable though he obey his master , if he do not desert his master , or desert his service . in lesser crimes the command of the master excuseth altogether , l. liber homo , ff . ad l. aquil . vi. the command also of a rather excuseth the son , in lesser , but not in atrotious crimes , except other favourable circumstances concurr ; and thus iohn rae was not put to the knowledge of an inquest , because he was young , and had concurred in the theft , at the command of his father , . ianuary . all which is most fully treated by menoch , de arbitr . cas. . and i find in our law , that a wife is liable to the ordinary punishment , though she obey her husband , in committing atrocious crimes , stat. will. cap. . num . . from which i conclude , that by the same statute , she had not been liable in lesser crimes . vii . the assister is art and part of the crime by our law ; and assistance by the civil law , and doctors is variously punished , for these who give assistance before the crime be committed , are punishable in the same manner with the committer , l. nihil ff . ad . leg . cor. de siccar nihil interest occidat quis an causam mortis praebeat , but this conclusion holds , only where the assister knew not , that the assistance he gave , tended to the commission of the crime ; which knowledge is not presumed , but must be proved : this conclusion also holds , only where the assistance did influence the crime immediatly , but not in remote assistances , such as the lending of armes , for remote assistance is only punishable paena extraordinaria menoch . de arbitr . cas . . assistance given during the commission of the crime is also punishable in the same manner as the principal crime , except the assistance given be very remote , or that the assister was ignorant , as if one should assist a person to drive away cattel , which the driver said to be his own cattel . it is here resolved by the doctors , that he who was in arms upon the place where the crime was committed , is repute an assister , if he stood very near the place , and was a known enemy to the person killed , or a known friend to the committer , and had no business else in that place , at that time ; or if the invader wax'd bolder , or the person invaded weaker by their presence : but if these or such like circumstances concur not , a meer by stander is not art and part . and i remember , that it was decided in the case of iohn mackintosh , that naked presence was not accession , si navabat operam rei licitae , as the assisting a messenger ; and in the case of a baxter , who was pursued for the tumult , in anno . at which time , nuda assistentia , was not found punishable . and it is so ordinary for people to run together , where noise or confusion is , and the assistance is ofttimes too advantagious , either to relieve the weaker , or to seperat and red , as we say , both parties ; that if were unfit , i as well as unjust , to punish meer by-standers : but this depends upon many circumstances , & est quastio arbitria addit , ad cl. quest . num . . yet i would advise the redder , or assister , to cry , that he intends to do no prejudice to either party , or not to interest himself , except he be known to be very neutral . these who kept the cloaths or baggage of the committers , are guilty of assistance , ioh. de annan , as are these also who hindered others to rescue the persons invaded . assistance given after the crime is committed , scarce deserves the name of assistance , as bartol . observes , ad l. . § . . quisquam ff . ad sillan . and therefore the laws of millan do only inflict a pecuniary mulct in this case , as menoch observes , cas . . and i have seen the council inflict only an arbitrary punishment upon him who assisted to make the escape of a person who had recently committed a murder . but in general , i approve bartol's doctrine , who thinks , that whether the help and assistance was given before the committing , at the time of the commission , or after it , yet the assister is punishable as the chief actor , if the commission of the crime was resolved upon by both at the beginning , and before the crime was committed , & ita spes data auxilii ad evadendum dicitur auxilium ad maleficium committendum , bartol . ad l. furti . ff . de furto , else the crime is not punishable in him who assisted only after it was committed , as severely as in the chief actor . but the doctors do not distinguish here , whether the crime would have been committed by the principal party , though the assisters had denyed their help ; yet does this lessen the assisters guilt , though it does not distinguish it , clar. quest . . num . . and so lessens the punishment in many cases . viii . the ratifying a crime is not punishable , according to the doctors , in crimes which are chiefly committed to satisfie the lust of the offender , as if one should ratifie the adultery committed by another , meerly to affront the husband , quo casu , the doctors think , that the ratifier may be punished arbitrarly ; but the ratifying crimes which are chiefly committed to offend others , as murder , theft , &c. is punishable , if the crime was committed by the actor , in the name of the ratifier , and if the ratifier knew it was committed in his name , when he did ratifie it ; but except these two concur , lawyers think that the ratifier is not punishable : and yet in the general , the approving or owning crimes , seems to be of ill example and therefore punishable in some degree , by the example of that excellent law , l. si quis , § . qui abortionis , ff . de paenis . by our custome , ratification , or ratihabition of a crime , as we call it , falls not properly under art and part , no more then under the general word auxilium , except the ratifier had done some deed , or been in some accession to what was done before the crime was committed , as was found in mackintoshes case , . iune . for it were hard to infer a crime from any words approving the deed , it being most ordinar for men to say it was well bestowed , or i am glad , when they heat of the murder of him whom they would not have killed , as bart. observes ; and therefore it seems not to be punishable by our law , which punishes only either the crime it self , or these who are art and part . and i remember , that when the laird of assint was pursued as accessory to the murder of montrose , in swa far as he had at least ratihabited the crime , having vaunted , that he had taken him prisoner at his own house , & jactatio , & gloriatio , were punishable , as menoch observes , de arbitr . casu , . yet the parliament inclined not to punish him , if nothing else could be proved . but whatever may be said of ratihabition in general , yet certainly , ratihabition of treason , is punishable as treason ; and it may be also contended , that the excepting of a reward by one , as if the crime had been committed by him , is punishable , since that reaches further than a naked ratihabition ; so that certainly assint had been punisht as a traitor for that accession , if he had not been secured by an act of indemnity . ix . there remains yet two practical questions to be resolved ; the first is , whether such as are accessory can be pursued , till the chief actors be first discust , and either found guilty , or assoilzied . and that the chief or principal actors ought to be first discust , seems most reasonable , . because it is the nature of what is accessory , to follow , and not to preceed that to which it is accessory . . the principal party might have a defence , which the assister doth not know , at least cannot prove . as for instance , if a man be pursued as art and part of driving away cattel , possibly he was but a servant to the person who did drive them , and who , if he had compeared , had proved that the goods were his own ; or if he were pursued as art and part of convocating the liedges , or of rising in arms ; possibly if the principal convocator were pursued , he would alledge he had done so by warrand from authority , and would produce his warrand , which none else could have in keeping . . by the opinion of clar. quest . . num . . and other doctors , quando proceditur contra aliquem tanquam quod prestiterit auxilium delicto debet primo in processu constare principalem deliquisse . . by the chap. . book , reg. maj. entituled , of the order of accusing malefactors for crimes , it is said , that the principal thief should be pleaded and discust before him who commanded the same to be done , or before the resetter . and in the . vers . of that chap. it is generally said , and swa it is manifest , that the commander or resetter shall not be charged , till the principal doer be first convict by an assize . from which words , and from the general rubrick , it is clear , that this conclusion holds , not only in theft , but in other crimes . likeas , skeen in his annotations upon these words , observes from this text , that complices criminis non possunt accusa●i ante pricipalem malefactorem nam sicut re●●oto principali removetur accessorium , ita absoluto malefactore absolvuntur complices & consentientes , and cites for this opinion , gloss. in cap. . de offic . jud . de legat . which conclusion is also clear , as to theft , from the . chap. quon . attach . upon which law a verdict fyling george grahame , as receptor of theft , was rescinded , by warrand from the council , because the principal thief was not first discust . and as to all crimes , by the . chap. stat. david . entituled , the complices should not be punished before the principal malefactor . it is also observable from the last vers . . chap. lib. . reg. maj. that the principal malefactor should be not only accused , but convict by an assize , before the complices can be accused ; so that it is not enough the principal actor be declared fugitive , which is likewise conform to clar. quest . . num . . nam non sufficit , saith he , contumacia ficta , which answers to our denouncing fugitive , as i formerly observed . i find likewise that by the law of england the principal ought to be attained after verdict or confession , or by outlawrie , before any judgement can be given against the accessory ; but the principal must be surely kept until the accessory be attainted , bolton cap. . num . . notwithstanding of all which , charles robertson being pursued as accessory to the casting down of a house belonging to iollie , which house was libelled to have been cast down by his sons and servants , at his command . the justices found that he might be put to the knowledge of an inquest , albeit the children and servants were not first discus'd , because the act appointing a libel to be relevant , bearing art and part , did abrogat the foresaid , . vers . . chap. l. . r. m. since such as are pursued as art and part are all principals : and the advocat alledg'd , that it were absurd that the king should be prejudg'd by the absence of the principal party . to which it was answered , that the act of parliament , and the law cited out of r. m. were in materia diversa , and very consistent , since the one determined only the manner of procedure , and the other what libel was relevant , & since that act it was constantly found that the thief behov'd to be punish'd before the resetter , which shews the foresaid law of the majesty is not abrogated ; nor was the king prejudg'd , seing if the principal party were discus'd and denounced fugitive , the accessory might be proceeded against , but on the contrary , the liedges would be much prejudged , if this order were not observed , for probation might be led against absents , eo casu , contrair to the fundamental law of the nation . v. g. if a. b. were pursued as hounder out of c. d. to commit a murder , probation behov'd to be led that c. d. committed the murder , albeit absent , else the hounder out could not be punish'd , nam primo debet constare de corpore de licti : nor can any man be guilty of hounding out , except where the crime is committed . and it were not only against our law , but against reason , to suffer witnesses to be led for proving that the person who was absent committed the crime : for in that case his greatest enemies may be led as witnesses , and his strongest defences may be omitted ; and though the probation led against him in absence will not be concluding , yet semper gravat famam , and leaves still a disadvantagious impression . in this case it was likewise found , that ratihabition of a crime might be inferred from the said charles robertson his resetting the committers of the crime , though they were neither declared fugitives , nor letters of intercommuning against him : and his saying these words , they did too little , and i wish that they had taken a collop out of his cheek , was a ratifying of the crime , since the crime was committed by his own sons and servants . x. the second question is , whether the complices , and such as are art and part of a crime , should be punished by the punishment due to the principal malefactor ? that they should , seems clear by the act . parl. . k. i. . where the libel bearing art and part , is ordained to be found relevant , which implyes , that art and part should inferr the punishment concluded in the libel ; for that is only relevant which can inferr the conclusion . . it is said , cap. . quon . attach . and then it shall be conform to that which is said , consenters and doers should be punished with the same pain . . by constant custome in all criminal courts , art and part is punished as the principal crime . notwithstanding of all which , i think , the foresaid conclusion very rigorous , for paena est commensuranda de licto ; and to punish the more and the less guilty equally , seems against nature and justice : and by the laws of all other nations , and the opinion of all doctors , accessions are punishable according to their proportional degrees of guilt ; and albeit the act above cited , sustains the libel , yet it ordains not the punishment of art and part , to be the same with the punishment of the principal offenders ; but though the act did bear the same expresly , yet by the opinion of the doctors , a statute , bearing that such as are accessory shall be pun●shed as the principal malefactors , is to be restricted , ad opem quae dedit causam maleficio , & non de quolibet modo auxiliandi annot . ad clar. quest . . num . . it would therefore seem just , that not only the justices , or parties , should make application to the councel , and interpose that the punishment should be mitigat according to the degrees of the guilt , as the custom now is , but that the justices should have an innate power to propo●tion the punishment to the guilt proved ; for none can understand so well the nature of the guilt , as the justices who hear the probation : and it is hard that the poor pannel should lye under so great hazard , as to be exposed to a capital sentence , whereas it may be the council will not sit so soon , as that he may interpose with them . some crimes punished amongst the romans , which are not directly in use with us . having finished in the last title what belongs to those crimes , which our law pun●shes directly , i resolved here to touch overly even those crimes which are little considered among us , not only that we might thereby know the genius of that wise nation ; but that we may consider how far it were fit to renew amongst us these excellent laws . the romans considering how destructive those were to the common-wealth , who endeavoured by all indirect means to screw themselves into publict employments , did therefore make this indirect dealing to be a crime , and called it ambitus , which punished lege julia , those who gave money , for making themselves magistrats , or that they might attain to honou●s . it is commonly thought , that how soon the power was transferred from the pople to the senate , and from the senate to the prince , this crime ceased , because the prince having the sole power of bestowing magistracy and honour , is still presumed in law to bestow them upon those deserve best , who groneveg de leg . abrogat . ad h. t. but yet i see not why the prince may not justly cause punish such who have wronged both the publick interest , and his favour , in prostituting both to so unworthy a sale : and since commissioners for parliaments , and magistrats of towns are still elected by plu●ality of suff●●ges , i see not why such as bribe the electors may not be lyable to the same accusation . the pun●shment of this crime , was depo●tation which was much like our banishment , and in the lesse . towns it was punished by a fyne of an hundred crowns , and infamy ; and since it is a kind of bribing , i think it should be punished with us as such . residuorum crimen , was committed by him who converted the publick money with which he was intrusted to his own private use , and was punished , by fyning him who was guilty in a third more then he owed . this crime is punished by no expresse law with us , but that this is a crime with us , appears clearly from its being excepted from the late act of indemnity amongst the other crimes . the words whereof are , excepting all privat murders , &c. and the accompts of all such persons , as have intrometted with any of his majesties revenues , publick impositions , excise , fines , forf●itures , sequestrations , and all other publick money , for which they had not order , warrant , or assignment , ( for their own privat use ) or for which they have not duly counted , and received discharges thereof from such as pretend to have authority for the time to do the same . i doubt not but the exchequer might be judges competent to this crime , if committed by their own members , and the council , if done by any of his majesties servants , since there can be no greater injury done to his majesties government , then to abstract or invert his money , which is the nerves , not only of war , but of all power . peculatus , is a stealing of the publick money , as the other was a concealing of it , and this was punished in publick ministers capitally , l. un . c. h. t. though other thefts was not capitally punished among the romans , so attrocious a crime did they judge the breach of trust , and so easy a thing it is for publick ministers to steal publick money if they please . this crime is certainly punishable with us by death , since all theft is so punishable : plagium , was the stealing of men , and was punishable by death , l. . & ult . c. h. t. which agrees with the law of god , exod. . . deut. . . and with us aegyptians and others stealing children , have been likewise punished by death , and such as force away men to be souldiers , should be liable to the same punishment , though the council uses to punish them only by an arbitrary punishment ; and such as take away mens childeren upon pretext to marry them , before they come to the years wherein they may give a legal consent ( which is . in women , and . in men ) ought in my judgement to be so punished . i have treated crimen repetundarum in the title brybing , & crimen annonae , in the title fore-stallers . i shall end this first part relating to crimes , with theophils apologie subjoyned to his title of crimes . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . finis . part ii. title i. of jurisdiction in general . . iurisdiction defined , and divided , in imperium merum , mixtum & jurisdictionem simplicem . . iurisdiction is either ordinary , or delegat . . it is either cumulative or privative . . how a iurisdiction may be prorogat . the civilians do treat of jurisdiction very learnedly and profusely , but since most of their dictats are very remot from our practice in scotland , i resolve to clear only such general terms as are borrowed by our law from that of the romans . i. jurisdiction may be defined to be , a publick power granted to a magistrat to cognosc upon , and determine causes , and to put sentences following thereupon in execution , in such way and manner as either his commission , law , or practique do allow . jurisdiction was by the civil law divided in merum imperium , mixtum imperium , & jurisdictionem simplicem . merum , imperium est abere potestatem gladii ad animadvertendum in facinerofos , & potestatas etiam appellatur , mixtum imperium est potestas qua jure proprio magistratui competit cui jurisdictio inhaeret & inest , & dicitur mixtum quia cum jurisdictione est conjunctum . iurisdictio simplex differt secundum bartolum a mixto imperio in hoc , quod imperium mixtum expediatur judicis nobili officio , jurisdictio judicis ordinario . with us the justices have only a criminal jurisdiction , the lords of session and commissars , a meerly civil jurisdiction , lords of regality , and sheriffs a mixt jurisdiction , partly civil , partly criminal . but in all jurisdictions , though meerly civil , there is still an innat power , to punish even criminally , such as offend and disturb even the civil jurisdiction . thus the lords may ordain such as strike any in the parliament house whilst they sit , or falsify papers produced before them , or abuse any of their own number , to be degraded , or banished , or to pay a fyne , or to have their tongue bored , &c. according to the nature and merit of the offence . for in law , when any power is granted , every thing is also granted which is necessary for explicating or executing that power . ii. jurisdiction is divided likewise , in ordinariam & delegatam , and here it may be doubted , whether the power of judging crimes which is merum imperium can be delegat ? according to the civil law it could not , l. . & l. . ff . de regulis juris , and seing crimes are of so great concernment , that industria personae in electiono judicis respicitur , there is no reason why they should be cognosced by deputs . ordinary commissions with us , also bear a power of delegation which were unnecessary if the power of delegation were inhaerent naturally in jurisdiction . and albeit i have seen justice deputs delegat others to represent them in the justice court , yet this practice seems to want both warrand and reason . and it is observed by craig , pag. . that potestatem gladij qui ab alio quam a principe habet nemo potest delegare : and by balfour , cap. . that a barron cannot delegat any person to judge in the matter of blood , except the said power be specially allowed him . but the law allows even to deputs , though they have no power , to delegat others , a power to appoint another to judge for them in cases of necessary absence , l. . ff . de off . ejus cui mand . which lawyers do also allow , ex paritate rationis , to such as are sick , bart. ibid. and the reason of both is , least the common-wealth suffer by their absence or sicknesse , for it is necessary that crimes be presently tryed . iii. jurisdiction is divided by our law , in cumulativam ( for so we call that jurisdiction which is competent to several judges , and whereby they may preveen one another , and thus sheriffs , and barrons have a cumulative jurisdiction in blood weits ) & privatam ( for so we call that jurisdiction which is competent peculiarly to any one judge . ) this distinction is used very much in our law , and especially by craig , pag . who layes it down as rule , that omnis curia delegatur tantum cumulative , sed nunquam privative ; non est enim quasi translatio juris ex una persona in alium sed tantum mandata jurisdictio quae non obstante jurisdictione sive mandato ad huc remanet in delegante nec minus dominus post juvestituram vassallo factam retinet jurisdictionem & curiam quam antea . and thus albeit his majesty grant commission to a sheriff , yet he oft-times appoints other deputs , as mr. william wallace in edinburgh , sir gilbert stewart in the sherifdom of perth . and it was found , that though a prelat had appointed an heretable bailiff , yet he was not thereby excluded from sitting himself , although he was thereby excluded from appointing any other heretable bailiff ; as is observed by hadd . . february . iv. jurisdiction is said to be prorogat , when a defender does willingly submit to the judicatur before which he is cited , though otherwayes not altogether competent , & affirmare judicium , is to submit to a judicatory altogether incompetent . it is a received conclusion amongst lawyers , that a delinquent may prorogat his ju●isdiction : who has a criminal jurisdiction , but that by an act of his , as by compearance , and answering before an incompetent judge , the delinquent cannot prorogat that judges jurisdiction , who has no criminal jurisdiction at all , clar. quest . . and thus if a man were pursued for theft before the commissars , their decreet would be null , though the delinquent declined not the court , but if before a sheriff , the sentence would be valid , though the delinquent were not of his territory ; and though he were pursued for a crime to which the sheriff were not othe●wise judge competent ; but a privat delinquent , by prorogating the ●udges jurisdiction ; as said is , can only prejudge himself by his own complyance , but cannot prejudge any other judge of his casuality . title ii. of the judge competent , de foro competenti . . in what place may a delinquent be tryed . . who is iudge competent , to crimes committed by strangers . . where are vagabonds to be pursued . . who is iudge competent to ecclesiastick persons . . prevention amongst iudges competent , explain'd and cleared . i. for understanding who is judge competent in general , to punish crimes , and what founds his competency ; or as the civil law and doctors speak , quod est forum competens ; it is fit to know , that he who commits a crime , may be judged either in the place where the crime was committed , which they call , forum delicti commissi , or in the place where he was born , which is called forum originis , or in the p●ace where he dwells , which ●s , forum domicilii . the place where the fault was committed , is of all the three the most competent , for it is most just and fit , that crimes should be punished where they were committed , that others who have seen the crime , may by that punishment be deterred from committing the like ; and that the parties injured may be somewhat repair'd , by seeing the law justly reveng their wrong ; and in the place where the crime was committed , accusers can most easily attend , and probation can be soonest and best heard , act . p. . i. . not only where the crime it self was fully committed , may it be tryed , but where any part of it was committed ; and therefore a thief may be judged , not only where he first broke the house , but by the judge of that place where he was taken with the things stoln , carleval de judiciis , pag. . but the judge of the place where he was taken , can only proceed against the thief in that case , if he be present , but cannot cite him if he be absent ; wheras the judge of the place where the house was broke , may cite him though he be absent : and if the judge of the place where the house was broke , or the thing was first stoln , pleases , he may require the other to remit him , or send him back to him to be judged . but this last would not hold in our practice ; for with us , wherever a thief is taken with a fang , he may be hang'd ; nor is that judge oblieged to send him back , except either in the case of prevention , or repledgiation . there are some crimes which may be comm●tted in several places , and yet be the same crime , as being begun in one place , and perfected in another ; and for knowing who is judge competent , for trying those crimes , i think we may thus distingu●sh , either the crime is begun in one place , and perfected in another , both in respect of him who commits the crime , and of him against whom it is committed ; as if one should wound a man in one territory , and should follow and kill him in another , or take away a woman in one territory , and deflour her in another ; in which cases , the judges of either territory are competent , but so that there is place for prevention , for the scandal is committed in both places , and the peace of both is injured . the other case is , when the crime is begun in one place , and perfected in another , only in respect of the committer , as if a man in one territory should stand and shoot one in another ; in which case , the judges of both territories a●e competent , l. . c. ubi de crim . or the crime is begun in one , and perfected in another place , as if a man should in one p●ace , give order that the crime should be committed in another place , or should ratifie in one place , what was comm●tted in another place ; and in that case , clar. bartel . and others , are of opinion , that the crime should be tryed only in the place where the crime was consumat , because it is not the giving of the mandat , or order to commit the crime , but it is the commission of the crime which infers the guilt : but i crave leave to differ from them , and to think that other judge is competent , and that because oft-times the giving of a mandat , or order to commit a crime , is of it self a crime ; and because he who gave the order , having offended the jurisdiction where he lived , he ought there to be punished , and the crime committed in the other place , not being his own who gave the order , but because of the order : it must therefore be drawn back to the order , and so he ought to be punished in the place where he gave the order , which should the rather hold with us , that the giving order is art and part , and so is in our law punishable in the same way , as the principal crime . if any man commit a crime , in the confines of two several jurisdictions , or territories , he may be punished in either , though some lawyers are so subtile , as to conclude , that if a man be murdered in the confines of two jurisdictions , the murder ought to be tryed in that jurisdiction , within which the head of the murdered man fell ; but if the committer of the crime dwell also in either of the territories , or if the judge of either of the territories be founded upon any other ground of competency , then that judge who is so founded doublely , ought to be preferred , quia duo vincula magis stringunt decian tract . crim . lib. . cap. . ii. so well founded is the judge of the place , where the crime was committed , as to his competency , that some english souldiers having in anno . killed a man in edinburgh , the justices here were found judges competent , though it was alledged that they being souldiers , could only be tryed by a council of war ; and being english souldiers under english pay , and a part of the english army , they could only be tryed in england , all which was repelled , because the crime was committed here ; and it was strange why any of the english did think this hard , since they had execute queen mary , though a queen : and the bishop of ross , though an ambassadour , for alledged treasons committed in england . the reason why the judges of that place where the delinquent dwells , is judge competent to the tryal of the cri●● is , because it is fit that the judge purge his own land , and territory , of evil doers and malefactors , lest they affect others by their example , or fall themselves to commit the like crimes there also ; and the reason why he who is judge of the place where the malefactor was born , is judge competent , is because the malefactor may and will probably return to the place of his nativity , and it is most reasonable that a man may be judged as to his life , where he first received life ; and judges ought to consider the life and conversation of the delinquent , which none can do so well , as judex domicilii : and therefore these two , domicilii & originis , are still equiparat in the law , and what founds the jurisdiction of the one , founds ofttimes the jurisdiction of the other , and their joynt competency may be understood by these conclusions , first , the judge of the place where a man dwells , or was born , may beyond all controversie , proceed to take tryal of the crime committed within their own territory , if the person be found within the territory . . if he be not found , some think they can proceed if the crime was not committed in their own territory , but others do more justly distinguish , thus , that either he is pursued by way of accusation , at the instance of a private party , and then judex domicilii , is competent , but that neither of these judges can proceed to enquire into a crime committed without their own territory ; and though the first part of this distinction be very just , because an accuser has alwayes election where to pursue , yet the last part of it may be justly controverted , for these reasons , . because every judge should endeavour to cleanse his own land of malefactors who dwell there , and who may either infect his people , o● commit the like crimes , as was said formerly . . it would incourage the committers of crimes , if they might go out of their own territories , and commit crimes elsewhere , and could not be punished upon their return by the magistrat where they live , whereas it is probable , that the poor party injured could not follow them to a place so far distant . . we see that fathers do , and are obliedged to punish their children for faults done by them , even without their own family : and a judge is in law instead of a father to his own people , and should endeavour that they keep themselves free of all guilt . . per. l. . c. ubi de crim . dicitur quaestiones posse institui apud judicem loci ubi ipsa commissa sunt , aut loci ubi reus ad est . and with us , criminal pursuits are sustained at the instance of the procurator fiskal of the territory where a man dwels , for crimes committed without the territory , though no privat party inform . i find likewise that calderas does distinguish thus , if ( sayes he ) both the place where the crime was committed , and the place where the delinquent dwells , be under the same prince , though the jurisdictions be under different privat judges , and the privat territories be different ; yet the judge of that place where the delinquent dwells , may proceed to try a crime committed without his own territory , though the party injured do not insist . against which distinction , though it be more plausible then the other distinction , yet the former argument do likewise conclude . the third conclusion is , that the judges of the place where the malefactor dwells , may proceed against him , not only if they find him present , but though he be absent , l. . & authen , qua in provincia c. ubi de crim . and by the customs of castil , and naples , carlev . num . . and thus the lords sustained an improbation against burghtown in iuly . though the deed forged concerned an irish estate , and though burghtown dwelt then in ireland , though he was cited in scotland . iii. vagabonds may be punished where ever they are apprehended , for having no certain domicile , every place is in ipsorum praejudicium allowed to be their domicile , boss. de foro compet . num . . and he is said to be a vagabond , who has no certain dwelling , licet habeat domicilium originis , these our law calls dustifoots , and such are our aegyptians , study beggars , who though they may pretend to have a dwelling , to which they may sometime ret●re , yet since ordinarily they use to wander , and do things unlawful , they ought to have no benefit by that domicile . iv. by the cannon law , and in all the romish church , as ecclesiastick person cannot be in the first instance juged by the secular judge ; but though this subject might afford matter of curious inquiry , yet i will not dip into it , since the parliament did in anno. . find that mr. iames guthry might be tryed by the parliament in the first instance , for words spoken by him in pulpit . and as a minister , albeit he alledged that this doctrine should have been tryed , first by a church judicatur , for the parliament thought that this might give too great liberty to ministers , and might encourage them by adhering no one another , to enveigh against , and disturb the civil government at their pleasure : for if eclesiastick persons could not be judged by the secular power , till first the church judicaturs did consider the doctrine ; then if these church judicaturs did approve the doctrine , it could not thereafter be found treason , or any other crime . v. where many judges are competent , they may preveen one another , and prevention is defyned to be anticipatio sive praeoccupatio usus jurisdictionis alicujus judicis circa causam aliquam , antequamalius judex circa eam jurisdictione utatur , prevention is , when one judge interposes his authority , or when a tryal is entered upon by one judge , before another judge do exerce any action of jurisdiction about that subject . prevention may be made , either by the judge , or by the party . and prevention is not inferred by raising of a libel without citation , decian : lib. . cap. . but it is inferred by a citatio● , or by the first citation in writ , where moe citations are requisit and by apprehending the malefactor , because , as carleval . de judiciis , num . . observes , deeds are stronger preventions then word or writ . prevention is likewise inferred by the receiving of witnesses in order to an inquisition , ibid. it seems that the allowed and stated deeds , from which prevention is inferred by our law , are only these which are enumerated by the . act . parl. k. i. . viz. apprehending of the offenders person , and executing a summonds against him , to underlay the law , and therefore no mention being there made of receiving of witnesses , or inquisition , it appears that these are not sufficient to infer prevention in our law. in the competition of this preventions , when one judge has done one deed , and another ju●ge has done another , the ordinary conclusions for peference are , . that when one judge use first real citations , that is to say , appehends the offender , and the other a verbal , or citation by writ , the real is preferred . . when the one does at the same time use a real , by capture , and the other a written citation , he who has taken the malefactor is preferred . . where the one has first used the citation , and the other has apprehended the delinquent , though many lawyers do prefer the judge who apprehended , yet the judge who fi●st cited , will be preferred in our law : and if a citation be a way of prevention , as was said formerly , i see not why the jus quaesitum , by that prevention , can be thereafter taken away ; for though it may be p●etended , that judges would be thus incouraged to take malefactors , which is a greater benefit , then the citing them is ; yet i think it is the duty of all judges , to concur to take malefactors , though cited by other judges ; and yet by the foresaid statute , the judge who apprehends the malefactor , before the other cite him , does preveen the citer . it is agreed to by the doctors , that when two competent judges do both proceed to a tryal , and both are equally founded in their jurisdiction and diligence , that then he who pursues for the greatest crime , ought first , to proceed in his tryal , because the common-wealth is more concerned to have a great crime punished , then a small crime , which they extend not only where the crimes are different , but even where the one is aggradged by more atrocious circumstances then the other ; as if the one should pursue for wounding , and the other for wounding in the night , or in an ambush , boss. hoc . tit . num . . and he who preveens by citing one of many complices , doth preveen quo ad all . as also he who once cites him who gave order to commit a crime , doth likewise preveen all judges , quo ad the committer . because it is fit that the cognition of the crime be not divided , and ordinarily the defences are common defences , boss. num . . but i think this conclusion should not hold , except the other judge be presently ready to pursue , for it is the interest of the common-wealth , that crimes be speedily punished . though a judge competent have once fixed his processe by prevention , yet if thereafter he be in mora , the other judge , who has a cumulative jurisdiction with him , may proceed ; for thereby it appears , that by prevention he has designed to exclude the other judge , meerly in collusion with the delinquent , novem . . scot contra riddel . if prevention be not proponed either by the party , or the judge , the process and sentence will be valid , though led before the judge that was preveened . when judges ought to remit delinquents to others who are more competent is fully set down , title regalities . title iii. jurisdiction of the parliament in crimes . . the parliament are iudges competent to the tryal of crimes , even where the pannel is absent . . forefeitures in parliament cannot be quarrelled before any inferiour iudge . . whether decreets pronounced by commissioners of parliament can be quarrelled by any inferiour iudicatory . i. since the parliament is the supream judicatory , it may certainly cognosce all causes , in the first instance . and of old , if a person accused for treason did absent himself , the criminal court , not no other inferiour court could proceed to take tryal by probation against him , and so all they could do , was only to denounce him fugitive for his absence , upon which denounciation his escheat did only fall , but he could not be forefeited ; and therefore since it was unjust that he should by his own absence procure to hims●lf an impunity and exemption from forefeiture , the parliament did by their supream power cite the person guilty , to appear before them , and did lead probation in absence against him , and forefeit him in absence , though guilty . but it being found inconvenient that parliaments behooved either to be called , or such delinquents pass unpunished , therefore by the . act . parl. ch. . it is statuted , that the justices may proceed to try crimes by probation , even when the person cited is absent ; in cases of treasonable rising in arms ▪ and open and manifest rebellion against his majesty , or his successours and their authority : so that the parliament are yet only judges to the tryal of all crimes by probation against absents , except only perduellion , o● open and manifest treason . and albeit it may seem strange that the justices should have been allowed to lead probation against absents , in this which is the greatest of crimes , and not in crimes of lesser importance ; yet this proceeded from the just detestation which the parliament had of this crime , and that the punishment thereof might not be delayed , where the delay might prove so dangerous . ii. if the parliament forefeit any person after cognition of the cause , their sentence cannot be quarrelled by any inferiour judge , act . parl. . k. i. . and though it be added to that act , that no forefeiture law●ully and orderly led in parliament shall be quarrelled by any inferiour judicatory ; for these words , lawfully and orderly led , seem unnecessary , since after cognition of the cause by the parliament , no inferiour judicatory can quarrel a decreet of parliament , even though it be pretended that the said decreet was not lawful and orderly : yet if a person be only denounced fugitive by the parliament , the lords of the session may suspend in that case , if the process was not orderly led ; but whether they can reduce , even in that case , est altioris indaginis . and some think , that though it were very inconvenient that such a ●ecreet should receive present execution , where possibly the party was not lawfully cited , yet that such respect is to be payed to the parliament , as that the illegality of that procedure before them , though not objected before sentence , should remain undecided till the next session of parliament . iii. if the parliament should remit any such process for crimes , to any of their own number , to be decided finally before them , it hath been doubted whether their decisions could be reduced by the session : and this act of parliament reaches only to decisions in parliament . but yet since decreets pronounced by commissioners of parliament , are reputed with us decreets of parliament , and since decreets pronounced by commissioners , for valuation of teinds , are not reduceable , because these decreets are repute decreets of parliament , as being pronounced by such commissioners of parliament ; it seems that decreets pronounced by such commissioners , in crimes , after probation , could not be quarrelled and reduced by the session , or other inferiour judicatories . title iv. the jurisdiction of the high-constable in crminals . . the original of the word constable , and his power . . the office of petty constables . . the iurisdiction of those who are constables of his majesties castles . i. some describe the word constable , from the word coning , which signifies a king ; and staple , which signifies a stay or hold in the saxon language , because constabularies were only erected in those places where the king keeped house ; and thus the constable was judge of old , to all crimes committed within twelve leagues of the kings house , and habitation , l. malcol . c. . though skeen there observes , that the best manuscripts bear only two leagues , or four scots miles . our craig , and other authors , derive the word constable , from the comes stabuli , under the roman empire , nam constabularius ( sayes he ) nihil aliud est nisi praefectus aequitum , since the reign of king robert the bruce , this office of high-constable , stands heretably in the noble family of errol : and their being some debates concerning his iurisdiction , francis earle of errol , obtained commission under the great seal , dated the . of iun . seal'd penult march . to the persons therein specified , or any nine of them , impowering them to search the acts of parliament , consuetude , monuments and registers of the kingdom , and all evidents that the earl of errol , or the lord hay his son , should produce concerning their honours , hostilogies , priviledges , and immmunities belonging , or which had belonged to the office of constabulary , from the first institution thereof : this commission i have seen , with the report thereof , dated the of iuly . bearing the commissioners to have met with the earle of errol , and his said son , and to have considered their instructions , warrands , and customes of other countreys , anent the constables priviledge ; and in the third article of the report ( which relates to the criminal jurisdiction only here treated of ) they set down these words , the constable is supream in all matters of ryot , disorder , blood , and slaughter committed within four myles of the kings person , or of the parliament , or council representing the royal authority in his absence , and that alse well within the court , as outwith the same . and the tryal and punishment of such crimes and offences , is proper and due to the constable and his deputs , and the provost and bailies of that centre or burgh , and all other judges within the bounds , where the said facts are committed , are obliedged to ride , concurr , fortifie and assist the constable and his deputs , in taking the saids malefactors , and to make their tolbooth patent for receiving them therein . as was clearly evident , by production of warrands granted by his majesties predecessors to that effect : and which likewise appeared by the exhibition of certain bonds made by the town of edinburgh to the constable , for the time , concerning that purpose , the king having seen this report , did approve it in a letter directed to his secret council of this kingdom , from the court at theobals , the . of may . registrat in the books of secret council , the . day of that moneth ; and in the commission report , and letter foresaid , the constable is designed high-constable , and his office the high-office of constabulary . the constable is still in use since that time , to judge riots within the bounds foresaids , and to interrupt the town of edinburgh , when he knows of their medling , providing the riots be committed in time of parliament : and i was told , that in time of parliament holden at edinburgh , anno . and . the earle of errol was found by the lords of secret council , to have the sole criminal jurisdiction , and did repledge servant to sir thomas n●colson , the kings advocat , arraigned before the magistrats of edinburgh for a slaughter , and assoilzied him upon production of a remission . and upon the . of september . gilbert earle of errol , did repledge iames iohnstoun violer , arraigned before the magistrats of edinburgh ( as sheriffs within themselves ) for stabbing of his wife the day before easter , the magistrats had taken his judicial confession , and summonded the assize : there was no formal repledgiation , because the magistrats passed from him upon the constables application ; and upon the . of that moneth of september , the constables deputs sentenced him to be hang'd , and to have his right hand , which gave the stroak , cut off , and affixed upon lieth wind port , and ordained the magistrats of edinburgh to cause put the sentence to execution upon the . of that moneth . likeas , the coach-man of a noble-man , having about the same time wounded a child , the constable commanded the towns guards to apprehend the delinquent , which they accordingly did , till he was freed by a remission . ii. out of this high magistracy of constable ( sayes lambert an english lawyer ) were drawn those inferiour constables of hundreds , which office we borrowed from them , and they are with us subservient to the justices of peace , and are to be chosen by them two out of every paroch , and as many in towns as may be proportional to the greatnesse thereof ; and they have power to apprehend all suspicious , idle , or guilty persons , and may require the neighbours to assist them ; and if the guilty persons flee , they may require the master of the house to make open doors : all which , with many other particulars are entrusted to them , by the . act. . par. ch. the . iii. his majesties predecessors used of old , to build castles in the considerable towns of the kingdom , and for preserving the peace both in that town , and in the adjacent countrey ; and the governours of those castles were called constables , though they were more properly castellains , or chastellains , as the english lawyers observe , these had the power of riding the fairs , and having had the keys of the tolbooth delivered to them , they exercised a criminal jurisdiction , during those fairs : but it was found , that this jurisdiction did not extend to fairs that were granted posterior to the office of constabulary , nor to the customes thereof , as was found the . of iuly . betwixt the earl of kinghorn , and the town of forfar ; but these offices depend absolutely upon prescription , use , or custome , which either extinguisheth , or limits them most variously : but because those constables use to extort customes at those fairs , it is therefore appointed by the . and . acts . parl. ia. . that the constable shall not exact any such customes , except his festment bear him thereto , and that old use and custome shall not be sufficient : which acts are ratified , by the act . parl. ia. . but if the infestment in the general bear , cum feudis & devoriis , &c. possession by vertue of that general right , will be found sufficient , though the particular casualities be not exprest in the infestment , as was found in the former case , betwixt the earle of kinghorn , and the town of forfar , this officer was amongst the athenians , call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . title v. the jurisdiction competent to the high chamberlain , and magistrats of burghs royal. the chamberlain was an office to whom belonged the judging of all crimes committed within burgh , and he was in effect justice-general over the burrows , and was to hold chamberlain-aus every year for that effect ; the form whereof is set down in reg. maj. in a book intituled the chamberlain-air , iter camerarii , he was a supream judge , nor could his decreets be questioned by any inferiour judicatory , iter. cam. cap. . and his sentences were to be put to execution by bailiffs of burghs , ibid. cap. . he made the prices of all victual within burgh , cap. . and of these who wrought in the mint-house , statute da. . cap. . he is called camerarius à camera , ( id est . testudine sive fornice , ) quia custodit pecunias quae in camer is praecipue reservantur . this office belonged heretably to the duke of lennox , but its priviledges are by his absence run in desuetude : magistrats of burghs , as such , have no jurisdiction but what is competent by their charter of erection , wherein ordinarily they have power of pit and gallows ; but sometimes they are justices within themselves , as edinburgh , who have right also to all escheats of their own burgesses , or other criminals judged by them , for crimes committed within their own burgh : sometimes they are sheriffs within themselves , and ordinarily they are justices of peace within their own jurisdiction . the king may erect a burgh royal within the bounds of another jurisdiction , as of a regality ; but in that case , though the lord of regality consent to the erection , yet it will not prejudge the bailie of regality , whose right of bailiery was constitute , prior to the erection of the casualities , that were formerly due to him : albeit it was alledged that the lord of regality might disolve , and dismember that part from the regality , without the bailies consent ; and so it not being in the regality , it could not be subject to the bailiery , the . of february . lord colvil contra the town of culross . title vi. the jurisdiction of his majesties privy council in criminals . . in what consists the iurisdiction of the council , their president and number . . their procedur in punishing ryots . . whether a power to eject , be a sufficient defence against a ryot . . the punishment of riots . . precognitions fully considered . . the council name assessors to the iustices , and sometimes review their sentences . . they grant letters of intercommuning , and commissions for fire and sword. . they sometimes ordain houses to be delivered , under pain of treason . i. the affairs of this , as of all other nations , are either such as concern the policy of the kingdom in general , or such as respect the distributing of justice betwixt privat parties ; the policy or government of the kingdom , is regulated by his majesties privy council , in which the chancelor is president , if he be present , but in his absence , the president of the council precedes . this office of precedent of the council is a distinct imployment , and it gives him the precedency from all the nobility . the number of this judicator is not definit , depending upon his majesties commission , but all the officers of state are members of it , ratione officii , it has its own signet , and its letters past by a bill , subscribed by any one of the council : upon which warrand , the letters are in their several forms , extended and subscribed by the clerk of the council ; and they bear also to be , ex deliberatione dominorum secreti consilii , they must be execute , at least upon six free dayes , and a full copy must be given , because all dyets here are peremptor , and not with continuation of dayes ; the reason whereof , is , ut reus veniat instructus ad defendendum , whereas before the session , a short copy is sufficient , because the summonds is given out to see , and a time allowed to answer : the dyets are here so peremptory , that if the defender be cited to a day , whereupon the council sits not , if he appear at the day , to which he is cited , and take instruments at the council chamber , he will not be thereafter oblieged to attend , nor can he be denounced fugitive for being absent ; for seeing it is peremptory against him , it is reasonable that it should be peremptory for him . where many parties are cited as defenders , upon a bill to the council , any one or two will be allowed to answer for the rest , they finding caution , and enacting themselves to be lyable for whatever shall be discerned against those , for whom they undertake ; which priviledge is granted if no personal punishment be concluded against the defenders ; but if either the complaint conclude , or that the crime will in law infer a corporal punishment ; then the offering to find caution to answer , will not be allowed , nam noxa caput sequi debet , and no man can bind his body for another , nam nemo est dominus suorum membrorum , the pursuer may appear by his procurator ; but the defender must either be present , or send a testificat of his sicknesse , upon soul and conscience : and yet it is the priviledge of any councellour , that he may undertake to answer for any defender that is cited , quo casu , the defender will not be unlawed , or denounced fugitive upon his absence , but his defences will be received , as if he were present ; nor can any bill for receiving a complaint , passe against a councellor , but in presentia . the council by the first constitution , were only to take cognizance of what concerned the publict peace , and were neither judges in civil cases , nor crimes , but in so far as these impinged upon , or were violations thereof : but now that judicator doth under the notion of riots , and breaches of the publict peace , hear to many causes civil and criminal . but seeing the design of this treatise , aimes only to illustrat our criminal law ; i shall only-consider the procedor of the council , in so far as they can cognosce upon crimes . ii. the most ordinar crimes which are punished by the council , are these , which we call riots in our law. a riot is a breach of the peace , committed by oppression , or wronging his majesties lieges , by force and violence ; instances whereof , are the dispossessing any of his majesties subjects , by a convocation of the liedges , or otherwise ; the affronting of magistrates , by raising tumults against them , &c. for the better understanding of which crime , it will be fit to consider , that jura maxime oderunt violentias & rapinas & pluribus modis succurrant vim passis & spoliatis , for here the publick is wounded , in breaking its peace , and privat persons are wronged , by the prejudice done . upon which account , the law hath furnisht more remedies against this , then any other crime ; for either it may be pursued civilly , per interdictum unde vi , so call'd from the first words of the edict , which runs thus ; unde vi tu illum dejecisti terestituere cogam , which interdict , restor'd only the possession of immoveables ; wheras moveables being spoilzied , were craved back , actione vibonorum . iustinian , also introduced , that he who rest , and violently took what was his own , should lose it , l. . c. unde vi , for in this the resumer usurps the power of the magistrat , whose ministry is requisit , in inverting the present possession . the canon law likewise hath introduced , beneficium , cap. redintae grandae . cap. . quest . . and menoch relates . remedies , and philip. franc. . for recovery of possession ; and seeing the thing possest , is still presumed to belong to the possessor ; and that hardly the right of moveables can be otherwise proved , then by possession : the law did most reasonably , both for securing property , and punishing violence , establish that great rule , that spoliatus est ante omnia restituendus , and conform thereto , the council ( who are never judges to property , but only to possession , so that in effect , all their sentences , are interdicts ) do still restore the possession to the person ejected ; and likewise punish arbitrarly the violence committed , for we have no expresse statute taxing the punishment . by the law of england it is accounted no riot , or routs except three at least were present , and that something was done , ad terrorem populi , for breaking of the peace , bolton . cap. . iii. the two ordinar defences , which are propon'd against riotous ejections , are , that by a writ it was lawful , and agreed upon betwixt parties , that the defender might have ejected the pursuer , if he removed not at the day appointed , which will defend against a riot : and yet craig relates a case , p. . where one who had granted a tack only for a year , having ejected the tacks-man , after expiring of that year , was pursued , actione unde vio , in an action of ejection , and was forced to transact , albeit he contended , that the word ( only ) was exclusive of any future possession ; but where by expresse paction , it is declared lawful for him who enters , to enter brevi manu , without processe , or hazard of ejection ; it would appear , that this paction is unlawful , seeing no man can warrand violence , and this seems as unlawful , as if one should oblidge himself , never to pursue for any injury to be done him : which paction , the law declares expresly unlawful , & nemo potest renunciare juri publico , and this were to allow privat persons the power of jurisdiction : nor can it be thought , but this paction was extorted ; and albeit the party injured , were excluded by this paction , yet his majesties advocat may certainly pursue , vindictam publicam , if opposition was made , and violence used : notwithstanding of which , i remember that the earl of argile having obtained a decreet of removing against george campbel , and it being suspended till the next term , the lords ordained it to be insert in the bill , that the earl might eject him , brevi manu , the next day after the term , by his own authority ; but the earl was sheriff here himself , and so his jurisdiction was only prorogat , and the law is expresse , that privatus potest ex consensu prorogare jurisdictionem ejus qui aliqualem habet , sed non potest privatus consensus tribuere jurisdictionem ei qui nullam habet vid. hanc quaestionem , apud bart. ad l. creditores , c. de pign . & hipoth . but here also , the lords warrand to eject , was a delegating of their own jurisdiction . i conceive also , that where there is no violence , nor opposition made , the voluntar consent may allow the ejection , especially in a master , towards his own tennent , who hath a natural jurisdiction in that case ; and that his ejection is also allowable , if the tennent after compt , oblidge himself to remove , and declare that it shall be lawful to his master to enter , brevi manu , if he pay not what is declared to be due ; for there the preceeding compt , is equivalant to a declarator , and the party ejected is not prejudg'd otherwise then by his own not payment : and therefore the lords , the . of december . found not the countesse of murray lyable to aspoilzie , for ejecting dewer her tennent , because dewer had by a compt declared that he was debitor , in such a sum , and by a bond oblidged himself to remove , betwixt and a particular day , and if he fail'd , declared it should be lawful for the countess to enter , brevi manu , to the possession . by the civil law , he who violently intromitted , even with what was his own , lost thereby his property in it . the next defence is , that the pursuer had immediatly before , possest himself violently , and it was lawful for the defender , to recover his possession , ex incontinenti , nam vim vi licet repellere , and the law sustains this defence , l. . ● . . & l. . ff . eod . and explains that to be , ex incontinenti factum quod factum est priusquam ad aliud negotium fuerit recessum , what time should be allowed for repelling violence , is arbitrary to the judge ; for violence committed by a great man , requires more time for reparations to redress it , then when it is committed by a privat person , for friends must be convocat , and arms prepared , as bart. and the glos. instances upon the former law : but in personal injuries , id tantum diciturex incontinenti fieri quod fit in ipso flagranti crimine . iv. the violent ejection of his majesties liedges , out of their possession , is pursued , either by an action meerly civil , which in moveables is called spoilzie in lands ejection ( which the civil law terms still , dejectio & non ejectio ) or criminally as a riot , which is a mixt action , partly civil , partly criminal . when spoilzies , or ejections are civilly pursued , the conclusion is violent profits ( which is the double rent of the lands , and restitution of the thing craved : but when this is pursued as a riot , the punishment is arbitrary , as is also the criminal punishment , the civil action prescribes in three years , k. ia. . parl. . cap. . but the action of ryot or criminal action prescribes not ; and yet it may be doubted , if these actions prescribe not , quo ad , the conclusion of restitution , seing that is a civil conclusion ; and it may be debated , that the maxim , spoliatus ante omnia est restituendus loses its vigor after that time , so that one pursued for a ryotous ejection , or spoilzie , may alledge that no ryot can be concluded , seing the thing or land controverted was his own . we shall speak of the criminal pursuite in its own place . whether the one of these actions doth exclude the pursuer from all other reparations , so that he who pursues the action of spoilzie , or ejection , cannot thereafter pursue a ryot , or a criminal pursuit , may be controverted ; and the civil law decides it thus , that quando & una & altera tendunt ad vindictam tunc una agitur ad vindictam altera vero ad prosecutionem rei familiaris : and thus the having obtained a decreet of ejection , impeds not the pursuer to intent an action or criminal pursuit ; but after a decreet obtained for the ryot , a criminal pursuit cannot be intented for these , respiciunt vindictam . v. the council cognoses likewise upon crimes , by way of precognition , which they do in two cases , . where considerable persons are interested in the crimes committed , as noble men , or clanns , where there is a hazard of alimenting the feuds , by remitting the criminals to the ordinary course of justice : wherefore to prevent future resentments , and cement old differences , the council in quorum tutela est pax publica , cognosce upon the crime , and remit much of the ordinary rigor . the . case is , when the crime is so ci●cumstantiat , that it requires 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and lessening of the ordinary punishment : the formes in precognitions are , that either the friends of the parties give in a bill to the council ( which cannot be granted but in praesentia ) deducing the case , and representing what danger is like to ensue , quo casu , letters are direct , ordaining the other party to be cited , and both ●arties to cite such witnesses , and probation , as they will use , or else if no application be made , the council ordains letters to be direct , citing both parties . his majesty having with consent of parliament appointed that the justice-court should be served by many of the lords of session , did , because of their number and ability , discharge all precognition in their commission ; and yet because these precognitions were not discharged in the commission granted to the council , the council did sustain themselves judges competent to precognitions , their commission bearing to be as full , and to give them as much power as any former council had . but really it were happy for this nation , that we wanted all precognitions , since thereby the delinquent has power to choose such dyets as he pleases , and so may pursue his precognition when he knows the witnesses who could prove his guilt are absent , or may prevail with them to absent themselves for some time ; and this is ordinarily practized . nor have i ever seen any who pursued a precognition brought to condigne punishment ; and whereas it is pretended that there are some cases wherein the severity of law ought to be remitted , upon the considerations of lessening circumstances , wherein equity may be allowed to blunt the edge of justice . it is answered , that this may be done by the justices , either upon a special commission for trying the merits of the pannels pretences , or alter that the justices have heard all that will be legally urged by either party , in a full tryal they may delay the execution , and make report to his majesty of the just state of the case . the council likewise sometimes inflict punishments without recognition , by way of citation , as in the case of giles thyre english-man , who being incarcerat as accessory to the death of mr. bedford in lieth , and as guilty of adultery with mistris hamiltoun , wife to the said bedford , thyre did upon a petition to the council , wherein he confest the adultery , but denyed the murther , ( which mistris hamiltoun had likewise at her death acquit him of ) obtain himself banished , without being put to the knowledge of an inquest , by whom he had certainly dyed , as guilty of notour adultery , . vi. the council name likewise assessors to the justices before the tryal , these the grecian lawyers call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and sometimes they discharge or continued yets . after sentences also , the council , upon application made to them , do either mitigat the punishment , not only where it is arbitrary , but even where it is statutory , as in the case of brown , whom they ordained only to pay . merks , though she was found guilty of nottour adultery , which is death by our law. sometimes they ordain no sentence to follow upon the verdict of an inquest , as in the case of purdy , who was condemned for usury , in so far as he had taken anualrent a month before the term of payment , upon his debtors voluntar offer ; and sometimes they ordain some of their own number to revise the processe and verdict ; which assessors do ranverse the whole process , and ordain it to be torn out of the criminal registers , as in the case of george grahame , who being pursued for theft ; it was alledged that the assize had found him guilty of recept , and so the verdict was found disconform to the libel , and consequently the whole process was null . yet when mr. william somervel was found guilty of murder , upon the deposition of one witnesse , the council refused to review the verdict , as unwarrantable ; for they found that they could not quarrel an assize , which condemned , seing assizers can only be quarrelled for error , when they assoilzie . and when his advocat cited to them the . act. par. . k. ia. the . whereby it is ordered , that where a party finds himself grieved by an assize , by partial malice , or ignorance , it shall be lawful to him to cite them before the council , and if the error be proved , the party shall be restored to the condition he was in before the sentence . to this it was answered , that this act speaks only of civil cases , and that by the council here , is meant the session : to which it was replyed , the rubrick and act are general , and treats of all persons wronged , & qui totum dicit nihil excipit : and the reason of the law is comprehensive of both . — from all this some do conclude , that if the justices erre in judging the relevancy , or if the assize find that proved which was not remitted to them , that in either of these cases the council may review the sentence , but that they cannot quarrel the sentence , upon the accompt that the verdict is not sufficiently warranted by the probation . sometimes also the justices are concluded by the decreet of the secret council , which is repeated to the assize as full probation ; so that the justices have only the execution of their sentence remitted to them : thus fleeming was convict before the council , of having uttered most disdainful speeches against the king , and therefore was remitted to the justices to be examplarly punished ; and upon production of their decreet ( which decreet is still exprest in the dittay ) he was hanged , . may , . vii . if the law cannot receive full execution and obedience , via ordinaria , by the criminal sentence , then the council upon production of letters of horning , following upon any criminal sentence , and duely execute and registrat , use to grant letters of intercomuning , whereby all his majesties liedges are prohibit to intercomune with any of the rebels so denounced ; which letters must be published at all the mercat-crosses of the shyrs , and jurisdictions within which such persons reside , whose intercomuning is suspected , and registrat there : and if need be , the council will likewise grant a commission for fire and sword , to such persons as they will name , against the persons who are disobedient in the criminal letters , as said is : and ordinarly this commissions of fire and sword are given to the persons interested , which occasions many great abuses . and these commissions are sometimes granted against parties who were never cited , but upon a naked complaint exhibit to the council , which is most irregular . the council do sometimes grant commission to bring in parties dead or alive , and that upon naked petitions , without any previous tryal , as they did against the laird of dinbaith , upon a petition , wherein it was represented , that he had run away with the publick money delivered to him by the shire , for paying their cesse and excise ; but this seems hard , and it were to execute a free subject before he be heard , or sentence pronounced against him : for these privat petitions may be most unwarrantably founded . viii . if any person keep out his house in garrison against his majesty , the council first uses to issue out letters against him , to deliver up his house , under pain of treason ; and they ordain a herauld to go and summond him for that effect , and if he refuse , they ordain him to be processed before the justice-general , and do immediatly , before any criminal sentence , grant a commission of fire and sword against him , as in the case of burgie , iune , . they used likewise of old to ordain noble-men and others , who could not be apprehended by captions , for civil debts , to deliver up their persons in any of his majesties castles , under the pain of treason ; which though , it be now indesuetude , yet it was most reasonable , and of excellent use , seing it is most absurd that any of his majesties liedges should contemn his laws , and that such poor persons as pay his majesties taxes and impositions , and who are obliedged to venture their lives for him , should not likewise have the assistance , as well as the protection of his laws . so that when the ordinar● remedies of caption , comprysing and others fail , these and other extraordinary remedies should be allowed , untill his majesties laws be obeyed , and the party so injured be fully and finally repaired . title vii . of the exchequers jurisdiction in criminals . the exchequer are only his majesties chamberlains , and have no jurisdiction in criminals ; and yet they fine , and confiscat such as transgresse pecunial statutes , or wrong his majesties rents ; quo casu , they do in effect judge crimes : for it is a crime to abstract customes , or cheat the publick ; and without this jurisdiction they could not manage his majesties rents ; so that this is jurisdictio emanat● , founded upon that rule , quando aliquid conceditur omnia concessa videntur sine quibus hoc explicari nequit , but is seems , de jure , they should not , even eo casu , cognosce : for by the . act , . parl. ia. . it is statute , that such as commit fraud , in transporting forbidden goods , shall be punished at justice airs , at least the justice also have powers . i remember that in iuly . the exchequre did fine a very intilligent person , for filling up a blank signature , subscribed by the king , and ordain'd to be filled up by the exchequer : which some thought irregular : for either he had committed a crime , & eo casu , he should have been remitted to the justices ; or if he had committed none , he could not have been fined . and albeit the exchequer , or any other court may fine , or imprison such as injure their jurisdiction , or may ordain dammage and interest to be repayed to the party injured , in any thing before their court ; yet no person having here been prejudged , and the injury having gone no fu●ther , then à simplex conatus , there could be no damnage and interest incurred . but it seems the exchequer are still judges , in criminibus repetundarum & de residuis the commissioners of the thesaury did , in iune . ordain two skippers in bruntistand , to be scourged at that mercat cross : because , when a customer came to enter a boat wherein unfree goods were were alledged to be , they did put off the boat from the rock where it lay , whereby the customer fell into the sea , and had almost drowned . title viii . of the jurisdiction of the lords of session , in crimnials . . the lords of session use to pass bills for criminal letters . . they advocat causes belonging to the iustice court. . they are iudges , in crimine falsi . . they have made statutes for regulating the iustice court. . whether they can review the sentences of the iustice court. . they suspend the sentences of the iustice court. . they are iudges to such as kill , or wound one another , during the dependence of a processe before the session . . they grant warrand to advocats , to compear for such as are pursued for treason . i. the lords of session have regularly no jurisdiction in criminals ; and yet they pass the bills whereupon all criminal summonds are rais'd : for all summonds in criminals must have a bill , which must pass under the hand of his majesties advocat , and for which he gets ten merks , and his servant one , therafter it is carried to the ordinar upon the bills , and is subscribed by him as a common bill . the reason , why thir bills are past by the lords , seems to be , because the justice-deputs were not ordinar residenters in town ( their sallaries not being sufficient for defraying that charge ) or else , because the clerk of the b●lls is a member and servant of the colledge of justice ; yet this was one of the grievances given in by the justices to the parliament , anno . and it is very unreasonable that those whose imployment it is to understand criminal cases , should not have the passing of these bills ; and many of the lords refuse to pass these bills , whereby the liedges are preju●ged . and it is most unreasonable , that the justices should not know what they are to judge ; especially this warrand being a part of the process , and so falls naturally under the cognition of these who are judges to it . and it is probable , that if any of the justices would pass their own bill , it would sustain . but now the justices use ordinarly to pass their own bills : because the justices are now of the session : but still other lords who are not justices , may pass such bills . but albeit these lores cannot judge crimes , yet they may and do punish injuries committed against any of their own members , by fining or confining . ii. they likewise advocat cause , from the inferiour courts to the justices : thus in anno . mackintosh , being pursued before the sheriff of inverness for theft-boot , they advocated the cause to the justices ; albeit it was alledged , that they could not be judges to the cognition . to which it was answered , that the consequence was ill inferted ; for the council did advocat , and could not cognosce ; and the lords of session did advocat breivs , for serving airs , and yet they were not judges themselves ; for both in this , and that case , an inquest was necessar . iii. they are likewise judges , in crimine falsi ; and their sentence is a sufficient warrand to the assize to condemn , without repeating the probation ; and when the inquest refuses to condemn upon that warrand , they are of new inclosed : as was done in binnies case ; and will be liable to an assize of error , if they assioilzie ; and their decreet bears the lords remit him to the justices , to be punished , tanquam falsarius , and to underly the law criminally , and ordain'd that ordinance to be insert in their books of sederunt . and that order is in the justice court , call'd an act of sederunt , the . of iuly . albeit the act of parliament , ia. . parl. . requires that all probation in criminals , should be led in presence of the assize ; yet the answer is , that the lords decreet is only probation here , and that is read in face of the assize . the lords likewise determine the punishment in falshood , and remit in their decreet , the party to the justice , to be only banisht , or scourged , or have his tongue boar'd , according to the quality of the guilt . and i have seen a gentle-man , whom i will not name , in anno . only imprisoned by the lords , for forging of a false bond of suspension , because he was ingenuous , and in necessity . and albeit this may seem irregular , yet seing the lords are only privy to the depositions , it is necessar they should have this allowance . i find it one of the rules set down by the doctors , that ubi cunque iudex principaliter cognoscendo reperit incidenter crimen esse comissum potest de crimine illo cognoscere , c. si adversus liber . l. pen. and the example of this rule is instanced , in charta falsa . l. pen. c. de probat . and upon improving an instrument , or writ , they have ordained , omnes testes instrumentarios , & falsi fabricatores , to be fal sari●s , and remitted them to the justices , the . of february . fern , innes and tarbat hang'd . but i remember not that they have in any other case cognosced upon crimes incidenter ; albeit the foresaid rule would give them an incident jurisdiction in all cases . iv. i find that the lords have made statutes to regulat the justices courts , for upon the . of iune . they declared , that all landed men should be esteemed pares curiae , and might sit upon noble-mens assizes , being pursued , tanquaritemerè jurantes sup . assisa : and the council uses to consult them in intricat cases , which are referred to them by the justices . and thus in anno . they were consulted , whether the west countrey rebels , might be forefaulted in their absence v. but whether they be judges competent to reduce , or review what is done by the justices , or in the justice court , in any case , is not yet decided ; but i have seen a reduction of a verdict , of an inquest , pronounced against mr. william somervel , whereby he was found guilty of usury . the reason of reduction was , that the inquest had erred , in calculo , and it was contended , that the lords were competent judges to review errors , in calculo , for that was in effect but a civil medium ; and , where no criminal conclusion was craved , nor could follow , they were judges , as in the case of reductions of retours , where the verdict may be reduce , as past upon ignorance . it was also urged , that , seeing the lords made statutes to regulate the justice courts , and past their bills , they might cognosce upon palpable errors , committed ignorantly by assizes ; and it were hard that the liedges should not be repon'd against errours of such ignorant persons , as assizers ordinarly were . vi. the lords of session do suspend the execution likewise , of all sentences in the justice courts ; but these suspentions , when once raised , are discust before the justices . they likewise , sometimes discuss these suspentions before the session . and thus an assithment modified by the justices , being exorbitant , the lords , by way of suspension , did lessen the sum . the reason of which decision was , because they found this case to be but of the nature of damnage and interest , and not to concern corporal punishment , the . of december . innes contra forbes . vii . by act of parliament . such as kill , or wound , to the effusion of blood , or any other way , one another , during the dependence of a criminal process ( which dependance is declared to continue , from the execution of the summonds , till the compleat execution of the decreet ) that the pursuer committing the said crime , shall for ever loss the cause , and the defender being guilty , is to be condemned in the plea. the pursuer , or defender , being convict before any competent judge in criminals , without any probation , except summar cognition , to be taken by conviction , or putting the committer to the horn , and denouncing him fugit●ve . by this act the committer losses his life-rent escheat immediatly , after denounciation , without being year and day at the horn ; and giving of counsel , is art and part in this crime . this act was to continue only for three years , and is prorogat for seven years , by the . act parl. . ia. . and is thereafter made perpertual , by the . act . parl. ia. . i have oft seen process intented upon this act before the lords . but it is necessar , albeit not observ'd , that cognition be first taken by the justices , or other criminal , and competent judge . yet without this , process was sustain'd by the lords , in prima instantià ; but this defence was not there alledg'd ; and process was sustain'd , albeit no effusion of blood followed , the . of iuly . . harper against hamiltoun ; where it was debated , whether the lords might summarly receive probation of it themselves , or remit the tryal to the justices ; for which doubt , i thought , there was no great ground : because , by the act foresaid , the justice is only judge , in prima instantia . and yet , in sleiches case , . it was found , that no previous tryal before the justices was necessar . the earle of niddisdale pursuing the tennents of duncow , february . they alledged absolvitur , because the earl had beat some of them , who were sent to execute a summonds at their instance against him , at least he had given order to beat them , or ratihabited the beating of them : to which it was answered , that . the beating some of them , could only found an exception to such as were beat ; and this the lords found relevant , though the summonds execu●●d was for a common cause : and so in effect , those who were beat , represented all the pursuers . . it was alledged , that order to beat them was only probable , scripto vel juramento : for , though a crime ordinarly , in a criminal court , be probable , pro ut de jure , yet here , quo ad civilem effectum , it could not be so proved : for else a noble-mans whole and ancient heritage , might oft-times be taken away by witnesses , since processes depending , might extend to a noble-mans whole estate . . it was alledged , that ratihabition , or any deed , ex post facto , did not infer the contravention of this act , which required explicit deeds , as beating , bleeding , &c. the lords , before answer to these two last alledgiances , ordained witnesses to be led , before answer , for clearing the nature of the act , and violence committed against them ; but in this case , as in all others , if the one party beat , the other being forced thereto by self-defence , the striker will not , eo casu , fall under the certification of the act of parliament , as was found the last of ianuary . iohn sliech against swintoun . in which case , the lords also found , that the certification of this act , did reach such as wounded one another , during the dependence of a pursuit , before an inferiour court ; though it was alledged , that this respect was only due to the lords of the session , and that the act should only reach , such as pursued actions before them , for , to lose the whole pley , was too great a punishment for an incident riot , before an inferiour court. i find likewise , that one weir having been pursued for slaughter , the . of iune . he alledged , he was absolved by a rolment of court at aberdene . to which it was replyed , that the king had given a warrand for a further tryal , which reply , founded upon his majesties warrand , was repelled , as contrary to law , and because it was but a privat rescript , not subscribed by the chancellour , nor past council : and in respect , the lords of session had given a warrand to proceed , notwithstanding of the kings privat warrand . it is also observable ( though i think it irregular ) that ludwharn having raised , in anno . a pursuit against momat , and others , for taking him out of his house , without a lawful warrand , gave in a bill to the lords , complaining that the duke of lennox , as leivtennent of the north , intended to repledge ; wheras that jurisdiction was only cumulative with the power of the justices : and that he had a letter from his majesty , ordaining the justices to proceed ; wherefore , he craved that the justices might be commanded to proceed , which petition was granted . viii . albeit regulariter , the parliament , or council grant warrands to advocats , to appear for such as are pannell'd before the justices : yet i find that the lords granted a warrand in balmerinochs case , to advocats to compear for him . and seing advocats are subject to the jurisdiction of the lords , it is most reasonable , that the application be made to them : for the same reason likewise , i find , that when any of the lords are appointed assessors , in criminal cases by the council , that they must have a warrand also from the lords , for sitting there , as in toshes case , . title ix . the admirals jurisdiction in criminals . . the iurisdiction of the admiral , extends to all crimes committed within flood-mark . . our admiral has execute pirats . . whether it be lawful for such as apprehend pirats , to execute them by their own authority , in the ocean , or when iudges refuse . . any nation may iudge pirats . . whether the iustices have a cumulative iurisdiction with the admiral . . the lord high a●miral and his deputs , are by the laws of all nations judges competent to the tryal of all crimes committed at sea , and by an unprinted statute with us , the admiral is competent in all controversies , actions and quarrels concerning crimes , faults , and trespasses upon sea , or so far as the same flows , or ebbs , vid. ship-laws corrected by balfour . tit . admiral , &c. cap. . our learned countrey-man , king in his treatise which i have , sayes , admirans habet merum imperium , mixium , & jurisdictionem simplicem ; potest enim non solum jus dicere , quod est jurisdictionis simplicis , exequi , imperare , judices dane , coercere ; quae sunt meri imperii , sed est in facinerosos animadvertere , quod est meri imperii , de omnibus igitur contraversiis marinis cognoscere potest amirans . marinas intelligo , quae negotiationis causa ineuntur , sive extra mare , sive in mari celebrantur delicta tamen ex necessitate intra mar is fluxum perpetrari debent . in scotland , the deans of gild were , as walwood observes tit . . ordinary judges of old betwixt mariner and merchand ; likeas , the water-bailiff betwixt mariner and mariner , and the justice-general was judge in criminals , but now no judge may meddle ( says he ) with the admiral causes , but only by way of assistance , and that by commission in difficult causes , as was found in that action , antoni de latour against christian marteis , . of november , . ii. in october . bernard gilermo , and some spanish , dutch , and french pirats , being apprehended , mr. iames robertson then admiral-deput , craved that the council would name assessors to him in the tryal of these forreigners , and they being named , a court of justiciary of the admirality ( for the registers of the admirality give it that title ) was kept at irwine , and these pirats indicted and hanged for piracies committed by them upon french , spanish , and dutch merchands , the parties injured are received witnesses , else these crims at sea could not be proved ; this tryal was by an assize , as before the justice . iii. by the martim law of england , it is lawful for any man who takes a pirat in the ocean , to hang him at the main-yard , because as it seems to me the ocean is within no mans jurisdiction , & so every man is left to his own natural liberty ; but this may prove very dangerous , for thus men may execute their revenge in place of justice , and may make innocent men pirats , for their private advantage ; and judicaturs are established to prevent such injuries ; and upon that pretext men may as well adjudge prizes taken upon the ocean : but yet if a ship be on her voyage to remot places , as the indies , so that the takers cannot keep the pirats till they come to a harbour , they may in that case execute them at sea , for that is a kind of self-defence ; and necessity makes law. but i think this necessity must be proved , vid. grot. de jur . belli . lib. . c. § . . and for this same reason , i differ from that author , who asserts , num . . that if the taker bring a pirat to a port , and the judge refuses , or delayes justice , so that the taker must lose , then the taker may execute justice himself ; for this were to make every man judge , not only of the pirat , but of the judge to whom application was made , and a privat person might as well pretend , that if a judge delayed , or denied justice against such , as we pretend did either rob or affront us , we might do justice upon them our selves , contrary to many laws , and particularly to l. nullus c. de judaeis . the same learned author , iuris maritimi , doth tell us , cap. . num . . that if a spaniard rob a frenchman on the high sea , both their princes being in amity amongst themselves , and with england , and that the ship is brought into the ports of enland , the french-man may proceed against the spaniard , to pun●sh him but if the ship be brought , intra prasidia of that prince by whose subject the same was taken , it may be doubted if he can proceed criminally ; but the taker must resort to the pirats own countrey , or where he carryed the ship. but in my opinion , a pirat may be judged by the judge of any nation , for he is an enemy to all nations , and though he be not deprehended committing a crime in the sea of that prince , or state , within which he is deprehended , and so seems not lyable to their jurisdiction , nec ratione loci delicti , nec originis , nec domicilii , yet he who is of no nation , is of all nations , as vagabonds are ; and he who is an equal enemy to all nations , commits a crime against every nation . iv. though the admirals criminal jurisdiction extends no further then crimes committed at sea , or within flood-mark , yet he is some times judge , ratione contingentiae & ob continentiam causae , as if a man rescue a pirat out of prison , though this crime be committed without flood-mark , yet the admiral is judge , because it hath dependance upon , and arises from the principal crime to which he is judge : and if the admiral begin to present pirats , or malefactors at sea , he may continue his pursuit , and apprehend them at land , and without his own jurisdiction , but he must in that case seek concurrence from the magistrat of the place , locen . cap. . num . . v. though the admiral has a criminal jurisdiction , yet some alledge that he has not this properly as admiral , but by vertue of a commission of justiciary contained in his gift ; and therefore when the admiral proceeds to thy crimes , the court is not called the court of admirality simply as in other cases , but the court of justiciary of the admirality . it is likewise doubted , whether the admiral hath the sole power of judging crimes committed at sea , or if the justices have a cumulative jurisdiction with them , and may preveen ; and that the justices have a cumulative jurisdiction is clear , for i find , that in anno . the justices did hang one iohn davidson , and iohn lowes english pirats , and in anno . . they hanged peter love , iohn cock and others . likewise , english pirats , which last were hanged , upon their own confessions emitted before the privy council , and all of them were hanged within flood-mark . i have likewise seen the justices advocat causes from the admiral court , but whether the admirals sentence in criminals can be reduced by the criminal court , as their sentences in civils can be reduced before the session , i will not determine . title x. the jurisdiction of the commissars in criminals . . the iurisdiction of church-men . . our commissars are iudges competent to verbal injuries . . how far they are iudges competent to improbations . i. church-men are discharged to sit judges in crimes , and the canons of the greek church give them ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a bloodless iurisdiction , upon which account , the law gives them , audientiam , sed non jurisdictionem , tit . c. de episcop . audient . with us these bishops abstain from votting in criminal processes brought in to the parliament , though there they sit as heritors , rather then as meer church-men , and so might pretend to a voice , upon that account . ii. the commissars are the bishops officials , and so have least criminal jurisdiction of all other courts ; but yet they are judges competent to verbal injuries , which are by the law accounted crimes : and the reason why they are the only judges competent to this crime , is , because that court , as being an ecclesiastick court , & curia christianitatis , considers these verbal injuries as scandals , and so they are allowed , not only to punish the same with pecuniary mulcts , but with church censures , such as to make the offender stand at the church doors to expiat a slander : though it was alledged , that the inflicting of such punishments , was only proper to kirk sessions , the . of february . but though they be the only judges competent to verbal injuries , where they are scandals ; yet in verbal injuries done to persons of quality , which are called in law , scandala magnatum , the council sustains it self judge competent ; the king being as the author , so the protector of all the priviledges of the peerage ; and in verbal injuries likewise done to magistrats , the council are also judges , magistrats representing the king , and being his instruments in the government . when verbal injuries are done by members of a court to one another , that court is likewise judge competent , all courts ( how inferiour soever ) having an innat power to chastise its own members , and to preserve the esteem due to it self ; and therefore , if any stranger who has a process , depending before any other court , as the session , sheriff , &c. do abuse contumeliously any third party , though no member : yet these respective courts may punish the same , if the injury be done in face of judgement , and if it be done to any inferiour judge extrajudicially , that judge if he be in the actual exercise of his office , he may likewise punish the same , except the offender be a member of the colledge of justice , for in that case the judge extrajudicially injured , must complain to the lords , but cannot imprison them summarly , because , if this were allowed , these members might be abstracted from serving the liedges , as an advocat when he is to plead a cause , or a clerk when he is to give out a decreet : and this last has been frequently so decided . though verbal injuries amounting to scandals , are only to be punished by the commissars , yet where they have nothing in them of scandal , but are rather reflections upon the honour of the party injured , as to call a gentle-man a puppy , or an ass ; it may be the privy council , and not the commissars are judges competent . the commissars are also judges competent to adultery , in so far as concerns divorce , vid. tit . adulterii . iii. how far the commissars , and inferiour judges , are judges competent to the improving of writs , and declaring them false , has been variously decided ; but they may be reduced to these conclusions , . no inferiour judge is competent , to try the falshood of writs , by the indirect manner of improbation , that is to say , by presumptions , for that way of tryal being in effect , nobilis officii , is only competent to the lords of the session . . commissars , and other inferiour judges , are only competent to improbations , even where the direct manner is extant , if improbation be propon'd by way of exception , or reply ; for then the tryal of falshood falls in necessarily as a part of the process , and without this were allowed to these inferiour judges , they could proceed in no case ; for if a pursuit were intented before them , upon a bond , they behoved to sist , if the bond were alledged to be false ; or to stop , if the defender should offer to improve the execution of the summonds : but yet they are not competent by way of action , even where the direct manner is extant : as was decided the last of november . williamson contra cushney . . if the commissar , or other inferiour judge , pronounce once a decreet , he cannot thereafter reduce his own decreet , as having proceeded upon false executions ; though the executions were given by his own officer , since they are only judges competent to such forgeries , incidenter : but after sentence , they are functi ; as was found the . of ianuary . cowan , contra the commissar of glasgows phiscal , and according to these conclusions , the late instructions given to the commissars , are to be interpreted . title xi . the jurisdiction of regalities in criminals . . the origine of regalities . . they are accounted inferiour iudicaturs . . why the heritor of a regality , is called a lord of regality . . whether his majesty may erect regalities within the bounds of heritable iurisdictions . . they cannot repledge in case of treason , nor from iustice airs . . the difference betwixt ecclesiastick and laick regalities , and from whom they may repledge . . the form of a repledgiation . . regalities must have a burgh of regality , and to what that burgh is tyed . . the effects of a lord of regalities power . i. by the feudal law ( to which regalities owe their origine ) alia erant regalia , alia erant feuda regalem dignitatem habentia , which is the same difference in our law , betwixt regalia , and regalities . regalia , are such priviledges as immediatly belong to the crown , and do not originally belong to , nor can be communicat by any else ; such as to coin money , to open mines of silver , gold , &c. but regalities are fews , which are granted by the king to a subject , they have as large a jurisdiction , as the sheriffs have in civils , or the justices in criminals ; the habilis modus , of granting which rights , is by signator , wherupon a charter follows , which passes the great seal . ii. regalities are accounted inferiour judicaturs , cap , . quon . attach . by which it is statute , that no inferiour judge shall judge the pleys of the crown : and regalities are expresly numbered amongst inferiour courts , act , . parl. . k. ia. . by which it is likewise statute , that he who strikes any person , in presence of the justices , shall incurr the pain of death ; but he who strikes any before the sheriffs , lords of regality , or other inferiour judge , shall only pay a hundred pounds ; but though they be accounted inferiour judges , when compared with the justices , or commissioners of justiciary , yet they have greater power in the way of their procedor , and in the proportioning of their fines , then sheriffs , or other inferiour judges have ; for they may fine in a hundreth pounds , though sheriffs and others cannot , as was found the of ianuary . stewart against bogle . and generally they have the same power , and the same allowance with the justices , except when an express law makes a difference betwixt them . the . act , . parl. k. ia. . appoints that no regalities should be granted , without deliverance of parliament ; which nullity , of old , could not have been received , opt exceptionis , if it was clad with possession , hadd . . and they were still subject to revocation by the king , if they were otherwise granted , as may be seen by the revocation , . and all preceeding . iii. he in whose favours the regality is granted , is still called the lord of regality , though he be otherwise but a barron ; the reason of which , i take to be , because by the feudal law , tria erant tantum feuda regalem dignitatem habentia , & quibus inerat jurisdictio regalis , viz , ducatus , marchionatus , & comitatus , and by the same reason it is , that no lands can be comprehended under this jurisdiction by our law , but such as belong to him , in whose favours that jurisdiction was granted , either in property , or superiority ; and therefore it was found , that his majesties palaces , ( though situated in burghs of regality , ) were in law no part of the regality , but off the royalty , and that such as lived in these palaces , could not be cited at the head burgh of the regality , but at the head burgh of the shire , the . of ianuary . l. carnegie against the lord cranburn . iv. whether his majesty may erect regalities within the bounds of heritable sheriff-ships , is controverted with us ; and if he may , certainly he may thereby evacuat the office of sheriff-ships , though bought with real money , which is hard . and yet the exchequer past a signator of drumlanrigs , albeit niddisdale , within the bounds of which sheriff-ship it is erected , be an heritable sheriff-ship , and the like decision is related by hop . m. h. t. and the reason seems to be , that his majesty by granting an heritable sheriff-ship , alters not its nature ; and the nature of a sheriff-ship , is , that his majesty is not thereby divested of jurisdiction , and the sheriff appointed , being but his majesties deput , his creation cannot hinder his majesty to erect a new jurisdiction within its bounds , as he may erect a burgh-royal therein , or a justiciary , &c. when lands are dispon'd in conjunctsee , the heritor retains still the office of regality , hop . hoc . tit . v. albeit it be regularly true , that lords of regality have the same jurisdiction with his majesties justices : yet this rule suffers two exceptions , . in the case of treason , to which the justices are only judges competent , and that not only where the treason libelled , amounts to the crime of perduellion ; but even in statutory treasons , such as firing of coal-heughs , theft in landed men , &c. and some lawyers are likewise of opinion , that these crimes which are declared to be the four points of the crown , viz. robbery , murder , fire-raising , and ravishing of women , should not be liable to their jurisdiction ; which opinion is founded upon the . cap. leg . malcolm . . by which it is statute , that all robbers , forces of women , murderers of men , and burners of houses , shall answer before the kings justiciar ; and are therefore called pleys of the crown . and by the . cap. stat. alex. . it is ordained , that in all the courts of bishops , abbots , and the lords whatsomever , these four pleys shall be reserved from their court , to the kings own court , because they belong to the crown : which is confirmed by the . cap. quon . attach . likeas skeen de verb. signif . upon the word placitum , is clear , that these four pleys of the crown , belong only to the crowns jurisdiction , or justice-general , in the same manner with treason he there likewise observes , that they are called placita , from the french word placitare , which signifies litigare , as mollineus , observes , sup. cur . parl. parti . primo cap. sexto : and yet de facto , lords of regality do ordinarly judge upon these crimes without any commission . and i find that the . of iuly , brown is assoilzied from a pursuit of fire-raising , because he had been formerly pursued before the marquess of hamiltoun , and assoilzied . actions of deforcement also , in my opinion , being intented before the iustices , cannot be repledged , for the kings messenger being then deforced , it is not fit that his majesty should be oblieged to seek justice from inferiour judges , where his officers of state cannot attend to pursue , and cap. . l. . reg. maj. it is said , that ad solam curiam regis pertinet placitum de namo vetito , and this the justices sustain'd , the . of november . in the case of william crighton , though the debate was not allow'd to be booked . the . exception is , that no bailie of regality can repledge from justice airs , act . parl. . ia. . which was likewise statute formerly , by the . act , ia. . parl. . but in this case , the bailie of regality may sit with the justice-general , yet seing the forsaid act of the . parl. king. ia. allowes only no repledgiation to be from justice airs , holden by the justice-general , it may be doubted , if when justices airs are holden by the justice deputs , or others , by vertue of particular commissions , there may not be repledgiation allowed in that case ; but i think there cannot , seing the act of parl. ia. . is general : and skeen remarks this as a priviledge of the justice air , qua talis . vi. regalities are divided with us , in ecclesiastick , and laick ; ecclesiastick regalities were such , as were erected in favours of bishops , abbots , &c. and there are but very few abbacies in scotland which were not erected in regalities ; and when these were annexed to the crown , by the foresaid . act , parl. . k. ia. . it is declared , that the bailie , or stewart of the regality shall have the same power he had before to repledge , from the sheriff , or justice-general , in case he have prevented the justice-general , by apprehending , or citing the person , before he be apprehended , or cited by the justice ; but , if the justice have prevented , as said is , then the bailie , or stewart of the regality , shall not have power to repledge , but he may sit with the justice-general , if he pleases : so that in effect , by this act , there is difference betwixt ecclesiastick and laick regalities ; that in laick regalities , there is a right of repledging still , as said is ; wheras ecclesiastick regalities have not this priviledge , except they preveen the justices ; but otherwise , the bailie of regality may only sit with them : which difference seems to ●e acknowledged in the debate , at his majesties advocats instance , against several fore-stallers , upon the . of iune . and thus mr. iohn prestoun , then depute to the regality of musselburgh , was not allowed to repledge , but to sit with the justices , in the tryal of some witches , upon the . of iuly . the reason of this difference was , that the regalities having been only granted , in favours of the religious houses which were supprest . the regalities became extinguisht with them , and his majesty having , ex gratia , only renewed their offices to the lords of erection , he thought that they were abundantly gratified , by this new concession , without allowing them the power to exclude his own justices , in case of prevention ; and this was also a favour to the liedges , in not troubling them with two courts . nor were the lords of regality much prejudged ; for by this same act , they retain the whole right to the escheats , and fines , even of these who are condemned by the justices . and therefore the lords found , that the lord of regality had right to the escheats of such as were condemned by the justices , or justices of peace , the . of iuly . elizabeth sutherland contra conradge : so that this holds not only where the justices sit with the lord of regality : but likewise where the justices condemn without the others concourse ; and yet it may be urged , that since the lord of regality serves not in that case , he ought not to get these casualities , which are the reward due to these who do justice , and the lord of regality has himself only to blame , who did not either preveen , or repledge . bailies of regalities may likewise repledge from the kings lievtenent , as was found the . of august . and as is clear by the foresaid act of annexation : and likewise from any commissioners appointed by the council , as was found in may . and from the justices of peace , in riots , and bloods : as was found by the lords of session , iuly . though these causes being of small moment , and requiring summar and unexpensive cognitions , seem to require easier , and less solemn tryals in the procedor , then repledgiations will allow . and yet by c. . de appell . i find that licebat in remimina appellare ; nor can the parties injured complain , since they might have made their application to the lord of regality : nor should their errour prejudge his jurisdiction . vii . the manner of repledgiation from any court , is , that either the party himself , who hath the power of repledging , or some other having a procurator from him , compears and produces his charter of erection ; from the production of the seasing is not sufficient , seing that is but assertio notarii : yet sometimes without production of the charter , repledgiation will be sustain'd : because it is notour that the repledger hath a regality ; as in the duke of lennox case , . as also , repledgiation will be sustain'd , upon production of the criminal register , bearing , that it was formerly sustain'd to the same persons , may . arducaple against the commissioners of the high-lands : yet it may be doubted , whether the production of a lord of regalities retour , will be sufficient to instruct that he hath a regality : and it appears it should , since a retour is a sentence , and so is a sufficient instruction , till it be reduced . he who offers to repledge , must find caution of culrach to do justice , within year and day , upon the person whom he repledges ; and if the judge to whom he is repledged , doth not justice within year and day , he tines his court ( as we call it ) for year and day ; and the culrach ( for so the cautioner is called ) who hath , upon his becoming cautioner , borrowed the defender , is in an unlaw , and the judge from whom he was borrowed , or repledged , may proceed to do justice , as formerly : skeen , de verb. sig . the pannel likewise , who is repledged , must find caution for his own appearance before the lord of regality , to underly the law , for the crimes laid to his charge , the . of may . patrick m ckalla , against the regality of lennox . no person can be repledged , except he be present at the court , from which he is desired to be repledged : for a party , who is absent , cannot find caution to sist himself before the court , to which he is repledged ; as was found in the case of armstrong , who being pursued for murdering some customers , was desired to be repledged by the earl of annandale , anno . nor can a person be repledged after defences are proponed for him : for this being , recusatio judicis , it must be , ante omnia , propon'd , dum res est integra . viii . when regalities are erected , there is a burgh of regality expressed therein ; and though that burgh may choose bailies , yet the bailie of regality hath still a cumulative jurisdiction with those bailies of the burgh of regality , in that same way that other superiours retain still a cumulative jurisdiction with their regality ; as was found the . of ianuary . betwixt the bailie of killimure , and the burgh thereof . this burgh is oblig'd to maintain a sufficient prison , not only for criminals , but for debitors , by the . act , . parl. ia. . and all captions bear the letters , to be direct to bailies of regalities , &c. and yet by that act , these burghs seem only to be oblig'd to intertain prisoners , where there are provost , bailies , and common-good , nota , that these words of that act , by the sheriff to stewarts , and bailies of regalities , are ill printed ; for the word to should be or , the lords likewise decided thus against the bailies of regalities , the . of iuly . hamiltoun contra callender . in this burgh all courts must be holden , yet defenders are oblidg'd to compear at any other place within the regality , to which they were expresly cited : as had , observes in a case , the . of march . or , if the lord of regality was in use to hold his court else where , for a considerable time , without interruption , the vassals , or any other defender , is oblidg'd to appear thereat , though it be not the place design'd , in the charter of erection , as had. observes , december . and if the party , who is desired to be repledged , dwelt within the regality , the time of the committing of the crime , the repledgiation will be sustain'd , though at the time of his being accused , he be removed without the regality : as was found , the . of november . in the case of one weems , who was desired to be repledged , to the regality of methwen . lords of regality are oblidged to hold justice-courts twice a year , . parl. k. ia. . act. . and if they be negligent in causing rest and stolen goods be restored , the sheriff may fulfil their place , act . parl. . ia. . and when erections fall into the kings hand , the inhabitants thereof may be justified , id est , judged by the justices , act . par. . k. i. but this act can only take place , till a stewart , or bailie be appointed . for regulariter , the kings own stewarts of regalities may repledge from the justices . a lord of regality cannot fit himself in his own court , but must administer by a bailie , who is sometimes admitted by a simple commission , during his life ; or otherwise he is admitted to be heritable bailie : which right passes by infestment ; but this bailie is in lands belonging to the king , and is properly call'd the stewart of the regality : though sometimes the kings deputs in regalities , are likewise call'd bailies , as in the . act. . parl. k i. . ix . lords of regality cannot cite witnesses , without their own jurisdiction , but they must have letters of supplement for that office ; though generally they may proceed in the same way that the justice-general doth ; but they may exact caution to enter as law-will , from the defenders , after sentence is given , as was found the . of october . betwixt mr. iohn prestoun , and mr. iohn pape , which seems to be a greater priviledge then the justices have , who cannot presently exact caution of any person , for paying an unlaw , but can only raise letters of horning upon the act of adjournal . the lords of regalities have right to the single escheat of rebels , living within their jurisdiction ; as also to the escheats of all persons , condemned for crimes , committed by the inhabitants within their jurisdiction , albeit condemned by the justices : from which general rule , hope in his lesser practiques , excepts only the case of treason ; but it may be doubted , whether exception may not be likewise made of all other pleys of the crown , seeing the lord of regality is no more judge competent to these , then he is to treason . i was once consulted , whether a lord of regality might place a gallows upon any part of his vassals land , lying within his regality ? and at first it seem'd that he might : for , unaquaeque gleba servit : and what was lawful in some part , was , where there is no restriction lawful in any part : but if there was a former place fix'd upon by custome , i think the lord of regality could not alter the same . . if there were any apparent design of affronting the vassal , i believe he could not use this priviledge ; as if he did offer to place the gallows , at his vassals gate , or at his garden-door , or any such places : for , where the law sayes , that quilibet potest uti jure suo , it adds , modo hoc non faciat principaliter in aemulationem alterius . . even in other places , there is some moderamon & decorum , to be observed : and i doubt not , but upon application to the council , they would appoint some persons to choose an indifferent place : for even in these servitudes , ubi unaquequae gleba servit ; hoc accipiendum est ●iviliter ( sayes the law ) & non judaice . for if a man should grant me a servitude of a way to my house through any part of his ground , yet i could not compel him to throw down his garden walls , or to suffer me to go thorrow his corns , if there were , or might be another passage found , though it were not so near . title xii . the jurisdiction of sheriffs in criminals . . the origine of this office , and how it is conveyed in scotland . . he is the chief preserver of the peace , and so many convocat the liedges , apprehend sayers of masse , false coyners , &c. . he is not iudge to the four pleys of the crown . . the way of procedure before the sheriffs . . whether he may judge where no privat party complains ? . he should attend the iustice aires . . how he is to be punished if he transgress in his office ? alluredus , in the league made with guntherus king of denmark , divided england , in satrapias , centurias , & decurias , and called satrapiam a shire , that is to say , a section or division of land , from the word shire , which signifies to cut , so that a sherifdom is a jurisdiction within the bounds of a particular limited countrey : it is called in our latine stile , vice comitatus ; and though most of the shires in scotland be erected in sherifdomes by particular acts of parliament , yet by an unprinted act in anno . it is declared that his majesty may erect , unite , or divide sherifdoms without consent of parliament : and though his majesty erect a burgh-royal , or barrony within the sherifdome , yet they still continue to be under the jurisdiction of the sheriff , and they have a cumulative jurisdiction with him ; but not privative of him . sheriffs in scotland , are either during life , and then the office passes by a signatour , and passes the great seal , or otherwise it is conferred as an heretable right , quo casu , though it be transmitted in the same way and manner with other heretable rights , yet because it is merum jus incorporeum , it requires no seasing , but albeit all these heretable offices were upon good reasons discharged by the act . parl. k. i. . seing industria personae respicitur in judice ; and albeit . k. i. . and king charles the first , did design to buy in all the heretable sherifships , and bought in many , yet there are many of them to this day injoyed by noble-men and others . ii. the sheriffs of scotland , have a civil and criminal jurisdiction , but the last of these , is that which we are only to consider as peculiar to this treatise . the sheriff is in effect the supreme justice of peace , to whom is mainly entrusted by the law , the securing of the quiet , and tranquility of that part of the kingdom which is subject to his jurisdiction ; and therefore though no other person be allowed to ride with gatherings of the liedges , yet the sheriffs is , nor can he be pursued for a convocation upon that account ; seing he may convocat at his pleasure for repressing of tumults , and upon many other accounts , as was found in february betwixt the earl of seaforth , and the laird of ballingown , for it doth belong to his office , to discharge all convocations of the liedges , and if they refuse , he should continue his court , and advertise the king. k. ia. . parl. . act. . albeit , in civilibus , neither the sheriff , nor barrons , can hold courts in feriat , or close , time of vacance . yet in criminals he may hold courts during the time of vacance quia periculum est in mora , as is observed by haddingtoun , the . ianuary , . and sheriffs has not power to exact caution from a malefactor to underly the law , for he cannot proceed except either the defender be cited , or , deprehensus inflagranti crimine , . mart. . the sheriff is judge competent to the crime of witch-craft , quen mary her . parl. act. . albeit de praxi , none used to judge witch-craft , but the justices , or such as have a particular commission from the council . they should apprehend the sayers and hearers of masse , act . pa. . k. i. . and the strikers of false coyn , i. . pa. . cap. . but they are not allowed by the law expresly to proceed in either of these cases ; from which it may be argued that they are not judges competent thereto , for else the law had expresly allowed them the same , ( & inclusio unius est exclusio alterius : ) they should apprehend , punish and banish sorners , i. . p. . cap. . egyptians , i. . p. . cap. . idle-men , ia. . p. . cap. . shooters with fire-works . q. mary . par. . cap. . fore-stallers , i. . p. . cap. . transporters of neat and sheep , and other cattel , ia. . par. . cap. . ia. , par. . cap. . the destroyers of planting , k. i. . p. . cap. . iii. sheriffs may at any time condemn for blood-weits , but the penalty cannot exceed fifty pounds . the sheriff nor no other inferiour judge , can judge the four pleys of the crown , viz. open robbery , fire raising , and ravishing of women , and murder . yet of old , sheriffs might sit upon slaughter , if the committers were attactht within fourty days thereafter , cap. . quon . attach . and act . par. . i. . and if he be taken red hand , he should be execute by the sheriff within that sun , ibid. and yet by the act , parl. . k. i. . three suns are allowed conform to the old laws ; and if the committer of the slaughter flee , the sheriff shall acquaint the next sheriff , and so from one judge to another , until the committer be apprehended , and when he is taken , he is to be sent back to that sheriff where the crime was committed , where justice is to be done upon him , and if he be found guilty of fore-thought fellony , he shall dye ; therefore act . par. . ia. . ratified act . . par. k. ia. . with this addition , that if any heretable sheriff omit his duty in prosecuting of this crime , after this manner , he shall lose his heretable office for three years , but if he have only that office for the time , he shall lose it during all that time . from which acts , it may be concluded , that the sheriffs is not only judge competent to slaughter , but to murder , and both to the one and to the other at any time , if he has either apprehended the person , or has ex in continenti , done diligence for apprehending him , but the sheriff is not judge competent to murder , though committed within his jurisdiction , except in either of these cases . iv. the way of procedure before the sheriff , is by an assize , and the procurator-fiskal is pursuer in place of his majesties advocat ; yet sometimes the sheriff , or barron may condemn upon the pannels confession , without an assize , as dur. observes , penult ianuary . but if the party be present , the sheriff cannot condemn him , as holden , pro confesso , though he refuse to depon ; but co casu he must put him to the knowledge of an assize , as was found . iuly . dickson contra halyday . and albeit a blood proven by confession , may be punished by an unlaw of fifty pounds ; yet when blood is punished upon contumacious refusal to swear , the unlaw cannot exceed ten pounds , . february . v. the sheriff may pursue , when any person compears and insists with him in the pursuite , but if the crime be pursued by way of inditement without the concurrence of any party , the justice general is only judge competent thereto : skeen verbo sheriff , but that rule is too general , and may admit of this distinction , viz. that either the thief is taken with fang , and then the sheriff may proceed to judge him , though no privat pursuer insist against him . nor needs there three fangs for justifying that pursuit , albeit sheriffs now never proceed , but where three fangs are proved . or else no fang is found , & eo casu , the sheriff cannot judge the thief , except there be a pursuite intended at the instance of a privat party . vi. the sheriff should assist in all justice aires holden by the justice general , or the chamberlain , and should produce the verifications of all the summonds which is made to the justice air , and should make prov●sions at the justice air , and his clerks , which should be allowed in the first end of his accompts to the exchequer , and he should arrest such persons as the crowner cannot arrest , and should those an assize upon the last day of the justice air , anent the execution of his office . ia. . parl. . cap. . and if he be found culpable , the justice general may remove him from his office till the next parliament , and put another in his place , to officiat in the interim . st. rob. bruce , ex lib. sconen . related by skeen , ibid. but much of this is antiquated by custome , for the thesaurer sends along with the justice air , a person specially commissionated by them , who defrayes the charges of the justices and justice clerk. vii . if the sheriff fail in his duty , he was punished of old by the losse of his office during his life , and imprisonment during his majesties pleasure , st. david cap. . & . but now for negligence in his office , he tines the same for year and day , and is punishable in his person , and goods , at his majesties pleasure , ia. . par. . cap. . and yet the lord yester , having suffered two thieves negligently to escape , and his heretable office of sheriffship , being upon that accompt taken from him by king iames the fifth , that decreet was reduced , for it was found too small to infer the loss of an heretable office , stat. sessionis , pag. . which is observed by hop . likewise in his larger practiques . if the sheriff absolutly refuse to do justice , he loses likewise his office , and is punishable at his majesties pleasure , but if he do injustice , he loses his office , if it be heretable , for three years ; but if it be not heretable , he loses it during the time he was to enjoy it formerly , and in both cases he is punishable arbitrary in his person , and is obliedged to refound the damnage and interest sustained by the parties laes'd , k. i. . p. . cap. . but if he bribe , or give partial counsel , he forefaults his fame , honour and dignity , and is likewise punishable in his person and goods , k. i. . par. . cap. . if the case be difficult , the lords of session will somet●mes advocat the cause from the sheriff to the justices , as in the case of theft-boot , pursued by connadge , the sheriff deput of invernesse against makintosh , and sometimes the council will discharge the sheriff to proceed without advocating the cause , if they find either the case to be difficult , or the sheriff and his deputs to be suspected . title xiii . the criminal jurisdiction of barrons . . in what cases barrons may judge . . the clerk of that court needs not be a nottar . . whether he may punish theft , or fire-raising . i. a barron , in our law , is generally understood to be one who is infest in any lands , though not erected in a barrony ; in which sense he has no jurisdiction , but only that he can unlaw his own tennent for blood committed upon his own ground , as was found the penult of ianuary . iohnstoun against the laird of west-nisbit : but a barron properly , is he who is infest with power of pit and gallows , fossa & furca . a barron judges crimes in the same manner , as they are judged by the sheriff , and may like him proceed in time of vacance , to judge these crimes , to which he is otherwise competent . but it has been controverted whether barrons have been judges competent to processes , for penal statutes ; since the penalty there was to be applyed to the kings fisk , and so should be judged in his own court : but the lords found the . of february . that they were judges competent to penal statutes , by the constant custome of this nation . albeit in civil cases , barrons may appoint bailies ; yet balfour cap. . observes , that in criminalibus , no person below the degree of a barron , may sit upon blood , nam potestas gladii est meri imperii quae nullo modo delegari potest , except there be an express power given by the soveraign for that effect , as in the case of justices , and sheriffs , who have power to deput ; and that power of deputation were unnecessar , if it were otherwise competent . ii. the clerks of all other courts must be notars , but the clerk of a barron court needs not be a nottar ; and yet the decreet of a barron for an unlaw will be sustain'd , founded upon a confession , though the confession be not subscribed , as is observed by durie , the penult of ianuary . but by an act of sederunt , it is ordain'd , that no sentence of any inferiour court , for above an hundreth pounds , shall be sustain'd , except it be otherwise warranted , then by the consent of the clerk. albeit by the . act parl. . k. ia. . the barrons precepts ( for summonds in that court is so called ) should be execute , as summonds before the lords , and coppies should be left , and they indorsed upon ; yet the . of iuly . hay , against airth , it was found , that executions by a barrons officer are valid , though not given in writ , and that the same are probable by witnesses . iii. a barron having power , may judge of theft , if the thief be taken in the fang , quon . attach . cap. . where it is statuted , that baro qui libertatem habet de sock , & sack , toll . & theam possunt judicare furem sasitum de aliquo furto manifesto : sicut haud haebband , & back beirand . de praxi : barrons do not punish slaughter ; yet it may be urg'd , that they have power to do so : because , . the power of pit and gallows would import , the power of judging life and death . . by the . cap. quon attach . omnes barrones qui habent furcam & fossam de latrocinio , de hominis occissione habeant furcam , id est curiam , as the marginal note bears : and by the . cap. leg. mal. . it is statute , that malefactors , who hold of barrons , may be condemned after the same manner , that other malefactors are , except in the four pleys of the crown , in which , barrons have no power ; from which it may be very clearly inferred , that quo ad , other crimes they have , nam exceptio firmat regulam in non exceptis . . by the . act , parl. . i. . it is statute , if a man be slain in the barrony , if the barron be infest with such freedom , he may proceed as the sheriff doth . and albeit hope in his larger practiques , observes , that these words of the act ( if he be infest with such freedom ) may receive various interpretations ; yet i see no interpretation they can properly receive , except this , that these words are meant , if he have the jurisdiction proper and competent to a barron , which is pit and gallows , nam verba generabia interpretanda sunt secundum subjectam materiam . albeit wilful fire-raising be one of the pleys of the crown , yet a barron may cognosce upon , and punish the raisers of fire rashly , within husband towns in the barrony , i. . parl. . cap. . the words of which statutes , are , if fire happen within husband towns of barronies , we leave them to be punished by their lords , in like manner , as bailiffs in towns do within burgh ; in which act , by the word , lords , are meant barrons , for they are in several acts of parliament , called lords of their own land , or barrony . a barron may unlaw for absence , for ten pounds , but not above , and for blood , he may unlaw for fifty pounds , but not above . vitle xiv . of justices of peace . our justices of peace , were called irenarchae , which signifies in the greek , the keeper of the peace , irenarchae erant qui ad provinciarum tutelam quietis ac pacis per singula territoria faciunt stare concordiam , dicebantur etiam latrunculatores , sen latronum expulsores . their office was to apprehend rebels and thieves , whom they could only examine , and send to the president of the province , but could not judge them themselves ; their office is more fully described , lib. . c. tit . . but to speak properly , latrunculatores , were our constables called by the greek lawyers , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 justices of peace , and constables were once fully settled amongst us by k. i. . but their office having fallen in desuetude , it was revived by . act , . parl. . sess. k. ch. the . by this act they are allowed to meet four times in the year , and to adjudge of servants fees , and of mending the high wayes , they have power to punish the cutters and destroyers of planting , green wood , slayers of red and black fishes , makers of moor-burn , keepers of crooves , wilful beggars , egyptians and their receptors , drunkards , prophaners of the sabbath , as to all which his majesty promises to give them ample commissions : and to the end , their power may not prejudge any other court formerly erected , it is appointed by that act , that fifteen dayes shall expire after the committing of the fact , for which the committer is to be conveened . which interval is given to the judge competent to do diligence , and if he omit the same during that time , then the justices may judge the same , and one justice has power to bind the party complained upon , to the peace , under such pecunial sums as he shall think fit , and that either at the instance of a complainer , who shall give his oath that he dreads harm or the justice himself may exact the sum , though none complain . and if any person being charged to make his appearance before the justice of peace shall refuse , it he be a landed man , whose rent exceeds a thousand merks , or ten chalders of victual , then he shall inform any of his majesties privy council , or if he be a meaner person , he may cause bring him by force before himself . if the sheriff , or bailiff condemn any person in blood-weit , or any other pain , but not proportionally to the offence ; then the justices shall inform the privy council , that they may take order therewith ; but if there be no satisfaction made by the sheriff or bailiff to the party , the justices may modify a reasonable satisfaction . if the sheriff or bailiff do by collusion , clear the delinquent of an assize , the party once cleared is not to be further questioned , but the judges are to be punished by the privy council . the justices of peace are declared judges competent to all ryots , and breaking of peace , if the committee●s be under the degree of noblemen , prelats councellours , and senators of the colledge of justice , who may refer the summonds to the parties oath , if he be personally summoned , and thereupon hold him as confest , but if the summonds be not personally execute , then the defender is to be summoned of new at his dwelling house , and these two citations at his dwelling house shall be equivalent to one that is personal : if the committers be above the foresaid quality , then the justices , though they cannot judge them , may for preventing of ryots , command them to find caution for keeping of the peace , and to compear before the privy council , and though they compear not , yet whatever breach they commit in the interim , shall be repute as great a contravention , as if they had found caution : at the end of every quarter session , the justices of peace , are to send to the clerk of the council , a catalogue of all such persons , as they either have committed , or have under surety , with a short abreviat of the cause thereof ( which is that which the civil law in the former title cals transmittere cum elogio ) to the end that the council may determin betwixt and the quarter session what shall be done with them . title xv. the jurisdiction of the justices , and of the several imployments of the officers of that court. . who were iudges to crimes in greece , and at rome . . the jurisdiction of the iustice court with us . . the power of the iustice-general , and iustice-deputs . . the office of iustice-clerk . . what actions are peculiar to the iustice-court . . the macers , and crowners of the iustice-court . i. all nations have committed the cognition of crimes , to the wisest of their judges , because our lives are our greatest concern , and if the judge erre there , his errour can seldom be repair'd . the athenians had the areopage for their criminal court , which was the most famous court , then in the world , of whom the grecians us'd to say , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . and they judged homicide , in a particular place , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , it was very numerous , and the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , institute by solon , for judging crimes , were likewise . at rome , praefectus urbis , judged all the crimes that were committed within the town , & intra centesimum lapidem , and the proconsuls , and presidents , judged crimes in the countrey . but the praefectus praetorio , praefectus augustalis , comes orientis , & vicarius praefecti praetorio , had also a criminal jurisdiction . the justice court with us , had for its members , the justice-general , the justice-clerk , the justice-deputs , the clerk-depute , the dempster , the officer , and the macers . ii. the justice-general is constitute by a gift under the great seal , either ad vitam , or by a temporary commission , but still under the great seal ; his sallary of old , was five pounds for every day of the justice air , leg . malcol . cap. . num . . . but now it is arbitrary , and the ordinary sallary , by his gift , is two hundreth pound sterling , to be uplifted by himself , out of the fines of courts , and if he cannot attain to payment that way , out of the exchequer . the justice-court of old , was the only soveraign court of the nation , and had then a great part of that jurisdiction , which the session hath now ; for they were judges to recognitions , brieves of mortancestrie , dissasine , purpresture , and districtions for debts , reg. maj. lib. . cap . num . . & lib. . cap. . quon . att . cap. . & . lib. . cap. . and after the constitution of the session , they remain'd still judges to perambulations , and brieves were directed in latine , for tryal thereof , and the reason hereof seems to be , because as the civil law observes , ad armacurritur in sinibus regundis , and the fittest person for compeseing such tumults , was the justice-general ; but now the she●●ffs , and lords of session cognosce such cases : and i having caused raise an advocation from the sheriff of tividale , at the instance of some iedburgh men , to the justice-general , ex hoc capite , the lords would not sustain the advocation ; but remitted the case back to the sheriff , whom they found also competent , so that such brievs may yet be directed to the justice general , though he have not a privative jurisdiction therein . iii. i find the justice-general , call'd the chief justice in all the registers , annis . . and . and the principal justiciar , anno . the justice-deputs were not limitted to any definit number , but usually they were two , and have each a pension from his majesty , when they were constitute , by a gift from him , which passes the privy seal only , and these were still call'd his majesties justice-deputs , and are not deputs to the justice-general ; for else they could not sit in judgement with him as they do , and in effect they have an equal power , and voice with him : but when he makes a deput , he should not sit with him , nam delegatus non simul concurrit . and i find mr. alexander colvil , call'd in his gift , general-justice-deput , which is done to denotat the universality of the jurisdiction ; and to distinguish them from justices in that part , such as are these noble-men and others , who have the power of justiciary over their own lands . and in binnies case , the lords having remitted him to be tryed by the justice-general and his deputs ; the justice-deputs declar'd , that they accepted only of the remit , as meaning they were his majesties justice-deputs : and when his majesty directs any letter to them , he directs it to our trusty and well beloved cozen and councellour , to our trusty and well beloved , our justice-general , and justice-deputs . of old , i find there were eight justice-deputs . the justice-deputs had formerly the priviledge of being present at the council , which was very fit , because many criminal cases comes in before them , and they retain still the priviledge of being present at parliaments : they were call'd attornati justiciarii , quon . attach . c. . & assis . r. david . c. nullus . by the . article of the regulation , . session . par. ch. . the office of justice-deputs is supprest , and five of the lords of session are adjoined to the justice-general , and justice-clerk , four of the number being a quorum , except at justice courts , because then the justices are divided , and two may be a quorum ; their present habit is scarlet , adorned with white ; and this i find the kings of old , had vestem purpuream sed albi habens non nihil admixtam . perion . de magistr . rom. pag. . iv. the justice-clerk has his place from his majesty by a gift , under the great seal , with power to appoint deputs , for whom he shall be answerable , and is call'd in his gift , clericus nostrae justiciariae ; but whether the justice-clerk be a judge , or a clerk only , has been doubted ; and that he is a judge , appears not only from our inviolable present custome , wherein he sits and presides , when the justice-general is not present , and takes precedency from the other justice-deputs ; but likewise by the . act . parl. i. . expences are ordained to be modified , to the party cleansed , by the ●ustice , justice-clerk , and their deputs , sed ita est , that modification of expences , is a judicial sentence , at least , is actus jurisdictionis & jurisdictio tantum explica●i potest per judicem & non peractuarium vel referendarium . as to the reason of the name of justice-clerk , it is received by tradition , that because clerici , or church-men of old could not sit in criminal courts , seing the law gives them , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a bloodless jurisdiction , therefore they were allow'd to nominat a clerk , who might represent them ; who was therefore called , non clericus justiciarii , the clerk of the justice court , but justiciarius clericus , yet this seems a groundless conjecture , for in no municipal law , could church-men sit upon blood , and therefore could not deput , & qui facit per alium , facit per se , and what necessity was there , for their having an interest in the criminal jurisdiction , and to evidence that he was clerk of the court : the clerk who officiats , hath his place by deputation from him , and is called deput to my lord justice-clerk ; nor could he deput clerks , except he were principal clerk. but i believe this invasion , has been made by the justice-clerk , upon that court , after he was created an officer of state : but to solve this doubt , my lord rentoun , at his admission , is found , by act of the secret council , to be a member , and one of the judges of the justice court , and to have a vote there , the . of december . and now he sits in the justice-generals chair , when he is absent . the justice court have a seal , which they append to publick acts , and is kept by the justice-cle●k-deput . this deput is admitted by the justice clerk , by way of commission , giving him power to be clerk to all cou●ts , holden by his majesties justice-general , or deput , or any having particular commissions , either at edinburgh , or else where : and therefore no justice court , either in the border , or elsewhere , is lawful ; except it be served either by the justice-clerk-deput , or any having commission from him . it seems , that of old , the writers to the signet , did use to write criminal letters , without receiving caution ; but that is discharged by the . act . par. ia. . and now , though writers to the signet may subscribe the letters , yet the justice-clerk-deput can only write the deliverance upon the bill , and receive caution . and therefore he writes upon the bill , soverty is found ; and subscribes the famine . h●s receiving caution is likewise warranted , by the . act . parl. ia. . v. the justices are only judges competent to these crimes , which are call'd placita coronae , the pleys of the crown , which are four with us , wilful fire raising , ravishing of women , murther , and robbery , or reif , l. malcol . . cap. . and the cognition of these belongs not to burghs leg . burg . c. . nor to no other inferiour courts , quon . attach . c. . leguntur . st. alex. c. . faemina efforciata arsione rapina & murdrum . molineus in stil. cur . paris part . . c. . observes , that in france , three crimes belong to the cognition of the high justices , wilful fire , ravishing of women , and murder ; nor can any other judge proceed to judge these crimes , except they be particularly warranted by a gift from his majesty , to that effect , skeen verb. murder . vi. the justice court has its macers , in which they are not stented to a particular number ; and though of old amongst the romans , a pursuer might be his privat authority and force , draw the defender before the judge , in jus rapere , in jus trahi , which they borrowed from the grecians , as they did most of their law , for demosthenes , their great lawyer , tells us , in orat , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. yet ordinarly , even the grecians had their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or apparitors ( as the romans call'd them ) who were the same with our macers , qui volentes vocabant recusantes urgebant . the mace used by these with us in the justice court , is an iron rod , which was the symbol of power , as appears by the verse . ps. the coroner was an officer , who took inquisition of murders , in corona populi , the laird of ednam was the heretable coroner in scotland ; but this office is absolet now , except at justice airs , where the coroner yet presents all malefactors , and takes them to , and from prison . title xvi . the jurisdiction of the justices over souldiers , and of militiary crimes . when are the iustices-iudges to souldiers . . a debate concerning free quarter . . haddo's case . . sometimes commissions are granted for trying souldiers . . how deserters are punished . . who were iudges competent to souldiers amongst the romans . i. albeit souldiers should be tryed by a court martial , for crimes committed by them , in a military capacity , as deserting their colours , resist●ng their officers , &c. yet when they comm●t other crimes , they are lyable to a t●yal before the criminal court. for as voet. observes , delicta militum sunt vel communia , vel propria , lib. . de remilit . and thus french , and two other soul●iers under morgan in the english garison of leith , were put to the knowledge of an inquest , for killing a burgesse of edinburgh , albeit morgan , offered to repledge them , ianuary . and yet in anno . the justices would not proceed against some gentlemen , for the slaughter , because they were both souldiers , but it seems the crime should have been tryed before the justices , seing the crime , and not the persons determin the jurisdictions , and their crimes was only a combat , which is no specifick crime to souldiers : and this is conform to a decision , novemb. . where captain bruce having been pursued for killing captain hamiltoun , did petition the council , shewing them that this crime was committed in flanders , and that he was asso●lzied therefra by a council of war , upon which probation the council commanded the justices to desist . but sir william bellenden being challenged before the council , for many ryots and crimes committed when he was in the west , they would not remit him to a council of war , albeit that declinator was proponed . august . and militia souldiers were judged by the justices , for murder committed by them in the execution of other officers commands . the . of february , . ii. the most considerable military questions , which i remember in all the adjournal books : are first , that which was debated , . decemb. . the case wherof was , some west countrey men had formed themselves in an army , and were declared traitors by the council , and being thereafter beat at pentland hills , captain arnot , major mackulloch , and others , were taken , by some of his majesties inferior officers , upon quarter , but being pannelled before the justices , as traitors , it was alledged for them , that they could not be put to the knowledge of an inquest before the justices , because they having been modelled in an army , and taken in the field fighting as souldiers , they behoved to be judged by the military law , and by that law , such as get quarter in the field , are by that quarter secured therin for their lives , and cannot be hereafter qu●rrelled . to which it was replyed , that there can be no quarter , but where there is a bellum justum , and it is not the number , nor form of the army , but the cause that makes bellum justum , and publick insurrections of subjects against their prince , are rather sedition , then bellum ; and these insurrections , being treason , none can remit treason but the king , and therefore quarter could not be equivalent to a remission , but all the effect of quarter in this case , is to secure these who get the same from present death . to which it was duplyed , that all who got quarter from any who are authorized to be souldiers , are by that quarter against that authority from whom these souldiers derive their power , and these who get the quarter , are not to dispute , whether these souldiers had a sufficient power to give quarter , or whether bellum be justum or injustum , for that were in effect to destroy quarter in all cases , and to make all such as take up armes , to be desperat and irreclaimable ; and the power of giving of quarter is naturally inherent in all souldiers , as such : and as the council , without expresse remission from the king , upon submission might have secured their lives , so might souldiers by quarter , for they have as much power in the field , as the others at the council table . . lawyers are very clear that quarter should be kept , though given to subjects , who are rebels , grotius lib. . cap. . where after he hath fully treated that question , de fide servanda , concludes , that sides data etiam persidis & rebellibus subditis est servanda . and this hath been observed in the civil wars , in holland and france , and by his majesty , and his father at home , during the late troubles . . quar●er is advantagious to the king , and so should be kept , for these who were taken , might have killed his majesties general or officers , and by giving quarter to his enemies , he redeemed his servants ; and if the only effect of quarter , were to be reserved to a publick tryal , none would accept quarter . notwithstanding of which reply , the defence was repelled , and the pannels condemned , and thereafter execute . the second question was , that which was debated in haddo's case , . march . at which time that loyal gentleman haddo , being pursued , for killing mr. iames stalker , servitor to the lord frazer , he alledged that the said mr. iames was killed in the open field , in a conflict betwixt the convenanters , and ante-covenanters : all which acts of ostility were remitted by the pacification . to which , 〈◊〉 was replyed , that the pacification did only secure against acts of hostility , which were done in furore belli ; but this was a privat murder ; for the said mr. iames having been taken a prisoner , haddo did come up to him , and asked whose servant he was , and hearing that he was servant to the lord frazer , he said , your masters man is the person that i am seeking , and thereupon ordered to kill him , which was accordingly done ; by which it clearly appears , that this was a privat murder done in cold blood , and upon premeditat malice , and mr. iames stalker , being a prisoner , any who killed him ; was liable for his murder , ex jure militari , and the pacification could no more defend the committer , then if he had gone into a prison and killed a prisoner , or if he had committed a rapt upon a woman ; likeas murderers are expresly excepted from the pacification . . haddo was no general person , and so could not give order for his execution ; and so the killing of the defunct was not warrantable by the law of armes . to which , it was duplyed , that the pacification did secure against all deeds whatsoever done upon the field , by persons engaged in either party , without debating , whether the deed was lawfully or unlawfully done , and the occasion , and not the manner of killing , is to be considered . and as to the manner , it is answered , that mr. iames had never got any quarter , and so was not a prisoner in war ; and therefore might have been killed by any engaged in the quarrel , whether general person , or other . but the truth is , the said haddo did command that party which was equivalent to his being a general person ; and albeit the pacification did expresly except murders , yet that behoved only to be interpret of such murders , as had no contingency with the troubles , nor were occasioned by them : this debate was not decided , but was remitted to the parliament ; and that worthy gentle-man executed , for rising in arms against the estates of parliament . iii. i find , that there was a commission granted by the parliament , in anno . to two bailies of edinburgh , to sit , and hold justice courts , upon such souldiers , as were runaways , and that upon this commission , iames french was condemned by them , for running away from his collours , contrary to the act of parliament . and was hanged accordingly . from which , these observations may be made , . that the justices are not judges competent to crimes , that are meerly military . . that we have no standing law for executing runaways , beside the martial law ; nor was there any law founded upon this inditement , except the act of parliament . which is now abrogat . . it is observeable , that one mr. alexander henderson , as procurator fiscal , and not his majesties advocat , was here pursuer . from all which , it seems somewhat strange , that this process should have been insert in the adjournal books . iv. but albeit deserters were here punisht with death ; yet regulariter milites gregarij , or listed souldiers , are only punishable in time of peace , with degredation , and in time of war , with death , because the hazard is then greater , l. . § . . ff . de remilit . and by that law they may be killed by any man , lib. . cod. quando liciat . unic . &c. but this arbitrary killing is not now in use , as voet de jur . militat . very well observes , if superiour officers leave their charges , they commit treason , l. . ff . ad leg . jul . majest . vid. tit . treason . v. constantine , having extinguisht the office of praefectus praetorio , who was the supream judge in all military cases , the magistri militum succeeded , and were sole judges of all crimes committed by souldiers , both in civil , and in military cases ; and if souldiers had offended , the civil magistrat might have secured , but he was obledged to remit them , cum elogio , to their own officers , l. . ff . de custod . reor . vid. tit . c. de remilit . title xvii . advocations of criminal causes . . advocations defined . . no advocation from the iustices . . how advocations are raised from inferiour courts , and the forms thereto relating . . the ordinary reasons of advocations examined . . whether the iustices are proper iudges to their own competency . i. advocation is the away calling of an intended cause , or pursuit , from an inferiour , incompetent judicatory , to a higher , and more competent ; and is the same thing with us , that recusatio judicis , was with the romans , and is by the doctors , call'd advocatio , or evocatio , which is by them defined to be , litis pendentis coram inferiore ad superiorem absque provocatione facta translatio gail . lib. . obs . , num . . and is founded upon cap. ut nostrum de appell , & l. jud . solvitur ff . de jud . ii. their is no advocation raised of pursuits , intented before the justices , but if ther be any design of stopping a pursuit depending before them , there useth to be a petition given in to the lords of secret council , who , if they find the desire of the petition just , will ordain the justices to stop all further procedor , or will remit the inquiry to any other court , as they did in a pursuit , intented at the instance of the earl of caithness , against some vassals of the earl of sutherland , which they stopt , as to the earl himself , and ordained his vassals to be pursued before his own regality court : sometimes also , they ordain assessors to be justices , so that there is never a cause formally advocat , from before the justices ; albeit those courses , and repledgiations be equivalent to advocations . iii. advocations may be rais'd from inferiour criminal judges , by the lords of session , as in the case of theft-boot , before the sheriff of inverness , and advocat by the lords , because of the intricacy of the case ; albeit , it was alledged there , that the lords were not judges competent , in such advocations , because they could not be judges to the crimes pursued . to which it was answered , that though they could not be judges themselves , yet they might remit the pursuit , to these who were competent ; even as brieves raised , for serving a person air , may be advocat to the lords , who may remit the case to another inquest : but durhie observes , the . of ianuary . that kincaid of waristoun , craving that the process against him , for slaughter , might be advocat by the lords , to the justices , because of the ignorance of the barron bailie , or else that they would grant assessors ; the lords continued the diet , till application should be made to the council , but if the council would not interpose , then they should do justice therein , by remitting the same to the justices , or otherwise . but advocations in criminal cases , are ordinarly raised by the privy council , who have the most natural power in such cases . advocations are raised upon bills , and the letters pass the signet of the session , if the bills be past , by the lords of session ; or of the council , if the bill be past by the lords of council . this advocation must be execute by a messenger , and a full copy must be given of the letters , as in other summonds ; for in effect , an advocation is a summonds , and the diets in advocations are peremptor , as in all other criminal pursuits : neither is the advocation given up to see , as in other criminal pursuits , at the day of compearance ; and therefore a full coppy should be given , to the end , the defender may be ready to answer . the pursuer of the action must be cited , and the judge from whom the action is to be advocat , must be also cited , to the effect , he may defend his own jurisdiction ; and if both these be not cited , the advocation will not be sustain'd . when the day of compearance comes , if the advocation be raised before the session , it is called before the session , and if the reasons of advocation be found relevant , the cause is remitted to the justices ; but , if that advocation be raised before the council , it is called before the justices , and they are judges to the relevancy of the reasons , and both pursuer , and defender , must prove all that they alledge instantly . the advocation of a criminal pursuit , doth contain the reasons upon which it is founded , as in civil advocations ; but though in civilibus , the raiser of the advocation will be allowed to add a reason , though it be not libelled , which is called an eiked reason ; yet that is not allowed , in criminalibus , because all must be proved , instanter , and the defender is not able to prove his answer instantly , if he know not what is the reason , which he must answer , whereas , in civilibus , he will get a term to prove his answer , to the eiked reason . iv. the ordinary reasons of advocation , are , . consanguinity , or affin●ty within degrees defendant , viz. cousins german , or nearer , for whatever is a sufficient reason to cast a witnesse , should ( in my opinion ) much more be sufficient to decline a judge , since there may be penury of witnesses , so that the witness challenged may be necessary ; whereas , if a judge be suspect , he may be supplied by another deput , or a superiour judge ; and a judge may by himself , ruine a cause , which one witnesse cannot do ; and though we have no exp●esse law for this , yet the lords encline ordinarly to sustain this , and particularly in the moneth of decem. . ross contra collodine , where a decreet was turned in a libel , because , pronounced by a nephew , albeit it was there alledged , that by the . act , . parl. i. . a brother , father , and son , were only to be declined as ju●ges : for that statute relates only to the lords of session , who , because of their great eminency , and trust , are not to be as easily suspected as inferiour judges . it may be doubted , whether the justices , or any of them , may be declined , as within degrees defendant ; for though they must now be senators of the colledge of justice , yet they sit not there as such , nor are the justice-general , or justice-clerk alwayes of that number ; but yet i think , that since the justice court is a supream judicatory , in its own kind , and that this respect that is put upon them , is , because of their eminency , and presum'd integrity , that therefore they being the same persons , ought to have the same priviledges , and the justice-general , and justice-clerks being superior in order to the lords of session , who are justiciars , ought at least to have as great trust : but though the admiral be a supream judge also , yet it may be doubted , if this statute should be extended to him ; because men of meaner parts may officiat there . it may be also doubted , whether this declinator against fathers , brothers , and sons , should extend to the degrees of affinity , as well as those of consanguinity , so that a father , or brother in law may be declined , and though the lords lately would not decline one of their number , though brother in law to the pursuer ; yet it may be argued , that albeit acts of parliament must be strictly interpreted , yet where there is a parity of reason , and the words may in propriety admit of the extension , there the extention is to be allowed ; but so it is , that here a brother in law , is to be suspected , and a brother in law , is in propriety of speech , a brother : likeas , since witnesses may be cast upon the suspition of affinity ; why may not judges ? especially seing in the statute . against dispositions made by bankrupts : and in the opinion of lawyers , degrees of affinity , and consanguinity are still equiparat , and so wise are we in this point , that a pursuite , at the instance of a procurator-fiskal , was advocat upon this statute , because the procurator-fiskal , was brother to the judge , though he was only pursuing ratione officii , and had no interest himself , and expresly renounced all interest in the pursuite , . ianuary , . whether this statute is to be extended to unlawful relations ; so that a bastards brother , &c. may be declined , vide , my observations upon the statute . another reason of advocation like to this , is that one of the members of the court is pursuer ; as for instance , the pursuite is at the instance of one of two sheriff deputs , before his own colleague : habet quippe societas jus quoddam fraternitatis in se l. verum ff . praesocio vid. c. insinuante de offic . deleg . & cap. postr . de appel . and that none should judge where the colleagues pursue ; but that the pursuit should be carryed away to another judicature , is appointed by a statute in france , anno . . but we have no such statute , and one colleague with us , may be witnesse for another , and why not then judge . a third reason of advocation is , that the judge is suspect , as if he had given partial counsel , or if he has repelled a just defence , or as being severe , above what the law allows . . that he is incompetent , the case pursued being only proper to be tryed by the justices , as being one of the four pleys of the crown , viz. treason , murder , fire-raising , and ravishing of women ; but sometimes , though the first libel have inferred treason , as in the case of peddies , ianuary , . yet if the pursuer will restrict his action to damnage , and interest ; but will desert the dyet as to the criminal pursuit it may be sustain'd . . that the case is very intricat , as in a pursuit of theft-boot , which was advocat from the sheriff-deput of invernesse , eo ex capite . members of the colledge of justice also pretend , that they cannot be pursued before any other court , because this would draw them from attending the session , but the act . pa. . q. m. whereon this is founded , seems only to hold in removings , so that no action concerning removings , should be advocat , but in these cases , viz. deadly fead , where the judge ordinary is party , or the defender a member of the session and yet de praxi , that part of the statute is extended to all advocations but they cannot advocat from the justice court. if the cause be advocated , the pursuer of the first libel , which is advocated , must find caution de novo , to insist in the pursuit , else the justices will desert the dyet , which caution is necessary , because the judicature before which the caution was found , is altered , and neither the pursuer , nor his cautioner , are bound to insist before any other court . the defender likewise of the first cause , and who raised . the advocation , is obliedged to renew his caution , that he will underly the law , else the justices will imprison him . the taiser of the advocation must intimat to the pursuer of the principal cause , that he has raised an advocation , to the end , that the said pursuer may be ready to insist at the day , to which the advocation is raised , and when the procurator-fiskal , is the pursuer before the court from which the cause is advocated , the raiser of the advocation should intimat to his majesties advocat , to the end he may be ready to insist , for his majesties advocat is in the justice-court , what the procurator fiskal is in inferiour courts : the office of both , being to pursue vindictam publicam . v. the old custome was ( as some alledge ) that the lords of session judged all the advocations , which were raised in criminal causes , from inferiour judges , even to the justice court and very judicious lawyers do yet hold , that the justices cannot judge , whether they be competent judges in causes advocated from inferiour criminal courts , but that the lords of session should cognosce , whether the cause should be advocat ; and if they sustain the reason of advocation , that they should remit the cause to be tryed by the justices , or remit the tryal to the court from which it was advocated ; if the reason of advocation be not relevant : for they think it unreasonable , that the justices should be judges of their own competency ; but since the justices are supream and soverain judges , as well as the lords of session , and since the justices are now many , and are lords of the session also , it seems reasonable , that they should be judges to their own competency , especially since these reasons of advocation do very frequently did upon subtilties of the criminal law , and cannot be well judged , but by such as understand that law exactly : as for instance , i have seen an advocation raised of a libel in the case of treason , from before a lord of regalities court , upon this reason , viz. that the ground of the accusation was for drowning a coal-heugh , which was treason in our law , to the which crime of treason , none but the justices were judges competent . in which advocation these points were necessarily debated , . whether lords of regality were judges to treason . . whether though they were judges competent to treason , founded upon the common law , yet if they were judges to statutory treason . . whether though burning a coal-heugh was treason by statute , yet if drowning of it fell under that statute : all which po●nts were indagationis criminalis , and these who could judge such points , might judge any criminal case : likeas , both by the old and new stile of advocations , raised either by the council , or criminal court , the letters bear , that the reasons are to be seen , and considered by the justices , and immediatly upon the advocation , caution is found in the books of adjournal , and to answer before the justices , and the justices have been in constant possession of judging such reasons . and whereas it may be alledged , that though the lords of session are not judges to crimes ; yet the case of competency , in the matter of jurisdiction is meerly civil , and so it would seem proper to be judged by the lords , especially since it is nor just , that the justices should be judges in their own cause . to which it may be answered , that though this case be civil , yet it has so necessary a contingency with what is criminal , as i have observed , that they ought not to be divided , since the lords of session are judges competent to advocations , wherein their own ●urisdiction is controverted ; why should this be denyed to the justices , who are a part of themselves , and such supream judges , are above suspition , especially since they can gain nothing by their jurisdiction . title xviii . of inquisition . . the nature of inquisition , and when it is competent . . the king and party may pursue separatly . . citations , super inquirendis , when competent . i. when a crime is committed , the council , or the justices , did of old , take a previous inquisition of it , by examining witnesses , and taking such other information , as they thought fit : and these depositions , and ex●minations , are called informationes by the doctors ; but though they may examine witnesses , before the intenting of a criminal pursuit : yet after it is once intented , the justices found the . of ianuary . that they could not examine witnesses ; for the inquisition ends by the intenting of the pursuit , & ubi incipit accusatio desinit inquisitio . the doctors are very profuse on this subject , but i shall only excerpt from them , what is most suitable to our forms and practice ; they define inquisition to be an information of the crime , taken by the judges own authority , & ex officio : and they divide it in a general inquisition , which is taken of the crime in general , without taking notice of any particular informer , or defender . and a special inquisition which is taken against a particular person , of whose guilt they are informed . by the civil law , no judge could proceed against any privat person , without an accuser ; for inquisition was by that law , an extraordinar remedy , and no recourse could be had to an extraordinar remedy , till accusation , which was the ordinary remedy , were first tryed . but by the canon law , inquisition was declared to be an ordinary remedy : and all the doctors conclude , that generally , a judge may now , by the practice of nations inquire , ex officio , in all crimes , farin . de inquisit . quest . . num . . which is consonant to our law ; by which the council , or justices , may inquire into all crimes , without waiting for an accuser , which is done with us , without citation of the party , or other formalities ; but nothing can follow , till after information be taken , an enditement , or summonds be raised , which is followed according to the ordinar rules . but yet , i think , that the judge should not enquire , or take any previous tryal , even in our law , where an accuser offers to insist , except he has just reason to fear collusion , for non recurrendum est ad extraordinarium remedium dum locus est ordinario : and albeit inquisition be declared by the doctors , to be an ordinary remedy , yet it is only declared so , to the effect , that a judge may inquire , without any accuser , and that the inquisition so taken , be not ipso jure null ; but naturally , every man should have liberty to pursue the privat wrong done to himself , which may be prejudged , either by the want of information , or zeal of the judge ordinar , and sometimes by collusion ; and thus i have seen many decreets , of inferiour courts , wherein the defender was by collusion , fin'd at the procurator-fiskals instance , reduced by the lords , and not sustain'd by the council ; when it was alledged , that the party wronged appeared , and offered to pursue , but was not admitted . and albeit , because of the wrong which is done to the publick , a judge may likewise inquire : yet he who is principally wrong'd , should be allowed to be chief in the prosecution . and therefore , albeit the council may in publick crimes , where the peace of the countrey is chiefly concerned , take precognition of it , and stop accusations , raised before the justices , at a privat parties instance , as they did in the pursuit , at the instance of the stranaver men , against the earl of caithness . and others for fire raising , and depredations , in august . . yet they refuse to stop accusations , and will not grant precognitions , in privat murders , or such like crimes , where privat persons are principally wronged , except the rigour of law require some abatement . ii. it appears also , that pursuits at his majesties instance , are only subsidiary , ia. . par. . cap. . by which act it is clear , that crimes may be punished at the kings majesties instance , if no privat follower appears , and ia. . parl , . cap. . where it is statute , that the thesaurer , and advocat , may pursue privat crimes , although the parties be silent , or would agree . from which acts , two things may be concluded , . that of old , it was doubted if the king could pursue privat crimes , without an accuser . . that pursuits at his majesties instance , for privat crimes , are yet only subsidiary , and allowable , if parties be silent , or collude . which distinction , doth in my oppinion , solve that great debate amongst the doctors , utrum accusatio cessare facit inquisitionem . nota , that albeit by the said act , it is statute , that the thesaurer , and advocat , may pursue without concourse of the party , yet de practicae , the pursuit is only raised at the advocats instance , and so the particle ( and ) seems to be disjunctive , as and is very oft in the civil law. and it is probable , that a pursuit at the thesaurers instance , would be sustain'd , without concourse of his majesties advocat , if the advocat should refuse his concourse iii. the doctors conclude , that a judge cannot enquire summarly , & necesse est ut , vel indicia , vel delator , vel diffamatio àperiant viam inquisitioni , for else every judge might diffame the best and most innocent men , at their pleasure , so that if a judge have not some rise for his inquiry , i really believe he is punishable in our law , for putting a person to inquisition for a crime , & sindicandus est ex eo capite , but the malice of the judge must be very clearly proved in that case . of old , judges did appoint delators , whom might inform , denunciatores dicebantur ; but of late , this employment doth belong to the fisk , & ejus sindicis . and by our law , to his majesties advocat , in the justice court , and to the fiskal , in inferiour courts ; and they may pursue , or inform in inquisitions , sine paena calumniae quia cessat in iis suspicio calumniae ex eo quod denunciant ex officio . by the . act . par , ia. . charges super inquirendis , are discharged , but it is a mistake to think , that by that act , the king , or other judges , cannot examine men , without a formal process : for the design of that act , is only to discharge the denouncing men rebels upon such charges , without previous tryal ; and yet if the chief officers of state , or at least four of them concurr . it would seem that by that act , even such charges are yet lawful . and where the king , or magistrat has previous information of crimes latent , it were against the interest of the common-wealth , that they should not be allowed to clear themselves of these , by particular interrogators . title xix . of accusations , and accusers . . the difference betwixt an accusation by way of summonds , and an inditement . . who may accuse , by our law. . a minor cannot pursue without the consent of his tutors and curators . . in what cases a woman may pursue . . whether a person excommunicated , or at the horn , may pursue . . infamous persons cannot pursue , and who are such . . whether moe crimes may be pursued at once . . the pursuer must find caution and be punished , if he be calumnious . . the pursuer must aliment . i. after inquisition is taken ( which is not necessary , but is still arbitrary with us ) the party is either imprisoned , and then he is proceeded against by way of inditment , or he is still at liberty , and then he is proceeded against by a formal summonds inditement comes from the french , enditer , deferre nomen alicujus , and by the law of england , it differs from accusation , in that an inditement must be alwayes at the kings instance , and is but a bill , and the preferrer of the bill is no way tyed to the proof of it , upon any penalty , except there be conspiracy , vid. blunt. dict . angl. verb. enditement . but an enditement with us , is a scedule containing the accusation given to the defender , so called , as skeen sayes , from the french word dict tu , what sayest thou , for alter the inditement is read , the judge asks the pannel what he can answer to it ; and it differs only from a libelled summonds in that it begins thus , a. b. ye are indited and accused , that albeit by the laws , &c. yet , ye , &c. or thus , forasmeikle , as by such particular acts of parliament , &c. murder , &c. is prohibit , and the pain declared to , &c. yet you , a. b. did upon the . day , at least moneth , &c. and it is writ only by the justice clerk , without a bill , and passes not the signet , nor needs it be executed with the solemnities requisite in libelled summonds by messengers in ordinary crimes , and heraulds in treason , but may be given by the clerks servant ; as was found in a pursuit of treason , pursued by way of indictment against mackulloch , gordoun , and others , . decemb. . it needs not likewise these , inducias deliberatorias , allowed to such as are at liberty , and are pursued by a libelled summonds , but a day or two is sufficient , and sometimes they may be pursued without any time to be allowed , for this procedure is in effect the same with that inquisition specially treated of by the civilians . there is likewise this difference betwixt an inditement , and an accusation , that an inditement properly is a libel raised at the kings instance , and not at the instance of any privat person ; for in accusations , or libels raised at the instance of privat persons as pursuers , there must be a formal libelled summonds under the signet , so cap. . r. m. lib. . num . . & . it is said , that theft and murder by inditement belongs to the justice , because there the king or his advocat pursues , but where a certain accuser appears , a pursuite upon these crimes may be intented before the sheriff , and skeen upon that chapter , and likewise upon the . cap. num . . david stat. . does observe , that all criminal accusations are either by an inditement , or by a certain accuser ; and from this difference ariseth that other difference , that crimen per indictamentum , is only pursuable before the justices , which is clear both by the forecited places , and the whole tract of the books of r. m. but this last difference is now absolet , for of late before the sheriff , or at inferiour courts , malefactors may be pursued either by a libelled summonds , at the instance of any particular accuser , or at the instance of the procurator fiskal , by way of indictment ; which practique is most reasonable , for it were against the interest of the common-wealth , that sheriffs , and inferiour judges , whose great duty , and chief imployment it is , to advert to crimes , should not have liberty to pursue , without the concurse of an accuser . it is indeed the interest of the common-wealth , ne crimina maneant impunita . and therefore in crimes which immediatly concern the welfare of the state ; such as treason , sedition , &c. every man may be an accuser , but it is likewise the advantage of every privat person , that it shall not be lawful to every malicious enemy , upon the pretence of a publick good , to trouble and vex such against whom they carry malice , upon a pretence of a criminal pursuit , and therefore according to the the common law , in privatis delictis non admittebatur ad accus●ndum , nisi qui suam aut suorum injuriam insequebatur : and farinac . states suorum injuriam , to extend , ad quartum gradum , and it seems to be extended with us within degrees defendant , and that every person may not in our law , pursue any privat crime , appears from the former chapter . iii. a minor may not by the civil law accuse , without the consent of his tutors and curators . and where it is said , l. . r. m. c. . that a major being of lawful age , he may accuse , it insinuats , that minors regularly cannot accuse . and suitable to this , the justices refused to grant processe , at the instance of william umphray , against iohn meldrum , because the said william was minor , and had no legal concurse , . of iuly . which is founded upon most convincing reason , for minors may by ill governed youth , and imprudence , either pursuing injustly such as are most innocent , or else by managing unwisely the criminal pursuite , if it were competent to them , they might prejudge both themselves and the common-wealth , in suffering the defender to be cleansed by a verdict . after which absolvitour the defender could not be again brought to a tryal , nor would the minor be restored against the sentence , and yet a minor may crave at the barr , that the justices would allow him curato●s , ad lites , which desire , the justices will grant , . iuly . spence contrae bannatine . iv. a woman according to the civil law , could not accuse in no case , except where she was revenging the injury done to her self , husband , or relations ; and in the former chapter it is said , that a woman can accuse none of fellony , except in some particular cases , which appears to be by the . chap. num . . the murder of her own husband , quia una caro fuerunt vir & uxir , and n. . it is generally ordained , that a woman may be allowed to pursue any injury done to her own body . from which we may generally conclude , that she may pursue , suam sed non suorum injuriam , wrongs done to her self , but not wrongs done to her relations . v. whether a person at the horn , or excommunicat , may pursue , appears to be debateable , for the one opinion it may be alledged , that it is for the advantage of the common-wealth , that crimes remain not unpunished . . civil rebellion , or excommunication , non tollunt jura naturae , amongst the chief whereof , lawyers esteem the liberty of pursuing the wrongs done to relations , and much more the wrongs done to ones self , in his person or good name . . such as are rebels for civil pursuites , non possunt impunae offendi , and therefore it appears most reasonable , that they should not be debarred from pursuing wrongs done them ; for if a person at the horn , could not pursue the wrongs done him , then any person might injure him at pleasure , seing the fear of pursuit , and the punishment depending thereupon , is that which ordinarly overaws the pursuer ; but on the other hand , it may be alledged that , . by the . cap. stat. will. these who contemn the statutes of the church , shall not be admitted to accuse . . it is a rule in law , that frustra legem implorat qui coptra legem peccat . . a person at the horn , is by the english law , alwayes and oftentimes in our law , said to be outlawed , and to be outlawed , imports the losing all the priviledges of law ; and in our law , they are said , non habere personam standi in judicio . nor puts our law any distinction betwixt civil and criminal causes : for reconciling which difficulty , it may be alledged , that there is a distinction betwixt the being outlawed for a criminal or civil cause , and that these who are denounced fugitives upon any criminal accompt , cannot be pursued till they be relaxt , which is incontravertedly true in our law ; seing if a person be denounced for not finding caution for his appearance , to underly the law , he will not be admitted to propon any defence till he be relaxt ; but though a person be at the horn for a civil cause , it appears most unreasonable , that because a person is not able to pay a great sum , for which he is denounced , that he shall not therefore be admitted , do defend his own innocence against a crime laid to his charge . it seems likewise reasonable , that some distinction should be made , betwixt a pursuer and a defender in this case ; for it seems unreasonable , that he who accuses another for a crime , should debar him from self-defence , though the debarring him from pursuit , be not so unfavourable , and upon this accompt , in a case betwixt ninian spence and hector bannatine , the justices found , that the pursuer in a criminal pursuite , could not by horning debar à defendendo , the person whom he himself had called . it may be likewise alledged , that though the kings advocat may debar a pannel from his defences , when he is at the horn , that no privat party can , seing they are not prejudged by the rebellion , as the fisk is ; but this last distinction , is rather reasonable then legal , and therefore i mention it rather as a good overture , then a standing law. vi. infamous persons cannot accuse , according to our law , and what persons are accompted infamous , is particularly enumerat in the foresaid . cap. stat. willielm . . infames dicimus omnes illas personas esse , qui pro aliqua culpa damnantur notabili . . et omnes qui christianae legis normam abiiciunt , & ecclesiastica statuta contemnunt ; omnes sures , sacrilegio . . omnes capitalibus criminibus irretitos , sepulchrorum violatores , apostolorum , successorumque eorum & reliquorum sanctorum patrum , libenter , violantes statuta . . et omnes qui adversus patres armantur , qui in omni mundi parte , infamia notantur . . similiter incestuosos , perjuros , homicidas , receptatores malefactorum ; adulteros , raptores ; maleficos , de bellis publicis fugientes ; e● qui injusta vel indigna sibi petunt loca teneri ; aut sacrae ecclesiae auferunt facultates ; & qui accusant , & non probant , et qui contra innocentes principum animos , ad iracundiam provocant , & omnes qui pro suis sceleribus , ab ecclesia expelluntur . . et omnes quos ecclesiasticae & seculares leges infames pronunciant : item servos ante legitimam libertatem abeuntes , publice paenitentes , bigamos , omnes qui non sunt integro corpore ; qui sanam mentem non habent vel intellectum , qui furiosi manifestantur . . hi omnes supra dicti , nec ad sacros ordines promoveri debent , nec ad accusationem , vel testimonium admit●i . vii . a person accused , was not oblidged to answer of old , but for one crime in one day , except there were several pursuers , quoniam attachiamenta , cap. . by which , accumulation of crimes was expresly unlawful , sed hodie aliter obtinet , for now there is nothing more ordinar , nor to see five or six crimes in one summonds , or inditement , and to see one accuser , pursue several summonds ; and yet seing crimes are of so great consequence to the defender , and are of so great intricacy , it appears most unreasonable , that a defender should be burdened with more then one defence at once ; and it appears , that accumulation of crimes is intented , either to laese the same of the defender , or to distract him from his defence . viii . to the end that persons may not be unjustly pursued , the civil law did appoint two remedies , . that the pursuer should find caution to insist . . that he should be pursued as a calumniator , if his pursuit was found to be malicious . as to the first , the form amongst the romans , was , that the accuser was oblidged , de ferre nomen rei apud praetorem atque se inscribebat libello judici porrecto vel incodice publico , quaerela deposita cui inscriptioni subscribebat & ad talionis paenam se obligabat in casum calumniae . inscriptionis formula àpparet , l. . ff . de accus . consulibus illis , die illo apud praetorem illum titius professus est se meviam legem julia de adult . ream deferre quod dicat eam , cum seio in civitate illa domo illius , mense illo , consulibus illis adulterium commisisse . which inscription was only necessar in attrocious , but not in lighter crimes , nam illa de plano discutiebantur , l. levia ff . de accus . but in some cases , the necessity of inscription was remitted , even in attrocious crimes , as when a woman , suorum injuriam prosequitur & parentes filii necem & è contra . and generally , where the pursuer could not be pursued for calumny , he needed not , in scribere , because , inscriptions were onl●●●●essar , to the end the pursuer might be punished , if he were found guilty of calumny . nor were these inscriptions necessar in reconventions , & ante categoriis , because , in these , the pursuer intended not to calumniat , but only to defend himself , by recriminating the pursuit . the inscriber was , according to the civil law , oblidged to find caution , se perseveraturum in accusatione usque ad sententiam , l. . ff . de accus . the reason whereof , is by one of the greek scoliasts , said to be , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . ne facile quis ad accusationem per currat . suitable to this , our law has ordained , that the pursuer , when he raises a criminal libel , shall find caution to insist , in the intended pursuit ; and this caution is found , either by the cautioner enacting himself in the journel books , which act is to be subscribed by him , or else if the cautioner be absent , he sends a bond , bearing a clause of registration in the journal books , which is accordingly therein registrat ; this caution was first appointed by the . act , parl. . ia. . by which , the justice-clerk is oblidged to take sicker surety , that the pursuer shall bring back the criminal letters indorsed , and execute : but the cautioner is not oblidged with us ( as he is by the civil law ) that the pursuer shall insist , and the penalty appointed by that act , is , an earl , or lord , two thousand merks , a great barron one thousand merks , a fermer five hundred merks , an unlanded gentle-man two hundred merks , a yeoman two hundred merks : but of old , accusers behoved to find caution to insist , reg. maj. cap. . l. num . . and if he cannot find a cautioner , it is said there , that his oath may be taken , in all cases of fellony , and the reason given , is , lest too much severity , in exacting of caution , deterr the prosecution of a publick crime : and it may be doubted , if cautio juratoria , cannot properly come in under the notion of sicker security , and there can be little h●zard to the common-wealth , seing the law presumes , that his majesties advocat will be still so just , as to pursue the publick revenge , where the party is unable . whereas , by admitting this , cautio juratoria ansa praebetur perjurio , and the defender is disappointed of his damnage , and interest , if the party fail . by the . cap. stat. rob. . pursuers before the sheriff , should still find caution to insist : but with us , those ubi suam vel suarum injuriam prosequuntur & etiam in anticategoriis , the accuser must still find caution ; wherein we do very reasonably differ from the civil law , for the defender is as much prejudged , and may be as easily troubled , if these pretexts were allowed , to palliat the pursuers malice , as generally he could be in other cases : in this likewise we differ from the civil law , that the defender is oblidged to find caution for his compearance , which he is commanded to do by the letters : by which the messenger is commanded to denounce him rebel , if within six dayes after the summonds is execute against him , he find not caution in the books of adjournal , to the effect foresaid ; which caution , though it be found , yet if it be not intimat to the messenger , the messenger may still denounce him rebel , for not finding of caution . and though by the civil law , and ours , the advocat may pursue without consent of the privat party : yet he is not oblidged to find caution , nam in eo non praesumitur calumnia : yet the advocat in our practique , doth ordinarly oblidge his informer to find caution , else he refuses him his concourse . if the accuser be found to have been calumnious , or as our law termes it , in the wrong , he is oblidged to pay to the party , an unlaw of ten pounds , ia. . parl. . act , and if there be moe deeds then one , he is liable in twenty pounds ; and likewise to pay the defenders expence , act . parl. . ia. . which acts , speaks only of not prevailing , though there be no malice , and though there be no probabilis causa litigandi , but if their pursuit be found to be 〈◊〉 it is arbitrary to the justices , to inflict what punishment they please , either in that same sentence , wherein the defender is absolved , or upon a separat bill , or pursuit ; as also , he is by the justice constantly ordained to pay what damnage , and interest , or expence the justices pleases , both to the parties , and to the assizers . and albeit , according to the civil law , procurator fisci non praesumebatur calumniosus ; yet si procurator fiscalis calumniose instigat judicem ad inquirendum tenetur in damna actione injuriarum & concremari debet , l. universi c. ubi causa fiscal , &c. and according to the opinion of the doctors , hodie & judex & procurator fisci affectate consequentes crimen extraordinarie sunt punendi , q. ix . the justices ordain , that because many poor persons were maliciously , or ignorantly imprisoned , that the magistrates of edinburgh should imprison none , but where one should find caution , in the books of adjournal , to insist against them , and to aliment them ; and that they should appoint a procurator , dwelling within edinburgh , to whom the justices might intimat , when they desired the pursuer might insist , the . of iuly . which should be done , and exped very speedily ; and for this end , the bishop was appointed to visit the prison every friday and wednesday , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , celeriter judicari . basil. l. . de custod reor . title xx. of advocats and procurators . . whether a procurator should be admitted for the pursuer in his absence . . his majesties advocat may deput when he is pursuer , he has also other priviledges . . in what cases procurators are admitted in defence . . what oath of calumny is allowed in criminals . the doctors make a difference , inter simplicem allegatorem , who can only propon what is nottour , as that the party cited is known to be sick , & procuratorem , who must have a mandat , and may propon declinators , or dilators , & defensorem innocentiae , who not only can propon dilators , but may likewise defend , et advocatus semper neputatur defensor , and needs no mandat , but his gown is his warrand , and yet in criminals he must have a procuratory . i. according to the civil law , procurators were neither admitted to pursue , nor defend , l. ult . § . ad crimen ff . de publ . jud . but by the law of most nations , a procurator is admitted to pursue ; for paena talionis is now taken away , which was the reason the pursuers personal presence was requisite . clar. fin . quest . . n. . the defender must still be present , ne judicium reddatur elusorium . with us , procurators are admitted for the pursuer , and yet this appears not to want difficulty , for if the defender should desire , that the pursuer should swear the libel , the dyet would desert , if this were refused by the procurator , and though in civilibus , a day may be taken to produce the pursuer , to give his oath of calumny , which oath of calumny is the same thing we call swearing the libel in criminals , yet seing all criminal dyets are peremptor , so that there cannot be a day allowed to the pursuer to give his oath , it were unreasonable but he should be present , for else the defender is precluded from a very great advantage , such as is the pursuers oath of calumny , which if the pursuer himself were present , and refused , no pursuit would be sustained at his instance , likeas , if the pursuer were present , it might be referred to his oath , that he gave the witnesse good deed , or that he knew the defender to be alibi ; by all which it would seem , the pursuer should still be present ; yet this was expresly repelled , . august , . where ballindalloch , was pursuing iohn grant , but there it was answered , that ballindalloch was one of the pursuers himself , and the remanent were his servants . ii. albeit the kings advocat be pursuer in most cases , yet he uses ordinarily to constitute a deput , who should produce a written warrand under his own hand , else cannot be admitted , and this deput can desert a dyet , though his procuratory do not instruct him with a particular power for that effect . . november . mr. george norvel procurator for mr. iohn rollo , which is constantly the opinion of the doctors . his majesties advocat uses not to pursue a summonds of treason , without a special warrand under his majesties hand , or a particular order from the council , which he uses to produce ante omnia , and is still marked by the clerk , as may be seen in all adjournal books , but particularly in the cases of the lords of ochiltree , and balmerinoch . his majesties advocat , with us examines parties , and witnesses , before the process be intented , which he doth upon pretext , that he may thereby know how to libel exactly , and to the end he may not vex parties , if he find no ground for the pursuit ; but many learned lawyers , have alwayes thought this procedur dangerous ; for his majesties advocat is still a party interested , and so should not be allowed to deals with the witnesses ; for thereby he may strain from them what otherwise they would not depon . and if in our last reformation of the justice court , it was found that the kings advocat should not make the roll of assizers , because he is too much interested , much lesse should he for the same reason , be allowed to examine the witnesses , since that is not allowed to the advocats for the defenders . advocats with us in criminals are called proloquutors . . no person should ●lead or consult in reduction of forefaulter , without leave granted by the king , act . ia. . parl. . but in other pursuits of treason , no advocat is obliedged to crave a license , and even the foresaid act is abrogated , act . parl. . ia. . which grants only liberty to plead in all treasons pursued before the parliament : but by the . act. parl. . ia. . advocats are allowed before all courts to plead , without license , and power is granted to judges , to compel them to plead in such cases , and the former restriction has been founded upon c. falicis de paenit . in . where to plead for traitors is discharged , nisi concedatur licentia . when advocats-assist pannels , especially in treason , they use to protest that no escape of theirs in pleading , may be misconstructed ; since what they say , is rather ratione officii , then ex proprio motu , as we see in balmerinochs case ; and it were hard to be severe in such cases to advocats , since they are accustomed to much freedom , and are oftentimes transported by the heat of opposition , and zeal to there client , nor would men have any to engage in their defence , against such pursuits , if this liberty were not allowed , and it is against reason not to allow it , where they are forced to plead , as they ordinarily are in cases of treason , and yet if any advocat will defend his own escapes against authority , he may be punished by deprivation , but his punishment extends no further , even where he speaks treason , as was found in the senat of savoy , cod. fabr . tit . de paenis defin . . by the civil law procurators were admitted for the defender , where the pain to be inflicted was not corporal , for the reason why personal presence was requisite , viz. that the defender might undergo what was inflicted , did here cease , and yet with us , the defender must still be present , even where the pain to be inflicted is pecuniary , such as in cutting of green wood , stealing of bees , &c. because the certification of the letters with us is still to compear to underly the law , under the pain of rebellion , and hath not those words adjoyned , or to show a reasonable cause , which being added in summonds , for civil causes , is a sufficient warrand , for the constituting a procurator . noblemen , likewise might by the civil law , and the opinion of the doctors compear by their procurators , but this is not allowed with us . procurators might likewise by that law , be admitted to propon the incompetency of the judge , even in the case where there is a statute appointing the defender to compear personally , which should much more be allowed with us , where there is no such statute , but where this necessity is imposed by the will of the letters : boss. tit . an incrimin . num . . . fa●in . de var. quest . . num . and yet i have seen those who killed armstrong the customer , outlawed , iuly . albeit it was alledged , they dwelt within the regality of annandale , and so they should be repledged , which was repelled , because they were not present ; yet the reason might be , because the justices were judges competent , eo casu , and the replegiation was a priviledge , with which the lord of regality might have dispensed , and so was competent only to him , and to the defender , who should have compeared , in omnem eventum . procurators are also allowed to propone excuses for absents , &c. sine mandato , si excusationes illa sunt facti , & necessariae , as is sickness , imprisonment , &c. sed ad allegandum causas probabiles , & necessarias absentiae , such as the want of a safe conduct , requiritur mandatum ; quia absens iis renunciare potest , & non constat de ipsius voluntate , nisi per mandatum , which distinction , i think unnecessar ; because it is alwayes presumed , that the defender would willingly have himself defended ; and with us , a mandat is not necessar , if an advocat be imployed , for his gown is his warrand : and where an advocat is imployed , i think , the cautioner may be admitted , albeit he have no warrand , quia qui satisdat dicitur habere mandatum de jure farin . ibid. part . . num . . and the cautioner defends himself , eo casu , seeing if the reason of absence , or essoinzie ( as we call it , be found relevant , he will not be unlawed , and where a mandat is necessar with us , which is , where an advocat is not imployed ) it may be doubted , if the mandat be sufficient , if subscribed only by one nottar , where the party cannot write , which though it be ordinarly sustain'd , yet it would appear , that eo casu , it should be subscribed by two ; for the act of parliament requires two nottars , and four witnesses , in all cases of great importance ; yet seing quaelibet levis probatio absentiae sufficit , it would appear , that quodlibet mandatum hic sufficiat . iv. albeit where the pursuer is a privat person , he is oblidged to swear the libel ; yet where the kings advocat pursues , he is not oblidged to swear the verity of the dittay ; because he pursues only , ratione officii , but i find , in the same decisions , that the advocat is not oblidged to depone , whether the party hath given partial counsel , the . of august . advocatus contra the laird of dalgety , nor yet to declare who is his informer , the . of april . advocatus contra iohn connel , and others , but this seems unreasonable , seing the defender should not be prejudged , by the intenting of a pursuit , at the advocats instance ; and jure naturali , the pursuer , or informer , which is all one , should not be a witnesse , nor can it be known who is pursuer , without the advocat declare : it is also a great encouragement to unjust pursuits , that any person may inform at random , without being known , and the informer is liable in damnage , and interest , if he inform without any ground , even though the pursuit be only raised in the name of his majesties advocat , act . parl. . ia. . but if the advocat may conceal lawfully the informers name , then the defender is precluded from all these just advantages . this priviledge of the advocats not swearing the libel , seems to be founded upon the opinion of the doctors , who contend , that procurator ex officio non tenetur prestare juramentum calumniae , gail . obs . lib. . obser . . title xxi . of libels , and the forms of proces thereto relating . . a libel is a sylogism . . it ought to condescend upon time , and place . . whether the qualities libelled may be passed from . . the stile of a criminal summonds , and inditement . . how a criminal summonds ought to be execute . . whether a person who is banished , may safely appear before the day , in the citation . . how criminal actions are to be called , and the forms thereto relating . i. a libel is generally by lawyers thought to be a syllogism , wherein the proposition ( as we call it ) is founded upon the law , and though the proposition be oft-times generally conceived thus , that albeit by several acts of parliament , the crime of , &c. be expresly forbidden , &c. yet it is more regular to expresse the particular acts , whereupon the proposition is founded . the subsumption of the libel , is the matter of fact , which should condescend upon the actors names , and designations , and upon the place where the crime was committed , either expresly , as the house of such a man , or per cohaerentias , as lawyers speak , as that it was done near such an hill , water , &c. ii. that the place must be designed , is expresly required , l. libellorum , ff . de accus . but whether the day , or moneth must be exprest , is more controverted ; and by the formula , exprest in the former law , the place and moneth , are necessar , and to that formula , is there subjoined , thir words , neque diem neque horem invitus comprehendet , but according to the opinion of the doctors , if the defender compear , and crave that the pursuer should expresse the day , because he offers to prove , alibi , then the judge should force the accuser to expresse the day ; for else the defender would ●e precluded from proving his innocence , bart. in l. is qui reus , ff . de pub . iud. but though in that case the accuser is oblidged to express , yet he is not obliedged to prove the same ; because the expression thereof is not necessary , for the relevancy of his libel , but only for the clearing of the others innocence , bertr . and lib. . consil. . as also , if the pursuer can upon oath depone , that he doth not remember the day , and that he does not omit the same maliciously , eo casu , he is not obliged to express the same , clar. q. . num . . but the former difficulty in this case still remains , which is , that the defender loseth the benefite of this defence , and is prejudged by his accusers ignorance , which seems to be unjust : and therefore cook . rep . calvins case observes , that an inditement should be most curiously , and certainly penn'd , and by the . stat. hen. . the day , year , and place must be insert . by the . ch . quon . attach . these seven are to be exprest , the names of the parties , day , year , and place , cause of the complaint , and damnage . according to our law , either the crime is such , as depends upon time , as is the striking one in the session-house , whilst the lords sit ; or the wounding , or killing one in time of divine service , and in these the particular time must be both libelled , and proved ; because the time is not there a meer circumstance , but it is the medium concludendi ; and therefore a libel in deforcement , was not found relevant , because it condescended not upon the time , since it was lawful , if the rebel had been apprehendded upon the sabbath , . but i think that this might have been propon'd as a defence , and that the libel without the day , was relevant ; but there also , the year was not insert , nor would the justices allow the filling up the same at the barr , as in civil cases ; but in other cases , where the crime depends not upon time , we use to libel in the moneths of may , iune , iuly , &c. or one , or other of the moneths , weeks , or dayes of the said moneths , but the expressing of the day , is not found necessary , as in the case of one hay i was found the . of november . and likewise upon the . of iuly . where a dittay of theft , was found relevant , though neither condescending upon the day , nor the marks of the goods : and in my lord argyls case , the parliament found it not necessary to condescend , even upon the moneth , but the ordinary caution allowed the defender , in that case , is , that the defender may offer to prove , that quo ad , some particular dayes of these moneths , he was alibi , and quo ad these , the libel will not be relevant , nor he passe thereupon , to the knowledge of an inquest , but will get a precept of exculpation : as for instance , if one should be accused of killing a man , in the moneth of march , upon the street of edinburgh , he might alledge , that quo ad , the first fourth-night he was at london , quo ad , so many other dayes thereof he was at new-castle , &c. and if the witnesses , when the libel comes to probation , do depone , that upon any of these dayes the crime was committed , in which alibi is proved , the defender will not be thereupon convict ; for though the pursuer needs not condescend upon the day , yet the witnesses must condescend upon it , in the case where alibi is offered to be proved , but otherwayes it may be controverted whether a libel be relevant , bearing in the general , the committing of the crime , but not condescending upon the particular manner : as for instance , if it should be subsumed upon the acts against fore-stalling and regrating , that the defender did forestal , but did not condescend upon the particular persons , from whom the corns were bought ; or in usury , if the pursuer should not condescend upon the particular way how the usury was committed ; and in my opinion , regulariter , the crimes should be particularly subsumed ; because else the relevancy cannot be debated before the justices , and the assize should be constantly judge of the matter of law , and the pannel should be put oft to the knowledge of an inquest , upon irrelevant crimes , all which were absurd ; but yet there are some crimes , such as fore-stalling , and regrating , in which it is sufficient to libel the crime , without condescending upon the particulars , for in this crime it is declared by . act , par. . k. i. . that a libel bearing common regrating , or fore-stalling , in the general shall be relevant , without condescending on the time , and way of committing the same . and accordingly upon the . iune . a libel against young and others , for fore-stalling was found relevant , though it condescended not upon the particular persons against whom this crime was committed : and it may be debated , that a person being pursued for common usury , if that crime of common usury , may be sustained without any particular condescention , because both the relevany , and probation is referred to his own oath , and so he is not precluded from any defence , but since it was necessary by a particular law in regrating , to appoint the libel to be found relevant upon that general , it seems to follow , that regularly the particular way , and manner must be condescended upon ; else that particular dispensation had not been necessary . whether a conclusion be necessary in criminal libels , is likewise debated amongst lawyers ; but the common opion is , that it is not , because though in civil cases , the pursuer may crave more , or lesse , nor what is due to him , yet in criminal , either the penalty is determined by a law , which the judge must follow , though it be not craved , or otherwise the pain is arbitrary , and there the pursuer cannot by his petition determine the same , but must leave it to the judge , l. . § . quorum ff . ad s. c. turpil . l. ff . de privat delicti l. ordine ff . ad unicipalem , and in the form set down l. . ff . de accusatio : by paulus , there is no conclusion exprest , but yet with us , there is alwayes a conclusion in every libel , though it be general , and i perceive that most of the practitioners are of opinion , that at least a general conclusion should be added . iii. whether a libel being libelled qualificate , the pursuer may passe from the quality , has been thus determined by lawyers , that if the quality amount to another different crime , it cannot be past from , but if the quality amount only to an aggraging circumstance , it may be past from . as for instance , if the pursuer libel upon the act of parliament , whereby murder under trust , is treason , and subsume that the pannel is guilty of murder under trust , in so far as the person murdered , was father to the murderer , if when the case is to be tryed , the pursuer should declare , that he insists against him as a murderer simply , because he is not sure to prove , that the person killed was father : i think eo casu , the pursuer could not so reform or declare his libel , for that makes the crimes to differ , the one being murder , the other treason , and the defender was only obliedged to prepare him to defend against treason , and finding that he was secure , as to the crime libelled , he needed not prepare other defences , or raise exculpations for that effect ; but these qualities which amount only to aggravations , may be past from , as was decided , . november . for aikma● having pursued carnegy of newgate for oppression , conform to the . act . parl. k. i : . because he had beat him , who was a magistrat , in the exercise of his office , the justices having found , that the pursuer could not in the construction of law be repute a magistrat , because he had not taken the declaration , it was thereafter alledged , that the libel being only founded upon the foresaid statute conceived in favours of magistrats , and the conclusion being against oppression , and not against beating the pursuer , could no more insist upon that libel , which was repelled , for the justices found , that the beating any man , was a crime , and the pursuer might insist against the defender for beating him , since his being a magistrat was only an aggraging circumstance : yet this seems a hard decision , since the proposition of the libel , did not bear , that beating was punishable , nor did the conclusion bear , that at least the panel was punishable for beating a free liedge : & if this were universaly allowed , alternative libels were unnecessary , and this would occasion much looseness in criminal libels , whereas lawyers treating of criminal libels , have laid it down as a principle , that in criminalibus non licet vagare , and the crimes of oppression , and beating , are different . nor can it be denyed , but that a privat person differs from a magistrat , so that this quality made the persons , the crimes , and the medium concludendi to differ , iv. for the better clearing of our custom in these cases , i have set down the form both of the criminal letters , and criminal indictment now in use with us . a criminal summonds . charles , &c. humbly mean'd and complain'd to us , by our lovits , a. the relict , b. sister , daughter , and nearest kins-woman , c. as mr. with the remanent kin of umquhile main , servant to the said c. and our right trusty and well beloved councellor , our advocat , for our interest in the matter underwritten upon listoun , without any just cause , offence or injury done to him by the said umquhile man , having conceived a deadly hatred , and evil will against him , with an settled purpose , and resolution to bereave him of his life , one way , or another , lately , upon the last day of 〈…〉 where the said main was in quiet , and sober manner for the time , expecting no harme , injury nor pursuite of any person , but to have lived under gods peace , and ours . and the said listoun being bodden with a great batton , or rung in his hand , and with knives and other invasive weapons , first upbraided the said main with words , alledging that he was a common thief , and had stollen , &c. and thereafter , because the said main had purged himself of that calumny , and said he was as honest a man as himself , he thereupon ran and rushed the said main ( being an aged man of . years of age ) to the ground under his feet , struck him in the head , craig , shoulders , and side , with the said batton , lap upon his breast and belly with his feet and knees , beat him upon the heart , and thereby broke , and bruised his whole intrals , and noble parts , thereafter heased and drew him by the heels , off the saids lands , by the space of a quarter of a mile , to a low vault in , &c. and imprisoned him therein , tanquam in privato carcere , he being in the dead thraw : likeas , within three hours after his imprisoning in the said vault , the poor aged man dyed of the saids stroaks and hurts ; likeas , to suppresse the murder , the said listoun with his complices , buried him in an obscure place in the night time , and swa the said main was shamefully , and cruelly murdered , and slain , and secretly buried by the said listoun , and his complices , and he is art and part thereof , committed upon set purpose , and provision , and forethought fellony , in high and manifest contempt of our authority and laws , in evil example of others to commit the like ; if swa be , our will is herefore , &c. and in our name and authority , command and charge , the said listoun , committer of the said barbarous murder , in manner foresaid , to come and find sufficient caution , surety to our iustice clerk , and his deputs , acted in our books of adjournal , that he shall compear before the iustice , or his deputs , to underlye the law for the samen in our tolbuith in edinburgh , on the day 〈…〉 of 〈…〉 in the hour of cause , under the pain contained in our acts of parliament , and that ye charge him personally , if that he can be apprehended , and failzing thereof , at his dwelling house , and by open proclamation , at the mercat crosse of the head burgh of the shyre , stewatry , or regality where he dwels , to come and find the said soverty acted , in manner foresaid , with in six dayes next after he bees charged be you thereto , under the pain of rebellion , and putting of him to the horn , the whilk six dayes being by past , and the surety not being found , that ye immediatly thereafter denounce him rebel , and put him to our horn , and escheat and in bring all his moveable goods , to our use , for his contemption , and cause registrat thir our letters , with the executions thereof , in the books of adjournal , within fifteen dayes thereafter , conform to our act of parliament made thereanent , and if he find the said soverty , initimation being alwayes made by you , to us , of the finding thereof , that ye summond an assize hereto , not exceeding the number of . persons , together with sick witnesses as best knows the verity of the premisses , whose names ye shall receive in the rolls , subscribed by the complainers , or either of them , ilk person under the pain of a . merks , as ye will answer to us ex deliberatione . the form of an inditement is thus . an inditement . for sameikle as the abominable , vile , and filthy vice of incest , being so odious , and detestable in the presence of almighty god , and be the same eternal god , his express word so clearly condemned ; therefore our soveraign lord , out of his godly disposition , and zeal , by diverse his acts of parliament , expresly statute , and ordained , that whatsoever person , or persons , commits the said abominable crime of incest , shall be punished to the death , as the saids acts of parliament , in themselves proports : notwithstanding , it is of verity , that the said a.b. being married with his lawful spouse , daughter to c. most shamefully , but fear of god , or respect to our soveraign lords laws , has given the use of his body to d. his wifes ●ister , in the moneths of 〈…〉 in his and her journeying , betwixt the burgh of edinburgh , and the town of elgin , and within the said town of elgin , in the which filthy , and incestuous copulation , she has procreat a bairn , committing there-through the said filthy crime of incest , and adultery , to the high offence , and displeasure of almighty god , violation of the kings majesti's laws , and evil example of others , to run in the like filthy and abominable vice , if the famine be suffered to remain unpunished , as at length is contained in the said dittay , produced against him , &c. v. the summonds should be execute only by a messenger at arms , or by an officer of the court , except in the case of treason ; in which case , it is appointed by the . act parl. . k. ia. . that letters , and summonds of treason , should be execute only by heraulds , and pursevants , bearing coats of arms , or by macers , which must be understood only of macers of the criminal court ; for the macers of the council , or exchequer , or session , cannot execute any other summonds , but what is pursued before these respective courts , to which they are macers . the form of the execution , is , that there be a full coppy of the letters delivered to the defender , if he be personally apprehended , or if he cannot be personally apprehended , to his wife , or servants , or affixt upon the gate of his dwelling house , if he any has , and proclamation at the head burgh of the shire , where a coppy is likewise to be fixed at the mercat cross ; but if there be moe persons then two , and all be called for one deed , and crime ; in that case , two of the copies are to be delivered , to two of the principals , named in the said letters , or their wives , &c. in manner foresaid , is sufficient , q m. . p. cap . but if the persons live in shires , or countreys , ubi non patet tutus accessus , the bill whereupon the letters passe , use to contain a priviledge , for citing them at the head burgh of the shire , and to the end of the letters , bearing thir words , and failzing thereof , by open procamation , at the mercat crosses of our burghs of , &c. because they are broken men , having no certain dwelling , and haunts , and frequents with other broken men , where our officers dare not resort , for fear of their lives , with the whilk charge , swa to be given , we , and the lords of our council , by thir presents dispenses , and admits the famine to be as lawful , and safficient , as if ilk an of them were personally apprehended , this is by the doctors called , citatio edictalis , but if the party be out of the countrey , he must be cited at the mercat cross of edinburgh , peir and shoar of leith , as in other cases . nota , though the act of parliament foresaid , bear not a full copy , yet it is absolutely necessar , that a full copy be given ; for the dyets in the criminal court being peremptor , the summonds is not given up to see , as in other courts ; and therefore the defender should have a full copy , that he may come instructed how to defend , and that he may timeously raise exculpation , and if a full copy be not given , the executions have been found null , in totum , and the acts of parliament appoints they should be null , anno . livingstoun contra leith : and though some think , that in the case where a short copy is given , the summonds should be only given up to a short day , but the execution should not be null : yet i think that opinion is not found . because the act of parliament appoints the execution to be null , where a copy is not given . . the giving up to see , cannot be sufficient , for if the party had gotten a full coppy at home , upon the place where he lives , he had raised exculpation , and cited the witnesses therefore upon the place . thir executions should be subscribed by the executer , and stamped , and sealed before witnesses , else they are null , act . parl. . i. . and letters should not be direct generally , against complices , but the particular crimes of every defender should be expressed , ia. . parl. . cap. . and ia. . parl. . cap. . and by this last act , all criminal letters , which import tinsel of life , and moveable goods , when they are execute by open proclamation , at mercat crosses , should be execute betwixt eight hours of the morning , and twelve hours at noon : though formerly , when a party was in prison , his inditement might have been given him upon twenty four hours ; yet it was found in the case of robertson , in iuly . that a pannel in prison , should have fifteen dayes at least , that he might within that time , either raise a summonds of exculpation , or might take out diligences , for proving his objections against witnesses , or assizes , and that conform to the eleventh article of the regulations , concerning the justice court , though it was alledged then , by his majesties advocat , that there was no expresse warrand for that indulgence , in that article , and correctory laws , such as the regulations were , ought not to be extended beyond the letter ; especially in this case , where the pannel was a murderer , taken with reid hand , and justice was to be done against such , by our old law , within twenty four houres : which replies were repelled , in respect it was duplyed for the pannel , that though the law did not expresse the time that is to be indulged , to such as are criminally pursued ; yet it having exprest the reason , for which this indulgence is to be given , viz. that the party might either exculpat himself , or cast the witnesses , or assizers , that were to be used against him , the law could not but allow a time sufficient for doing that diligence , it being a rule in law , and a principle in reason , that quando aliquid conceditur , omnia concessa videntur sine quibus hoc fieri nequit , and though where a party is taken reid hand , and confesses , the judge ought to do present justice upon him ; yet that is only introduced to make judges diligent , but not at all to preclude poor pannels from their just defences , and it were a thing very inhumane , and unwarrantable , if a poor pannel were taken reid hand , but could prove that he was forced to kill in self-defence ; or if he could prove , that one of the witnesses had been one of the aggressors ; that in either of these , or such like cases , he could not have time to cite witnesses for that effect . vi. whether a person who is cited to compear in a criminal court , as defender , at a particular day exprest in the summonds , may not before that day appear in edinburgh , though he be banisht , was doubted , in the action pursued at his majesties instance , against several gentle-men , in anno . and that they might come to edinburgh , was allowed ; because being cited , they were commanded to come . . their coming to town was necessar , in order to their defence , and thus , when men are indited , they have the liberty of a free prison , though till then they were ordered to be kept in close prison ; and yet some thought that this might be doubted , since they were once formally banisht , and so the banishment should be formally taken off , and the raising of a dittay is no discharge of the banishment , for else the kings advocat might discharge banishments when he pleased , and inditements bear not to appear betwixt and such a day , but at such a day . . when men are under caption , they may be taken , if they appear before the day of compearance , if they have not a protection , which shews , that a meer citation doth not take off the dangers , to which the person cited is liable . . protections were needless , if this were allowed , for the citation would be a protection , and yet protections are ordained to be granted to defenders in such cases . as also it was doubted there , if such as were cited upon sixty days , might compear with others of their complices , who were cited upon six dayes , for it was urg'd , that the appearing upon sixty dayes , was introduced in the defenders favours , and so he might renounce it , and possibly he cannot compear at the long dyet ; and yet it may be urged , that the pursuer has chosen his own dyet , and it may be his true interest sometimes to divide the defenders , and sometimes his probation cannot be sooner ready . when there are more pursuers , each libelling a distinct interest , as three brothers pursuing for the murther of their deceast brothers , though they were all three killed at the same time , and in the same action . it has been found , that two of the pursuers being absent , the third could not insist : and so the diet was deserted , upon pretext that the libel was complext , but i conceive , that the interests there were very distinct , though in the same libel , and that though they had been all joint pursuers , yet the absence of the rest should not prejudge any one , who has a sufficient interest , per se. vii . when the day of compearance comes , which is peremptor , and not with continuation of dayes , by the act i. . the justice-clerk calls the summonds , and if the pursuer be present , and the defender be absent , he is declared fugitive , and his cautioner is unlawed , but if the pursuer be not present , then the clerk calls upon the act , for reporting the criminal letters , and the cautioner is unlawed , for not reporting the criminal letters : and in either cases an act is extracted ; and if both pursuer , and defender be absent , the pursuers cautioner is unlawed , for not reporting the criminal letters , and the defender is outlawed , and his cautioner is likewise unlawed for not presenting him ; but if either , or both compear , the cautioners takes instruments upon their reporting the letters . if the defenders cautioner present him at the day , but if the judge be absent , or the day feriat , as if it be a publick fast , then i think the cautioner is not free ; but he should present him at a day wherein he may be pursued , for his obligation must be interpreted to be , cum effectu , especially if the pannel would have been imprisoned , if he had not found that person cautioner . upon their presenting the pannel , then the defender enters upon pannel , and the clerk marks , curia affirmata die mensis per and marks such a man entered upon the pannel , such a day accused for the crime , &c. and marks who were pursuers , and who were proloquutors in defence , and the dittay is read , and the justices ask whether the pannel be guilty , or not ; which is conform to l. . ff . quam aniss non possint , & l. & adulteram ff . ad leg . jul . de adult . and the advocats for the defender , dictat both the dilator , and peremptor defences , as the advocats for the pursuer , do his repleys and triplys , which has been originally introduced amongst us , as i conjecture that the judges might not be seduc'd , by the passionat , and well acted eloquence of advocats , quintil . athenis ( speaking of the areopage ) affectus movere etiam per praeconem prohibebatur orator , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . by dictating also , the advocat considers more gravely what he asserts in these cases , which are of so great concern , and the judge has more permanently under his consideration what he is to do , and succeeding ages may better judge of the grounds whereupon he proceeded title xxii . of exculpation , and the other priviledges competent to the defender . . the rise and progress of exculpations with us . . whether exculpations may be admitted , though contrair to the libel . . how alibi should exculpat . . witnesses liable to exceptions may be admitted in exculpations . . witnesses for exculpating may be admitted , though not cited . . whether a man may be punished , though he has not fully proved his exculpation . . how the defender may exculpat if the pursuer insist not . . whether the iustices , or assizers are judges to exculpations . . what if the pursuer cite as parties , the defenders necessary witnesses . albeit after a crime is proved , the pannel is most unfavourable , yet till then , he is still presumed innocent , & praestat nocentem absolvere , quam innocentem condemnare , & petr. de anach . consil . . observes well , that the court deserves much more honour , when they absolve , then when they condemn . the reason of which is , because when an innocent person is condemned , the wrong cannot be repaired , but when a guilty person is absolved , yet god will either suffer him him to fall in a second snare , whereby the first crime may be also punished , or at least , his infinite justice will punish him eternally if he repent not . when any person was criminally pursued , he had by the common law the benefite of exculpation , for so they term the defences of the pannel , as is clear by clar. quest . . but i find not this term used with us , till the year . . at which time , it was used first in argyles processe . the english call this , to traverse an inditement , from the french word traverser ( as i suppose ) which signifies to oppose , or cross . when a pannel before that time , was pursued in scotland , he behoved presently to propon his defences , and have witnesses there present , for proving it , or else he behoved to refer it to the pursuers witnesses , for our ancestors thought that the pursuers witnesses being present , could not but know all the matter of fact exactly , and so were as fit to prove the exculpation , as the libel ; but this was a mistake ; for witnesses might have been present when the wound was given , who were not present at the beginning , when the occasion of the wound was given , whereupon the exculpation of self-defence was founded ; so that other witnesses are oftimes necessary , beside these adduced by the pursuer , and it is not safe to presume , that these will come without a citation , or if they come without a citation , they are ultroni● , and so are suspect . in anno . . the justices did begin to grant precepts of exculpation , which were drawn by the clerk , and exprest , that in respect there was a pursuite of such a nature , intended against such a man , and that he had defences to propon ( here the defences were exprest ) therefore the justices granted warrand to him , to cite witnesses for proving thereof . &c. that this precept was subscribed only by one of the justices , yet thereafter in anno . the justices ordained , that a formal summonds , past under the signet of the session should be granted for citing witnesses for exculpation , and they are called now letters of exculpation , which contain the defence , as formerly the precepts did , but because the lords of session use to scruple , to passe such bills ; therefore the justices first consider the defence , and if they find it probable , they use to subscribe the warrand for a bill , which bill is past by one of the justices amongst the common bills , and that bill is the warrand of the letters . when the pannel is accused , and the libel read , his advocat doth propon the defence , or exculpation , v. g. if the libel be murder , the defence is inculpata tutela , &c. and after the defence is debated , and either admitted , or repelled , by an expresse signator of processe , then the witnesses are accordingly admitted . if the justices refuse to passe a warrand for letters of exculpation , the defender ought not to be thereby prejudged , but the dyet will be continued , till letters of exculpation be raised , as was found in my lord rentouns case , against the laird of wedderburn , december , . and though the summonds of exculpation should be execute to the same dyet with the principal summonds , yet if the justices find it reasonable , they may continue the dyet , and allow a competent time for raising exculpation , as they did . iuly , . in a case pursued by mackintosh , against grant , for in remote shires , the defender has not time to raise and execute exculpations to the day of compearance in the principal cause . the ordinary defences are to be seen in the respectiv titles to which they relate , and it would swell too much , and too unnecessarily this title to repeat them here . ii. it is ordinarily replyed to defences of exculpation , that they are contrary to the pursuers libel , and so ought not to be admitted to probation , and thus mr. william sumervel being pursued , for murdering of bessy rentown , it was alledged , that it was offered to be proved , that the wound was not mortal , as appeared clearly to many who saw the same immediatly after it was given , likeas she went that night to her brothers house , three miles on foot , and never took bed , but wrought as a servant in her ordinary imployments , for twelve weeks , and at last having gone to attend her brother , who dyed of a spotted fever , she was by him infected , and dyed of a fever ; which defence of exculpation was repelled . decemb. . as contrary to the libel , wherein it was expresly libelled , that he gave her a mortal wound , that she died of the wound that he gave her , and i find it formerly repelled . . iuly , . cheyn against mowit , but this principle , viz. that exculpation directly opposit to the libel , should not be admitted , seems not to be allowable , for all defences of exculpation might be thereby precluded , for the pursuer might so circumstantiat his libel , upon design , as that the only exculpation which he feared , behoved to be contrary to his libel , and since in scotland the pursuer is not precisely obliedged to prove all the qualities which he libels , but it is sufficient that he prove the libel it self , the poor defender might easily be cheated ; for the pursuer might libel all the circumstances exclusive of the exculpation , which he feared , and after he had thereby excluded the defence , he might contend , that albeit the qualities were not proved ; yet the fact it self being proved it was sufficient . . in civil cases , some defences are admitted , though contrary to the libel , as in ryots before the council , and in spuilzies ; and therefore they ought much more to be admitted , in criminal cases , wherein the defender is more favourable , then he is in civil cases . . if this principle did generally hold , then self-defence , and casual homicide could never be allowed as exculpations , for both these are directly contrary to the libel , used in the case of homicide ; which bears still premeditation , and fore-thought-fellony . but to reconcile these differences , that which i find more suitable to reason , in these indigested discourses , which the doctors make upon this subject , may be comprehended under these conclusions , . where the defence i● not absolutely contrary to the libel , it ought only to be admitted to probation . . though it be contrary to the libel , yet according to the doctors , a conjunct probation should be granted , for besides the former reasons , i find the civilians debate very learnedly , whether when the pursuers probation of the libel , is expresly contrary to the probation led by the defender , the pursuers , or defenders probation ought to be preferred , bossius tit . defens . reor : which question were needless , if a mutual probation were not allowed , eo casu , and boss. there advises the defender , capitulare directe contrarium ejus quod libellatur , and when the probations differ , the ordinary rules to be followed are , that . the defenders probation is to be preferred , gloss in cap in nostris detest ; because it is admitted by the presumption , that nemo presumitur diliquisse , boss. ibid. but if the probation be not equal , the greater number , or these who depon what is most probable , or the worthiest persons ought to be believed , boss. ibid. how far this doctrine is allowed by our practique , will appear , from a case decided in iun . in which , william mackie , being pursued for killing hoom , in a single combat , did alledge , that if he did kill him , it was in his own defence ; in swa far as hoom fell upon him , with a drawn sword. to which it was replyed , that selfe-defence could not be receaveable ; because it was expresly libelled , that there past a mutual provocation : and though he went to the park without his sword , yet having been thereafter provocked , and fighting , and killing the defunct , he cannot be said to have done this , se defendendo , else the act of parliament against duels , might be easily eluded ; and though , if the libells did only bear fore-thought-fellonny in general , self-defence might be receiveable to eleid the libel ; yet where the libel was founded upon a special qualification of provocation , self-defence was never sustained , to eleid the libel , and the reason of the defence , is , because in the first case , self-defence is not contrary , substantiae libelli ; but only eleids it in a quality , which is presumed , and so needs not be proved , viz. forethought-fellony , whereas , in this case , if self-defence were receiveable , to eleid a libel , founded upon provocation , and duelling , it would be expresly contrary to the libel , and to the quality of provocation , which is a quality that must be proved . in respect of which reply , the self-defence was repell'd iii. but since defences expresly contrary to the libel , cannot be sustain'd in our law ; it may be doubted , if the exception of alibi , be relevant : for since the libel bears , that the pannel was actor there , it is contrary to the libel to alledge , that the pannel was else where , than where the crime was committed ; for that is the same thing , as to alledge , and offer to prove that he kill'd not there . but i think in this case , alibi should be strongly qualified , and if it be , then both the libel , and defence ought to be admitted to probation ; but so that if the judge find alibi , not to be clearly proved , then only he should allow the pursuer to prove his libel , for to admit contrary probations , were to open a door to perjury , and not to allow the pursuer to prove also , were to infer a crime without probation ; for the pannels not proving his defence , doth not , in criminalibus , relieve the accuser from the necessity of proving his libel , as it doth in civil cases . and this seems to be our law , and more just and christian , then conjunct probations are . iv. according to the opinion of the doctors , exculpation is so favourable , that many who could not be received as witnesses to prove the libel , would be admitted to prove the defence , as a brother , or a domestick , iason . in leg . ut . vim . ff . de just . & jur . & clar. and bocerus , de duell . cap. . num . . g●ves it for a rule , that probantur articuli pro in culpata tutela testibus alias minus idoneis ut frater pro fratre affinis pro affine , &c. idem asserunt mascard vol. . conclus . gail , de pac . publ . cap. : for though it would seem that the presumption lies still against the killer , and so he should be burthen'd with the stronger probation , yet it may be answered , that that rule holds only against the accuser , but not against the defender ; as also , it may be answered , that he who killed in his own defence , was not doing what was unlawful , but what was lawful and necessar ; and therefore the law should presume in his favours , and not against him . and in rutherfoords process , in ianuary . it was found , that women might be admitted to prove self-defence , if there were women upon the place . v. it is very ordinary for some judges , not to admit witnesses to exculpat , except they be cited , and all the formalities be observed , in their citations , that are observed in other citations ; but i should rather think with the civilians , that as testes in defensam , are admitted , though they be not habiles , so witnesses may be admitted , though not cited , for this was our ancient practice , and the benefit of exculpation , is mainly brought in to favour the defender : and is it not strange , that if a man were pannell'd for murder , and saw two persons present , who knew that what he did , was done in his own defence , it should not be lawful to him , to desire them to be examined ; this were to profer meer formalities , to real truth : and whereas , it is observed , that these testes , are ultonei , who came without being cited , and so ought not to be received . to this it is answered , that all such as come without being cited , are not testes ultronei , but only such as offer themselves without being required , by judge , or party , as if a man should step out , and desire to be examined : and whereas , it is urg'd , that they must be presumed partial , who come there meerly to be examined , and this is the same thing , as if they offered themselves ; it is answered , that the presumption is very groundless , for they might have come there without any such designs ; and if they had such a design , they might safely have eluded the formality objected , by causing cite them . others use a strang evasion in this case , for though they confess that witnesses may be examined in exculpations , though not cited ; yet if a summonds be once raised , they conceive that none should be allowed to depon , but such as are cited ; because , say they , the defender can only in that case blame himself , who used not the remedy , that was competent to him . . if the contrary were allowed , there needed no summonds of exculpation be raised . . it is presumeable , that the defender hath , ex post facto , corrupted that witnesse ; for if he had been able truely to depon any thing , he would have cited him at the beginning . notwithstanding of all which , i humbly conceive , that even though no summonds of exculpation have been raised , it is lawful to examine such as are not cited , for the same arguments urge for their examination , that were urg'd for examining such as were not cited , where there is no summonds raised . and as to the contrary arguments , it is answered , that as to the first , there may be cases wherein the defender is not to blame ; as for instance , if he knew not the names of such as were present , when he was forced to kill ; so that he could not cite them , but yet he knew their faces , and so was forc'd to call them out , to be examined when he saw them in a justice court. as also , knowing that citations were introduced in his own favours , and to compel them to compear ; he might have omitted the citation , or possibly knew not where they were to be found , or wanted money to cite them ; and this answers likewise the third argument . to the second , it is answered , that summonds of exculpation , will be likewise very necessary in other cases , as if the witnesses be unwilling to compear , or design to go abroad , &c. and whereas it is pretended , that if a citation had been given , the pursuer would have gotten the names of the witnesses , who were to be used in the exculpation , and so might have been ready to object against them . to this it was answered , that if this argument proves any thing , it would prove that no witnesses could be received in exculpations , except they were cited , which were absurd ; and the reason why witnesses names were ordained to be given with the libel , was introduced in favours of the defender , and that he might not dy upon depositions of suspect witnesses ; and so it were unjust to detort this to the defenders prejudice : nor is there such hazard of corruption in exculpations , as in pursuites , for no man is to dy , no estate to be forefeited , nor no mans fame to be tainted by the depositions , of exculpating witnesses . but i find no such speciality in our law , nor is that priviledge reasonable , for men are prone , though they have no relation , to depone in favours , rather of the pannel , then of the accuser ; and therefore it is , that our law allows an assize of errour against such as absolve , but not against such as condemn . vi. the doctors also allow exculpation to be proved , per conjecturas , & judicia , l. merito . ff . pro. socio boss. tit . de favor . de fens . but this is likewise reprobated by our law , and if it were allowed , punishments should be absolutely arbitrary . but it is questioned what punishment should be inflicted upon the defender , who hath proved his defence , but not fully : as if he prove by one witness , that the murder was committed in defence , &c. for resolution of which doubt , they distinguish , whether the imperfect probation of the defence , be diametrically contrary to the pursuers probation , and in that case they think it ought not to be respected , both because it is in it self imperfect , and because it is contrary to a concluding probation : but if it be not fully contrary , but tending only to prove somewhat that is different from the libel , as if the pursuer prove wholly the murder , and the defender that it was done in self-defence , then they think that the probation , though not full , doth obsuscat , and weaken the pursuers probation ; and consequently the defender ought not to be punished with death , which punishment ought only to be inferred , per probationem omni exceptione majorem , bart. in l. admonendi ff . de jur anchar . concil . . and i think , that albeit the assize behov'd to file , eo casu , yet the council ought upon a favourable representation from the justices , to remit somewhat of the ordinary punishment . vii . if the pursuer insist not , so that the defenders probation of self-defence may perish in the interim , or if he who may accuse , will raise no accusation , then the person to whom the exculpation would be competent , may intend a summonds , wherein he must cite the party injured , or his relations , and his majesties advocat , and in it he may conclude , that the depositions of the witnesses , ad defensam , may be taken to ly , in retentis , ad futuram rei memoriam . viii . when witnesses are led , they should presently depon , and the justices should be judges to what they depon , and it ought not to be remitted to the assizer ; because , non constat , till the probation be led , whether the exculpation be exclusive of the libel , or eleids it ; and so the libel cannot go to the knowledge of an inquest , as was found after much debate in barcleys case , but this ( in my opinion ) should only hold where the defence is exclusive of the libel , but where both the libel , and defence are admitted jointly to probation , i think that both should be referred to the inquest ; because the probation must be jointly considered , and the justices cannot be judges competent to the probation of the libel , and so not to that which is joyned inseperably with it . if the defender propon a defence , but prove it not , it is doubted , if by proponing the defence , he acknowledges the libel ? the reason of the doubt , upon the one hand is , that in all civil processes , he who propones a defence , acknowledges the libel , and in reason it appears that this should hold in criminals ; for he who alledges that he murdered a man in self-defence , doth acknowledge that he killed him : but upon the other hand it seems hard , that if the defender prove not his defence , that he should therefore dy : seing that were to condemn the pannel , per judicia , and without probation upon a meer formality , & ante quam constat de corpore delicti , neither is the pursuer prejudged by the pannels not proving his defence ; seing his witnesses must still be present at the same time , whereas in civil cases that danger is not so great , and the pursuer is prejudged ; for he is not obliged to have witnesses ready for proving his libel . to which last i incline , vid. tit . confession where i have debated , how far a qualified confession ought to operat . ix . it is ordinary for the violent pursuers of crimes , to cite as complices , all such as may be led as witnesses by the pannel , for proving his exculpation , or other defences , upon design to decline , or set them from being witnesses , when they are led ; for one pannel cannot be led by another , as a witness for him . and yet upon the other hand , if this were allowed as a sufficient exception , it should still be in the pursuers power to cut the pannel off from proveing even his justest defences . to reconcile which , i remember that the lords of session in a spoulzie , pursued before them , the . of feuary . at the instance of mackertney , against irving , ordain'd these witnesses , against whom the exception was propon'd , to be first insisted against ; to the end if they were found innocent , they might be allowed as witnesses against the other pannel , if not , they might be declin'd . which method was very just before them , but seems more difficult in criminal courts , where diets are peremptor , and where courts cannot be continued : but to this difficulty it may be answered , that though courts cannot be continued by the justices , regulariter , as in civil cases ; yet in many cases , incidents may occur , whereby continuations are necessary , and all laws must yeild to necessity . the exception of self-defence is treated , title murder . and it is fit to observe that in the areopage , if the pannel confest he committed murder , but that he killed lawfully , he was not try'd , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , where murder was try'd , but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , perion . de magistr . athen . cap. . title xxiii . of assizes . . the origine of assises and inquests . . the form of citing assissers , and who makes the roll. . sometimes there needs no assise . . what is propper to be tried by the iudge , and what by the inquest . . the difference betwixt an ordinary , and a great assise , and the number of assizers in both . . the oath of assisers , and the objections by which they may be declined . . every man must be judged by his petrs , and who these are ? . whether assisers may judge upon proper knowledge . . all probations should be led in presence of the assizers . . the assize after inclosure can speak to no man. . how the assize ought to proceed after they are inclosed . . wilful errour in assisers , how punished : and by whom . i. all judgements were at first pronounced by neighbours , and thus amongst the romans , were centum viralia judicia , and amongst the feudalists , pares curie , were only judges ; in place of which last , came our assizes in france , england , and scotland , they are called a condign inquest ; because these should be , pares ●uriae & ita condigni . the word assize is originally french , and signifies properly siting , or session , les assises sont les grands jours plaids solemnels , roy charles , anno. . vid. judicem regean verb. assise , where it will appear , that assize in french , signifies a judicator ; and in our law it is often taken for a constitution , or statute which is made by that session , or sitting of the judges , and thus the statutes of king david , are called assisa regis davidis , and assisa terrae , is called the law of the land ; assisa is likewise sometimes called a measour , and thus it is said , ia. . pa. . cap. . that the barrel should contain the assize , and measour of . gallons , and the assisa hal●cum , or assize of herring , signifies a certain quantity , and measure of herring , which pertains to the king , as a part of his customes , ia. . pa. . cap. . and in the french law , it signifies a tax also , regean ibid. but the proper acceptation of the word assize , as it is now determined by custom , is to signifie those who are chosen by our law to determine , either in civil , or criminal cases , the matter of probation , and are in effect neither properly judges , nor witnesses , but both . ii. for the more exact clearing of the office of assizers in criminal cases , the reader may take notice , that the libel alwayes beats , that the pursuer shall summond an assize , not exceeding fourty five persons , which shall be given up in a roll to the messenger , and should be subscribed by the pursuer , which roll shall be annexed to the end of his execution , ia. . pa. . cap. ● . but albeit this act appoints , that the roll shall be subscribed by the pursuer ; yet it is sustained as valid , though not subscribed by him , if he homologat , and ratifie the execution given in by the messenger , albeit it may be alledged , that the summonding of assizes , is , eo casu not lawful , seing it wants a warrand ; this subscribed list being by the foresaid act of parliament , and summonds it self , appointed to be the warrand : as also , albeit by the act , the messenger is prohibit to cite any more then fourty five , under the pain of five hundred merks , yet the execution is not eo casu , declared thereby to be unlawful , and by that act it is likewise declared that upon supplication , the lords may allow more persons to be cited then fourty five , why the pursuer should have had the choice of the inquest , may be doubted . and if assizers may judge , ex propria scientia ; it would appear , that to allow the pursuer the choice of the assize , were to put the defender absolutely in his will : and i find that gail . l. . obs . . concludes , that the custom of some places allowing , domino electionem parium ( pares apud nos , signifies assizers ) is most unreasonable , quia dominus ita , est quodam modo judex in propria causa , nam est procul dubio eos electurus , per quos se victoria potiturum sperat alvarot . ad cap. . de contrav . send . to which difficulty it may be answered , in defence of our law , and practique , that . where the advocat is pursuer , it is presumeable , that he will be most just , and that he will proceed without interest , or malice . . these assizers are in effect , either judges , or witnesses , and the pursuer hath still the choice , of both judges , and witnesses , if they be otherwise competent . . as the defender may decline them , if there be any reason for it , so they are sworn ; nor is it presumeable , that any will be so impious , to condemn a man to dy , to please others : upon which presumption , our law leans so much , that though assizers condemn unjustly , they are not liable to an assize of error , as is believed . but by the third article of the regulation , . the list of the assizers , is to be made by a quorum of the justices , and that list should express , not only the names , but the designation of the assizers . when the day of compearance is come , and the letters are called , and the assizers are likewise called , and each absent assizer is for his absence fin'd in an hundred merks , and their unlawes are to be taken up without any composition , ia. . par. . cap. . by which act it is likewise appointed , that an act is to be extracted upon their said absence , and is to be delivered to the swearer , or his clerk , within six dayes thereafter , that letters may be direct therupon , for taking their unlawes , but the pain of ilk absent assizer at a justice air , is to be fourty pounds , ia. . par. . cap. . if the assizers summond be not present , others may be summoned at the bar , or apudacta , as we call it , ia. . par. . cap. . when the assizers are called , fifteen of them are marked , and then the dittay is read ; for the debate upon the relevancy must be in presence of the assize , ia. . par. . cap. . seing albeit they be not judges to the relevancy ; yet since they are judges to the probation , which depends much upon the relevancy ; and seing the justices remit several defences , which are propon'd against the relevancy to the inquest , it is most reasonable they should hear the debate . iii. the defence against the relevancy begins thus : it is alledged by a. c. as procurator for the pannel , that the pannel should not go to the knowledge of an inquest ; because &c. and after all the defences are discust , the words of the interloquutor bear , that the justices either sustain , or repel the defence , and find , or find not , that the pannel should go , or not go to the knowledge of an inquest ; and if the justices find the pannel should go to the knowledge of an inquest , either the pannel confesses , & quia in confessum nullae sunt partes judicis , therefore he may be banished , or scourged , without being put to the knowledge of an assize , as in rutherfoords case , the of iuly , and in iobs case , who was scourged , and banished for bigamy , without an assize , . ianuary . but if the crime be capital , or the pannel do not willingly acquiesce to the punishment , it is still securer to put the pannel to the knowledge of an inquest ; because the justices are only competent judges to the relevancy , and the inquest only can find the libel proved . iv. albeit it be a received principle in our law , that the justices are only judges to the relevancy , and assizers to the probation ; yet to distinguish the limits of their different cognitions , becomes very oft difficult upon these two accounts , . by express act of parliament , ia. . par. . cap. . it is statute , that because parties were oft-times frustrat of justice , by alledging irrelevancy against criminal libels ; therefore when the persons complained upon , are libelled to be art and part , no exception , or objection shall take away that part of the libel in time coming ; so that albeit the greatest debate concerning relevancy , amongst lawyers in criminal cases , did arise upon these common places , cujus ope , auxilio , assistentia , mandato , &c. ea crimina erant commissa , and from what circumstances these could be inferred , yet now the debate upon all this , falls not by that act , under the cognition of the assise , all these being branches and qualifications of art and part . . the probation requires oft-times in it , somewhat of relevancy , to be previously debated , as for instance , whether an extrajudicial confession is binding , or what witnesses in law are receiveable , or not ; all which cases , do oft-times confound the cognition of the justices , and assisers ; but for clearing of these limits , thir following conclusions are to be observed , . that in dubio , all that concerns law , is to be judged by the justices , and what concerns fact by the assise . . regulariter , all that is in the libel falls under the cognition of the justices , and therefore i will recommend it as a caution to advocats , that when they are jealous of the ignorance of assisers , and find the case intricat , that they do not simply libel , that such persons were art and part ; but that they libel them to be art and part , in so far as they rescu'd the malefactors , &c. for when the qualifications , from which art and part are inferr'd , are expresly libelled ; the justices are judges to the relevancy of the inference , but if these condescend not that they are art and part , in so far as &c. then the assizers are only judges competent thereto , though the same be , in apicibus juris ; because of the former act , as was found in captain barclays case , november . where they refused to force the pursuer to condescend , quo modo , art and part ; albeit this be very dangerous , seing assizers are oft-times ignorant persons , and yet they forced the pannel to condescend upon the particular qualification of self-defence , and would not refer to the assise to consider the qualities of self-defence , which would arise from the probation , as to which i could never find any reason of disparity , but that by the act of parliament , the one case is appointed to be decided by assisers , whereas there is no statute as to the other ; but to speak ingeniously , i find no act of parliament more unreasonable then this ; for the statuto●y part of that act , committing the tryal of art and part to assisers , seems most unjust , seing as has been said before , in committing the greatest questions of the law , to the most ignorant of the subjects , is to put a sharp sword in the hands of blind men , and the reason ●●nductive of this act specified in the narrative , is likewise most inept ; and no ways illative of what is thereby statuted ; since debates upon the relevancy could very litle have hindred , and never have hindred justice , for the relevancy is debated now , as copiously as before that act , with this only difierence , that it was then debated before judges , who could have kept advocats at the point , whereas now it is debated before assisers , who know not how to bound , or how to stop them . but a better reason for this law had been this , viz. that the pursuer is not allowed to examine the witnesses , and so is not presumed to know what they can say , and therefore he cannot exactly know al the circumstances , which are necessar for founding a clear condescendency in art and part , untill he hear the witnesses depon . and seing the assizers are only judges to the deposition of the witnesses , therefore they ought likewise to be judges to the qualification of art and part , but i think that after the witnesses have deponed , the justices should still determin , what is art and part , and should not leave the same to the assizers , and as they are founded , quo ad , this upon the former principle , that they are only judges to the matter of relevancy ; so they are not excluded therefrae by the foresaid act of parliament for it only ordains , that art and part being libelled , no objection shall take away that part thereof ; and thus if a man be pursued as art and part of murder , the libel should doubtlesse go to the knowledge of an inquest . but when the probation is led , the judge when he heares the probation to run upon rescue , mandat , or ratihabition , should tell the inquest what acts in law do infer either of these , and then to leave it to them to judge , if these acts which he declares to be relevant , be proved ; and it is much fitter , then to leave poor ignorant assizers , to the impression of advocats , who may byasse them by their repute , authority , or confidence . . albeit the assize be judges of the probation , yet what manner of probation is requisit , belongs to the cognition of the justices , and thus the justices determined in balcanquels case in anno . that witnesses could not be proved to have perjured themselves , by the depositions of other witnesses , but only by writ , or reexamination . and in the action of usury , pursued against witherspoon , march . they found , that usurary pactions , being extrinsick to the writ , could be proved by other witnesses , then the witnesses insert : and in the case of wilson , november . they found , that the receiving more then the ordinary rent , was not probable by the oath of the payer , and yet if any of the assizers pleases , he may desire ad informandam conscientiam judicis , any probation whatsoever to be taken ; and thus often times in the criminal registers , assizers have caused read testificats from chirurgians , and others , licet regulariter testibus , non testimoniis est credendum . the last rule is that before the assize be sworn , all the cognition belongs to the justice , but after they are sworn , the justices functi sunt officio , and all thereafter falls under the cognition of the assizers , as is clear , by the very words of the justice interloquutor , which runs thus , the justices finds the libel relevant , notwithstanding of the defences , and ordains the pannel to passe thereupon to the knowledge of an inquest . but to prevent all thir difficulties , i wish that the justices were judges both to relevancy , and probation , which overture seems most fit , and advantagious for these subsequent reasons . . that there is such a contingency , betwixt relevancy , and probation that they should not be disjoyned , and sure they must best understand what probation is requisit , who have considered the relevancy , upon which it depends , and for this cause it is , that even our law appoints all the dispute upon the relevancy , to be in presence of the assize . . the assize is oft stumbled at what is referred to them , and do very often mistake what is found relevant , and what not . . assizers with us , are oftentimes ignorant persons , at least seldom or never are they so judicious , as to understand such intricat matters , as advocats represent to them , especially in circuite courts , where few have seen assizes before , and they are oftentims but mean persons , or persons who have interest . . by our law the libel is relevant , if art and part be libelled without condescending that they are art and part , in swae far as , &c. and the assizers are only judges to what is art and part , so that in effect they are judges to the relevancy of almost all cases , and are put to decide what has troubled the ablest doctors and authors , and so often times they return unformal verdicts . . assizers are troubled in their commerce , and abstracted from their affaires unnecessarily , being obliedged frequently upon continuation of dyets , to wait whole years and are oftimes absent , whereby dyets are deserted , and they oftimes syned . . by this means , assizes of error would be supprest , with which assizers are still threatned by the pursuer , before they be inclosed ; and it seems barbarous , that persons who absolve should be punished , whereas there is no punishment for concondemning , which inconveniency would also be taken off by this overture . . assizers may in our law judge according to their privat knowledge , without lawful probation , which seems dangerous in criminal cases . . though of old when judges , and assizers were equally ignorant , assizers were appointed , yet now when law is formed to a science , and that judges are presumed to be learned , and assizers not , it seems reasonable they should be supprest , as well in criminal cases , as they are already in civil , and since we have receeded from the present custom of england , and our own old customs , by not allowing assizes in civil cases , why not rather in criminal cases , these being both of more intricacy and weight ; especially seing in england the probation is before neighbours in the countrey , who know best the matter of fact , but with us assizers are seldom or never choosed from the place where the crime was committed , but are burgesses of edimburgh who are as great strangers to what past , as the judges themselves ; and if assizers were to be brought from the countrey , it would be very expensive . , the most learned and polisht kingdoms , and common wealths , who have formed their laws in calm and learned ages make there judges discusse both relevancy , and probation ; and it is thought that either assisers have been introduced by us , when we and england were both barbarous , or else the justices have invented this act at first , to relieve themselves of a burden . v. the assize is either an ordinary , or great assize , the great assize is that , whereby an ordinar is tryed , if they do wrong , and i find some foundations for thir terms , par la custum d. langumois , act . & de la rochal art . . la grand assise est du seneshal la petit du juge prevostal . an ordinary assize uses to consist of fifteen persons , but they may consist of more , or fewer if the number be unequal , and thus the penult of iune , . ronald was tried , and convict , for dismembering donaldson , by an assize of thirteen persons . the reason why the assize must be unequal in number , is , least by equality of vots , affairs be not terminat , and brought to a speedy issue ; for which cause likewise , lib. . reg. maj. cap. . and by the . act . parl. k. ia. . it is appointed , that arbiters should be appointed in an unequal number , and yet i find , that in the civil brief of right , an assise should consist of twelve sworn men . albeit according to the law of england , the assizers must all agree in one voice ; yet with us the major part may condemn , or absolve ; but if six , of fifteen be only positive , and eight , non liquets ; it may be doubted , if this verdict should condemn ; for else if one did condemn , and fourteen were not clear , that one would condemn , which were most absurd ; and in iuly . a verdict in a perambulation , betwixt , walstoun , and sr. iohn cheesly , being quarrelled in an advocation , as unjust ; because the greater number , were non liquets , the lords did advocat the cause to themselves , which implyed that they did not sustain the verdict as valid . vi. the assizers are ordinarly called by sives , and the oath administrat to them , is that you shall all the truth tell , and nae truth conceal , in so far as you are to passe upon this present assise ; swa help you god. which i find likewise to have been the form of old , reg. maj. lib. . vers . . and albeit by the . act . parl. ia. . it is ordained , that all judges shall cause assisers swear , when they take their oath , that they have not taken any buds from the party , yet they do never tender to them this oath ; except either the judge , or party be jealous of the assisers . assisers are party judges , partly witnesses , as has been said before , they are judges in so far as they consider the probation led by others , and judge whether proved , or not proved : they are witnesses in so far as they may condemn , upon proper knowledge , without any other probation ; and therefore whatever exceptions may be propon'd , either against judge , or witnesse , are admitted against assisers ; and thus an assiser was set ( for that is the term of declining used in this case ) because he was not twenty five years of age , which is the age required in a judge , act . parl. . ia. . vid. . iune . but because the exceptions against assisers , are ordinarly coincident with these , that are against witnesses ; therefore we shall remit them to the title of witnesses . only it is fit to take notice that the cherurgians of edinburgh are exeemed , by q. mary , from being cited upon assises ; because of the peremptoriness of the employment , which was sustained by the justices , iuly . both as to assises within the town , and without the town , though our learned craig being a justice-deput , had formerly sustained it as to assises , without the town only . vii . it was a principle in the feudal law , that all men should be judged per pares curiae , the meaning whereof was , that a vassal should be judged per convassallo ; because it was presumed that these understood best the person to be tryed , and the knowledge of the pannels former life and conversation is a great help towards a sound judgement of the case ; and from this feudal custom rises our maxime , that every man should be judged by his peers quon . attach . cap. . the words are , it is statute , that no man shall be judged by a lower person then his peer , an erle by an erle , a barron by a barron , a subvassal by a subvassal , and a burges by a burges , but a lower person may be judged by a higher , and by the chap. . stat. alex. . a knight should be judged by knights , or free holders , but by an act of sederunt . . iune . the lords of session declared all such as were landed men , sufficient to passe upon assizes of error , though the old laws required noble men , and gentlemen only in such cases : and albeit of old it was uncontravertedly received , that none should passe upon the assize of noblemen except noblemen , nor upon the assize of barrons , except barrons , yet of late it hath been much debated , and especially in the case of douglasse of spot , . may , . at which time he being accused for killing home of ecles it was alledged , that spot was a barron , and so could not be judged but by barrons , holding of the king conform to the citations above duced . it was replyed by his majesties advocat . . neither the books of quon . attach . or the statutes of king alexander , are binding laws , but only books of apocripha . . though they were laws , yet they are not in viridi observantia , seing burgesses and others are daily admitted by the late practique , to passe upon barrons assizes , and at the time of the making of these laws , assizers were judges both to the relevancy , and probation , whereas now in effect , they are but witnesses ; and therefore since the law reposes much lesse confidence in them now , then formerly , it should not now be so scrupulous in their election . . burgesses are in parliament allowed to sit upon the assize of , and forefault noblemen , and it were against reason that they should be admitted to the more solemn judicators , and be rejected in judicators where cases of less importance , are ordinarily judged , and in which the sentence pronounced may be easier repealed . . dyets before the justice-courts being alwayes peremptor , it is probable that dyets behoved very frequently to be deserted , if only noblemen were to be judged by noblemen , barrons by barrons . . by the state of king alexander , above cited , it is only requisit that knights be judged by knights , but it is not added there , that barrons should be judged by barrons , which shews that that priviledge , was not allowed to them , even in those dayes , and lastly , seing all mens lives are of extraordinary concernment , it is not reasonable to think that he who can be judge of any mans life , may not be judge of the lives of all men . to which it was duplyed as to the first . that debate is opponed , whereby it is evinced in the title , by what laws crimes are judged in scotland , and the books of quon . attach . and reg. majes . are our law , and the act of sederunt above-cited , dispencing with that priviledge in some cases , doth demonstrat , that regularly this priviledge taketh place with us : likeas skeen in his treatise concerning the procedure before the justice general . cap. . sect . . cites these laws as binding , and gives for a rule that no man can be judged in that court but by his peers . to the second it was duplyed , that this being a declinatur , and being arbitrary for parties , to plead the benefite thereof , it cannot be said to be antiquated , unlesse it had been alledged that it had been pleaded , and repelled : but as this citation out of skeen , who is but a late author , did show the same to be in viridi observantia , so noblemen have lately had the same indulged to them , as in the cases of the earl of traquair , and lord ochiltree , which was allowed to them upon the laws here cited . to the third founded upon burgesses sitting upon forefaulters in parliament ; the same doth not meet the case , seing the parliament may abrogat laws and so are not in their procedure tyed to them : and though burgesses singlie , be not peers to noblemen , yet the collective body of the parliament , by which they are condemned are much more their peers . to the fourth , it was duplyed , that inconveniences are only to be looked to in the making of laws , but not after , and the inconveniences of the other side are much more pressing , it being very inconvenient , that an assize of . mean tradsmen , should be admitted to try a duke , or marquesse ; and it was a vast mistake to think that assizes are only witnesses , and not judges ; seing they vote , and their verdict is called a sentence , and if art and part be libelled , the relevancy is in these cases , ( which uses to be of all cases most intricat ) simply referred to them without any debate . to the fifth it was duplyed , that the inference is meerly conjectural , but if the text be considered , it will appear that by knight , there is meaned vassal , or free holder , for the latine translation renders the word knight , not eques but miles , and it is said there , that a knight shal be judged by knights , or free holders ; so that the particle ( or ) is in that place exegetick , and not disjunctive . and to the last it is duplyed , that all mens lives are not equally precious in the eyes of the law , for even by the roman law , mean people were judged to dye for many crimes , which were not capitally to noble romans , and though with us the punishment may be the same , yet the way of procedure against noblemen is justly allowed to be more solemn . upon which debate , the justices ordained a new assize to be summonded , whereof the most part should be barrons , and the remanent landed gentleman . it was thereafter doubted , whether an apparent heir of a barron , has the same priviledge , so that none can passe upon his assize , who are not barrons or landed men ; and it was alledged , that the apparent heir , had this priviledge , and was a barron in the construction of law , for his marriage , or escheat would fall , though not entered , and as a barron though denuded , remained still a barron , or a prelat , though for age demitting , would be still a prelat ; so the apparent . heir of a barron , though not entered , should be still a barron , as was found , . december . to which it was answered , that an appearent heir , was not nomen juris , and priviledges ought to be strictly interpreted , and the appearing air of a barron , would not have an heir , as was lately found in sir allexander seatons case , quē sequitur in comodum , &c. whereas in law , all barrons may have heirs , nor did the instances adduced from the casualities of marriage , or escheat militat in this ; seing these proceeded , ex natura feudi , non ex vi privilegii and was introduced in favours of the superiour , and not of the appearent heir . upon which debate the justices , . of iuly , . repelled the objection against the assizers , and found the priviledged extended not to the appearent heirs of barrons ; mackintosh contra frazer of culbokie . not is this priviledge extended to landed men , though infest , if their lands be not erected in a barrony . viii . albeit it be ordinarly received , that assisers may judge upon their proper knowledge , yet the truth of that principle may be doubted , upon these reasons , . because by the foresaid act of parliament , par . . k. ia. . all probation should be led in presence of an assise , and pannel ; but so it is , that the privat knowledge of assisers , cannot be laid to be led before them . . if probation were led publictly , defenders might propon interrogators , whereby the matter of fact might be more fully cleared , and even the witnesses own mistakes might be removed ; of all which just advantages , he is precludit by that principle . . the great reason why by the act , probation should be led in presence of the pannel , is , because in law it s presum'd , a witness will stand more in aw to depon falsly , in presence of the pannel , then otherwise : for which cause , confronting of parties , and witnesses amongst themselves , when they are contrary , is much used , and treated of by the doctors , . if assisers may give their verdict upon privat knowledge , then they could never be pursued for error ; because if privat knowledge be the rule , i can hardly understand , how men can be convict , as having transgressed against that rule , seing albeit it be easier to judge what a man should know , yet it is impossible to judge what a man doth know . . by the civil law , and the opinion of almost all divines , and nations , judices debent judicare secundum allegata & probata . ix . from the foresaid act parl. . ordaining all probation to be received , and used in the presence of the assisers , and pannel , it may be deduced by a necessary consequence , that no witness should be examined in criminals , ad futuram rei memoriam , and that no witnesses should be examined by commission : and albeit , it may be objected , that in crimine falsi , the probation led before the lords , is not repeated before the justice , and assisers , before whom nothing is used to instruct the falshood , but the decreet of improbation pronounced by the lords , for in that case , the lords being by act of parliament , declared judges competent to the cognition of falshood , their sentence , habetur pro veritate , and is probatio probata ; so tha● the producing of it , is the leading of probation before the assise . this priviledge , that no probation should be led , but in presence of the pannel , and assise , may be past from by the pannel , seing it is introduced in his favours : and therefore it was found , the . of march . that the diet could not be continued against charles robertson , because of the absence of the witnesses , seing he was content to stand to the depositions formerly taken ; but they caused him subscribe his consent . after the probation is closed , the pannels advocats makes a speech to the assise , wherein the termes they use to them is , good men of inquest , and after they have ended , his majesties advocat speaks , but there are no duplys , or triplys used ; and it was the priviledge of his majesties advocat to be the last speaker ; which priviledge was assumed likewise by all other advocats for the pursuer : but by the tenth article of the regulations , . the defenders advocat is now the last speaker , except in the case of treason , and rebellion ; so that this priviledge holds only in perduellion , but not in ordinary treason . x. when both these discourses are ended , then the assize are inclosed ; but before they be inclosed , they should endeavour to be satisfied of any doubt ; for if after inclosing any person speak to them , or if any of them come out of the place where they are inclosed , until the verdict be pronounced , the pannel is eo ipso , clean and innocent , act . parl ▪ . ia. . the reason inductive of which act , seems to be , fear of impressing , or suborning the assize , and therefore , the practice allows assizers sometimes to send out some of their number to the justices , to receive informations , in matters of fact , and finds that in so doing they transgress not this act , as in kennedies case , august . and after a full debate , upon the . of december . it was found , that any of the assizers disclosing , and coming out of the house , after they had past a vott , though the verdict was not subscribed be the chancellour , was not sufficient to annul the verdict , albeit it was here alledged , that there might be great debate upon the wording of the verdict , and so the assize should not have disclosed , until the verdict was subscribed . by this act likewise the assizers , and not the justices are judges competent to this exception against the verdict , as was found in the foresaid decision , . wherein the justices found , that themselves were judges competent to the relevancy of any such alledgeance ; but that it belonged to the assize to judge the probation of that exception , though it was alledged , that the assizers could not at all be judges thereto , seing they were the delinquents in that case , and if most part of the assize had disclosed , it were absurd , that they should be judges to their own delinquency . at that time the lords did likewise declare , that if any assizer should disclose before the vots were compleat , so that the vrdict might be thereupon anulled , they were punishable by the justices , and should be obliged to repair the loss , which either the king , or party incurred . so that assizers are allowed to speak to judges , or advocats , but are not allowed to make any address to them after inclosure , as said is . it is likewise observable from this act , that albeit the clerk be discharged to enter in where the assize sits , after they have chosen their chancellour , yet defacto , the clerk sits still with them , and it was thought fit he should do so ; because they being oft ignorant , and unaquanted with the forms , and procedure of that court , they should have some person to regulat them , and none so fit to do it , as the clerk ; yet by the late regulation , . it is appointed , that the clerk shall not be present , and sure the clerk was worth ten , and did influence too much . xi . after the assize are inclosed , they choose a president , who is called chancellour of the assize , and proceed to read , and thereafter to reason upon what is debate , and their determination is called the verdict of the assize , which is subscribed by the chancellour , it is called verdict , quasi vere dictum , and sometimes it is called , warda curiae quon . attach . cap. ubi aliqua . thereafter the assizers enter again into the court , and there the verdict is read , and the chancellour stands up and owns the same , after the verdict is read , it should , and is by the . act of regulations , . closed , and sealed with the seals of the court , of the chancellour of the assize , and of so many of their number as the chancelour shall think fit , never to be opened , but by orders from the judge ; of which verdict , the clerk is to have the keeping , and if he open the same , he is to be deposed , and further punished as the judges shall think fit . it was thought of old , that assizers behoved presently to determine , after probation was led , and that it was not lawful to dismisse them until they did enter , and return their verdict , and the reason of that opinion is , because after the probation is led , there may be hazard of suborning the assizers , if the matter were continued to a new day , and it were to be feared likewise , that the pursuer finding that the witnesses which he had led , did not prove , he might be tempted to suborn others , and i think this opinion strongly founded ; but yet in anno . &c. a baxter being pursued for sedition , the justices did , at my lord advocats earnest solicitation , dissolve the court after probation was led , and continued the matter to a new dyet , but the accusation was never further prosecute , and that procedure was thought , mali exempli ; yet thereafter his majesties advocat continued an assize , who sat upon macknab for theft , for not being clear to condemn upon an extrajudicial confession , they proposed the case after they were inclosed , whereupon the justices continued the dyet till the next day , and having consulted the council , they thereafter found the confession sufficient , and inclosed the assize , notwithstanding of this objection , november . xii . when the advocat closes his discourse for the pursuer , he protests for an assise of errour against the inquest , if they assoilzie , which protestation he causes to be marked by the clerk , and it may be doubted , if the pursuer , or his majesties advocat can pursue the inquest for errour , if this protestation be not used , even as a qualified oath is not allowed , except it be protested for . and it was debated in the case betwixt the lady , and laird of milntoun , if a reprobator could be raised , where the party laesed protested not for it , seing protestations were such solemn acts as the law required in such cases , and they were unnecessary , and superfluous , if what were protested for , could be allowed , without being protested for , and the party to whom such protestations were competent , doth , eo ipso , passe from his right , and seems to acquiesce in what is to be done , if he use them not , vid. durand specul . tit . reprobat in initio , but this case was not decided ; yet the lords inclined to allow a reprobature if there was reason for it , though no protestation was used ; and i believe that action of errour may be raised , though it be not protested for , if the verdict be quarrellable , though a protestation be both more secure , and formal , and really there is good reason why it should be used , seing the inquest is by that solemn denunciation , and intimation warned of their hazard , and their errour , because it becomes thereby more wilful then otherwayes it would be . a summonds of errour is alwayes raised in latine , and upon parchment , and is direct out of the chancery . wilful errour is that crime which assizers commit , in pronouncing an unjust verdict , and by our law , an assize condemning , cannot be pursued , tanquam temere jurantes , supra asisa , as is commonly believed , by the . act . par. ia. . the reasons of which opinion may be three . . it is not presumeable , that indifferent persons would condemn an innocent out of feid or favour , though there be some reasons to be jealous , that they might be induced , out of either pitty , or clemency to assoilzie from a crime fully proved . . no person would be found to go upon an assize , if they might be punished for condemning . . the penalty of such as temere jurarunt super asisam , is only confiscation of the moveable goods , cap. . lib. regiam . maje . whereas death would be oft-times the punishment , if such as condemned might be punished ; yet i am of the opinion , that if the assizers did condemn an innocent , without any probation , or by palpable iniquity , that eo casu , they might be punished : and my reasons for this opinion , are . that else the people would be stated in a very unfortunat condition , if not only they lay open to the hazard of being condemned , upon the deposition of any two men , but likewise to the arbitrarinesse of an assize , who might condemn without any clear probation . . assizers are judges , and witnesses , and therefore must be liable to all the errors , for which these are accountable ; but so it is , that if a judge condemn unjustly , or if a person be condemned upon the deposition of any witnesse , who depones falsly , that judge , or witnesse so deponing , are liable to a capital punishment , why then should an assizer be exempted , seing there is no expresse law , upon which he can found that exemption : and in answer to the contrary arguments , it may be contended : that as to the first , it is not concluding , seing , else it might by the same argument be concluded , that no judge , or witnesse could be pursued , when they condemned unjustly , seing omnis homo praesumitur bonus , at least perjury should never be punished in a witnesse , nor injustice in a judge , deciding unjustly , and by that unjust decision , murdering the person pannelled before them ; because forsooth it is not presumeable , that a witness , or judge would murder an innocent by their sentence , or deposition . to the second , it is answered , that all men may be forced to passe upon assizes , upon their perril , and thus assizers are forced , though there is hazard also in assoilzing , and witnesses are forced , though there be great hazard in perjury , if they depon falsly . to the third , it is answered , that there needs no law to punish assi●ers , condemning unjustly , seing they are punishable by the common law. but that it was necessary there should be a particular statute , to punish such as assoilzied unjustly , both because the common law was not so express as to this , and because men might be induced to think , that there was no great hazard in it . this errour in assizers , is to be tried by a great assize , of twenty five noble persons , act . parl. . ia. . but the person assoilzied is to be free , ibid. and by an act of sederunt , of the session , anno . it is declared , that all landed gentlemen shall be in a capacity to pass upon an assise of errour , though they be of quality , and estate inferiour to the pannel , and wilful errour is only punishable in this case , quaelibet probabilis causa ignorantiae excusat , spot . tit . retours , ker against hartwood-mires , and by the . act par. . ia. . it appears , that no probation can be adduced , to infer this action of errour , but what was at first produced the time of their verdict ; whereas any probation may be adduced in fortification of the verdict quarrelled , ( tantus est favor innocentiae ) the punishment of such as are found guilty by an asssize of errour , is the escheating of the moveables , and a years imprisonment , cap. . l. . reg. maj. which is ratified by the . act . parl. ia. . where it is statuted , that wilful , or ignorant assizers , shall be punished after the form of the kings law , in the first book of the majestie , skeen observes upon that place , reg. maj. that amittere legem terrae , is the same , with non habere personam standi injudicio , and they can never be admitted thereafter as witnesses , neither in writs , nor in judgement , vid. tit . perjurie . but to the end it may be known which of the assize assoilzied , it is by the . article regul . . appointed , that the chancellor of the assize mark upon the same papper , upon which the verdict is write , who condemned , and who assoilz●ed , which paper is to be sealed , and kept till a summonds of errour be raised . the council sometimes rescinds verdicts , without any action of errour , in criminalibus , as in george ghrahams case , where they ordain'd the verdict of the inquest , whereby he was found to be art and part of recept of stoln bonds , to be unjust , and restored him against the same ; but it may be doubted , whether these who are unjustly condemned , may be restored against that verdict , though it be found unjust ; seing these who are unjustly assoilzied cannot be thereafter pursued , though the absolvitur be found unjust , per argumentum à contrario , vid. titl . of the council , where this question is fully debated , and determined . title xxiv . of probation by confession . . probation defined . . probation by confession if judicial , is the strongest of all probations . . in what case is an extrajudicial confession allowable . . what are the effects of a qualified confession . . the effects of a confession emitted before an incompetent iudge . . how far a minors confession obliedges . probation is so fully treated of by the civilians , and cannenists , and we differ so little from them , that i shall only treat of it here in relation to our own law. i. probation is defined to be , that whereby the judge is convinced of what is asse●ted ; and it may be divided in probation , by confession , by oath , by writ , by witnesses , and by presumptions . ii. probation by confession is the most secure of all others , and therefore it is said in law , that in confitentem nullae sunt partes judicis , suitable to which , such as confesse are oftimes codemned without the knowledge of an inquest , as i have more fully treated in the title of assizes , but because men will sometimes confess a crime , rather out of wearinesse of their life , then a consciousness of guilt , therefore the law hath required , that if there appear any aversion for life taedium vitae , or any signs of distraction , or madnesse , that these confessions should not be rested upon , except they be adminiculat with other probation : as also because confessions are oftimes emitted negligently , the confessors thinking that their privat confessions cannot prejudge them , therefore the law doth only give credit to judicial confessions , and not to these that are extrajudicial , & extra bancum , which maxime is stronger with us then elsewhere , because by a particular act of parliament , ia. . parl. . cap. . all probation should be led in presence of the assize . iii. this maxime doth admit in farin icius opinion , many limitations , as . that if the extrajudicial confession be adminiculat by other presumptions , it is sufficient , but except the presumptions be very violent , i cannot allow this limitation , seing confessio extrajudicialis in se nulla est , & quod nullum est non potest adminiculari , and therefore some approve , bossius who admits this confession , though adminiculat only to infer , paenam extraordinariam sed non ordinariam , for certainly such prevarication , and abusing of truth , and judges deserves some punishment . the second limitation , is , that if the confession be admitted in presence of the accuser , and accepted by him , then it is valid , though extrajudicial ; but this i allow not , because it is still extrajudicial , and the confessor knew that he should not die upon such a confession ; for which reason likewise , i approve not the third and fourth limitations , which are , that if the extrajudicial confession be geminata , and reiterated , or emitted in presence of a multitude , or ad exonerationem conscientiae , that then it should be valid ; and i remember , that though major weir confest sodomy , and incest to ministers , and magistrats joyntly , for exoneration of his conscience , in presence of many persons , that his majesties advocat took great pains to bring him to a judicial confession , as thinking the former not sufficient : and yet frazer was condemned upon a confession , emited before the assembly at aberdene , and other noble men , though retracted , . where this limitation is alledged upon , out of farinacius , and this being represented to the parliament , they refused to give their opinion , and referred all back to the justices , who sustained the confession adminiculated , as said is . the sixth limitation is , that an extrajudicial confession is valid , if upon oath ; but i allow not this , seing oaths are not allowed in criminal cases , nor can the pannel be forced thereto ; and if he swear ultroniously , and undesired , the confession would appear to me , to be suspect , as emited , either per surorem , vel ex taedio vitae . the seventh limitation , is , that an extrajudicial confession is sufficient , when the crime confest consists , in animo , as for instance , if it were doubted upon what reason a person accused fled , or shot a pistol , &c. but i neither allow this limitation , for else it should be as large as the rule , seing all crimes require , animum delinquendi ; and yet i think that some circumstances of a crime , may be proved by an extrajudicial confession , and so this limitation may be true in that sense . all these limitations are largely , rather then exactly set down , by farin . de reo confesso , quest . . reg. . confession though extrajudicial , may be sufficient ( if adminiculat ) to subject the confessor to the torture ; but this is rarely practized with us : but i remember to have seen mitchel lately tortured , upon his retracting a confession emitted by him , in presence of his majesties privy council , and a confession extorted by torture , is in no law sufficient , so that except it be adhered to , after the person tortured is removed from the rack , for two or three dayes , it makes no faith , farin . de reo . confesso . cap. . the custome with us , is , that the advocat doth in presence of the justices , examine the party to be accused , and if he confesse , either he subscribes his confession , if he can write , or else the justices subscribes for him , or which is securer , makes two nottars , and four witnesses subscribe ; and albeit a confession thus subscribed by two nottars , before four witnesses , was found sufficient , upon the . of december . in the case of finla macknob , who was pursued for theft , yet it was then alledged , that the confession was not sufficient , and that for these reasons . . because all probation should by the act of parliament foresaid , be led in presence of the assize ; and therefore when the probation was founded upon confession , the confession should have been originally emitted in presence of the assize , or at least adhered to before them , and the testimony of two nottars , and four witnesses , was not equivalent to a verbal confession ; seing they could not thereby know all the circumstances which are necessary to be known , such as whether the confession was voluntar , or extorted , or if it proceeded upon a mistake , or if it was founded upon promise of life , &c. . the party who confessed might have emitted that declaration , upon a confidence that the same could not operat against him , being extrajudicial , as said is . . that must be accounted an extrajudicial confession , quae non emanavit in judicio , and this is such ; because there was no court fenced here , nor yet an assize sworn , whereas that is only called a judicial confession , which is emitted before those who are judges , and whilst they are sitting in judgement , boss. tit . de confessis . . the confessor here was an ignorant person , and did not understand the scottish language , and so might be very subject to mistake ; upon which reasons , the assize having demured ; the justices made application to the council , but the case being by the council remitted intirely back to themselves , they did find the foresaid confession sufficient , and macknab was thereupon convict accordingly , and hang'd ; but if the confession had only been subscribed by a judge , i think it could not have been valid , for that were to confound the office of a judge , witness , and clerk , and would tend to make all judges arbitrary ; so that the life of the leidges should depend upon one single testimony , which were very dangerous , especially in inferiour courts , where it is very well known that persons of very little integ●ity sit as judges , and which judges are oftentimes interested , to get the pannel condemned , because thereby the escheat , at least a part of it falls to themselves . so far doth our law require judicial confessions , that it hath been debated , that even a confession taken by all the justices sitting in judgement , was not a sufficient warrand , for the assize to proceed in condemning the party , except the confession had been renewed before them , though the confession it self was subscribed , and the subsc●iption acknowledged , for the foresaid act of parliament requires , that the hail probation should be used before the assize , in presence of the party accused ; but so it is that the emiting of the confession is a chief part of the probation , since law has laid great weight upon the way and manner , how a confession is eli●ite , measuring exactly the degrees of constancy , or fear , appearing in the pannel , as well as considering the motives by which he was induced to confess , and what difference is there , quo ad the assize , whether the confession be emitted before the justices , or an inferiour judge , or why should not the deposition of witnesses , or confessions of parties , taken by way of precognition proved ? and yet thir confessions taken before the justices prove . but to this it is answered , that confessions emitted in presence of a judge competent , prove in all nations , from which the foresaid act should not be made to derogat , except it designed the same clearly : but so it is , that it is clear by the foresaid act , that it was not intended , that any probation that was formerly good , and probative , should be discharged ; but only that the way of using the same should be regulat , and so subscribed papers are not rejected , for we daily see that papers prove treason , and usury , though they be not subscribed before the assize ; but that act only discharges a former wicked custom , of carrying in papers claudistinely to the inquest , which had not been openly used before the pannel . likeas , assizers do frequently condemn with us upon such confessions . the second question which may be here debated , is , whether when a person confesses a crime with a quality , and not simply , if his confession may be devided , so that he may be convict upon the confession , notwithstanding of the quality , except he can prove the quality , this was debated the . of march . at which time , one dumbar , being pursued for wounding collonel innes , confest that he wounded him , but he did it in defence of his own life , being assaulted by the said collonel ; upon which confession it was alledged , he could not have been found guilty ; since a confession can no more be divided , then an oath , and it is a brocard in law , that quod approbas non reprobas : as also , seing the crime could never be proved , but by the confession , the confession being qualified , was no confession without the qualification , and therefore there was no probation beyond the quality ; i know that the doctors do in this case , distinguish betwixt such qualified confessions , as are omitted , sub unico structu verborum , as if the confession did bear , i did kill in my own defence , vel sub duplici , as i did kill , but i kill'd in my own defence ; in the first , they think the quality cannot be disjoyned from the confession , but in the second it may ; yet i think this but a subtilty , for poor persons especially , when they are tryed for their lives , take not such pains to order their expressions , and their design in both is the same , but i approve more that other opinion of these , who think , that such qualified confessions may infer an arbitrary , though less punishment , paenam non ordinariam , sed extraordinariam , as is asserted by decius in cap. cum venerabilis extra . de except vid. far. de reo confesso quest . . cap. . and albeit i think , that if there were strong presumptions against the confessor , as there was in the above related case , he behoved , cocasu , to prove that quality of self-defence , otherwise then by adjecting a quality ; because presumptions transfer the necessity of probation , upon him against whom the presumption is brought , cod. fab . de sicar . def . . non scinditur confessio in criminalibus nisi adsint contraria indicia . yet i think , that such qualified confessions as this is , which imply a defence , should either prove the defence , or else they should not prove the libel , and either should be altogether believed , or altogether reprobated , for as it was not the design of the confessor , to bind a guilt upon himself by the confession ; so it is to be presumed , that he who is so ingenuous as to confess a guilt against himself , would be likewise so ingenuous as to confess the truth really , and sincerely , or if he omited this confession by a secret impulse , of a superiour power forcing him to confess the truth , we may rationally conclude , that the same impulse would likewise have inforced him to confess the truth in its fulness , and simplicity , & homicidium indubio non dolose sed ad defensionem factum praesumitur & sic qualitas adjecta habet pro se presumptionem , mascard . deprobat , l. . concluss . . i do likewise think , if the quality , was not annexed to the first deposition , that it should not afterwards be received , since it is presumeable , that it would have been adjected at the beginning , if it had been true ; every man being more mindful to defend himself , then to confess a crime ; and that notwithstanding of such a quality adjected , ex intervalo , the confessor may be punished , pena ordinaria , which is also the opinion of clarus quest. . v. the third question is , whether a confession emitted before a judge , who was not competent to punish corporally , be sufficient for a judge to proceed who is competent , and this is oft contraverted with us , if a confession , or probation le● before a kirk-session , be sufficient , if it be repeated before the justices , and the council being consulted lately by the sheriff of the merse , concerning a man who had confest witchcraft , before the presbytrie , they would not decide it , albeit lawyers who were members of the council : and others were of opinion , that he should dy , except he could alledge a sufficient reason for varrying in his confession , but this is against a received position amongst lawyers ; quod confessio emanata coram judice incompitente non sufficit ad condemnandum farin . de reo . confess . cap. . licet sufficiat ad torturam & habent vim extrajudicialis confessionis , the reason of the foresaid rule is , that the confessor knows that he could not dy upon that confession , and men will confesse many times to free themselves from trouble , or evite excommunication , who would not acknowledge a crime , if they were capitally accused ; some also have confest to kirk-sessions , crimes , of which they have been innocent , as adulteries , for obtaining a devorce , and fornication , to obtain a consent of the father , and whatever may be alledged against extrajudicial , may be alledged against confessions , before an incompetent judge : by this also it may easily appear , what should be answered to another question , which differs little from this , viz. if a confession of a crime taken incidently , in another proces , and not taken in proces , wherein the confessor is pursued for life , be sufficient to infer death . the lords of session would not sustain a confession omitted by a man before the kirk-session , ad exonerationem conscientiae , to operat against him in any other court ; because they thought that this would continue men in impenitency , and retard their repenting ; which decision was much applauded , licet , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . vi. by the civil law , l. clarum c. de authoritate prestunda , minors accused , could not prejudge themselves by their own confessions ; but this is innovat by the custom of all nations , boer . decis . . and boss. tit . de confessis : and with us , minors confessing crimes , are thereupon execute ; and i find in the jou●nal books , instances thereof , in very young persons , but i think there is much left in this case to the arbitrariness of the judge , who should distinguish betwixt such crimes as fall under sence , as murder , and such as principally require judgement , as blasphemy , witchcraft , &c. in which last , hardly should minors be punished , paena ordinaria , upon their own confession , and scarce after they confess , for a minor is presumed to have no solid judgement . though a minor may bind a crime upon himself by his own confession , and may be thereupon condemned , and executed : yet whether he may revoke this confession , and be reponed against the same , because of his minority , was debated the . of february . in the case of a young boy called kennedy ; and that he might be reponed , was urged from these reasons , . a minors lubricity of judgement might prejudge him as much in criminals , as in civil cases , and therefore he ought to be reponed against the one , as well as against the other ; and it were absurd , that a minor should not be able to bind himself in the value of ten pounds scots , and that yet he should by his confession make himself liable to death . . lawyers are very clear , that a minor may revoke a criminal confession , l. . c. de authoritat . prestand . clar. quest . . and gomez . gives an instance of a minors being reponed against the confession of incest . . in this confession , a minor might have much more easily lapsed into a fatal error , then in any other cases ; the subject matter of this confession being a contrivance to poyson by droggs , and medicaments , in which , non constat de corpore delicti , since the defunct might have dyed of another disease , and as to which , a minor might easily have been mistaken , since to give a solid judgement , in such cases , or to confesse what relates thereto , requi●es not only more reason , but more skill and art , then can be expected from so young a boy . to which it was answered , that since minors may be punishable crimes , they may consequently b●nd a guilt upon themselves , by their confessions , for if the law did not consider them as so far , doli capaces , that they understood the hazard of a crime , it would not punish them , and if they understood the nature , and hazard of a crime , it is unreasonable to think that they may not understand their hazard in confessing it , since in committing crimes , the judgement of the wisest is ordinarly blinded with passion , and errour ; but in confessing , men have time and leasure to be judicious , and serious ; and if minors confessions could not ty them , they might still in absence of witnesses commit crimes at their pleasure . . lawyers as well as reason are very clear , that a minor cannot be restored , except he shew that he was circumveened , or lees'd by his confession , as for instance , if he should confess simply that he killed a man , but should forget to add that he killed him in self-defence , or should confesse that he committed incest ; but should forget to add that he was ignorant , that the person with whom he committed the same , was within the degrees that inferred incest : which opinion is to be seen , in oddo . . fortia . quest . . num . . or if he had confest upon the promise of indemnity , or by the fear of threatnings , and were able to prove either , and by this just temprement , the interest of the common-wealth , and the imbicility of minors are both salved : and therefore when law , or lawyers say that a minor may be restored against his confession , their meaning only is , that he may be restored if he can prove his error and mistake . . this being a confession twice emitted , and adhered to , and adminiculated by the confession of other dying persons , who could not clear themselves by fyling him , there can no doubt of its truth remain with any disinterested person . this case was not decided , but i conceive that a minor cannot be restored against his own confession , except he shew , wherein he was either circumveen'd , or mistaken . and if a person past . years of age , can prove , that he has confest what was not true , he ought to be restor'd : as for instance , if he can prove that the man whom he confest he did kill , is still alive . in which sence i take l. . § . d. severus . ff . de p●nis , d. severus rescripsit , confessiones reorum pro exploratis criminibus haberi non aporteri . and when the eclog. sayes , cap. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . suitable to l. . ff . de confessis . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , qui servum occisum intermisse se fatctur , licet non occiderit ; ex confesso tenetur . this is to be so interpreted , that a man past . may be executed upon his own confession , without enquiring whether what he confest be true . but it doth not follow , that if the confessor can prove he confest what was false , he ought not to be repon'd . title xxv . probation by oath , by write , and by presumptions . . in what cases is a pannel obliged to give his oath . . whether a pannel is obliged to depon● , when the iudge declares that his deponing shall not infer● a corporal punishment . . in what cases can crimes be proved by write , and whether a write that is null can prove a crime . . how far can a crime be proved by presumptions . i. probation by oath , is not regularly admitted in criminal cases , for the pursuers oath is never probative , even in civil cases , except it be adduced in supplement ; but the oath of supplement by the pursuer , is used upon no occasion in criminals : neither is the defender forced to give his oath in criminals , as he is in civil cases , both because it is unjust , to force a man to condemn himself , and because it is most probable , that he who is accused for a crime , would hazard his soul by pe●jury , to redeem his blood , by an oath . but because the excessive love which we bear to life , is the occasion of this exemption ; therefore where the punishment is not corporal , & corporis afflictiva , the defender will be forced sometimes to give his oath , as in the case of riots , and blood-wyts . sometimes likewise the law , because of the scantness of the probation , obliges him who is accused to give his oath , as in the case of usury , which is a crime odious in it self , and cladestinely carried on , ia. . cap. . par. . and in the case of simony , ia. . parl. . yet neither of these crimes are corporally punished , and therefore these rules may still hold . . that probation by oath of the defender , is never allowed by law , neither ubi paena est corporis afflictiva , nec ubi infamia irrogatur , quia nemo tenetur probare suam turpitu d●nem , & fama & vita quoad hoc aquiparantur . . that a person accused may be obliged by an express law to depon , though the crime for which he is accused , may infer infamy . . that no law should force the defender in a criminal process to swear , where the crime may infer death , nor have we any such law in our kingdom . ii. it is oft contraverted , both in the council , and criminal court , whether though the crime be in it self , such as deserves a corporal punishment , yet if the pursuer , and his majesties advocat likewise declare , that they will not pursue the same criminally , & ad paenam corporalem infligendam , if eo casu , the defender may not be forced to depon , which question may be resolved , by these conclusions , . that though the pursuer declare that he will not insist criminally , yet that declaration is not sufficient , because his majesties ●dvocat may pursue . . though his majesties advocat concur with the pursue● , in the declaration ; yet it is not sufficient , seing his majesties officers cannot prejudge his majesty by any declaration of others , for else they might by such declarations as these , in effect remit crimes . . the declaration of the council is not sufficient , because they may not prejudge a criminal action , which may be intented before the justice court , as was found in the case of some gentlemen , and others , who being pursued before the council , as plagiaries , for taking away anna gibson , it was found by the council , that they were not obliged to swear , though both the pursuer , and advocat declared they should never be criminally pursued . . i conceive that neither the declaration of the pursuer , nor defender , even in a criminal pursuit before the justices , though agreed to by the justices , would not be sufficient to force the defender to swear ; for i think , that though the defender should , co casu , upon oath deny his guilt , that he might be of new pursued , and convict upon clear probation ; for his majesty , and the publicks interest can never be prejudged by any declaration of his officers , nor can any remit crimes , as i said formerly . iii. crimes do not ordinarly use to be proved by write , and when they may be so proved , there is little difficulty as to the probation ; only it may be observed , that it was found in the crime of falshood , pursued against captain barclay , that a write may be proved false , without p●oduction of it ; and in purdies case , that a discharge was sufficient , to prove usury , though it wanted both writers name , and witnesses , seing the pursuer offered to prove the subscription by his oath ; but it is observable that pannels are in usury obliged to swear , and therefore it may be doubted , whether a write not subscribed before witnesses , doth prove a crime , since all writes of importance , are by act of parliament decla●ed null , if they want the writers name , and witnesses , and if they be not believed , quo ad , a civil effect , much lesse in a criminal ; nor is the pannel here oblidged to make up the same by his oath , as in civil cases : and yet the marquess of argile was convict of treason , upon letters writen by him to general monck ; these letters being only subscribed by him , and not holograph , and the subscription having been proved , per comparationem literarum , which were very hard in other cases ; seing compara●io literarum , is but a presumption , and mens hands are oft-times , and easily imitated , and one mans write will differ from it self at several occasions . iv. presumptions are divided , in presumptions that are violent ( for strong presumptions are so called ) and these that are not violent , they are likewise divided , in praesumptiones juris , & presumptiones juris & de jure . whether crimes may be proved by p●esumptions , is much contraverted , both in law , and practique , and that they cannot be proved by presumptions , is inferred from these reasons , . presumptions are only founded upon verisimilitude , and what may be , may not be ; whereas all probations , especially in criminals , should be infallible , and certain , & conclusio semper debet sequi debiliorem partem . . if crimes could be proved by presumptions , judges would be arbitrary in all cases , seing the law cannot determine the number , and weight of presumptions , as it doth in other probations . . the doctors universally conclude , that presumptions do not prove crimes , as is clear by mascard . farin . &c. upon the other hand it may be argued , that a crime may be inferred from presumptions , and that for these reasons , . l. ult . cod. de probationibus ubi asserit p●sse crimina vel idoniis testibus vel apertissimis documentis vel judiciis judubitatis probari & l. . ff . quon . apell . non recip . ubi jubetur curialis observare ne quis homicidarum adulterorum , &c. argumentis convictus , testibus superatus , vel voce propria confessus audiatur apellare . . since witnesses are only believed , because it is presumed they will not damn themselves ; why may not other presumptions be likewise received ? . presumptions are in many cases allowed as a sufficient probation , as the presumption of cohabitation , after the parties are discharged , is sufficient be act of parliament , to infer adultery . . the depositions of witnesses are oft-times founded upon presumptions , as when they depon upon dolus malus , ebriety , or any other thing which depends upon acts of the mind . . many have been condemned upon presumptions , as ianet brown , who was convict for murder of her own child , upon presumptions , and hang'd accordingly , the . of iune . and scot was convict , and hanged for killing of drumlanrigs sheep , the . of february . and after a solemn debate , how far presumptions could prove in criminals : in alexander kennedies case , he was convict , and hanged for falshood , upon presumptions in anno . this difficulty hath forced some of the doctors to conclude , that this case is arbitrary ; and others to conclude , that presumptions may infer , paenam extraordinariam , sed non ordinariam , cod. fab . tit . de paen . which last opinion , is upon the matter coincident with the first ; for in arbitrary cases , the judges can never proceed to death , and it seems that both these opinions are well founded , because not only the committing of crimes , but even the giving of scandal , and the doing that which is like a crime , deserves to be some way punished ; but this arbitrariness should only in my opinion , be allowed to the council , who are a supream judicatory , and are in such extraordinary cases , tyed to no express law. title xxvi . probation by witnesses . . how witnesses are cited with us . . who are testes ultronei . . what witnesses are not worth the kings unlaw . . when women may be admitted to be witnesses , and when not . . how minors are to be admitted witnesses . . persons guilty of crimes cannot be admitted . . persons within degrees defendant , are not admitted , and who these are . . domestick servants , when admitted . . moveable tennents . . socius criminis . . defenders cited as parties . . what time is considered in the hability of a witness . . whether witnesses inhabile , may be received at his majesties instance . . who are testes singulares . . the contrariety in depositions considered . . causa scientiae . . witnesses , ad futuram rei memoriam . . it is now necessary to give in a list to the defender , of the witnesses names who are to be led against him . . absent witnesses how punished and compelled . . what number may be cited for proving each crime . if the crime be pursued by raising of a summonds , that summonds contains a warrand to cite witnesses ; but if the pursuite be by way of inditement , the justices grant warrand by precept for citing of witnesses . at the day of compearance , the pursuer gives in with his execute summonds , executions likewise against the witnesses , and if the executions against the witnesses , be not legal , the dyet is deserted ; but if the witnesses be lawfully cited , and compear not , of old , there was a warrand given to apprehend them , and the dyet was continued , but now there are formal letters of caption , given under the signet of the session , and not of the justice-court , and the letters are still raised by the justice-clerks deput● who is the ordinary clerk of court ; and if the sheriff refuse to apprehend the witnesses by vertue of the caption , the letters will be direct against himself , as in civil cases , and this was first observed in the cases of mackalla against lindsay . after the justices have found that the pannel should go to the knowledge of an inquest , he asks the pursuer what way he will prove his libel : and if the probation by witnesses be chosen as the manner of probation to be used . ii. the justices desire the clerk to call the witnesses , and if any be given in , in the list , against whom there is no formal execution ; it is alledged they cannot be received , and this is the first objection against the witnesses , and is founded upon this reason viz. that he who offers himself to depon , without being lawfully cited , is presumed to be too desirous to depon , and so to have malice . these the civil law calls testes ultron●i , yet i find that the justices sometimes receives witnesses cited , apud acta , as alexander forrester against a witch , the . of august . so though they will not receive a witnesse , who appears upon an unlawful citation , and which he knows to be unlawfull , yet they will receive some , though not at all cited ; for the first show a complyance , but not the last , all the objections against the wittesses are discust before they be sworn , for it is below the majesty of an oath , to administrat the same unnecessarily , before it be known whether the person to whom the oath is to be administrat will be received . to object against a witness in our law , is called to cast a witness , or to set him ; and by the doctors it is called to repel a witnesse , but because objections against the witnesses , or oppositiones contra testes , as farinacius calls them , are so largely treated of by him , and others , i shall therefore only take notice of some particular objections , which are mentioned , and made use of frequently in our law , and practique . and in law these objections are divided into such as are used contra personas testium , and these which are used contra dicta testium , i shall therefore first treat of these objections which are used contra personas testium . iii. witnesses are not admitted with us , if they be not worth the kings unlaw , which we interpret to be ten pounds ; and because no man can know the value of anothers estate , this objection is found therefore only probable by the oath of the witnesse himself , as was found in the case of ruchead against muire , the . of december . but this seems strange ; for since the law is jealous that he will depon unjustly , why it should believe him as to his own quality ; and therefore i think that in criminal cases , when the hazard is so great , the being known to be an actual beggar , should be sufficient , per se , to cast a witnesse , without referring the same to the witnesses oath . this objection is founded upon the presumption , that such as are poor , are liable to impression . and such as are poor are expresly repelled from being witnesses , by the . cap. stat . . rob. and they were likewise repelled by the civil law. iv. women regulariter are not witnesses , neither in civil nor criminal cases with us , nor should they make as much faith with us in criminalibus , as is allowed by the civil law , and doctors ; seing with us they are excluded from being witnesses even in civil cases , ergo à fortiori , they ought to be rejected in criminal cases ; for albeit the doctors allow them sometimes to prove in civil cases , yet they reject them in the same causes , when they are criminally pursued , as in furto , &c. farin . quest . . num . . and by an expresse act . agust . the justices ordained , that no women should be examined as witnesses in theft , for the future , except ex officio , & cum nota : and that same day they rece●ved elisabeth watson , as witness in theft against bruntfield . . women are sometimes received witnesses in some cases , ob atrocitatem criminis , as in treason , by an expresse act of sederunt . and in witch-craft , most ordinarily , as is to be seen by the books of adjurnal , and particularly in the process of margaret wallace , the . of march . where margaret grahame , and marion wear , are received witnesses . . they are admitted in criminibus domesticis , because of scantness of probation ; and thus they were received against george swintoun , who was accused for murdering his own wife , within his own house , . agust . . women are received witnesses , where women use only to be present , as in the being brought to bed , murdering of children , & in partu supposititio , &c. very many instances whereof are to be seen in the adjurnal books . and yet farin . quest . . sayes mulier non potest esse testis , & quo ad suppositionem partus si inde agitur criminaliter , ad suppositionem corporaliter puniendam : and by these we may conclude that women are not regulariter admitted witnesses in scotland . likeas by the . cap. rob. . these are expresly excluded from witnesse bearing ; yet matheus concludes they may be received witnesses , ex hoc , quod mulier adubterii condemnata non admittatur , ergo in aliis mulieres admitti debent ; but this opinion is contrary to all the doctors , vid. farin . quest . . casu , . where he gives it for a rule , that mulier in criminalibus testis esse nequit , which rule extends so far that according to his judgement , three or moe women cannot prove a crime , num . . the reason why women are excluded from witnessing , must be either that they are subject to too much compassion , and so ought not to be more received in criminal cases , then in any civil cases ; or else the law was unwilling to trouble them , and thought it might learn them too much confidence , and make them subject to too much familiarity with men , and strangers , if they were necessitated to vague up and down at all courts , upon all occasions . v. minors if they be past fourteen years of age , and no otherwise , may be admitted to be witnesses , by the foresaid act of k. robert , and it being alledged in the proces of margaret wallace , . that margaret graham could not be received a witness , because she was not past eighteen years of age , this was repelled , because a testificat bore , that she was past fourteen years of age , and might be man'd . the reason of this objection , is , because minors understand not to answer all circumstances , which must be necessarily considered by the judge ; nor yet the nature of that oath , which should over-aw them , and they are very subject in their youth to corruption ; a clear instance whereof , i saw my self , in a little boy , against towie , who after he was received , did first depon m●ny improbabilities , and s●emed terrified with every question , and thereafter confest that he was bribed , with a very small and childish bribe . in many cases likewise , witnesses are to depon upon that which requ●res judgement , as in proving self-defence , ratihabition , &c. and in these cases , it is repuisit that the deponer be of a more advanced age then fourteen . vi. by that act likewise of k. rob. such as are furious , adulterers , robbers , thieves , perjured , scourged , and servants cannot be received witnesses ; not yet laiks against church-men , nor yet church-men against laiks : whereas according to the cannon law , cap. de cetero decret . de testib . laiks are forbidden to be received against church-men , sed non contra . the reasons of which constitution , are given to be partly the reverence due to church-men , and partly the hatred whereby laiks do persecute them ; but this objection is justly reprobat by our custome : by which likewise servants are received to be witnesses , notwithstanding of the former law against it ; but not for their masters : but whether he who hath redeemed himself from justice by a remission , should be received a witness , may be contraverted ? and that he should not be received , may be argued , . because of this law of k. rob. which doth expresly repel him . . a remission takes not away the guilt , but is only a defence against the punishment , l. fin. c. de gener . abolit . : and semel malus semper praesumitur malus , which wicked disposition cannot be altered by a remission ; and since the king cannot make a man good , it follows , that he cannot make him a sufficient witness . . it hath been found by several decisions , that a person convict , and brought off by a remission , redemptus à justitia , as this law calls him , hath been therefore set , from being a witness , as in the case of tossoch , who was condemned as a false nottar , and was thereupon set from being a witness , in the proces , for burning the house of frendraught ; and yet i my self have objected this against an english captain , in argiles case it was repelled . but to reconcile these two opinions , i think we should distinguish betwixt such as make use of the remission , before they be convict , and these who are convict , and thereafter make use of the remission ; for those who propon upon the remission , do eo ipso , acknowledge the guilt ; yet that it is only fictione juris : and therefore the foresaid law sayes , copulative that convicti , & redempti à justitia non possunt esses testes . guiltiness which casts a man from being witness , must be proved by a sentence , and it was not found relevant , that the theft was offered instantly to be proved , the . of february . in ashintillies case ; but it would appear , that sometimes the theft is so recently committed , that there could be no time for convicting him ; and yet it were hard that a person so guilty , should be received . the dependence also of a criminal pursuit against a witnesse , should cast him , if it was intented before his citation , to be a witness , else every witness might be cast , by intenting a criminal pursuit against him . vii . these within degrees defendant , by blood , or affinity , are likewise repelled by the foresaid act. degrees defendant , are by our law the fourth degree , or cousen germans , as is expressed in the foresaid chapter , and this term comes , in my opinion , from the french word , defendre , to forbid , so that degree defendu , is the true expression , though we say defendent , by corruption of the word . excommunicat persons cannot by that law be witnesses , nor such as are incarcerat : yet de practica , such as are incarcerat , are received , except they can be cast by some other objection . nor such as are accused for a criminal cause , during the dependence of the proces : nor such as are of the pursuers counsel : which objection is , de practica , called the giving of partial counsel , and this is only proved by the defenders own oath , properly , yet the being present at a consultation with the pursuer , or the solisting for him , are likewise branches of partial counsel , and are probable by witnesses . viii . domestick servants cannot be received witnesses for their masters , albeit they may against them , but if they be not servants the time of the deposition , they may ; except their master hath put them away dolose , that he might use them as witnesses ; but it may be contended , that if he put them away since the citation , to depon , they cannot be witnesses . nor removeable tennents , but tennents having taks , or cottars of their tennents , de practica , are still received ; because the law presumes they are not so liable to the masters impressions ; and yet it is generally said in the former law , of k. robert , nec aliquis tenens terram de eo adfirmam , vel ad annuum reditum , and farin . doth , regulariter , conclude , that colonus non ●dmittitur ad testificandum pro domino suo ; and yet glossa ad ca● . in literis extra de testibus adheres to the distinction allowed in our practice , and concludes , that aut coloni sunt tales quibus imperare potest dominus , & tunc repelluntur , alias non , sed its tantum creditur farin . is likewise of opinion , that though vassals who are not subject to the jurisdiction of their superiour , may be received witnesses for him ; yet that where his superior , habet merum , et mixtum imperium , in vassallos , the vassal there cannot be received witness for him , but with us , vassals of regalities , are received witnesses for the lord of regality , which seems very unjust ; seing as farin . there observes , dominus intales vassalos minacem terrorem , et timorem incutere potest . ix . though moveable tennents cannot be witnesses , yet cotta●s may , as the custom now runs , whether they be cottars to tennents , who are not receiveable , or not , . december . for our custom thinks cottars independent ; yet i conceive if this were well debated , it would be found , that where the tennent is not receiveable , neither can his cottars , especially in criminal cases , where exact probation is requisite ; for it is not imaginable , but that the cottar will stand in aw of him , whom his master fears . x. he who was sharer in the committing of the crime , with the person accused , or socius criminis , cannot be received a witness , nor yet he , qui fovet consimilem causam , or who may win , or gain by the event of the pursuit ; but in falshood , socii criminis , are received witnesses ; because without these , that crime could not be proved ; and thus barclay being accused for forging a bond , and disposition , the witnesses who subscribed the same at his desire , without seing the principal party to whom they are witnesses , subscribe , were received to prove the falshood , and the forger of the bond was also admitted . in the pursuit of charles robertson , it was alledged , that socii criminis might be witnesses , where the punishment was pecuniary , et sententia non irrogabat infamiam ; for the reason why socii criminis were not admitted , was , because they were infamous , et intestabiles ; to which it was answered , that the reason was , because they were under fear of the pursuer , and there was greater reason to repel them in small crimes , then in atrocioribus ; seing in these lesser crimes , the common-wealth was not so much concerned , which was the reason why the strictness of probation was relaxed in treason , &c. and in these the pannel might be forced to depon ; but could not in greater crimes . in respect of which answer , the justices the . of march . would not admit socios criminis , though in a delict , which was only punishable by a pecuniary mulct , and though they were not found to be socii , by a sentence , seing there being socii , was offered to be proved by their own oaths , and by the foresaid statute , socius criminis , and infamis are two different objections , which had been unnecessar , if socius criminis had been only repelled , because he was infamis . xi . it is ordinary for any person who is pursued for a crime , to raise a reconvention , and to call therein all such as defenders , whom they think may be led as witnesses against them ; and it is ordinarly controverted , whether in such mutual pursuits , seu ante categoriis , may be received as witnesses ? to which the solid answer is , that though it seem that they may ; because else it should be in the power of the person accused , to set all such witnesses as may be led against him ; seing he may raise a reconvention , or it may be intent the first criminal pursuit , upon design , and call all these as defenders ; yet it is thought they cannot be received witnesses , until that process depending against themselves be first discussed ; by the event whereof , it may appear , whether that pursuit be just , or unjust : and by the former law of k. robert , none can be received witnesses , against whom there is a criminal pursuit intented . notwithstanding of all which , i have seen the lords receive witnesses in this case , but cum nota . witnesses who may be received , are called testes habiles , and they are distinguished , in idoneos , or sufficient witnesses , or testes omni exceptione majores , who deserve yet a further degree of faith , and against whom there is not only no objection , but even no suspition , et testes optimae opinionis , who deserves the highest degree of trust ; sometimes likewise , witnesses are received , though they be not altogether habiles , and these are called with us , testes cum nota , who in our law prove not fully , either the libel , or defence ; albeit by the civil law , testes inhabiles , were admitted to exculpat , or prove a defence propon'd for the pannel , if there did not ly presumptions of guilt against them . xii . if a witness was not habilis , to be a witnesse , when the crime was committed , he will not be admitted to be a witnesse , though he be habilis , & major , at the same time of his deposition ; because a witnesse must be such as did then know what was done : thus wilson was repelled , in the process against cask , the . of september . xiii . it is oft-times controverted with us , if such witnesses as could not be received at the instance of the accuser , may be received at the instance of his majesties advocat , which question may be answered by these conclusions , . if the objections against the witnesses be such , as make the witnesses inhabiles , as that he is minor , or infamous , then these witnesses cannot be received at the instance of the fisk. . if the objections be such as tend to cast the witnesses , meerly because of his relation to the party wrong'd , as that he is servant , or within degrees defendant to the party wrong'd , then though the party wrong'd insist not ; yet these witnesses cannot be received , if any advantage may accress to the party wrong'd , by their deposition ; and except he declare that he shall thereby reap no advantage , and except the crime be such as did no affront to the party injured , for eo casu , it is still presum'd , that his relations will retain a privat grudge , or malice , whereupon they may prejudge in their depositions , both the truth , and the defender ; and yet ordinarly with us the relations of the persons injured , are received at the instance of the kings advocat . thus neilson was received against margaret wallace , for witchcraft , though he was brother in law to nicol , who gave information in the dittay , because the summonds was not raised at his instance , the . of march . and yet in that same process , stirling was not admitted to be an assizer , because he was brother in law to muir , who was one of these who was alledged to be malificiat by her , albeit the libel was not raised at the instance of muir , nor none of his relations , which i think both irregular , and dangerous . albeit these be relevant objections against witnesses , yet if the proponer of the objection , cite them also at his own instance , eo ipso , he acknowledge the witnesses to be , habiles testes , but sometimes he may notwithstanding , propon objections , even against those himself cites , v. g. though i cite a man to be witness for me , yet i may set him from being witness for my adversary ; because he is brother , or servant . iv. the objections , contradicta testium , are singularity , and contrariety , and the not giving a sufficient causa scientiae . singularity is , when the witnesse who depons , hath no concurring witness , and this singularity is divided , in obstativam , adminiculativam , & diversificativam . singularitas obstativa , is , in acta non reiterabili , an instance whereof they give in susanna , and the two elders , who deponed upon the same adultery , but differed in the place , and therefore did not prove . and it is a general rule , that where the crime is not reiterable , or reiterated , that two witnesses varying upon the time , or place , as if one should say , a man were murdered at edimburgh , and the other at haddingtoun , these depositions could not be conjoyned , for proving the murder . singularitas adminiculativa , is , where the witnesses do not concur in their depositions , yet they are not contrary , and the one assists the other , as in the proving that a horse was stoln , one should depon that he saw the thief go in without a horse , another saw him take the horse , but no more , which singularity in depositions , doth not hinder the witnesses to prove , neither by our practiques , nor in the opinion of the doctors . singularitas diversificativa , is , when witnesses depon different acts , as in a crime which is reiterable , and thus the adultery against iohn maxwel , was found by the lords to be sufficiently proved , though one of the witnesses deponed only upon an adultery committed at one time , and another , of an adultery committed at another time , february . for the lords thought , that if one witness should peep in through a hole , and see adultery committed , and thereafter another witness should peep in , and see the adultery likewise committed , yet they were contestes , and did prove sufficiently , etiam ad paenam mortis infligendam , as was found in the probation of adultery , led against george swintoun ; ( but in my opinion ) this case differs from the former , for in george swintouns case , both the witnesses concurred in one act , but they did not so in the case of iohn maxwel , and therefore , though the depositions were conjoyned against him , by the lords , for sustaining a decreet of divorce ; yet it were hard that these different probations could have been conjoyned , if the case had been criminally pursued , as is clear by farin . quest . . de oposition . contra exam . testium . num . . xv. witnesses who depon things that are contrary , do not prove , if that contrariety be in things that are substantial , but though they differ in some extrinsick circumstances , yet they prove , & verba sunt improprianda , nut testes concordentur , & etiam concordari debent aliquando à judice per interpretationem supletivam , but though contrariety be a great defect in depositions ; yet too formal an agreement amongst the witnesses , who depon all in the very same words , & per praemeditatum sermonem , is suspect , v. g. if two , or more witnesses should tell over a long story , in the very same words , as farin . well observes , quest . . num . . xvi . lawyers have taken so great pains , to secure the lives of poor pannels , that they will not believe witnesses , though concurring , except they can render a sufficient causa scientiae , if the thing deponed fall under sense , as the seing a man killed ; if it fall not under a sense absolutely , as that a person was drunk , mad , or repute a thief , &c. betwixt which two , there is likewise this difference , that in these things that fall not under sense , the ratio scientiae must be given , whether it be asked or not , because in effect , it is the ratio scientiae , and not the deposition , which proves in that case . witnesses must in our law be received in presence of the pannel , and assize , that the pannels presence may over-aw the deponer , and that the assize may judge by the deponers countenance , gestures , and assurance , how far he should be believed , and advocats are to be present , that they may interrogat upon emergents , and this is much juster , than the laws of other nations are , who allow neither advocat ; nor party to be present , whilst the witnesses depons , gomes . de delict . cap. . num . . and in this also we agree with the civil law , l. custodias ff . de publ . judiciis . xvii . witnesses are sometimes received , in criminalibus , ad futuram rei memoriam , for the defender , but never for the accuser ; and that because the accuser may blame himself , for not pursuing sooner , which is not in the defenders power , and testibus non testimoniis creditur , whereas depositions , ad futuram rei memoriam , are only testimonia ; and yet with us , the justices sometimes declare in court , when they continue dyets , that they will receive the depositions of witnesses , to lie in retentis ; but this form is not allowable in my opinion , except both parties consent ; because by act of parliament , all probation should be led in presence of the assize . xviii . it was a defect in our law , that albeit it allowed the pannel to object against witnesses ; yet it did not allow him to cite witnesses to prove his objections : as for instance , if the pursuer adduced a witnesse , who was convict of theft by a sentence at aberdene , this would be relevant , but the pannel could not prove his exception , both because the dyet was peremptor , and because he was not allowed to have a diligence for proving thereof ; for remedy whereof , by the . article of the regulations of the justice-court , it was appointed , that when the libel , or summonds of exculpation is execute , the names of the inquest , and witnesse should likewise be given to the defender , to the effect he might know what to object against them , and diligences are thereby allowed him for proving his objections . against this article it was murmured , that first this would be very difficult ; for the pursuer could not know what witnesses were to be adduced , and much lesse what assizers might be present , for they could not assure their attendance . . this might prove a mean of corrupting witnesses , and assizers , who if known , might be practised . but to these it may be answered , that no man should raise a criminal pursuite to vex men in their fame and fortune , till he were secure that he could prove hi● libel , which infers necessarly that he knew the witnesses who were to be adduced : and seing the pursuer might cite . he might be confident fifteen of them would obey , and be so wise as to evite the penalty : and this objection would tend much more against all continuation of assizers for a whole year , which is very ordinary . to the second it may be answered , that either the witnesses to be adduced , are honest , and then there is no fear of practising , or they are false and obnoxious to corruption , and then they should not be received at all : and it were inhumane that a mans life and fortune should be laid open to the depositions of these , whom the law durst not allow to be known , for fear of being brib'd , and corrupted . and this inconveenience could hardly have been evited before thir regulations , for ordinarily the defender knows who were present , and needed suspect that none will be adduced , who were not present . as likewise when dyets are continued ( as frequently they were ) the witnesses were still known , but these jealousies are by very much lesse dangerous , than the inconveniencies which attend the not allowing the pannel to know what witnesses are suspitious , and should be declined . and our law should either not have allowed objections against witnesses , or else should have allowed a dyet , and means for proving them : nam quando aliquid conceditur omnia concedi debent sine quibus ad hoc perveniri nequimus . xix . if witnesses compeared not of old , the dyet was immediatly deserted , but now caption will be direct against them , and the dyet will be continued , for it is unreasonable that the pursuer or fisk , should be prejudged by the contumacy of the witnesses ; but if two compear , it may be doubted if eo casu , if the dyet should be continued , for two are sufficient for proving the libel , but because moe witnesses than two are oftimes requisite , there being many circumstances to be proved , therefore it seems hard , that the dyet should not be even eo casu , continued : and at other times there may be objections which may cast such as are present , and therefore the justices continued the dyet against braco gordoun , the . of november . because the defender would not declare that he would use no objections against such as were present . though regulariter the justices will grant warrand to apprehend and secure parties who are suspect of crimes , till they find surety ; yet they refused to secure or attach , such as were cited to be witnesses , lest thereby they should discourage men from compearing to bear witness , december . in answer to a petition given in by the marquess of montrose tenents . xx. by the custom both of the council , and criminal court , ten witnesses are allowed to be cited upon every separat matter of fact ; and article of the libel , and no moe , to evite confusion ; nor wants there precedents for the number of ten in this case , since cap. . legis mamimiliae , inque eam rem is qui hac lege judicium dederit testibus publice duntaxat in res singulas decem . denunciandi potentatem facito : and i find in valerius probus , this to be an article , edicti praetorii testibusque publice dumtaxat decem denunciandi potestatem faciam , to which number witnesses are stinted , by a statute of lewis the . of france , langlaus . semestr . lib. . cap. . from which statute , our custom seems to have flow'd : title xxvii . of tortour . . by whom can torture be inflicted in our law. . torture purges all presumptions . . whether may persons who are condemned , be thereafter tortured . . who are exeemed from torture . . how should such be punished , who torture unjustly ? i. torture is seldom used with us ; because some obstinat persons do oft-times deny truth , whilst others who are frail , and timorous , confess for fear , what is not true : and it is competent to none , but to the council , or justices , to use tortour , in any case ; and therefore they found , that sir william ball●ndene , as a captain , could not torture , though it was alledg'd , that this was necessar sometimes , for knowing the motions of the enemy , and might be necessar , and allowed in some cases to souldiers , for the good of the common-wealth . and the council are so tender in torture , that though many presumptions were adduced against giles thyre , english man , suspected of murder , and adultery , they refused to torture him ; albeit it was prest zealously by his majesties advocat . ii. it is a brocard amongst the doctors , that he who offers to abide the torture , purges all other presumptions , whi●h can be adduc'd against him ; and yet alexander kennedy being pursued for forging some bonds , and nothing being adduced for proving the crimes , save presumptions , offered to abide the torture , but th●s was refused . torture likewise being adduced , purges all former presumptions , which preceeded the torture , if the person tortureed , deny what was objected against him ; but yet he may be put to the knowledge of an inquest , upon new presumptions , as was found after a learned debate , in the case of toshoch , who was tortured , for the alledg'd burning the house of frendraught , august . for it was alledg'd , that torture is intended for bringing the verity to light , and as he had been condemned , if he had confest , so he should be assoilzied when he denies , else no man would endure the torture , if they were not perswaded , that upon denyal , they should be cleared , but would confess , and not endure so much torment unnecessarly ; so that the inquisition would be the occasion of much sin , and make men die with a lie in their mouth ; and therefore to●ture is called , probatio ultima vid. clar● quest . . yet spot maxwel of garrery , and others were condemned after torture , upon other probation then was deduc'd before the torture . iii. i remember it was debated in council , anno . if the west-countrey-men who were condemned for treason , might after sentence be tortured , for clearing who were their complices , and it was found that they could not , nam post condemnationem , judices functi sunt officio ; yet all lawyers are of opinion , that even after sentence , criminals may be tortured , for knowing who were the complices . iv. one of the priviledges of minors , is , that they cannot be subjected to torture , lest the tenderness both of their age , and judgement , make them fail , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . eclog. de quest . cap. . ad , yet l. . ff . de quest . judges are discharged only to torture such as are under fourteen ; persons very old were not to be tortured , for the same reason , l. . ff . ad s. c. sillan . which was by some extended to women , sick persons , and such as had been eminent in any nation , for learning , or other arts , but all this is arbitrary with us . v. these who torture , if the person tortured die , are punishable as murderers , but though they die not , yet by the civil law they were punisht , deportatione in insulam , or by banishment ; and with us they are punisht according to the quality of the crime . title xxviii . of remissions . . whether he who uses a remission acknowledges the crime . . how remissions are granted . . for what should no remissions be granted . . letters of slames , and assithments , when necessary . . persons condemned , are sometimes restored by way of justice . when the judges has pronounced his sentence , he is functus officio , and the punishment irrogat by him , can only be remitted by the prince , though the council may moderat , or delay it . the party condemned is restored either by way of grace , or of justice , restitution per modum gratiae , is with us called a remission . i. remission then is the pardon of the crime , graciously allowed by the soveraign , and it may be given , either before , or after the pannel is convict . if it be given before conviction , the pannel by making use of it , doth per fictionem acknowledge the guilt , and it he do not acknowledge the same , the remission is null , and will not stop the execution , as was found in alexander kennedies case , and this is a received maxime with us , yet ex sententia doctorum , non videtur fateri crimen , qui gratia utitur , alexander . consil . . bossius de remed . ex clem . num . . nec potest judex dicere ei , qui vult ea uti oportet fatearis delictum , alias non uteris ; yet bossius tells us , that by the custom of milan , he who uses a remission , must acknowledge the crime , ibid. but our law in its foresaid maxim may be reconciled with these doctors , for even with us , the taking a remission doth not prove the crime , since that may be done sometime , rather upon the accompt of security , then guilt , & licet se redimere à lite ▪ and therefore braids escheat , as an adulterer , was not declared , ianuary . by the lords of session , there being no probation of the adultery , but the adulterers taking a remission ; but the using a remission doth certainly prove , as was formerly observed from these statutes . this remission is granted by a signatur under his majesties hand , and is presented in exchequer , which is equivalent with us , to that iterinatio mentioned by perez . ad tit . de sent . passis num . . clarus . ● . fin . quest . . num. . quae est approbatio senatus , quae in causa cognitione versatur ne impetrentur gratiae per obreptionem , vel subreptionem ; and therefore if the remission be granted upon a misrepresentation , the council will upon a bill stop the same , till his majestis further pleasure be known , as they did in murray of burghtouns case : and though by the . act. . par. i. . the writer of such signator● , should subscribe his name upon the back of the signator , to the end , that he may be answerable , if it contain any thing that is unallowable ; yet the said remission granted to burgh●oun , was sustained , though it had not been so subscribed , when it past his majesties hand , yet being aledged to be in desuetud , but rather because the writer did thereafter subscribe . ian. . and these remissions are ordained to pass the great seal , of design that the seal should be a check upon them , but if they passe the seal , they cannot be recalled , tanquam surreptitia . boss. ibid. num . . for , sayes he , they are ordained to be presented , in senatu , ne sint surreptitia , & ut inquiratur : and therefore it is appointed by the fourth i. . par. . c. . that the remission should contain the greatest crime for which the remission is craved , and if the greatest crime be not exprest , the general clause remitting all crimes , will not defend against a pursuit for any crime that is greater then the crimes specified in the remission suitable to which lawyers assert , that qui petit gratiam , debet non solum delictum exprimere , sed & qualitates ejus , aliter uti subreptitia , nihil valet , sed non debet exprimere omnia delicta separa●a boss. ibid. num . . iii. remissions should not be granted for slaughter committed premeditatly , or by fore-thought-fellony , stat. dav. . cap. . where it is ordained , that no remission shall be granted for homicide , till inquisition be first made , whether the slaughter was committed by fore-thought-fellony , and if it was so committed , the remission shall be null , & hoc concessit rex , as the text sayes , this is confirmed by k. ia. . p. . c. . which act is declared to endure , till his majesty recal the same , and yet it is repute a temporary act , and notwithstanding thereof , remissions are ordinarily past for murder , as in the erle of caithness remission . against which , this was objected ; but repelled . yet in flanders , and other places , this law is still in force . no remissions should be granted for burning of corns in stacks , or barns , act. . p. . i. . which act is not temporary , and yet is not observed , as was found in the foresaid remission . all remissions should be componed , and subscribed by the thesaurer , reg●strat in his books , i. . p. . c. . albe●t his majesty may remit what injury is comitted against him , yet he cannot prejudge thereby the interest of third parties . this satisfaction is by the civilians called reparatio damnorum , by us an assithment , and the obtainer of the remission , must find caution to refound the party injured , of all his damnage and interest , within fourty dayes after he produces his remission , else his remission is null , act . p. . i. . act. . p. . i. . & act. . p. . i. . but these acts are only temporary . but by the act . p. . i. . remissions granted to any persons , passing to the horn , for theft , rief , slaughter , burning , or heirship , are declared null ; if the party laesed , be not first satisfied : and albeit it would seem by this act , that assithment subsequent to the remission , is not sufficient ; yet the meaning of the act is , that the remission shall be of no avail , till the party laesed be satisfied . notwithstanding of these acts , it is de practica very dangerous to challenge a remission , and i am informed , that one of the learnedest lawyers of his time , was sent to the castle for quarrelling the kings power , in granting a remission for fire-raising ; yet i find a remission produced by iohn bell , quarelled as null , because . it was given for murdering cristopher irving , and so is null by the foresaid act. . the remission should contain the greatest crime , and slaughter is not so great a crime as murder , nor was the quality of fore-thought-fellony exprest . . it was not subscribed by the thesaurer . the justices delayed to give answer , but i find not the person was punished , . as also mackie being convict for falsit , and having enacted himself never to return under pain of death ; thereafter he returned , and being pursued for his life , alledged upon a remission . to which it was answered , that the remission was null ; because he returned before it was obtained , and past the seals , nor was it yet past . upon which the dyet was continued , the . of febr. . but it is observeable , that the pursuit was here at the advocats instance only , who could not quarrel his majesties remission upon no account . iv. if the party doth willingly grant a discharge of all grudge , or revenge , in the crime of murder , this discharge is called a letter of slants , and is called by the doctors , litera pacis , and thus , plot. consil . . sayes , that gratiafacta parti nocenti à principe non valet , nisi fiat reparatio damnorum , & interesse , vel nisi pax sit prius habita , ab haeredibus offensi . this rule hath some exceptions , both by the common law , and by ours , for by ours , exception is made of remissions granted for pacifying the highlands , and borders , which are valid , though the party laesed be not satisfied . act . p. . i. . which is introduced in favours of the publick quiet , and is founded upon the same reason , from which acts of indemnity are granted , without gratifying , or repairing these who were ruined by the persons indemnified . and for that reason also , rex potest gratiari nocentem , sine pace privati interesse habenti , quando damnandus laborasset pro bono reipublicae & fecisset illud , per quod multorum salus causata esset . l. non omnes . § . fin . ff . de re militari . by thir remissions , the party is not restored to his good fame , l. . c. de gen . abolit indulgentia patres conscripti quos liberat , notat , nec infamiam criminis tollit , sed paenae gratiam facit . and though i think this should hold in such as are remitted , after they are condemned , because they are known to have diffamed themselves , by contracting that criminal guilt ; yet it should not hold in such , as secure only their own innocence by a remission , and redeem themselves rather from hazards , then from guilt . v. the kings majesty sometimes restores the person condemned , by way of justice , per modum justitiae , which he doth by rescinding the sentence , that stands against him as injust ; and this is done , either in parliament , if the person was condemned by them , or by a review , in the justice court , if he was condemned there ; and in this case the party is restored , not only to his fame , but likewise to all his estate , even though it was bestowed upon a third party , as was afte much debate , found by the parliament , . in the case betwixt the marquiss of montrose , and the marquiss of argile . title xxix . of prescription in crimes . . how crimes did prescrive by the civil law. . whether do crimes prescrive by our law. i. according to the civil law , crimes did prescrive in twenty years , l. querela . c. defals . and clarius doth assert , that generally all the doctors are of opinion , that all criminal pursuits prescribe in that time , but this prescription did not run in some atrocious crimes , such as sodomy , paricide , apostacy , &c. wherein they erre , for where the law sayes , that either semper paricidii accusatio permittitur , as l. ult . ff . de leg . pompei . ad paricid or that nullus temporibus arcetur apostotarum accusatio , that must be interpret , de prescriptione vigniti annorum , which is in law , called longissum tempus , but the crimes of adultery , and peculatus , prescribe in five years . ii. it may be doubted with us , if prescription has place at all ; and that it has not , may be urged from these grounds , . that prescription has no place with us , except where it is warranted by a particular statute , and there is no statute warranting prescription in criminals . and if prescriptions founded upon the civil law , had been sufficient in scotland , there needed not any particular acts to have been made in civil cases ; but since our law thought necessary to make laws as to presc●iption● in civil causes , they had much more determined this po●nt , by law in criminal cases , if they had thought it fit to extinguish crimes by prescription : but on the contrair , our act of prescription in heritage , . hath excepted the crime of falshood from prescription . . there being jus quaesitum to the king , by the committing of the crime , both quoad vindictam , et bonafisco applicanda , that right cannot be taken away from him , but by a publick law , or his own privat remission . . it seems unreasonable , that because a privat party will not inform , being either affraid , or negligent , that the publick should therefore suffer . . there is no instance in all our practiques , where prescription hath been sustained ; but one the contrair , crimes of an old date , even after fourty years , have been punished . . ●emel malus , semper praesumitur esse malus in eodem genere malitiae ; and therefore it is unjust , to suffer a person to live in the common-wealth , who will be both doing wrong himself , and inciting others to do so , by his example . yet for the other part , it may be urg'd , . that the only end of punishment , is , that the crime committed , may be punished , to preveen the errour of others ; but so it is , that after a long time , both the publick is presumed to have forgot , that any such crime was committed , and the parties injured , or presumed to have forgot , and remitted their privat revenge , for satisfying whereof , punishments are inflicted . . after so long a time , any probation that could be led , against the malefactor , either fails , or the witnesses after so long a time , may have forgot the exact circumstances ; and it were very hard upon testimonies , that have so unclear a causa scientiae , as these witnesses can give , to take away a mans life . likeas , the witnesses , and other probation will probably perish , whereby the defender might have exculpat himself , and mantained his innocenc ; so that the fisk , or any privat party , may by their negligence , or upon design , prejudge the pannel of his defences , against the common rules of the law , whereby mens negligence can only wrong themselves , and they have only themselves to blame , that did not make use sooner of the remedy appointed by the law , for satisfying either publick , or privat revenge . . since our law doth punish perjury , and poinding of oxen , usury , stellionatus , and others ; according to the civil law , it seems to be most agreeable to reason , that as these crimes are punished , according to the civil law , so they should be extinguished by the civil law , nam nihil est tam naturale , quam unumquodque eo modo dissolvi , quo colligatum est , & quem sequitur incommodum enim sequt debent commoda : and the act . did introduce prescription with us , as the act it self bears , because it was allowed by the civil law , and the laws of other nations . . it were absurd , that in the case of treason , which may be inquired into after the defenders death , there should be no period of time , whereby families might be secure ; and that it should be lawful , after two , or three hundred yeares , to vex families , of great honour , and interest upon pretext of crimes committed by their predecesso●s . this prescription is very justly introduced , to punish the negligence of such , as will not pu●sue crimes ; and it is most presumeable , that if they pursue , after they have delayed for so long a time , that any pursuit thereafter intented , is rather intented upon some supervenient quarrel , and picque , then upon the account of the crime . . the fear of punishment , and conscience of the guilt , for so long a time , is in it self a sufficient punishment ; and so god almighty himself thought in the case of cain ; and therefore to punish after so long a time , were to punish twice . by our law , recent crimes are more severely punisht then others , as murder with red hand , and the thief taken with the fang , and by how much the crime grows older , by so much it should be the less punished . the necessity of example , which is the reason inductive of punishment , fails in old crimes , so the punishment should then also be remitted , as unnecessary . to the contrary arguments , it may be answered , to the first , that our criminal law , being much more founded upon the civil law , then any other part of our law is ( as shall be clearly proved ) there needed no particular statute in this case with us , especially seing this prescription of twenty years in crimes , has in effect become the law of nations , and several other nations , who have many statutes in other cases , have yet allowed of this prescription without any particular statute . . there seems to be greater reason , that an act should have been necessary for prescription , in civiltbus , then in crimes , because in civil cases , the roman law was very various , and quoad , the particular periods of time was altered by all nations , according to the particular state of their affairs ; but in criminals , their prescription was exactly observed , by all nations , and was very reasonable ; and there being exp●esly , jus quaesitum incivilibus , to every privat person , it was necessary that should have been taken away by an expresse statute ; but it is not so in crimes , where in effect . at first there was no express , jus quaesitum , either to the king , or any privat party , but only à ●otestas acquirendi ; for the jus qu situm , is only by the sentence , for before sentence , the fisk could not dispon upon ; and so had no right to the malefactors goods , and this answers likewise the second reason . to the second , third , fourth , and fifth , it is answered , that doubtless , the wise romans , and other nations , could not but have these inconveniencies under consideration , when they introduced the foresaid prescription in crimes ; and to the third , it is particularly answered , that if privat parties will not pursue their revenge , they justly lose the capacity by their negligence , and his majesty having so many sworn officers , in every corner of the land , it is not presumeable , that any inconvenience will arise through want of information , but if there do , it is much more reasonable , that these negligent judges should be punished , especially seing there are express laws , appointing negligent officers , in such cases , to be punished . to the fourth , it is answered , that negative arguments , brought from the not being of a law , or a custome , is not concluding , for as in many other cases , so this might have been argued , as strongly as here against his majesties advocat , when he of old crav'd , that the heirs of traito●s might be forefaulted , for their predecessors guilt . and when he of late crav'd , that probation might be led against traitors in absence ; in either of which cases , there was neither act , nor practique ; nor could any thing have been alledged , but the authority of the civil law , and the consent of other nations . to the fifth , the crime being taken away by so long a time , it were unjust to take away a mans life , upon the former prescriptions ; and the fear of punishment , is a sufficient punishment , for all the malice arising from that prescription : neither is it presumed , but that if a malefactor continue to be ill , he will be pursued within twenty years ; and if he did for twenty years live so soberly , and discreetly , as that the law thought not fit to take notice of his former crime , there is little hazard of any future malice . and to this opinion i rather encline , because carpzov . relates , that albeit by the statutes of saxonie , prescription is only introduced by expresse statute , in moveables , and heritage , and that there is no express statute , as to prescription in criminals , yet these prescribe also in twenty years ; because that prescription introduced by the civil law , is not expresly abrogated amongst them , nam non praesumendum est totam praescriptionum observationem tantis vigiliis excogitatam , saxoniae legislatorem evertere voluisse , ut in simili casu dicit imperator . l. . c. de in offic . test . & petr. heig . part . . quest . . num . . vid carpzov . part . . quest . . title xxx . of punishments , de paenis . . the design of punishment . . whether crucifying , or banishment , be lawful punishments . . whether a man can bind himself under the pain of death . . whether arbitrary punishment can extend to death . . the loss of life is still followed by loss of moveables . . how far can ignorance , anger , drunkenness , or command , either excuse from punishments , or lessen them . . how far doth nobility , or great merit , excuse , or mitigat punishment . . how far doth the inconsiderableness of the transgression mitigat , or lessen the punishment . i. punishments are inflicted , not only to satisfy , either the publick revenge of the law , or the privat revenge of the party , but rather to deter others for the future ; and yet they are rather inflicted upon either of these designs , then to punish the offender , and make him insensible , for what is done can no more be helped . some crimes are so horrid , and so unknown to the world , that it is not fit the malefactor should be punisht publickly : thus some crimes have been tryed in scotland , at midnight , and the malefactor immediatly drowned in the north-loch , without inserting any part of the process in the journal books , wherein also i found , that malefactors were ordain'd to be execute very early in the morning , for bestiality , which was occasioned by the confession of one , who asserted , that the reason of his committing that crime , was a curiosity he contracted at his seeing one execute for it . and in such crimes no man needs to be deter'd , nor w●ll terror restrain him , whom nature cannot . since then executions for some crimes , incite some to curiosity , and vex others with horror , and are necessary to none , some may be more properly punished privatly , then publictly , and thus such persons as are popular , and are execute only for crimes , for which the people have a kindness , will be more happily execute privatly , then publickly , because the persons executed , are by publick executions obleidged to die rebelliously , and the people are confirmed in their good opinion of them , by their courage at death . ii. constantine did forbid , that any malefactor should be crucified , and this he did , because of his respect to the cross ; he likewise did forbid , to stigmatize the face , l. . c. de paenis , because the face is gods image . martyrus was of opinion , that banishment was not lawful , lest the person so punished , should be forced to live amongst turks , and others , by whom he might become more flagitious , then formerly ; and i have oft thought it inhumane , to send our malefactors to our neighbours , and imprudent , because it will occasion the sending of theirs from home , whereby we may be likewise troubled with such as they have banished : and it is probable , that correction-houses would be both safer , and more advantagious , for in these they may serve the publick , whom they have offended ; but with us , no judge can confine a man , whom he banisheth to any place without his jurisdiction , because he hath no jurisdiction over other countreys , and so cannot make any acts , nor pronounce any sentences relative to them . torturing punishments at death , are also very inexcuseable , for they oft-times occasion blasphemies in the dying malefactor , and so damn both soul and body , whereas the soul should be allowed to leave quietly this earth , and go in peace to the region of peace ; nor doth these terrifie others from the like offences , for these who fear not death , will fear nothing . iii. it was a rule amongst the civilians , that no man could obliedge himself to any thing under a corporal pain , quia nemo est dominus suorum membrorum . but with us , it is most ordinary for a man who is guilty of a crime , to obliedge himself never to return to scotland , under the pain of death ; thus hamiltoun was hang'd , anno . for returning to scotland after she ha● enacted her self , never to return under pain of death , and her dittay was only founded upon that contravention ; and certainly , contempt being added to the former guilt , may make a crime that was not capital , become so : and this contravention implies in effect , paenam effracti carceris , which is oft-times capital ; so that though a person cannot bind himself , when he is guilty of no crime , to perform any thing under pain of life , or limb ; yet if he be guilty of a crime , he may consent , and enact himself , as said is . iv. whether when law allows a judge an arbitrary power in punishing , that judge may inflict death , in that case is much contraverted . chassan . and socin . think that he cannot , and this seems clear , . . qui vexant annonam debent puniri extra ordinem non tamen animae amissione inst. de publ . ind . and pappon . relates , a decision of the parliament of paris , finding that it could not . . this would make judges very arbitrary , and render the lives , and fortouns of the leidges very unsecure . . seeing lawyers are of opinion , that no mans life can be taken away without an expresse law , it seems very consequential to this , that no mans life can be taken away upon so general a law. . by the . act parl. . sess. . ch. . death , and arbitrary punishment are opposed : for these who haveing past sixteen years of age , beat , or curse parents , are ordained to die , but if they be within sixteen , and past pupilarity , they are ordained to be arbitrarly punished . whereas , if arbitrary punishment might be extended to death , this difference would be ineffectual , and the law thereby evacuat . and by the . act . parl. ia. . the punishment of saying , and hearing messe , is escheating of their goods , and an arbitrary punishment of their persons , for the first fault , banishment for the second , and death for the third ; so that arbitrary punishments is lookt upon , as lesse then death , else the first fault should be as seveerly punished as the third , against both the principals of reason , and the design of the law-giver . . arbitrary punishment is appointed ordinarly for so mean , and inconsiderable faults , that it were inhumane to think , that these could be extended to death : skeen also , de verb. sig . verb. iter . sayes , that if the pannel come in will , it is lawful for the justice to fine him , according to his offence , but he speakes not there of his power to infl●ct death , eo casu ; and yet skeen ad cap. . l. malcolimbi . vers . . wherein it is statute , that the marischal , and constable shall punish offenders , according to the quality of the offence , observes , that paena extraordinaria , may be sometimes extended to death ; because of the aggradging circumstances , and cites for this , l. ult . ff . de priv . delict . & . de paenis , but these laws are ill cited , as will appear by reading them . when the pain is by law , or custome arbitrary , and the defender comes in will , he must presently find caution to satisfie the kings will , betwixt and such a day , this is the constant custome , and was practized the . of november . advocatus contra patrick mc. creif , and others , but where the crime is punishable by an expresse , and determinat punishment there , though a defender come in will , it ought not to be received , and thus the marquise of argile being pursued before the parliament for treason , offered to come in will , but his submission was not accepted . v. it is uncontraverted with us , if when any crime is punishable by death , the moveables falls to the king , though the act bear not , that the crime shall be punishable by death , and confiscation of moveables ; and according to the civil law , proscriptus eratis cujus bona expressim confiscabantur , damnatus vero cujus bona tacite , publicatio enim bonorum sequebatur tacite paenam capitalem , matheus cap. . de sicartis , num . . and albeit the judge should omit in his sentence , the punishment due by law ; yet ipso jure , there is by the damnation , jus quaesitum fisco , as was found after a large debate , in the case of wauch , who being a landed man , found guilty of theft , though he was only fined by the sheriff in a thousand pounds ; yet the donator to the escheat was found to have right to all the estate , and that without any new sentence , which is conform to l. . & . ff . de bon . damnat . & l. . c. de bon . proscrip . but it seems hard , that confiscation of moveables , should still follow upon all crimes , though the law expresse not that way of punishment , seeing this is to punish the children , and not the committers only , and since this having been only invented by iulius caesar , as suet. observes , iustinian did hereafter by his novel . . cap. . appoint that the offenders goods should only be confiscated in treason , for that crime taints the blood ; nor have we any law with us , appointing confiscation in all capital cases : liv. tells us , that this seem'd barbarous in the roman decemviri . lib. . and herodot . assures us , that even the persians would not confiscat the offenders estate , in the crime of treason , lib. . nor would the emperor aurelian , allow it , lest it should be thought , that he pursued rich malefactors , meerly for their estates , and really some judges are to be jealous'd upon that account . but though mens escheat should not fall without express law , yet custom hath supplied law with us in this . since a person who is interdited cannot , dispon upon his moveables , the question is , if they can fall under his escheat , or if he can prejudge himself by his confession , for tantum facit quis de linquendo quantum facere potest contrahendo ; and therefore since he cannot alienat them by contracting , so neither should he be able to alienat them by delinquency , especially if the interdiction be judicial , by the authority of a judge , and founded upon the persons being prodigus , or of a weak judgement : the like may also be doubted , in the case of one who is proprietor of lands by a tailzie , bearing a clause , de non alienando , irritanter , & resolutive concepta , who may evacuat the tailzie , if it may be forefeited upon his delinquency ; as to the first of which cases , lawyers are of opinion , that since prodigals are esteemed as pupils , that therefore their goods cannot be confiscated upon any confession emited by them , without the consent of these to whom they are interdited . cabal . cas. . bald. ad l. . c. de confess . but they think that if the crime be proved against them , then their goods may be confiscated , for this priviledge of interdiction being introduced in their favours , ought not to be advantagious to them , in defending them against guilt , castrens . ad l. etiam . ff . solut. matr . and with us , since interdiction cannot defend against captions , much less ought it to defend against crimes . as to the second question , it is clear , that such tailzies , how ever conceived , cannot defend against forefeiture , for it is not in any subjects power to secure his own estate against crimes ; and if this could hold , then no mans estate should ever forefeit , for all men would adject such conditions , and this would invite them to commit crimes , whereas the law endeavous by all means to deter them . because many of our laws appoint crimes to be punished , according to the prescript of the civil , and common law , as falshood , perjury , &c. and that many punishments there used , are now in desuetude : therefore it is fit to know , that in place of damnatio ad bestias , succeeds heading , or decollation , in place of damnatio ad metallum , succeeded the gallies in erance , and the correction-house with us . deportatio with them , is ban●shment with us ; and relegatio with them , is confinement with us . when two laws inflict different punishments , upon the same crime , how far the one innovats the other , i have debated fully , tit. deforcement . paenae sunt temperandae ( pun●shments are moderated ) in the opinion of lawyers in these cases . vi. ignorance , which excuses none , if it be of the law of nature , but ignorance of the meer positive law , excuses in some cases , women , pesants , or bours , rustici quando agitur de dolo praesumpto secus vero ubi agitur de dolo vero , nec excusantur ubi clam deli querunt . ignorance also , in matter of fact , excuses persons , though judicious , if they followed the faith of such as understood , si crediderunt viro fide digno , as counsellers , lawyers , &c. . just anger , and grief lessens the punishment , sive proveniat exfacto adversarii , sive tertii , licet hoc non sit sine scrupulo farin . quest . . but i think that it should only lessen the punishment in arbitrary cases , but not in statutory punishmen●s . . youth , and great age , sometimes excuse , but of these formerly , part. . tit. . , a man who is drunk , if he used not to be so , is somewhat excused , and is not punished for having committed the crime ( seeing it is presumed , he understood not what he was doing , because he was drunk ) but if the defender fell drunk upon design , or gloried in having committed the crime , he is not thereby excused . love also excuses in what is done , ex subito & improviso amoris impetu , secus si praemeditate , but even in the fi●ft case it only mitigats the punishment . . the custome of the place excuses , or at least lessens the punishment , when the crime is not committed against the law of god , or nature , for laws abeundo in desuetudinem fiunt non leges , & non est in mala fide , qui facit , quod omnes faciunt . but this was repelled in the marquiss of argiles case ; who alledged , that he complyed only with the usurpers , in the same manner , tha● all the nation complyed , and yet the council ordinarly admit this , to defend highlanders , when they are cited for travelling with guns , and other arms , because it is the custome of their countrey . and i think this may be alledged , to defend such as are accused for witchcraft , in consulting such as can tell where they may find what they lost , or was stollen from them , but not from all punishments . . the command of a superiour or such as a master excuses , his servant , as has been said in the tittle of theft , and of a magistrat excuses burgesses in insurrections , hath been observed in the title sedition , and messengers in executing decreets , as hath been observed in the title deforcement , a son also is to be excused if he obey his father , & in atrocioribus à paena ordinaria & omnino in laevioribus , as is observed in the title art and part . . noblemen should get some allowance during the dependance of the process , and are never to be sent to correction houses , pillories , &c. and as in no crime they were punished by the civil law , till the prince was first consulted ( which we observe not ) so if they commit a delict , or lesser crime , innecessary defence of their honour they are to be excused à paena ordinaria , and generally , the doctors think , that where others should only be banished , except when by their crime , they have foresaulted the title of nobility , as in betraying the countrey , in stealing , &c. for in these cases , they are to be more severly punished then others . . great merit , and skilfulness , excuses some crimes , and good successe is also an ordinary defence , as if a souldier who disobeyed order , should beat the enemy by that disobedience . . these who are pursued at the kings instance , for crimes committed in another countrey are to be more gentlely punished , because the scandal was not given there , and so the offence was lesse in that countrey , and some lawyers are of opinion , that the punishment should be still lesse , where the privat party injured insists not , cod. fab . tit . de paenis def . . and because the scandal grows weaker , as it grows old , therefore after long silence , the punishment is to be moderated , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . l. . ff . h. t. for where the law states a definit punishment , the justices can neither augment , nor lessen it , else to what purpose should the law specifie punishments in some statutes , and allow the justices an arbitrarinesse in others . l. . ff . de verb. sig . mulctae potestas judicis est quantum dicat , sed hoc ita verum , si non lege sit constitutum , quantam dicat , and since men are punished because they transgresse the law , therefore they should only be pun●shed according to the law , and the due observance of this , will keep judges from being arbitrary , and the liedges from being oppressed , viii . whether the meannesse of the transgression , should defend against punishment , or should only mitigat the punishment , seems to be dubious ; because of the undigested discourses , of such as treate that subject ; yet i think they may be solidly reduced to these three conclusions , . that where there appears to have been dole , or contrivance in the committer , there the smalnesse of the transgression , doth only lessen the punishment , if it be arbitrary by the law , as for instance , if a man should paction for sex shilling , and two pence per cent , where the law allows only five shilling , per cent though the sum lent , were very inconsiderable , and the excess be there very small ; yet it should infer usury ; because a clear design of offending the law , did there appear , by the expresse paction : and in such cases our judges find the libel relevant , but reserve to themselves the consideration of the smalnesse of the excesse , when they shall come to tax the punishment . . if the punishment be severe , and that it cannot be remitted by the judge , as if the law appoint theft to be punishable by death , it were unjust that an inditement of theft , should be found relevant for stealing two pence . . if it appear by the meanness that there was no design of transgression , and that the cōmitter designed not for so small a matter to cōmit a crime , in that case , the meannesse of the transgression ought to defend against the relevancy ; for as lawy●rs have well observed , minimum non attenditur in delictis dolosis cravet . consil. . nec praesumitur . cardinalis simoniam commisisse pro re minima . siquestio est de simonia . and to these cases only , doth that law extend , de minimis non curat praetor . l. scio ff . de in integrum restit . and therefore if a person should be endited for committing usury , in so far as he took annualrent before the term , if the excesse were small , because the annualrent was very inconside●able and was taken , but a moneth or so , before the term of payment , the libel should not be sustained against him ; for it is not presumeable , that he took that annualrent out of avarice , but negligently , looking upon it as no breach of the law ; or upon some other innocent accompt , as because the debitor and he were to fit other accompts , or the debitor was to go out of the countrey , and thus the council decided in the case of purves anno. . where the punishment is arbitrary of its own nature , the council may moderat the punishment determined by the justices . . where the punishment is statutory , and determined by a special law , as in treason , &c. it may be argued , that there the council can no more mitigat , then they can remit . . though custom be equivalent to statute in other cases , yet in cases where the punishment depends upon custom , as theft , i have often seen the council alter the punishment from death to banishment : but it were surer , that even in this last , the mitigation were procur'd betwixt the reading of the verdict , and the pronouncing of doom ; for after doom , jus est quaesitum regi , as to all the moveables , and life . title xxxi . of criminal sentences , and their executions . . the form of a criminal sentence with us , and how it is pronunced . . the debate is not insert in the sentence . . whether the sentence be null , in totum , if the iudge punish in lesse , then the law allowes . . whether criminal sentences may be pronunced in the night time . . whether the verdict of an assise , be necessar in all cases with us . . within what time should a criminal sentence be put to execution . whether magistrats may force men to be executioners . . how absents are to be proceeded against , and when letters of intercommuning , and commissions of fire and sword are granted . . whether doth all punishment cease , by the death of the party . if a criminal iudge may retract his own sentence . i. after probation is led , the assize is inclosed , who return their opinion , which may be called their sentence , and this sentence is called a verdict , or verdictum , nam sententia pro veritate habetur , but that which is properly the sentence in a criminal cause , is that deliverance of the judge , whereby the pannel is condemned , and punish'd , or absolved from all punishment : and this sentence is in criminals , by our stile , call'd an act of conviction , or an act of absolviture : but acta , in the stile of lawyers , expresses only the middle acts of the process , acta judicilia , but not the sentence . sometimes likewise the criminal sentence is in our law called a doom , especially in forfeiture ; yet to speak strictly , these two differ , for that part of the sentence , which finds the pannel guilty , or innocent , is called the act of conviction , or absolviture ; but that part of it , which irrogats the punishment , is called the doom ; and these two are sometimes separate , which falls out when a long time interveens , betwixt the finding a person guilty , and the pronuncing of his punishment : but ordinarly they are conjoyned . all which will appear more clearly , by the several forms here exprest . an act of conviction , and doom , curia , &c. the which 〈◊〉 day being entered upon pannel , dilated , accused , and pursued , be vertue of our soveraign lords letters , raised at the instance of a and b. advocat to our soveraign lord , for his highness interest , who compeared personally , to pursue them for the crimes following ; that is to say , for so much , as be divers acts of parliament 〈◊〉 as in the said di●●ay at more length is contained , after reading of the whilk ditta● , and divers alledgeances proponed be the pannel , 〈◊〉 and their procurators , and writes produced for instructing thereof , that the said matter should not passe to the knowledge of an assize , and answers made thereto , be our soveraign lords advocat , and writes produced be him , for veryfying thereof . the iustice fand the dittay relevant , and did put the samen to the knowledge of an assize , of persons following they are to say , 〈◊〉 whilks persons of assize being chosen , sworn , and admitted , and the said 〈◊〉 being accused of the dittay of the crimes above-writen , which were verrified be their own depositions , and confession in iudgement , they removed al●ogether furth of court , to the assize house , where they be plurality of vots , elected , and chosed the said c. reasoned , and voted upon the points of the said dittay , and being ripely , and at length advised therewith , togither with the depositions 〈◊〉 and other writes produced be his majesties advocat , for the verification thereof , entered again in court , where they all with one vot , be the report of the said chancellour , fand , pronunced , and declared the said d. to be filed , culpable , and convict of the crimes respective , above-writen , contained in their said dittay , for the whilks cause , the iustice be the mouth of 〈◊〉 dempster of court , decern'd , ordain'd , and adjudg'd the said 〈◊〉 to be taken to the castle-hill of edimburgh , or mercat crosse , and there to be hanged till he be dead , and his hail moveable goods to be escheat to his majesti's use , or their heads to be stricken from their bodies , and the said 〈◊〉 to be taken to the mercat crosse of edimburgh , and there his tongue to be pierced with an hot botkin , and thereafter banisht this realm , not to be found thereintil under the pain of death : or to be scourged , and all their moveable-goods to be escheat , which was pronunced for doom , extracted . act of conviction . the whilk day 〈◊〉 entered upon pannel , dilated , accused , and pursued be 〈◊〉 be vertue of crimes purchast be him , against them , of art , and part of demembring of 〈◊〉 of the midle finger of his left hand , nearest his little finger , committed the 〈◊〉 day of 〈◊〉 upon the street of 〈◊〉 which was put to the knowledge of an assize , of the persons following , they are to say 〈◊〉 whilks-persons of assize , being chosen , sworn , and admitted , after accusation of the a. of the crimes foresaid ; removed altogither furth of court , to the assize house , where they be plurality of vots , elected and choosed the said in chancellour , reasoned , and votted upon the points of the said dittay , above-specified , and being advised , re-entered again in court , where they all in voice , be the mouth of the said chancellour , fand , pronunced , and declared the said 〈◊〉 to be filed , culpable , and convict of art , and part of demembring the said 〈◊〉 of his midle finger , nearest his little finger , of his left hand , committed the time foresaid , whereupon the said 〈◊〉 asked instruments , extractum , &c. doom for demembring . the whilk day , &c. being entered on pannel , to hear doom pronunced against them , as they that were convict be an assize , in a court of iusticiar , holden within the tolbooth of edimburgh , the 〈◊〉 day of 〈◊〉 instant , for art , and part of he demembration of 〈◊〉 ut supra , the iustices be mouth of 〈◊〉 dempster , decerned , and ordained the said 〈◊〉 to content , and pay to 〈◊〉 the sum of three hundred merks , in full satisfaction , and assithment , of the demembration of him of the said finger , and to find caution for payment of the said sum , to the said 〈◊〉 upon condition that the said 〈◊〉 should deliver to the said 〈◊〉 sufficient letters of slaynes , for demembring him of his little finger , who fand 〈◊〉 with themselves , conjunctly and severally , soverty , and cautioner fore-payed of the said three hundred merks , to the said 〈◊〉 in full satisfaction , and assithment , of demembering him , of his midle finger , he grant and , and giving a sufficient letter of slaynes , as said is , and al 's decern'd all the saids 〈◊〉 their moveable goods , and geir to be escheat , and in-brought to our soveraign lords use , as being convict of the said crime , whilk was pronunced for doom , and ordains letters of horning , upon a simple charge of ten dayes , and poynding to be direct hereupon . dempster our countrey-man , hist. eclest . pag. . relates this solemnity , which is now in desuetude , lapidem tollit magistratus signatumque quaerenti tradit , ille adversarium & testes citat , si quid ambiguum , & majoris momenti , ad . ( quos claves appellant ) refertur , atque ita sine scriptis aut impensis lites dirimi sunt solitae . ii. by the former stiles it will appear , that the debate is not insert in the criminal sentence , as it is in civil process , with us , but it contains oft-times the whole summonds , which decreets for civil causes do not . these criminal sentences likewise , express still the manner of the probation , which is the because of the decreet , as we speak in civil causes , and this the doctors confess to be the custome in other kingdoms , inferitur enim causa in sententia , ut quod talis accusatus est de tali malificio , & quod constat per tefles vel per ejus confessionem , quod illud , maleficium commisit & ideo condemnatus est , &c. clar. . num . . after the sentence is pronunced by the judge , it is writen by the clerk , who reads to the dempster , the manner of punishment , and it is by him repeated , and the manner of punishment is called the doom , because it is pronunced by the dempster , who adds after he has pronunced the pun●shment , and this i give for doom . and i find , that by the custome of italy , the clerk reads the sentence , and the judges adds , ita absolvo vel ita condemno clar. ibid. iii. albeit the sentence bear a punishment , less then what the statute irrogats , eo casu , the sentence is not by our law null , but the fisk hath , by vertue of the conv●ction , contain'd in the sentence , ●ight to put in execution , or to exact what the law appoints , though the sentence doth not . and thus iohn wauch in selkirk , being found guilty of theft , by the sheriff of that shire , he was ordained to pay two thousand merks , or to go to barbodoes , in obedience to which decreet , he payed the two thousand merks . notwithstanding whereof , the exchequer gifted his liferent-escheat to mr. andrew hedderweik , who pu●sued a declarature ; in which the lords found , that wauch being once found guilty of theft , there was jus quesitum regi , which the sheriff could not prejudge , by any sentence , no more then he could remit the punishment altogether , for in so far as he did mitigat the punishment , in so far he remitted it . to which it was answered , that theft was arbitrarly punished by our custome , sometimes by death , sometimes by fyning , according to the several degrees of the guilt , which was punishable ; and custome had in this prorogat the power of inferiour judges . . if the sheriff had done wrong , he was lyable , ex sindi catu , and might be punisht for exceeding his power , but the party was free by his sentence ; and if the sheriff had absolved him , though injustly , he could not have been pursu●d again ; so much more should the sentence of the sheriff , absolve from a greater punishment , then that which the law appoints ; nam qui potest majus potest & minus . iv. some lawyers declare all criminal sentences , pronunced in the night time , to be null , but others declare , that custome hath allowed them ; and though some allow inferiour judges to proceed in the night time ; but not supream judges , alber. ad l. non minorem , c. de transact . and some allow delegat judges to pronunce their sentences in the night , but not ordinary judges ; becaus● the dyets of an ordinary judge are fixt , by the custome of his predecessors : whereas a deleg●t judge , is tyed to no time , nor place , except he be tyed to it by his commission , castren . ad d. l. minorem . num . yet i would rather choose to define , that albeit regularly , a judge ought to proceed in open day , to sentence criminals , yet he may pronunce sentences lawfully in the night time , in these cases . . if the case require hast , as in mutinies , and conspiracies falls oft out . . if the crime be so abominable , that the prince , or judge is unwilling that the people should know that there was such a crime committed , as was done twice by the justices , in the reign of king iames the . by his own special recommendation , and then all the process , sentences , and executions , was at midnight . . if there be just ground to suspect , that force will be used , for rescuing the pannel . some add , that if the judge be so busy , that he cannot proceed in the day time , he may proceed in the night time ; but this seems hard , vid. cab. res . crimin . cas . . v. though a formal tryal , by a process , and assize , be the regular form of tryals , yet in cases of lesser consequences , the justices , and other crim●nal judges , punish malefactors , in lesser crimes , sine strepitu , & forma judicii sumarly , by ordaining them to be scourged , or banisht ; instances whereof , are given in the titles of murder , and witchcraft ; and the justices allowed this custome in the procedure of the magistrates of edinburgh , which as it is conform to reason , so is warranted , per. l. . § . . publico ff . de adulter . l. . c. de abol . l. levia ff . de accusat . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . and though durhie observes , that the lords found , that sheriffs , and other inferiour judges , could not fine in bloodwites , for above ten pounds , without an inquest ; yet now sheriffs fine , and imprison for all bloodwites , and lesser delicts upon probation , led before themselves without an inquest . vi. within what time a criminal sentence should be put to execution , is not generally determined ; and the learned matheus has shewed much reading in this point , yet i might begg leave to use some liberty , being now so near the end of this treatise ; to shew what may be added , to his learned observations , from which i have hitherto abstained , because my designe was rather to inform others , then to raise in them any esteem for me . by l. . c. de custod . reor . it is ordained , that convictos velox paena subducat ; but l. . c. de paenis , it is said , nollumus statim eos aut subire paenam , aut excipere sententiam , sed per triginta dies super statu eorum , sors & fortuna suspensa sit . in reconciling which laws , cujac . thinks , that generally the punishment should be presently inflicted , and that thirty dayes are only to be allowed where the prince himself has imposed a severe sentence , which seems to be allowed by that learned greek scoliast thalalaeus si princeps statucrit paenam in aliquens non statim punitur , sed dierum triginta dilatio datur , forte enim princeps interim paenam revocabit , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . and though l. . basil. de custod . reor . & cum fuerit conv●ctus , non statim paenam pendere ; sed rursus conjici in custodiam , iterumque eductum audiri , nam haec dilatio iram judicum moderatiorem reddit . yet by the word convictus , there is not meant , the last sentence , but the being so convict , that he may be put in irons , which was not allowed , till the prisoner be thought guilty , was by the judge , as thalalaeus excellently observes , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . it may be likewise observed , that the former , l. . doth not ordain that the sentence shall be presently put to execution , but that prisoners shall be presently tryed , for the words are , de his quos tenet carcer inclusos , sancimus ut aut convictos velox paena subducat , aut liberandos custodia diuturna non maceret ; and therefore that law proceeds , to ordain the names of the delinquents , to be given up to the ju●ge , within thirty dayes . and the basilicks translate this law thus , ne diu is qui comprehensus est , mancat in custodia opportet enim eum cito absolvi , vel puniri . the reason of allowing thir thirty dayes , was , because theodosius having executed many inhabitants of thessalonica , whilst he was in passion , and for raising of a slight tumult , he was so sensible of this frailty , that at st. ambroses desire , he did endeavour to bridle that rage , in succeeding princes , which he did then so abominat in himself , euseb. eccles. hist. lib. . cap. . and yet i find , that this same law indulging thirty dayes , has been much older , as appears by quintilian declamatione de falso caedis damnato , the words are , & mihi videtur ideo constituta esse lex , quae damnatum post tricesimum diem puniri voluit , quia modo videbat legumlator possi fieri ; ut deciperetur accusator , modo ut calumniaretur . and though it may be urged , that a present execution is convenient ; because that prevents the prisoners escape , by tumult , or killing himself ; and that the more speedy the execution be , the justice is the more remarkable , and can be the less interrupted by appeals , and intercessions ; yet certainly a christian magistrat , should allow sometime to the malefactor , for setting his soul , and house in order ; lest he else by his precipitancy , destroy the soul , with the body , and punish the innocent posterity , with the guilty pannel , who gets not this time to settle his affairs : and it hath been oft found , that persons thus too hastily execute , have been thereafter found innocent ; great examples whereof , are set down by valer. max. lib. . de temeritate : and seneca de jra lib. . it is likewise the interest of the prince , that he may have time to interpose ; and for this cause , tiberius being offended , at the senats too speedy executing caius lutorius , ordered , that no man should be execute within ten dayes after the sentence , dion . in tiber. lib. . vid. sidon . epist. . lib. . by this delay likewise , the persons convict , have oft-times been induced to discover their complices , and to confess the crimes , which others have denyed in a rage , or confusion , occasioned by the shortnesse of their respite . with us , a sentence may be presently put to execution , and the judge is confined by nothing , but by his own discretion ; yet where pecuniary mulcts are inflicted , either the pannel is returned to prison , till he pay his fine , or the act of adjournal , bears ordinarly , that payment should be made within six dayes , and though barrons cannot poynd in civil cases , upon lesse then fifteen dayes ; yet it was found that they might presently poynd , sine ullisindiciis legalibus , upon criminal sentences . vii . sentences were execute of old , amongst the romans , either by the common executioner , or by souldiers , l. . c. de cohort . an instance whereof , is clearly to be seen in our saviours passion ; and these souldiers were called , optiones & speculatores , l. . ff . de bon . damnat . and yet i rather think , that the souldiers were only guards , and never executioners , and were called speculatores , because they were appointed to oversee the execution , and to restrain tumults . especially seing common executioners were so infamous , that they could not be advanced ever thereafter to any sacred orders , c. clericum distinct . . and i remember to have seen the executioner of st. iohnstoun , repelled by the lords of session , from being a witnesse . that the justice may force any of the magistrats of a town , to supplie the place of an executioner , if they want one , is i think , without all warrand ; seing officium nemini debet esse damnosum : and no man would be a magistrat , if that were allowed ; but i think that the magistrats may be fined for negligence , if they omit to appoint one ; and for the same reason , i think that the magistrat cannot force any mean person , who leads an honest life , to be an executioner : albeit clar. § . fin. quest . . num . . and gomes . lib. . cap. ult . num . . do assert , that the judge may force any , ex infima plebe , to officiat in that employment ; and yet their opinion agrees with our custome . the executioner hath right to the cloathes ( pannicularia ) of the person executed , by our custome . and per. l. d. hadrianus ff . de bon . dam. but by the civil law , the bodies of the persons executed , could not of old be buried , without the permission of the prince , ff . de cadav . punitor , which is antiquated , per. l. obnoxius c. de relig . & sumpt . fun . and by our custome , wherein the persons execute , may be buried , in all cases , though the friends of the person condemned for treason , cannot assist on the scaffold , or wear mourning , by our customes , except the council give expresse consent . viii . if the defender be absent , then upon an act of adjournal , he is to be denounced rebel , or outlawed , ( as the english , and our old statutes call it ) and though if the punishment be capital , or the fine be for his majesties use ; the clerk of the justice court , can only write the letters ; yet if the fine be to be payed to any privat person , any writer to the signet may write the letters ; and though the . act , . parl. ia. . appoints that all criminal letters should not be registrat , as other letters , but returned to the adjournal ; yet de praxi , such hornings are sometimes registrat , in the ordinary register of horning ; likeas , albeit the escheat of him who is denunced , cannot fall upon a denounciation , at the mercat crosse of edinburgh , though caption may be raised upon such an execution , yet criminal letters may be execute at edinburgh , or any mercat crosse where the justice court did sit , in which the sentence was pronounced , act . parl. . k. ia. . upon production of the reg●strat ho●ning , letters of intercommuning are granted , upon a common bill , past by the lords of session , by which all the leidges are discharged to intercommune with the rebel , which must be execute at the mercat crosse of the respective shires , and registrat there , or in the general register . upon the denunciation immediatly the single escheat fals , and after remaining at the horn for year and day , the life-rent escheat falls ; which custom we have borrowed from saxonie ( with most of our other forms ) for with them , si reus fugitivus in primum sive simplex bannum sit declaratus nec intra annum & diem se purgaverit sed annum & diem prorogare passus sit , in bannum superuis incidit vid. carpz . pract . crim . part . . quest . . num . . from whom also we have our stile of declaring escheats . upon the registrat horning caption is raised , and if the messe●ger be deforced in the execution thereof ; then the council grants commission of fire and sword . which is but a caption for inbringing the malefactor , who resists the ordinary course of law. and in my opinion , letters of fire and sword may be granted , though the malefactor hath not deforced , if it be not our that the malefactor be not to be reduced in the ordinar way : for it is unreasonable to expose his majesties laws to contempt , and his officers to certain hazard , as in the case where a person is denounced fugitive for deforcing messengers , or hath convocat loose men , and lives in open rapine : it were against sense , that a new deforcement were necessar . but thir commissions are never granted but in criminal cases ; and yet i remember , that one was granted to mackintosh , against lochiel , after that mackintosh had obtained decreets of removeing , and had raised letters of ejection , but the sheriff had declared that he durst not eject , for the council thought ti not just to expose the sheriff to certain hazard . and yet the ordinar course is , that the sheriff should offer to eject , and if he be deforced , then the case becomes criminal ; and some think that the execution of deforcement is not sufficient in that case , without a sentence ensuing on it , and that the deforcers be registrat at the horn thereupon . but others think , that as in civil cases , letters of second caption are granted , where the first caption cannot take effect ; so in cases of extraordinar opposition to authority , letters of fire and sword are granted , upon a meer execution , that the ordinar course of law cannot take effect . ix . it may be doubted what a judge ought to do , if after sentence , the innocence of the person condemned , should be convincingly cleared ; in which case , the answer is , that the judge cannot rescind his own sentence , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , l. . basil. de paen . but he ought to acquaint the council , and they may interceed for his remission , l. . de paen . l. . § . ult . ff . de quest . the council may prorogat also the dyets appointed for execution ; but i think the justices , and much less inferiour judges cannot prorogat dyets appointed for execution , even by themselves , since they are functi , by the pronouncing of the doom , though some ignorant judges , de facto , prorogat executions , and as they cannot even before sentence remit , so neither can they prorogat for any long time , for else prorogations may be lengthened , so as to become remissions upon the the matter . the other side of the doubt , viz. whether a person once absolved , may be thereafter pursued for the same crime , is more intricat , but may be somewhat cleared by these positions , . the same party cannot upon new probation , much less upon the old probation , accuse a person once assoilzied by an assize , though he may accuse the assize who assoilzied him of wilful errour , and that even though he should thereafter willingly confess the crime , for which he was formerly accused , though farin . quest . . num . . thinks that he may be again pursued , and i should think that confession savoured too much of madness , to be the foundation of a criminal sentence . . though the pursuit was at the instance of the party injured , yet his majesties advocat cannot again pursue upon the pretence of , res inter alias acta , for that were to keep people in a constant suspense . . if the pursuer did collude with the defender , so that the defender was assoilzied by a white assize , in abstracting the necessary probation ; i think in that case , his own fraud should not secure him , reg. maj. lib. . cap. . si per calumniam procedat vid. cap. . de collus . de teg . but though the defender was assoilzied by collusion , betwixt the defenders friends and the pursuer ; yet i think the defender cannot again be reconveened for the same crime , since he was innocent , though the collusion was advantagious to him . x. by the death of the offender , all punishment ceased , except in treason , & crimine repetundarum , or , missimployment of publick money , in ceteris vero criminibus , ita demum pro delictis paena ab haerede incipere potest si vivo reo accusatio mota est , l. ex judiciorum , ff . de accus : so that by that law , if the pursuit was intented against the father , it might have continued against the son , to infer a pecunial mulct ; but this last holds not with us , amongst whom no probation can be led in absence , except in treason ; but yet i think that a civil pursuit , may be sustained for damnage , and interest , and expences of a crimin●l pursuit , even against the malefactors heir , as was also decided by the senat of savoy , cod. fab. tit . de accusat . def . . finis . a vindication of the government in scotland during the reign of king charles ii against mis-representations made in several scandalous pamphlets to which is added the method of proceeding against criminals, as also some of the phanatical covenants, as they were printed and published by themselves in that reign / by sir george mackenzie ... mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a vindication of the government in scotland during the reign of king charles ii against mis-representations made in several scandalous pamphlets to which is added the method of proceeding against criminals, as also some of the phanatical covenants, as they were printed and published by themselves in that reign / by sir george mackenzie ... mackenzie, george, sir, - . , [ ] p. printed for j. hindmarsh ..., london : . "licensed, sept. , . rob. midgley"--p. [ ] at end. advertisements: p. [ ] at end. reproduction of original in cambridge university library. "the declaration and testimony of the true-presbyterian, anti-prelatick, and anti-erastian, persecuted-party in scotland" (p. - ) signed: al gibson and will. paterson. "a blasphemous and treasonable paper, emitted by the phanatical undersubscribers, on may , ": p. - . created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng covenanters -- scotland. scotland -- politics and government -- - . - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - judith siefring sampled and proofread - judith siefring text and markup reviewed and edited - pfs batch review (qc) and xml conversion a vindication of the government in scotland . during the reign of king charles ii. against mis-representations made in several scandalous pamphlets . to which is added the method of proceeding against criminals , as also some of the phanatical covenants , as they were printed and published by themselves in that reign . by sir george mackenzie , late lord advocate , there . london , printed for i. hindmarsh at the golden ball in cornhill . . a vindication of the government in scotland during the reign of king charles ii. against mis-representations made in several scandalous pamphlets . the design of this paper is neither to seduce others into faction , nor to make an apologie ; the one being too malicious , and the other too mean : but because many honest and sincere men have been abused by some late misinformations , whereby the charity and vnity of protestants amongst themselves are much weakened ; therefore this paper comes to set things in their true light , by a bare narrative , which will be sufficient to reclaim those who are abus'd , and to confute those malicious authors , who have endeavour'd to reproach a whole nation with villanies , of which none but these authors themselves could have been guilty . because the civil government in scotland was never bigot in that king's reign , therefore we shall not run back to consider episcopacy or presbyterie , otherways than as they may concern the civil government . neither should we run so far back as to the government of king charles i. were it not to prove , that these of the same persuasion , who now complain , were the first aggressors ; and consequently , what was done against them deserves rather the name of self-defence than persecution . for clearing this , it is necessary to represent , that in the year , we liv'd under the most pious and orthodox prince of the age , and yet a rebellion was form'd against him , as a papist , and a tyrant , by which all the fundamental laws were shaken , and all honest men ruin'd . neither needs there any other proof for this assertion , than the records of parliament , general assemblies , and iustice court. from the records and acts of parliament it is undeniable , that the power of nominating judges , counsellors , and all officers of state ; the power of levying war , and raising taxes , were usurp'd by the people ; covenants were entred into by a part of the subjects , and by them impos'd imperiously upon the rest ; leagues and covenants were entred into with england ; ambassadours were sent to foreign princes and states ; and even to france ( tho' little less terrible then , than now ) exclaiming against the injustice of the king , justifying their taking arms against him ▪ and therefore intreating the french aid and assistance : the king himself was inhumanely deliver'd up to his enemies , and thereafter the army that went in to defend his precious life , were declared rebels , all which was uncontravertedly inconsistent with the laws of the kingdom then standing . from the acts of the general assembly it is clear , that the assembly , . refus'd to rise , when dissolv'd by the king's commissioner , and most of the following assemblies did both sit down and rise without his warrand . this assembly threw out the bishops , and abrogated episcopacy without authority of parliament , tho' the bishops were always the first of the three estates of parliament . a new oath was invented , called , the covenant , without the king's authority ; and all men women and children , that were above ten years of age , forc'd to take it ; and such as took it not , were excommunicated , upon which all their moveables or chattels were confiscated , and they themselves being declar'd disobedient to the laws , were forc'd to fly . the king 's negative voice was declared illegal , and the acts made for assisting him in the year forty eight , were declar'd void and null , by an unparallel'd invasion , the general assembly , ( imitating in this , as in many other things , the church of rome ) raised themselves above king and parliament . from the records of the iustice court we find that the estates made advocates or attorney generals by their own authority ; who prosecuted to death such as defended their own houses by vertue of express commissions from the king , and such as rose in arms for his defence , tho' they had both his commissions , and remissions , though the iudes that condemned them , sat by vertue of that very king's commission . they not only borrowed vast sums by meer force from private men , whom they never payed ▪ but also they were the first that brought in free and dry quarter , cess , excise , and all these publick burthens afterwards so much complain'd of ( when they were continued upon necessary exigencies , by lawful authority ) we having neither formerly known oaths , nor publick burthens under our gentle kings , against whom they so much exclaim'd as tyrants , because forsooth they kept them from being such : all these proceedings were not only condemn'd by the general opinion of both protestants and papists abroad , but stand yet condemned by express acts of parliament , and by many acts in the like cases in scotland , and england , and so nothing which can be alledged in justification of them , deserves or needs an answer . king charles the second being restored by almost the universal consent of all the people , the worst of whom grew weary of their villanies : the parliament of scotland being called , they enquired very seriously into the occasion of such disorders , and soon found that they were all to be charged upon the solemn league and covenant , and those who adhered thereto ; and therefore they endeavoured to perswade the presbyterians to disown the covenant , all favour being promised to them upon that condition : but finding that the presbyterians generally thought themselves bound to own the covenant , the parliament concluding that the same men , owning the same principles , would be ready upon occasion to act over again the same things , therefore they by vote ( which may be called unanimous , seeing only four or five dissented ) restored episcopacy , and that so much the rather , because that government had in no age nor place forced its way into the state by the sword , but had still been brought in by the uncontraverted magistrate , without ever thrusting it self in by violence , and yet the government did sustain episcopacy as a part of the state , but never as a hierarchy wholly independent from it , the presbyterian preachers had all along taught the people , that as their government was iure divino , so the people might thereby be obliged to defend them and it , under pain of eternal damnation , even ( when episcopacy was established by law ; ) and accordingly some of the people who retained that principle , frequented the conventicles at which these ministers preacht ; whereupon the state fearing that the old humour might ferment again into a rebellion , discharged under some small penalties any above five strangers to meet in a conventicle , leaving thereby at once the free exercise of their conscience in their families , and yet securing the state against such a total defection , as might involve us in a new civil-war , which without doubt was all the state design'd : but to elude these penalties for house-conventicles , some preachers ( amongst whom were some of those who had been formerly banished ) gathered the people together in the fields ; they bringing arms with them to secure their ministers , came at last to have such an opinion of their own strength , that they formed themselves into an army , and were defeated at pentland hills , novemb. anno . yet within a short time of that , the state indulged them so far as to allow them their own ministers , settling them in churches , and allowing them the enjoyment of the benefices in many places . this did not satisfie these people , because the ministers so indulged acknowledged the king and council's authority ; and they , with some of their violent preachers railed as much against these indulged ministers , as against the bishops , and regular clergy , and call'd them council curates , and separated from them . the state considering that by the laws of all nations , rising in arms is to be accounted rebellion , and that a preacher's presence could legitimate the action no more than a priest could transubstantiate the elements ; they declared by several acts , field-meetings to be the rendevouzes of rebellion : notwithstanding all which , these dissenters proceeded , as from house to field-meetings , so from field-conventicles to publish proclamations , declaring that the covenant was the original contract betwixt god , the king , and the people ; and therefore king charles the second having broken it , forfaulted his crown , and being to be considered only as a private subject , and enemy to god , they had declared a just war against him , and that it was lawful to kill him , and all who served him , following as was pretended the noble examples of phineas and eliud ; and in consequence of this doctrin they murthered the arch-bishop of st. andrews , and several others ; to defend these murtherers an army was gathered by them , which was beat a bothuel-bridge , anno . but yet the king to reclaim them , granted both an indemnity and indulgence ; notwithstanding of which , a new plot was entred into , and it was contrived in a meeting of the scots at london , that men should be raised in scotland , and that the garrisons of berwick , and carlile , and all the officers of state should be seized , which was likewise seconded by monmouth , and argyle's rebellion , anno . whereupon the parliament finding that the preaching up of rebellion in private conventicles had occasion'd all this danger to king and people , and that nothing could be secure whilst every thing might be preacht , they enacted , that the ministers who preacht at conventicles should be capitally punished ; but by vertue of this act , no man was ever punished , much less executed . this being the true progress , and these the occasions of making those acts , it is admired why the government is taxed with so much cruelty , and the acts themselves reproached as diabolical : for first , these against house-conventicles are the same with the laws in england , and less severe than those made against dissenters in queen elizabeths time , or than those now standing against the calvinists in sweden , or those made , and now executed by the presbyterians and independents in new-england ; but much more gentle than those our presbyterians made when they govern'd . . whatever might be said against such acts in countries where dissenters never entred into a war , yet in this isle , where they upon the same principles overturned the government and laws , and were upon every occasion again attempting it , so small a caution cannot be accounted severe . . this caution was much more just in scotland , than even in england ; because the dissenters in scotland were more bigotted to the covenant , which is a constant fond for rebellion . . the posteriour acts made against field-conventicles , were the necessary product of new accessional degrees of rebellion ; and were not punishments design'd against opinions in religion , but meerly against treasonable combinations , which exceeded what was attempted in england , or elsewhere ; and the governours ( for the time ) can truly and boldly say , that no man in scotland ever suffer'd for his religion . but if any will pretend , that religion obliges him to rise in arms , or to murder , this principle ought neither to be sustain'd as a defence , nor the obviating of it to be made a crime ; and as the covenanters laughed at such a defence when propos'd for them , who assisted king charles i. meerly for conscience sake , so they cannot deny , but they zealously prest sir iohn dalrymple , then advocate , to hang mr. renwick a field-preacher , for field-preaching , where some of his hearers were arm'd , because he was like to divide their church , after they got an indulgence from king iames , against the accepting whereof , renwick and his party exclaim'd highly ; and that so much the more plausibly , for that many of them , who now accepted an indulgence from a king professedly popish , had rejected and preacht against those who accepted of one when offer'd by a king of the protestant profession . i must also ask them , if any should now rise in arms in defence of episcopacy , and alledge conscience for so doing , would they sustain that as a just defence ? . when ever any man offer'd to keep the church , former fines were generally remitted , if timeous application was made ; and more indulgencies and indemnities were granted by this king ▪ than by any that ever reign'd ; and generally no man was executed in his reign , who would say , god bless the king , or acknowledge his authority ; an unusual clemency , never shewn in any other nation , and such as was not practised by those , who now cry out against the severity of that government .. the reader will be astonished , when we inform him ; that the way of worship in our church , differed nothing from what the presbyterians themselves practised , ( except only , that we used the doxologie , the lord's prayer , and in baptism , the creed , all which they rejected . ) we had no ceremonies , surplice ▪ altars , cross in baptisms , nor the meanest of those things which would be allowed in england by the dissenters , in way of accommodation : that the most able and pious of their ministers , did hear the episcopal clergy preach , many of them communicated in the churches , and almost all the people communicated also ; so that it cannot be said that they were persecuted , and forced to joyn with an vnsound , much less heretical church , as the french protestants are . from all which , it follows clearly , that the complainers ▪ were the aggressors , that the government proceeded by slow steps , to punish even those who had forced it into a resentment , and that all pains were taken to reclaim rather than punish . any reasonable and unprejudiced man must allow , that the state had reason to be jealous that the same men who had invaded and overturned the government under king chales i. retaining still the same principles as sacred , and bursting forth into the same excesses under king charles ii. were still to be kept in awe , and within the barriers of law , and that by their own principle of salus populi , better some few of the society should perish than that the whole should go to ruin . vnitas , non unus , as was said by them in the e. straffords case ; and if two states of parliament without the king , were thought the best , and necessary judges , of what was salus populi in those days ; much more should it be acknowledged , that the king and three estates , in many subsequent parliaments , agreeing cordially together , should be acknowledged to be the true judges of what was salus populi in our government , especially when what they did was founded on a series of uncontraverted laws , and upon long and deplorable experience of the mischiefs occasion'd by that pary . whereas they who condemn our proceedings , must , and do acknowledge before they condemn us , that they consider themselves as a people coming into a country where there were no laws , and so might take any new laws they thought fit , for the present exigent : a liberty which we ( poor slaves ! ) durst never take , foolishly conceiving our selves over-ruled by our statute-books , ancient customs , and oaths , regulating our duty and conscience . for answering the objections which are made against the government , i shall class them into these general enormities with which the government is charged , and into the particular instances of its pretended cruelty . the first general objection is , that the severe laws made against conventicles were yet more severely put in execution by sir iames turner , and sir william ballantine , and others , which occasion'd the insurrection at pentland-hills , and it is alledged that these conventiclers came only to petition the council , not to overturn the government . to this it is answered , that all rising in arms upon any pretext whatsoever , is declared rebellion in this and all other nations ; and if any should rise now in arms because free-quarter is taken from them against law , they would find this government so to take it . nor can it be pretended that justice was denied to private petitioners ; but on the contrary , turner and ballantine were laid aside , which is all the state could do , it being impossible to answer for all the extravagancies of soldiers , even under the most just government . from this likewise it necessarily follows , that because this was no just war , therefore the learned and worthy sir iohn nisbet , then king's advocate , and the criminal iudges were unjustly reproached for refusing to allow the defence founded on giving quarter , that being only to be allowed in iusto bello : and it is to be remembred , that this defence was not allowed to the worthy president sir robert spotswood , son to the famous archbishop , in anno , tho' the war was just on the king's side , and he acted by vertue of a commission from that very king ▪ by whose authority the parliament that condemned him was called ; and it could not be proved by those that were taken at pentland-hills , that quarter was granted them ; whereas it was clearly proved , that the council in general had discharged granting of quarter upon the foresaid account . we pass under silence here , the dreadful slaughter of several hundreds killed after free quarter given , and surrendring of the castle of dunvileigh , ( which made lieutenant general leslie , who then commanded the army , threaten to lay down his commission , ) notwithstanding of a violent sermon made before him upon these words , sam. chap. . v. . what meaneth then this bleating , &c. * as to the sending away people to the plantations , it is answered that none were sent away , but such as were taken at bothuel-bridge , or in argyle's rebellion ; and the turning capital punishment into exile , was an act of clemency ; not of cruelty . as to torture , it is allowed not only by the law of our nation , but of all nations except england , and founded on the foremention'd maxims , salus populi , &c. pereat unus , potius quam vnitas ; nor was it ever inflicted , but where the person tortured was evidently proved to be guilty of accession to the crime , and that he knew the accomplices ; it being still left in his power to secure himself against torture , by confessing who were his accomplices , or by clearing himself by his oath , that he did not know them , which oath was required to free , not to bind the deponent ; because his knowledge of the matter was first proved , and it was still previously declared by act of council , that nothing he was to depone should prejudge him ; and those who had been in that government were very sorry that when torture was declared a grievance in the last convention , matters of high importance relating to the government , were still excepted , which expos'd the subjects to as much danger as formerly . as to the imprisoning free leidges without giving any reason , and detaining them in prison for many years ; it is answered , that we have no act for habeas corpus in scotland , and so these things may be accounted severe , but not illegal ; and they were introduced in the late vnhappy presbyterian rebellion , where thousands were kept in prison a great many years , without any crime or hopes of releasment ; but the true reason of the frequent imprisonments , during k. charles the d's government , should only be charged on those who were accessories to the plots and rebellions which occasion'd them ; and no men wish'd more than we did , to see those peaceable times which might allow an act of parliament for habeas corpus . another thing which occasioned these long imprisonments , was , that the persons imprisoned refus'd to acknowledge the king's authority , without which they could not have been set at liberty , when there was a clear probation against them . but can this be objected to vs , by those who have since imprison'd more in one year than we did in five ? as to the bringing in the highlanders on the western shires , and taking free quarter there ; it is answered , that many thousands had gather'd in field conventicles with arms for several years ; and when these conventicles which used to meet in several places , pleas'd to join in one , they could easily form an army . to prevent which , the council wrote a letter to these western-shires , entreating them to fall upon some course for security of the peace ; they returning for answer , that the peace could not be secured there without abrogating episcopacy . the king and council consider'd this as a sacrificing the laws to the humours and passions of private men , and such too , as they had reason to think , could no more be satisfied with that concession than their predecessours were , who proceeded to ruin king charles i. after he had parted with the order of episcopacy to please them ; and therefore the highlanders were sent in , to secure the peace ; and because mony could not be provided in haste , the council declar'd by their act , that those on whom they were quartered should be paid out of the first and readiest of the fines owing there , and the superplus should be paid by the king ; nor have those who were then in the government , clamour'd so much now for a years free quarter as these people did then for a fortnights , and even during that fortnight most men pay'd for their quarters ; nor was there any more surety sought , at least from masters and heretors , than the ordinary surety of law-borrows , by the very style whereof , any private man may force another by the law to secure him against all prejudices from his men , tennents and servants , and others of his command , out-hounding and ra●ihabition . and that the king had great reason to be jealous of their breaking the peace , appears fully from the reasons above represented , and when this surety was thereupon approv'd by parliament , by which it was enacted , that masters should be liable eithr to remove their tennents from their lands , or to present them to iustice : it prov'd a most advantageous remedy for settling the nation , to the great advantage both of master and servant ; this alternative securing the master from many hardships , and ingaging his servants to obey him , as he was obliged to obey the king ▪ and keep the peace . as to the cumulative iurisdiction so much complain'd of , because it gives the king a power to name sheriffs , and other inferiour iudges , who may have an equal share in the administration with those who had the sole heretable iurisdiction formerly , whereby it is pretended the property of the subjects was invaded . it is answered , that heretable iurisdictions are of themselves very little to be favour'd , because the heir must be a iudge both in matters of life and fortune , though he want probity or knowledge in the law , and the interested superiours or over-lords had thereby the unfortunate poor vassals absolutely at their devotion , and therefore by an old law in k. iames the ds time , there was an act made , discharging all heretable iurisdictions without consent of parliament ; and sir iohn nisbet upon these and many other good reasons , advised , that all the other heretable iurisdiction ( because almost all granted since that time ) should be repealed ; and yet , though these heretable iudges refus'd to concur in putting the laws against field-conventicles , and armed insurrections in execution , or conniv'd at them , whereby they grew very formidable , the council unwilling to take away these iurisdictions totally , chose rather to name others to sit with those iudges , or to supply their absence if they refused to come ; but there-after s. g. m. succeeding as advocate , to prevent all debate , advis'd the bringing this point to the parliament , to the end , that that procedure of the king's council might be either vncontravertedly legal if acquiesc'd in , or let fall if refus'd ; and accordingly the parliament having pass'd it into an act ; it seems great malice and ignorance to call this illegal ; and it being founded upon such just and solid reasons , it seem'd as strange , why it should be thought severe , and never lawyer spoke against it except those who had heretable iurisdictions . it were unreasonable that the king should complain of what he consented to in parliament in favours of his subjects ; and so it must be likewise concluded unreasonable that the subject should complain of this point which they have granted to the king , especially seeing it is more in favours of the subjects than of him , it being a strong bulwark against great mens oppressing of their vassals and inferiours ; and therefore i cannot see why the inferior sort should be so dull or unreasonabe as to complain of it . but notwithstanding of this clamour , and abstracting even from this act , it is still maintain'd by the advocate , that all lawyers , and particularly our learned craig in his book de feudis , assert , that the superiour has still an accumulative iurisdiction with his vassal as to the point of iudging ; for tho' he delegate a jurisdiction for his conveniency , yet that is not exclusive , that being a quality which still adheres , as craig says ; † however sir george makenzee , advocate , advis'd to stop all clamours , that the heretable iudge might still have the casualties , so that his property could not be said to be invaded ; and lest this might be drawn to the session , as is ridiculously pretended , the act is only made relative to iurisdictions given by his majesty to his good subjects , which can in no sense fall under the cognizance of the session , i. e. the iudges . as to the act made in council , allowing souldiers to kill such as refused to own the king's authority ; it is answer'd , that there being many proclamations issued out , by the dissenters , declaring , that the king had forfaulted his right by breaking the covenant , and that therefore it was lawful to kill him , and those who serv'd him : many accordingly being kill'd , it was thought necessary by some ( upon the fresh news of murdering some of the king's horse-guard at swyn-abbey in their beds ) to terfy them out of this extravagancy , by allowing the soldiers to use them as in a war , in which , if any call , for whom are you ? and the others owning that they were for the enemy ; it is lawful then to kill : and thus they felt their folly , and the necessary effects of their principle ; and yet still it was ordered , that none should be kill'd except those who were found in arms , owning that principle of assassination , and refusing to clear themselves of their having been in accession to the declaring of war , which they had then begun ; nor were these kill'd but when their deliberate refusal could be proved by two witnesses . but that it may plainly appear , that no more was in all this intended by the governours , than to secure the publick peace , by terrifying those assassines who had so manifestly invaded it ; secret orders were given , that this should not last above a fortnight , and that none should be kill'd except those who were found in the publickly printed list of declar'd rebels , who may be kill'd by the laws of all nations ; and but very few , even of those rebels were kill'd , tho' this has been made the foundation of many dreadful lies . this mischief was intolerable in it self , and we desire to know how it could have been otherways remedied , for the law must find cures for all mischiefs , and these who occasion'd them , should of all others , be least allow'd to complain . after the terrour of that procedure had much cooled the zeal of assassination for a time , it took new fire , and several proclamations for disowning the king's authority , and murthering his servants were posted upon all church doors , and mercat-crosses , so that no man who served the king could know whether or not his murtherer was at his elbow , and they had reason to look upon every place as their scaffold : whereupon the advocate being desired to raise processes against some who owned those pernicious principles , he prevailed with the council to ask the opinion of all the iudges upon this quaery , viz. whether any of his majesties subjects being questioned by his majesties iudges or commissioners , if they own a late proclamation in so far as it does declare war against his sacred majesty , and asserts that it is lawful to kill all those who are employed by his majesty , refusing to answer upon oath , are thereby guilty of high treason , and are airt and part of the said treasonable declaration , salus populi requiring that every one should contribute what was in his power to the preservation of the society ; and as none of the kings servants without this could know if he was secure of his life , so it was very easie for the person accused to clear himself if he was innocent : they consider'd likewise that law in general , for the good of the people , did accommodate its self to what probation could be allowed , and therefore invented presumptive probation upon that account , whereof there are so many instances to be seen in all laws , that it were childish to insist on them , and no man has been so just as to produce one law or reason to convince us of the illegality of this opinion ; and there is an express act of parliament penned by the learned sir iohn nisbet , whereby for the same reason , such as are prosecuted for conventicles are obliged to swear whether they were innocent or guilty , which does run yet higher than this opinion . there is another opinion given by the judges much challenged , viz. that some having gone about amongst the people , demanding fifty pound sterling from each as a contribution for the earl of argyle then forfaulted , they from whom that mony had been asked , and conceal'd it , were found guilty of treason , because this was so far beyond private charity , that it would have amounted to a greater sum than any parliament had ever granted the king : and whereas the proposal of any assistance to a rebel is treasonable , the concealing of it by our law , and by the law of nations is undoubted treason . if the matter of fact in these answers had been represented to the late convention , it cannot in reason be thought they would have condemn'd them ; and if any man will compare these opinions of the judges , with that grievance pretended in the late convention , and that again with the act of parliament , they will find the matter of fact variously represented in all the three . we must likewise inform the world , that no man died upon either of these opinions ; and to cut off all debate , both these forenamed opinions of the judges are expresly ratified by parliament , and consequently are the sense of the nation . before we enter upon private processes , we must complain , that tho' k. ch. having by act of parliament , added five of the learnedst of all his iudges to his iustice general and iustice clark in place of two advocates , who were generally but young or mean , because they had only fifty pounds salary , and that seldom pay'd ; that yet every ignorant scribler should presume to reproach their sentences , and shou'd take upon them to judge the deepest controversies in point of law ; and should dogmatically-write of criminal sentences , tho' they never saw a criminal court , and be applauded in things which every servant about that court knew to be nonsence : particularly , ' as that the advocate , threatned iuries ; whereas all he did , was to protest for an assize of error , which the laws command , and which all advocates ever did , and to this day doe . again , it is as foolishly pretended ; that the advocate prosecuted men without order ; whereas indeed , he never prosecuted any , until he was commanded by the council , who are our grand iury upon oath , and all their orders are registrated ; the court likewise , was so very favourable to these criminals , that they did ordinarily name ( those of their own profession ) presbyterians to pass upon their jury , and sent ministers of their own perswasion , to reclaim them ; and these iurors and ministers , seldom fail'd to condemn them as much as the judges did . the capital sentences in that court , were founded generally upon actual rebellion ; and even as to those , there was not one of a thousand executed : nor in all argyle's rebellion , was any executed by their sentence , except one or two , who were pitched upon as examples to terrifie others . nor did there dye upon any publick account , twelve , in all that reign so exclaim'd against , as bloody ; and not one dyed for any principle in religion , unless it be thought a religious principle to dye for actual rebellion ; as to such , there needs no particular defence , the very light of nature , the common interest of societyes , and the laws of nations , declaring it a crime to justifie them . it is pretended , that tho' the crimes had been legally founded , yet the probation was suspect in those times , because the depositions of witnesses were previously taken , whereby witnesses being once ensnared , were forced to stand by their depositions . to which it is answered , that in all nations abroad , depositions are previously taken , as is uncontroverted by all their criminal writers , and this is very necessary for the good of the subjects , lest they should be prosecuted groundlesly , and this is as fit for the good of the king , or kingdom , lest such as are guilty of atrocious crimes against the whole society , should escape without being punished , because tryed when the formal and full probation is not ready ; yet to prevent all mistakes , the advocate interceeded that this trust of examining witnesses , should not be left to the king's advocate , as it ever formerly had been , but should be lodged in the judges , and that lest their depositions should be any tye upon them , the judges with consent of the advocate , ordered that the depositions should be torn before they deposed in iudgment , and they were allow'd either to correct or pass from their former depositions as they pleas'd ; and whereas formerly the king's advocate had the naming of the jury , it is now lodged by act of parliament in the judges . nor was there ever any witnesses suspected , except only in chesnock's case , wherein the depositions were true ; and albeit the witnesses afterwards asserted upon oath on their knees , that their first deposition was very true , and that they were only frighted and confounded in the second ; yet the council would not resume the process , and thereupon he was absolv'd : in the rest the probation was but too clear , for beside all the legal probation , most of those who died , owned and gloried in their crimes when they died , exhorting others to imitate them , in their disowning the king , and rebelling against him : and many of them exhorted the people , to kill all such as oppos'd their principles , assuring them , that to kill malignants was acceptable to god. strangers would likewise be pleas'd to be inform'd , that our law allows the party accused , a liberty to call in witnesses , who may depose upon oath for him against the king , which the law of england does not , and this kind of exculcapation was never allow'd till the reign of king charles ii. the first act which was the warrant thereof , having been made by sir iohn cunningham , and sir george mackenzie , when they were criminal iudges : and this was never refus'd to the persons accused , albeit they brought in frequently witnesses , who took very great latitudes , to save those of their own principles by swearing ; for instance , that tho' they saw a person very like the pannel or party accus'd , yet they could not depose it was he , because it might have been a vision , albeit at the same time , they had known him formerly very well , and that they talkt with him that time in arms , at the distance of ten or twelve paces , for half an hour together ; and at other times , they did positively refuse to depose that they saw him have a sword , tho' they owned that they saw the hilt and scabbard : notwithstanding of which , and many such ridiculous evasions , the party accus'd , was alwaies acquitted . to descend to particular processes : it is clamoured , that mitchill the famous assassine , was executed after he confessed the crime upon promise of life ; to which it is answered , that mitchill having upon the high-street of edinburgh , shot at the arch-bishop of st. andrews , with a design to murther him , he wounded the bishop of orkney with that shot , of which he never recovered , and being thereafter apprehended , confessed the crime , but continuing still to glory in it , and very famous witnesses having deposed , that mitchill was upon a new plot to kill the same arch-bishop ; mitchill was brought to a tryal , and his defences were , that the earl of rothes , to whom he confest it , had promised to secure his life , or that the privy council had afterwards promised the same ; for clearing whereof , the said earl , and all who were upon the committee , together with all such members of council as he desired to be cited , were fully examined , upon all his interrogatories : and the registers of council were produced , but not the least mark of a promise was made to appear by either , so that nothing remain'd , but that the lord high chancellour , and lords of the privy council ( as they alledged ) perjured themselves , and that the registers of council were vitiated ; and how it 's possible to imagine that all this villany was committed to take so inconsiderable a fellows life ; i leave the world to judge ? however , he also died glorying in his crimes , and recommending to others the sweetness of such assassinations . george lermonth is alledged to have been unjustly executed , because he was condemned for being present at a field-conventicle , with a rod only in his hand : whereas the truth is , that he was condemned for being art and part , that is to say , accessory to the death of a soldier , who was killed upon that place , and that he commanded those who killed him as an officer , of which a man may be guilty in law , without having a sword ; and therefore the iustices most legally repelled the defence founded on his not having a sword. hamilton of monkland was not found guilty because he went into the rebels to seek his son , as some falsly suggest : but because being there , he sollicited a committee of the rebels to make his servant an officer ; and accordingly he being made one , he came back within some few days , and stayed several months with monkland , a point of law so clear that his own advocates could make no reply to evade it . there were indeed two women executed , and but two in both these reigns , and they were punished for most hainous crimes which no sex should defend . their crimes were , that they had recepted and entertained , for many months together , the murtherers of the archbishop of st. andrews , who were likewise condemned traitors for having been openly in rebellion at bothwell-bridge , whereupon they having been prosecuted , declined the king's authority , as being an enemy to god , and the devil's vicegerent . and tho' a pardon was offered to them upon their repentance , they were so far from accepting it , that they own'd the crimes to be duties ; and our accusers should remember that these women were executed for higher crimes , than the following montross's camp , for which fourscore women and children were drowned , being all in one day thrown over the bridge at linlithgow by the covenanters , and six more at elgine by the same faction , all without sentence , or the least formality of law. baillie of iervisewood was executed for being accessory to , and concealing of a design of raising twenty thousand men , and siezing the garrisons of berwick and carlisle , and the officers of state. nor would the advocate raise an indictment until sir george lockhart , and one of the learnedst of the present judges ; did declare that the point of law and probation were both most clear , and thereupon concurred in the process ( concealing of treason is beyond all debate punishable as treason in our law ) and some of the witnesses were his own relations , who swore plainly and positively against him . the e. of argile's process deserves to be more largely clear'd ▪ and since this last parliament has rescinded it , we shall without any justification represent the matter of fact , which stands thus . the test being enacted to be a bulwark to the protestant religion , as upon the event it prov'd , the e. was not oblig'd , but would needs take it with this caution , i take it as far as it is consistent with it self , or with the protestant religion ; and i declare , that i mean not to bind up my self to wish or endeavour any alteration i think to the advantage of the church or state ; whereupon the council observing , that the test by one part of this his declaration appear'd ridiculous , and by the other it became ineffectual to all the intents and purposes for which it was design'd ; for so every man's opinion became the rule of his own loyalty , and no man thereby oblig'd to be further loyal than he himself might think convenient . they therefore interposed earnestly with the earl to pass from this his declaration , but he refusing to disown it in the least , and copies of it being industriously spread abroad , it was represented to him , that by acts of parliament , all such as put limitations upon their allegiance were guilty of treason , for beside , that men are not obliged to dispute the reasonableness of acts of parliament after they were once made ; it is apparent that this act was made upon most just and necessary motives , for the foundation of the rebellion in the last age , was , that by the covenant the subjects were not further obliged to own the king's interest , than in so far as it agreed with the word of god , and the laws of the land , of which every private breast made himself the iudge ; and if this be allow'd , no oath of allegiance can bind , and so all society must be dissolv'd . notwithstanding all which , the earl still persisting , and the duke then high-commissioner , being assured by one of the best lawyers in the nation , that the paper imported treason , ( tho' the advocate scrupled to prosecute him from a principle of personal kindness to the earl ) he was thereupon prosecuted , and found guilty after a full debate , wherein eight or nine of the best lawyers of the nation , by a positive command from the council , did assist the earl it is here also very observable , that no malice could be design'd against the earl ; because he was earnestly entreated to pass from the paper containing his declaration before the process should commence ; and after all , the captain of the castle was allow'd not to keep him strictly , and as it is undeniable , that the king allowed the earl's estate to his creditors , and that his children got a far larger share of it , than if he had dy'd in his bed ; so it can be prov'd it was fully resolv'd , that he should not die , nor did he die till he had invaded his native countrey by open war , whereby the parliament being convinc'd by this open act , that he had very clearly design'd by the former caution in his explicatory declaration of the test , to reserve to himself a power to rise in rebellion when he thought fit ; as was argued in the former process ; they therefore ratified the process of forfaulture ( nemine contradicente ) and added their authority to that of the iustice court , and because 't is wonder'd why he was not prosecuted upon this new rebellion ; it is answer'd , that by the laws of all nations , and by the laws especially of scotland and england , no man can be try'd for the very same crime for which he stands convicted , tho' he may for a crime which deserves a greater punishment , for the law has exhausted its revenge by the first sentence ; but yet where a new notorious aggravation superveens , which is so clear , that it can admit of no debate , nor needs no probation ; it were very unjust that the law should not here be put in execution , tho' the first sentence had been thought too severe to deserve it . we conclude then this process with this reflection , that a government can in no sense be call'd severe , where the person accus'd has liberty ( and is entreated ) to retract his crime , where his children and creditors get all his estate , and where he himself does not suffer , until he made it manifest by his invasion of his native countrey , that the design of his explaining the test in a paper under his hand , was to reserve to himself a power to rebell , and till he had aggravated highly his former guilt . but why do they reproach us with this one decision , who do yet sustain those abominable ones , that were executed without the least shadow of justice against the marquess of huntley and montrose , president spotswood , haddo , and seven hundred gentlemen more , who died by their justice court , when their covenant over-rul'd law and equity : and against four hundred and fifty gentlemen and commons who died by the justice-court of argyle , beside the many thousands who died in the civil war , ( of which they must be guilty , who raised it , and who never yet made the least profession of repentance for it . the parliament , , being inform'd of monmouth and argyle's invasion , and being convinc'd that argyle had reserv'd that power in his explicatory paper of the test , meerly that he might invade his countrey and its laws ; and reflecting on the treasonable principle of the covenant of defending the king , only in defence of religion , and the late limitations of owning no king , except he had taken their covenant ; they therefore ( not by a recognising act , but in the narrative only of the act relating to the excise ) offer'd their lives and fortunes , without reserve ; which clause was inserted by the parliament , not to introduce a blind slavery , as some maliciously pretend , but meerly to exclude these rebellious limitations of obedience invented by the covenanters , which were inconsistent with former standing laws , and by which the people had been highly debauch'd in the late civil war ; for in that very parliament they enlarged the peoples liberties , and ratified all laws in favours of the protestant religion ; and the very same persons in the next parliament refus'd to take away the penal statutes , whereas , if an absolute slavery had been design'd , all the former acts establishing our liberty and property , and all the concessions granted to us by our kings for securing our lives and fortunes , should have been expresly ▪ enumerated and abrogated ; and so the words in the narrative of that act could be no warrant for the proclamation , disabling the laws against toleration as some would have us believe : and they who now complain , were the only persons who then took the benefit of that stretch of the prerogative . we could wish that our accusers would be careful , that in being too rigid censurers of us , they do not expose all governments , and even the present to reproach ; for it would seem to some who are now by-standers , as they then were , that though they cry'd out against us for torturing , when it was warranted by our uncontroverted law ; yet the expediency of government , or some other reason makes them do it , after they had declar'd it a grievance , and had rail'd against it as inconsistent with all humanity . nor do i see that the reserving it only to king and parliament answers this objection ; for the parliament by their authority cannot make that fit , which is inconsistent with humane nature , or that convenient which was declar'd to be incapable to produce the true effect for which it was design'd : and the making torture then only a grievance , when inflicted without a cause ( as is pretended ) seems to satisfie as little , since every man can easily pretend that what he does is done upon just motives . the imprisoning many , and keeping them long , can hardly be objected to us , since the present government find themselves obliged to do both ; and the last parliament , in their great wisdom , thought it fit to reject a bill for habeas corpus , when it was press'd as suitable to one of the grievances : nor can we yet discover why the forfeitures of those should be rescinded by the current parliament , who were sentenc'd for having taken up arms at pentland-hills , and bothwell-bridge ; or those who were forfeited for the proclamations at sanquhar , and elsewhere , wherein king charles was declared to have lost his right to the crown , for having broke the covenant ( that tripartit and fundamental contract betwixt god , the king , and his people ) and wherein it is declared a duty to kill him , and all who serv'd him , and to throw off the race of the stewarts , as constant enemies to god : * as also how the forfeiture of the duke of monmouth , and all who adher'd to him , and that of the earl of argyle were repealed in cumulo ; for if it be lawful for subjects to rise in arms upon the single pretence of conscience , no king , nor no government can be secure : if a considerable part of the nation should now rise for liberty , property and episcopacy , upon the same pretext , would the parliament find this defence good ; some are also found who reproach the present government for suffering ministers to be thrown out by the rabble without any previous tryal or reparation afterwards , and many other things which afford but too great ground for satyr and complaint , if i were inclined to either . the necessity of state is that supereminent law to which upon occasion all particular acts must bow ; what else can be alledged to justifie the throwing out the first estate of parliament , the passing by the magistrates then in possession in making of their elections ; and allowing some who had been sentenced for treason to sit and vote in parliament , without ever examining the grounds upon which they had been condemned : these who think that the necessity of state can justifie such proceedings , ( which must be their only plea , ) ought to be very careful how they blame their predecessors for severities , which some mens ungovernable humours necessitated them to . we must also be allowed to admire how those who so eminently comply'd with the dispencing power in taking an indulgence from the papists , and who magnified king iames upon that account as the best of kings that ever reign'd , should so snarle at us , who in a parliament ( at which not one of them assisted ) refused to take away the penal laws made against popery , whilst many of us resign'd our places willingly in defence of those laws ? or how those who did sit in parliament and judicatures with us , consenting to and approving what was done in those reigns , should now countenance such reproaches against us ; it being most undeniable that there 's but very few who deserved any employment , or had any sence , who did not concur in most of those things for which we are now so severely censured , and there are very few of any note or consideration either in the last convention , or present parliament , who have not been accessory to many of the things now complain'd of . we do therefore in the last place recommend to all disinteressed men , to consider that the men of the greatest quality , learning , experience , parts , and estates being then in the government , and upon oath , it is to be presumed that love to the salvation of their souls , respect to their honour , and care of their families and posterity would have obliged them to shun and avoid all those severities with which they are now most unjustly charged , and in common charity to believe , that what was then done by those in power , was design'd only for the security of the protestant religion , against those factions and schisms , and to preserve the country from those civil wars and distractions which had destroyed both in the last age ; and threatned to do the like in this ; notwithstanding all the pains and care that was taken to reduce the authors of those mischiefs to live peaceably and quietly . we foreseeing very clearly , that one months civil war would occasion more ruine and destruction to the country , than possibly the severities of a whole reign could do . the only design of this paper being to defend our selves , without offending others , and rather to cement than widen differences , we wish that all sides may busie themselves so much in setling their native country , that they may forget injuries , which the most impartial cannot think so great in the reign of king ch. the second , as those that were committed by the complaining party in the reign of k. ch. the first , and we should be sorry they had been ballanced . but sure they will be most unpardonable , who begin again upon a new score ; for after that nothing can be expected , but that all parties will run in an endless circle of severities . which god of his infinite mercy avert . a true account of the forms us'd in pursuits of treason , according to the law of scotland : by which the justice of that nation may be known to mis-informed strangers . written anno . it is much to be admired , that such as never read our law , revis'd our records , nor were ever employ'd as iudges or advocats in our criminal courts , should adventure to condemn the proceedings of those , who for many years have made that part of our law their constant study , who were upon oath , and knew that their posterity should be judged by their decisions . but to inform all men more particularly , and to set things in their true light ; i shall represent the legal way of procedure in cases of treason , which is the only crime to which this jealousie may reach ; and then prove that the king's advocat cannot prejudge the party accus'd in any step of the process . treason may be pursued either at the instance of a private informer , or at the instance of the king's advocat , who is ratione officii , calumniator publicus : if a private person inform , then his name must be exprest , to the end he , nor none of his relations may be us'd as witnesses , he must find surety that he shall prove , and that he shall insist , as being liable in * poenam talionis , if he fail in proving the crime . when the pursuit was to be carried on for the publick interest , the king's advocat examined the witnesses alone ; but sir george mackenzie thinking the advocat might have been jealous'd , as too interested , prevail'd to get this examination referr'd to the iudges , who in all nations enquire into the grounds whereupon pursuits are to be rais'd , and after the depositions were taken , and sign'd by the iudges and witnesses , the advocat presents them to the privy council ; and if , after reading them , and a full debate upon them ( many of the learned lawyers of the nation being privy counsellors ) it be found by vote of council , that there is sufficient ground from the evidence to raise process of treason , then there is an act of council drawn , ordering the king's advocat to insist ; but in this tryal , the advocat , tho a counsellor , never votes . the reason why this previous examination is allow'd , is to secure the subjects against their being rashly and unwarrantably pursued or prosecuted without sufficient grounds : but left a witness might have lookt upon himself as pre-engaged by this previous deposition ; therefore these first depositions were always torn , and the witnesses declared free from whatever they had formerly depos'd . to strengthen the security of the defendant or party accused , sir george mackenzie us'd to interpose with the officers of state , before the depositions were brought into the council , and to represent to them his own scruples : and if the officers of state continued still of opinion that a process was to be rais'd , or the party accused to be proceeded against , then he desired the ablest advocats of the nation to be called , before whom the depositions were read , and if they concurr'd with the officers of state in their iudgment of the matters being criminal , then these advocats were ordain'd also to concur with him in the pursuit . and many of the most learn'd and most popular advocats did concur with him in the most intricate cases ; as in argyle's , iervis wood's , &c. which is not to be imagin'd they would have done , had they thought their pleading in these cases any guilt or fault . tho by the laws of england and other nations , the defendant is allowed no advocats to plead for him in criminal cases , but especially not in treason , except where the iudges can see debateable points of law , yet lest the defendant may by ignorance or confusion omit to represent those matters of fact , from which new points of law may arise , therefore our law allows always advocats to the defendant , and forces any whom he does name to accept the employ . act . parl. ii. i. . tho by the laws of some nations no witnesses are allow'd to be produc'd for the defendant , but such as do appear voluntarily , yet when sir george mackenzie was a iudge in the criminal court , which answers to the king's-bench in england , he ordered for the good of the people the remedy of exculpation , whereby the defendant representing that he has some defences , a warrant is giv'n to force the witnesses whom he names to appear , under severe penalties ; and such time is granted to him and them , as may be sufficient for their appearance , and these witnesses when compearing are examined upon oath , and the iury is obliged to believe any two of them ( tho no witnesses are allowed to swear against the king in england ) this order was thereafter turn'd into an act of parliament . act . sess. parl. . ch. . article ii. and also to take off all possibility of packing iuries in edinburgh , where generally the juries are chosen , 't was ordered by the iudges , at sir george his earnest request , that the town of edinburgh should give up a list of all their housekeepers who were able to pass upon iuries , and that all these should be named per vices , according to the situation of the place where they liv'd . because the defendant did not know what witnesses were to be produced against him by the king's advocate , and so could not have witnesses ready to prove his objections against them , therefore sir george prevailed with the parliament that the king's advocate should be for ever after obliged to give with the indictment a list of what witnesses or members of inquest were to be used by them ; and an order is given for citing any witnesses the defendant pleases , with a competent time for bringing them . fifteen days being still the least time allowed by our law , for preparing the defendant in all such cases . when the day of tryal or appearance comes , the witnesses who were present at the giving the citation are obliged to depose upon oath , that they truly saw the citation given : thereafter the king's advocate produces his warrant : nor did ever sir george mackenzie prosecute any man until he was commanded by the council , and till he produced his warrant , ( as still appears from the records of the council and criminal court , to both which he solemnly appeals ; ) and then the indictment is read , after which the advocates for the defendant , dictate to the clerk his defences ; to which the king's advocate dictates his replies , the defendants advocates again their duplies , &c. and that to the end the iudges may the better consider what is said , and may stand in awe of posterity . after the debate is closed , the king's advocate and all others retire , and the iudges having read fully the debate , they argue the case amongst themselves , and thereupon they by their interlocutory sentence find such and such points to be relevant , that is to say , well founded in law , and they sign this interlocutory sentence or iudgment , which is imposed as a further tye upon the iudges , for the security of the people ; nor are witnesses allowed to be examined upon any thing , but what they have found thus to be legal . the advocates for the king and defendant being both called in before the court , the defendant hears the sentence read , and then the forty five iurors are called , and the defendant's objections against them are discussed ; and tho' of old the king's advocate had the naming of the iury , as being presumed disinteressed , yet sir george mackenzie prevailed to get an act of parliament , whereby the nomination of the iury was referred to the iudges , fifteen of these forty five only are admitted as a sufficient iury , and the defendant is allowed to challenge or reject , without giving any ground or reason for it , any thirty that he pleases of that number , and the fifteen who remain make up the jury , and are set by the judges . the iury being thus constituted , in the next place all the witnesses are called in before the court one by one , and not allowed to hear what one another say ; and after the objections against such witnesses are fully debated in writ and upon record , the witnesses are either admitted or rejected , as the judges find ground in law and equity : if admitted , the president of the court examines only upon what is found legal or relevant in the indictment . and in the next place he is examined upon any interrogatory that is moved either by the defendant , or any of the iury for him , and then the whole deposition is dictated by the president of the court , and is fully read in the hearing of the witness , and of the defendant and his advocats ; and if they desire any thing to be corrected , it is accordingly done , if the witness agree with them in the correction ; and in the last place , the deposition is signed by the president and the witness that gave it . all the depositions being thus taken , the advocats for the king , and defendant speak to the iury in a full harangue ; but because the publick interest was still to be preferr'd to private mens , therefore our law allowed the king's advocat to be the last speaker in all criminal cases , till sir george prevail'd with the parliament to give the last word to the defendant in all cases except that of treason , because ordinarily the greatest impression was supposed to be made by the last pleading . the debate and examinations thus ended , the iury are enclosed , and get in with them the whole debate , interlocutory sentence and depositions in writing , signed by the iudges , clerk , and witnesses . this instructs them fully how to proceed ; and after they have chosen a chancellour ( or foreman ) and a clerk , they read all the process , and debate fully upon it ; and to the end every iuror may stand in awe of posterity , it is marked by the clerk in the verdict , who absolved , and who condemned ; and as no witness can be examined but in presence of the party indicted , so if any man speak to any of the iury after they are enclosed , the defendant is for ever free. and tho of old the clerk of the court was used to be enclosed with the jury for their direction ; yet sir george mackenzie procured , that , because the clerk had some dependance upon the crown , he might be excluded from going in with them , and that they might chuse their own clerk ; which they use accordingly to do since that act. art. . of the foresaid act. . by this it appears , that no nation is more nice in securing the subject , or have ever shewed more judgment in processes or proceedings of treason , than scotland has . in the next place i must observe , that no nation has ever blamed a king's advocat for assisting in criminal processes , nor lies there any action or scandal against him any where on that account ; as can be proved from many hundreds of citations of the best laws and lawyers ; but he darkens his own cause , when just , who uses these to ignorant people ; and he lessens his own esteem , who thinks he needs them amongst men of better sense : the law trusts him entirely as a publick servant , who manages these pursuits by virtue of his office , and not by malice . the king's advocat must either have a negative over the king and all the iudicatories , by refusing to concur , by which he might make the justest pursuit useless ( for tho he should lay down his employment , yet it would give an ill impression even of the best cause ) or otherways he must be obliged to concur ; in which case he can do no prejudice , because iudges are presum'd to be learned , and the advocat is still to be consider'd as too interested , to have any dangerous influence : nor can he abuse the iury with any misrepresentation in point of law , for they are only allow'd by our law to consider what is meer matter of fact , and whether the precise point of law referr'd to them by the judges , be prov'd by these depositions of the witnesses which lye before the jury in writing . iudges may err in point of law , and juries in point of fact , but neither of these are entrusted to the advocate , so that poor people are abus'd extreamly when they are informed that the king's advocate occasioned any mans death . sir george might here likewise represent , that in the rebellion against k. ch. i. many noblemen and gentlemen were pursued for rising in arms by that same king's commission by whose authory their iudges did sit ; and yet none of the advocats of these times were ever quarrel'd with or mis-represented for debating even against their master's commission and remission , as will appear by the processes of haddo , president spotswood , marquess of huntley , montross , and hundreds of other gentlemen , but sir geo. needs justifie himself by no such precedents . in the third place , sir george mackenzie may unanswerably urge , that no man who endeavoured so to lessen the power of the king's advocats by acts of parliament and regulations , can be thought to have had any inclinations to stretch it ; as also he may value himself for refusing to accept the king's advocate 's place , till his predecessour resign'd it under his hand ; that he never informed against any man , nor suggested any pursuit ; that when a pursuit was motioned , he pleaded as much in private for the defendant , if the case was dubious , as any of his advocates did thereafter in the process ; nor did he ever shew any vehemence in the process , except when he was jealous'd of friendship to the defendant , or of love to popularity , because he had so pleaded in private : and no age did ever see so many thousands pardoned , nor so many indemnities granted , as was in his time , which as it must be principally ascribed to the extraordinary clemency of the kings he served , so it may be in some measure imputed to the natural byass which sir george had to the merciful hand . there is great reason to believe that poor people are only misled by mis-informations , since some in their pamphlets clamour against the advocate for threatning the iury with a process of errour , whereas all that he does is to protest for a process of errour , which is a duty imposed upon him by our law. they accuse him also for having occasioned great expences to the countrey , for keeping witnesses unexamined , whereas it appears fully from our statutes and practice that the examination of witnesses is no part of his duty , for the sollicitor presents them , and the iudges only can examine them . the bulk of all the processes raised in k. charles . and k. iames . reigns , were against such as rose in actual rebellion at pentland-hills , bothwell-bridge , and argyle 's invasion ; the first were pursued by sir iohn nisbet , one of the best lawyers and country-men that ever pleaded ; and sir george mackenzie did but copy his libels in pursuing men in the other two rebellions , these indictments were founded upon the laws of all nations , and particularly of scotland , declaring that subjects taking arms against the king and his authority were traytors . all the nobility and gentry , almost all who are in the present government rose against them with their swords in their hands , and so were more guilty ( if that must be called guilt ) than any judge ; these proceedings were justified by many parliaments , and all the iudicatures ; and england still continues to think that monmouth's invasion was a rebellion ; so that the succeeding king's advocates could not be blamed for pleading in defence of what others fought for , and judged . there were other two classes of men prosecuted in those times , the one was of the murderers of the arch-bishop of st. andrews , the other was of such as in publick rendezvous of rebellion , * as at sanqhuar , wherein they declared k. ch. . to have forfeited his right to the crown , because he had broken the covenant , which was the fundamental contract betwixt god , the king , and the people , and therefore they declared war against him , and that it was lawful to kill all who served him . now it is left to any indifferent reader to judge whether there needed any eloquence to prevail with iudges or iurors to condemn such rebels . but to shew the clemency of the government , strangers would be pleased to consider that tho' above had been guilty of publick rebellion , yet died not by the criminal court , and above of these might have saved their lives , by saying god bless the king ; not that the refusing to say this was made a crime ( as is villainously represented ) but that this easie defence was allowed under this g●ntle king , whose clemency we wish may be imitated by those who cry so much out against his cruelty ; and amongst the many thousands that rose with argyle , only two notorious rebels were pitched upon by the criminal court to die for the example and terrour of others . and i may safely say , that there died not six in all the the time that sir geo. was advocate , except for being in actual rebellion , and for being guilty of assassination clearly proved ; nor did the earl of argyle himself die till he had actually invaded his native country : nor george lermonth , till it was proved , that ( tho' he wanted arms ) yet he commanded those who were in arms to fall upon the king's souldiers , and so they were killed by his command . and what eloquence is requisite to perswade judges or juries to condemn in such crimes ? to the reader . when we inform strangers of the seditious principles of the scotch presbyterians , they are justly surprised that such villanies can be practised , where humanity and christianity are not openly and plainly renounced , and therefore some of their own authentick papers are here subjoined , which contain the natural consequences of their covenant and principles , by which we leave the world to iudge whether sir george mackenzie has not treated them with all modesty and tenderness , and whether any form of government can possibly subsist , where such wicked and pernicious fooleries are propagated . the solemn league and covenant . wee noblemen , barons , knights , gentlemen , citizens , burgesses , ministers of the gospel , and commons of all sorts in the kingdoms of scotland , england and ireland , by the providence of god living under one king , and being of one reformed religion , having before our eyes the glory of god , and the advancement of the kingdom of our lord and saviour iesus christ , the honour and happiness of the kings majesty and his posterity , and the true publick liberty , safety , and peace of the kingdoms , wherein every ones private condition is included ; and calling to mind the treacherous and bloody plots , conspiracies , attempts , and practices of the enemies of god , against the true religion , and professors thereof in all places , especially in these three kingdoms , ever since the reformation of religion , and how much their rage power and presumption are of late , and at this time increased and exercised ; whereof the deplorable estate of the church and kingdom of ireland , the distressed estate of the church and kingdom of england , and the dangerous estate of the church and kingdom of scotland are present and publick testimonies ; we have now at last ( after other means of supplication , remonstance , protestations and sufferings ) for the preservation of our selves and our religion from utter ruine and destruction , according to the commendable practice of these kingdoms in former times , and the example of god's people in other nations , after mature deliberation , resolved and determined to enter into a mutual and solemn league and covenant : wherein we all subscribe , and each one of us for himself , with our hands lifted up to the most high god , do swear : . that we shall sincerely , really , and constantly , through the grace of god , endeavour in our several places and callings , the preservation of the reformed-religion in the church of scotland , in doctrine , worship , discipline and government , against our common enemies ; the reformation of religion in the kingdoms of england and ireland , in doctrine , worship , discipline , and government , according to the word of god , and the example of the best reformed churches ; and shall endeavour to bring the churches of god in the three kingdoms to the nearest conjunction and vniformity in religion , confession of faith , form of church government , directory for worship and catechising ; that we and our posterity after us , may , as brethren , live in faith and love , and the lord may delight to dwell in the midst of us . . that we shall in like manner , without respect of persons , endeavour the extirpation of popery , prelacy ( that is , church government by archbishops , bishops , their chancellours and commissaries , deans , deans and chapters , arch-deacons , and all other ecclesiastical officers depending on that hierarchy ) superstition , heresie , schism , prophaneness , and whatsoever shall be found to be contrary to sound doctrine and the power of godliness ; lest we partake in other mens sins , and thereby be in danger to receive of their plagues ; and that the lord may be one , and his name one in the three kingdoms . . we shall with the same sincerity , reality , and constancy , in our several vocations , endeavour with our estates and lives mutually to preserve the rights and priviledges of the parliaments , and the liberties of the kingdoms ; and to preserve and defend the kings majesties person and authority , in the preservation and defence of the true religion , and liberties of the kingdoms ; that the world may bear witness with our consciences of our loyalty , and that we have no thoughts or intentions to diminish his majesties iust power and greatness . . we shall also with all faithfulness endeavour the discovery of all such as have been , or shall be incendiaries , malignants , or evil instruments , by hindering the reformation of religion , dividing the king from his people , or one of the kingdoms from another , or making any faction or parties amongst the people , contrary to this league and covenant , that they may be brought to publick tryal , and receive condign punishment , as the degree of their offences shall require or deserve , or the supream iudicatories of both kingdoms respectively , or others having power from them for that effect , shall judge convenient . . and whereas the happiness of a blessed peace between these kingdoms , denyed in former times to our progenitors , is by the good providence of god granted unto us , and hath been lately concluded , and setled by both parliaments , we shall each one of us , according to our place and interest , endeavour that they may remain conjoined in a firm peace and union to all posterity , and that iustice may be done upon the wilful opposers thereof , in manner expressed in the precedent article . . we shall also according to our places and callings in this common cause of religion , liberty , and peace of the kingdoms , assist and defend all those that enter into this league and covenant , in the maintaining and pursuing thereof ; and shall not suffer our selves directly or indirectly by whatsoever combination , perswasion , or terrour , to be divided and withdrawn from this blessed vnion and conjunction , whether to make defection to the contrary part , or to give our selves to a detestable indifferency , or neutrality in this cause , which so much concerneth the glory of god , the good of the kingdoms , and honour of the king ; but shall all the days of our lives zealously and constantly continue therein , against all opposition , and promote the same according to our power , against all lets and impediments whatsoever ; and what we are not able our selves to suppress or overcome , we shall reveal and make known , that it may be timely prevented or removed : all which we shall do as in the sight of god. and , because these kingdoms are guilty of many sins and provocations against god , and his son jesus christ , as is too manifest by our present distresses and dangers , the fruits thereof , we profess and declare before god and the world , our unfeigned desire to be humbled for our own sins , and for the sins of these kingdoms , especially that we have not , as we ought , valued the inestimable benefit of the gospel , that we have not laboured for the purity and power thereof , and that we have not endeavoured to receive christ in our hearts , nor to walk worthy of him in our lives , which are the causes of other sins and transgressions so much abounding amongst us , and our true and unfeigned purpose , desire , and endeavour for our selves and all others under our power and charge , both in publick and in private , in all duties we owe to god and man , to amend our lives , and each one to go before another in the example of a real reformation ; that the lord may turn away his wrath , and heavy indignation , and establish these churches and kingdoms in truth and peace . and this covenant we make in the presence of almighty god the searcher of all hearts , with a true intention to perform the same , as we shall answer at that great day when the secrets of all hearts shall be disclosed ; most humbly beseeching the lord to strengthen us by his holy spirit for this end , and to bless our desires , and proceedings with such success as may be deliverance and safety to his people , and encouragement to other christian churches groaning under , or in danger of the yoke of antichristian tyranny , to joyn in the same , or like association and covenant , to the glory of god , the enlargement of the kingdom of jesus christ , and the peace and tranquility of christian kingdoms , and common-wealths . west-kirk the . day of august , . the commission of the general assembly , considering that there may be just ground of stumbling from the kings majesties refusing to subscribe and emit the declaration offered unto him by the committee of estates , and commissioners of the general assembly concerning his former carriage and resolutions for the future , in reference to the cause of god , and the enemies and friends thereof ; doth therefore declare that this kirk and kingdom do not own nor espouse any malignant party or quarrel or interest , but that they fight meerly upon their former grounds and principles , and in defence of the cause of god and of the kingdom , as they have done these twelve years past : and therefore as they do disclaim all the sin and guilt of the king and of his house , so they will not own him , nor his interest , otherwise than with a subordination to god , and so far as he owns and prosecutes the cause of god , and disclaimes his and his fathers opposition to the work of god , and to the covenant , and likewise all the enemies thereof ; and that they will with convenient speed take in consideration the papers lately sent unto them from oliver cromwel , and vindicate themselves from all the falsehoods contained therein , especially in those things , wherein the quarrel betwixt us and that party is mis-stated , as if we owned the late kings proceedings , and were resolved to prosecute , and maintain his present majesties interest , before and without acknowledgement of the sins of his house and former ways , and satisfaction to gods people in both kingdoms . a. ker. . of august , . the committee of estates having seen and considered a declaration of the commission of the general assembly anent the stating of the quarrel whereon the army is to fight , do approve the same , and heartily concur therein . tho henderson . a true and exact copy of a treasonable and bloody paper , called , the fanaticks new covenant : which was taken from donald cargill at queens-ferry , iune . . one of their field-preachers , a declared rebel and traitor . together with their execrable declaration published at the cross of sanquhair , upon the two and twentieth day of the said month of june ; after a solemn procession and singing of psalms , by cameron , the notorious ringleader of , and preacher at , their field-conventicles , accompanied with twenty of that wretched crew . we under-subscribers , for our selves , and all that join with us , and adhere to us , being put to it by god , our consciences , and men ; do bind our souls with a solemn and sacred bond , lest on the one hand we should be carried away with the stream of the apostacy and defection of the church in this time , and on the other hand , lest we should ( not being so engaged ) evanish in vanity , and be without a right rule in good designs : we have judged it our duty again to covenant with god , and one another , and to publish this declaration to the world of our purposes , that men may know our most inward thoughts , the rules that we walk by , and the outmost ends that we have before our eyes for this intent , that those who are lovers of god , zealous of his reigning in glory , and desirous of reformation , and the propagation of his kingdom , may have occasion no more to be jealous of our intentions , and others may have no ground to load us with odious and foul aspersions ; but , that all knowing the truth of us , if they shall strive against us , and truth with us , shall do it without excuse , and against conviction ; and that those who shall join with us , may do it upon solid and undoubted grounds , and both they and we may expect grace from him , faithfully to persevere , and happily to be successful in so good purposes . it is true , we are not ignorant of the great unmindfulness , failing , counteracting , and mocking that has been in our former vows and covenants with god , and of the great iudgments that hath , and are like to follow such impious and sinful dealing with god in such weighty matters , ( for which we both ought and desire to be humbled before him , ) which cannot but make us with great trembling of heart enter into new ones , knowing both our own weakness and readiness to relapse , and the great hazard and danger of such relapses ; yet , the desire of recovering and preserving a remnant , and the conviction of this , as the most convenient mean , the zeal to gods glory , and christs reigning , ( which is the highest and most acceptable duty man can perform to god , ) hoping for his mercies ( who is witness to the integrity of our hearts and rightness of our intentions ▪ ) that he will instruct , direct , accept , and prosper us , we go forward , declaring , that nothing else but what we here express is our design . i. we covenant and swear , that we take the only true and living god , father , son , and holy ghost , to be our god , and betakes our selves to the merits and righteousness of his son , as the alone righteousness that can justifie us before god ; and that we take his scriptures and word to be the object of our faith , and rule of our conversation in all things ; and that we shall give up our selves to him , to be renewed , instructed , and in all things ruled by his spirit , according to that word ; and shall earnestly endeavour by his grace , to render to him that love , worship , and obedience , that his word requires , and his goodness engages us to . ii. that we shall to the outmost of our power , advance the kingdom of christ established throughout the land , ( if at any time hereafter god shall give us this opportunity ) righteousness and the true reformed religion , in the truth of its doctrine , in the purity and power of its worship and ordinances , and its discipline and government , and free the church of god from the thraldom , tyranny , incroachment , and corruption of prelacy on the one hand , and erastianism on the other . and we shall to our power , relieve the church and subjects of this kingdom , ( we being called thereto , by his giving of us power , power being gods call to do good ) of that oppression that hath been exercised upon their consciences , civil rights and liberties , that men may serve him holily , without fear , and possess their civil rights in quietness , without disturbance . iii. that we shall endeavour to our outmost , the extirpation of the kingdom of darkness , and whatsoever is contrair to the kingdom of christ , and especially idolatry and popery in all the articles of it , as we are bound in our national covenant ; and superstition , will-worship , and prelacy , with its hierarchy , as we are bound in our solemn league and covenant ; and that we shall with the same sincerity , endeavour ( god giving us assistance ) the overthrow of that power that hath established that prelacy and erastianism over the church , and exercises such a lustful and arbitrary tyranny over the subjects , seeking again to introduce idolatry and superstition in these lands , contrair to our covenants : and in a word , that we shall endeavour the extirpation of all the works of darkness , and the relicts of idolatry and superstition , ( which are both much enlarged and revived in our times , ) and execute righteous iudgments impartially ( according to the word of god , and degree of wickedness ) upon the committers of these things , but especially blasphemy , idolatry , atheism , sorcery , perjury , uncleanness , prophanation of the lords day , oppression and malignancy , that being thus zealous for god , he may delight to dwell among us . iv. seriously considering , that the hand of our kings has been against the throne of the lord , and that now for a long time , the succession of our kings , and the most part of our rulers with him , hath been against the purity and power of religion and godliness , and freedom of the church of god , and hath degenerate from the vertue and good government of their predecessors , into tyranny , and hath of late so manifestly rejected god , his service and reformation , as a slavery , as they themselves call it in their publick papers , ( especially in these last letters to the king , and duke of lauderdale ) disclaiming their covenant with god , and blasphemously inacting it to be burnt by the hand of a hang-man , governed contrary to all right laws divine and humane , excercised such tyranny and arbitrary government , opprest men in their consciences and civil rights , used free subjects ( christian and reasonable men ) with less discretion and justice than their beasts ; and so not only frustrate the great end of government , ( which is , that men may live godly , holily and peaceably under them , and might be maintained in their rights and liberties form injury and wrong ) but hath also walked contrary to it , so that it can no more be called a government , but a lustful rage , excercised with as little right reason , and with more cruelty than in beasts , and they themselves can be no more called governours , but publick grassators , and publick iudgements , which all men ought as earnestly to labour to be free of , as of sword , famine , or pestilence raging amongst us ; and besides , hath stopped ( instead of punishing ) the course of law and iustice against idolaters , blasphemers , atheists , murderers , incestuous and adulterous , and other malefactors ; and instead of rewarding the good , hath made butcheries and murthers on the lord's people , sold them as slaves , imprisoned , for faulted , banished and fined them , upon no other account , but for maintaining the lords right to rule consciences , against the usurpations of men , for fulfilling their vows , and repelling unjust violence , which innocent nature allows to all ; of all which , and more particulars , we can give ( we speak as before god ) innumerable and sure instances : neither can it be thought that there is hope of their returning from these courses , having so often shewed their natures and enmities against god and all righteousness , and so often declared and renewed their purposes and promises of persevering in these courses . and , suppose they should dissemble a repentance of these evils , and profess to return to better courses , being put to straits , or for their own ends , ( for upon no other account can we reasonably expect it ; ) and though it might be thought , that there might be pardon for what is done , ( which we cannot yet see to be , without the violation of the law of god , and a great guiltiness on the land , from which guiltiness the land can never be free , but by executing of god's righteous iudgements upon them , for omitting of so greatly deserved , and so necessarily requisite a justice ; ) yet they cannot be believed , after they have violated all tyes that humane wisdom can devise to bind men ; and beside , there will be something of folly found , to think to bind a king that pretends to absoluteness : and our fathers , or rather our selves , at first judged it not warrantable to receive him , without consenting to , and swearing of the covenant : and if so , the renouncing and disclaming thereof , we ought at present to judge to be a just and reasonable ground of rejecting him upon these grounds , being assured of god's approbation , and mens , whose hearts are not utterly byassed , and their consciences altogether corrupted , and knowing assuredly , that the upholding of such , is to uphold men to bear down christ's kingdom , and to uphold satans , and the depriving of men of right government and good governours , to the ruining of religion , and undoing of humane society . we then seeing the innumerable sins and snares that are in giving obedience to their acts , on the other hand , seeing if we shall acknowledge their authority , and refuse obedience to their sinful commands , the endless miseries that will follow , and siding with god ( who we hope will accept and help us to a liberation from their tyranny ) against his stated and declared enemies ; do reject that king , and those associate with him , from being our rulers , because standing in the way of our right , free and peaceably serving of god , propagating his kingdom and reformation , and overthrowing satans kingdom , according to our covenant ; and declares them henceforth to be no lawful rulers , as they have declared us to be no lawful subjects , upon a ground far less warrantable , as men unbyassed may see ; and that after this , we neither owe , nor shall yield any willing obedience to them , but shall rather suffer the outmost of their cruelties and injustice , until god shall plead our cause , and that upon these accounts ; because they have altered and destroyed the lord's established religion , overturned the fundamental and establish'd laws of the kingdom ▪ taken altogether away christ's church and government , and changed the civil government of this land ( which was by king and free parliament ) into tyranny , where none are associate to be partakers of the government , but only those who will be found by justice to be guilty of criminals , and all others excluded , even those who by the laws of the land by birth had a right to , and a share in that government , and that only , because not of the same guiltiness and mischievous purposes with themselves : and also , all free elections of commissioners for parliaments , and officers for government , are made void by their making those the qualifications of admission to these places , which by the word of god , and the laws of this land , were the cause of their exclusion before , so that none can look upon us , or judge us bound in allegeance to them . unless they say also we are bound in allegeance to devils , they being his vicegerents , and not gods. v. we then being made free , by god and their own doings , he giving the law , and they giving the transgression of that law , which is the cause that we are loosed now from all obligations , both divine and civil to them , and knowing that no society of men that hath corruption in them , ( which always is ready to beget disorders and do injuries , unless restrained and punished by laws and government ) can be without laws and government , and withal desiring to be governed in the best way that is least lyable to inconveniencies and tyranny : we do declare , that we shall set up over our selves , and over all that god shall give us power , government , and governours , according to the word of god , and especially according to that word , exod. . v. . moreover , thou shalt provide out of all the people , able men , such as fear god , men of truth , hating covetousness ; and that we shall no more commit the government of our selves , and the making of laws for us , to any one single person , and lineal successor , we not being tied as the iews were by god , to one family , government not being an inheritance , but an office , which must be squared , not to the interest and lust of a man , but to the good of the commonwealth , and this kind of government by a single person , &c. being most liable to inconveniencies , ( as sad and long experience may now teach us , ) and aptest to degenenate into tyranny . moreover , we declare that these men whom we shall set over us , shall be ingaged to govern us principally by that civil or judicial law , given by god to his people of israel , especially in matters of life and death , and in all other things also , so far as they teach , excepting only that law , ( viz. anent slaves , ) which does not agree with that christian liberty established in all christendom , ( only violated by our tyrants , and some others of late , ) and that of divorces and poligamy ; the one being not a law , but a permission granted upon the account of the hardness of their hearts , the other being a sinful custom contrair to the first institution of marriage , crept in into the church : we know that men of malignant and perverse spirits , that has not a higher god than a wicked king , which suits only with their lustful licentiousness , and it may be others with them that seemed to be of better principles , will raise an ignorant clamour upon this , that it is a fifth-monarchy ; and we fifth-monarchy-men , and will labour to amuse the people with strange terms , and put odious names on good things to make them hateful , as their way is ; but if this be their fifth-monarchy , we both are , and ought to be such , and that according to his word . vi. it being the work of the ministers of the gospel , to preach , propagate , and defend the kingdom of god , and to preserve the doctrine , worship , discipline , government , liberties and priviledges of the same , from all corruptions and incroachments of rulers , and all others . and seeing ▪ that the ministers of the church of scotland , ( at least the greatest part of them before ) not only were defective in preaching and testifying against the acts of these rulers , for overthrowing religion and reformation , abjuring our covenant made with god , establishing a government in the church , which that king calls his own government , ( and so not god's , ) contrair to our covenant ; against inacting of that blasphemous ( so calvin calls that supremacy of henry the eighth , upon which this prerogative is founded , and from which it is derived , and is no less , if not more jnjurious to christ , and inslaving to his church , ) and sacrilegious prerogative given to a king over the church of god , and against the other acts and incroachments of his church , and hindred others also who were willing ▪ and would have testified against them , and censured some that did it , ( for which , together with the other causes in their trust and administration , we may say , god hath left them to do worse things ; ) but also hath voted in that meeting , ( which they are pleased to call an assembly of ministers , but how justly , let men judge , ) an acceptation of that liberty , founded upon , and given by vertue of that blasphemously arrogated and usurped power ; and hath appeared before their courts to accept of that liberty , and to be enacted and authorized there as ministers , and so hath willingly ( for this is an elicit act of the will , and not an act of force and constraint ) translated the power of sending out , ordering , censuring , ( for as they accept of their liberty ▪ from them , so they submit to their censures and restraints , at least all of them who were yet tried with it , and others of them appeared and acknowledged before their courts , that they would not have done these things that they were charged with , if they had thought it would have offended them , ) ministers departing from the court of christ , and subjection to the ministry , to the courts of men , and subjection to the magistrate , ( which had been impious and injurious to christ and his church , though they had been righteous and lawful rulers , ) and by their changing of courts ( according to common law ) hath changed their masters , and of the ministers of christ are become the ministers of men , and bound to answer to them as oft as they will ; and as by the acceptation of this liberty in such manner , they have translated the power , so they have given up and utterly quit the government , and a succession of a presbyterian ministry ; for as these were not granted them of their masters , so they exercise their ministry without them , and so by this , as the ecclesiastick-government is swallowed up in the civil , ( if the rest had followed them ) the ministry should have also been extinct with themselves , and the whole work of reformation had been buried in oblivion , not so much as the remembrance of it kept up : these , together with the other of their commissions in preaching , the lawfulness of paying that tribute declared to be imposed for the bearing down of the true worship of god , ( which they falsly termed seditious conventicles , ) and their advising these poor prisoners to subscribe the bond , and consequently could not but so advise all others , if put to it , ( for the hazard that men were in , will not make a real change of the morality of that action , ) and beside , the rest may be put to it upon the same hazard , and so if the one should advise , ( which consequently they must do , ) and the other should subscribe , this would altogether close that door which the lord hath made use of in all the churches of europe , for casting off the yoke of the whore , and restoring the truth and purity of religion and reformation , and freedom of the churches , and should have stopped all ingress for men , when once brought under tyranny , to recover their liberty again . these ministers then , not being followers of christ , who before pontius pilate , gave a good confession , which was , that he was a king ; and no king , if he have not power to order his house and subjects , and they not following him , nor his ministers , if not asserting and maintaining of this kingly power , against all incroachers and usurpers of it ; and besides , we being commanded , if any brother walk disorderly , from such to withdraw ; and although in the capacity we now are in , we neither have , nor assume to our selves authority to give our definite and authoritative sentences of deposition and suspension against these ministers ; yet we declare , which is proper for us to do , that we neither can , nor will bear preaching , nor receive sacraments from these ministers that hath accepted of , and voted for that liberty ; and declares all who have encouraged and strengthened their hands , by hearing and pleading for them , all those who have traffiqued for an union with them , without their renouncing and repenting of these things , all those that do not testifie faithfully against them , and after do not deport themselves suitably to their testimonies , and all who joyn not in publick with their brethren , who are testifying against them ; we declare , that we shall not hear them preach , nor receive sacraments from them , at least , till they stand in judgment before these ministers , and be judged by them who have followed the lord , and kept themselves free of these defections : and as our hearts hath cleaved to these ministers , while they were on the lord's side , and subjected our selves to them , so we shall still cleave to those that abide following him , and shall be subject to them in the lord. vii . then we do declare and acknowledge , that a gospel-ministry , is a standing ordinance of god , appointed by christ , to continue in the church , until the end of the world ; and that none of us shall take upon him the preaching of the word , or administring the sacraments , unless called , and ordained thereto , by the ministers of the gospel : and as we declare that we are for a standing gospel-ministry , rightly chosen , and rightly ordained , so we declare , that we shall go about this work in time to come , with more fasting and praying , and more careful inspection into the conversation and holiness of these men that shall be chosen and ordained , the want of which formerly , hath been a great sin , both in ministers and people , which hath not been the least cause of this defection . the declaration and testimony of the true-presbyterian , anti-prelatick , and anti-erastian , persecuted-party in scotland . it is not amongst the smallest of the lords mercies to this poor land , that there hath always been some who hath given a testimony of every course of defection which we were guilty of , which is a token for good , that he does not as yet intend to cast us off altogether , but that he will leave a remnant , in whom he will be glorious , if they ( through his grace ) keep themselves clean still , and walk in his way and method , as it hath been walked in , and owned by him in our predecessors ( of truly worthy memory ) their time , in their carrying on our noble work of reformation , in the several steps thereof , from popery and prelacy , and likewise from erastian-supremacy , so much usurped by him , who it is true ( so far as we know ) is descended from the race of our kings ; yet he hath so far deborded from what he ought to have been , by perjury and vsurpation in church matters , and tyranny in matters civil , as is known by the whole land , that we have just reason to believe , that one of the lords great controversies against us is , that we have not disowned him , and the men of his practices , whether inferiour magistrates , or any others , as enemies to our lord and his crown , and the true-protestant ▪ and presbyterian interest in their hands , our lords espoused bride and church . therefore , although we be for government and governours , such as the word of god , and our covenants allows , yet we for our selves , and all that will adhere to us , as the representatives of the true presbyterian church , and covenanted nation of scotland , considering the great hazard of lying under such a sin , do by these presents disown charles stuart , who hath been reigning , or rather ( we may say ) tyrannizing on the throne of scotland , or government thereof , ( for faulted several years since by his perjury and breach of covenant with god and his church , ) and usurpation of his crown and royal prerogatives therein , and many other breaches in matters ecclesiastick , and by his tyranny and breach of the very leges regnandi in matters civil ; for which reasons , we declare , that several years since he should have been denuded of being king , ruler , or magistrate , or having any power to act , or to be obeyed as such : as also , being under the standard of christ , captain of salvation , we declare war against such a tyrant and usurper , and all the men of his practices , as enemies to our lord jesus christ , his cause and covenants , and against all such as have strengthened him , sided with him , or any ways acknowledged him in his usurpation and tyranny , civil and ecclesiastick , yea , and against all such as shall strengthen , side with , or any ways acknowledge any other in the like usurpation and tyranny , far more against such as would betray or deliver up our free reformed mother church , into the bondage of antichrist , the pope of rome . by this we homologat the testimony given at rutherglen , the twenty ninth of may , . and all the faithful testimonies of those that have gone before us , as of those also that have suffered of late ; and we do disclaim that declaration published at hamiltoun , iune . chiefly , because it takes in the kings interest , which we are several years since loosed from , because of the foresaid reasons , and others , which may after this ( if the lord will ) be published . as also , we disown , and by this resents the reception of the duke of york , a profest papist , as repugnant to our principles and vows to the most high god , and as that which is the great ( though alace too just ) reproach of our church and nation : we also , by this , protest against his succeeding to the crown , and whatever hath been done , or any are essaying to do in this land ( given to the lord ) in prejudice to our work of reformation . and to conclude , we hope none will blame us for , or offend at , our rewarding those that are against us , as they have done to us , as the lord gives the opportunity . this is not to exclude any that hath declined , if they be willing to give satisfaction to the degree of their offence . given at sanqhuair , iune . . these are the true and exact copies of the fanaticks new covenant and declaration ; collationed with the originals , which are kept amongst the records of his majesties privy-council ; and attested by al. gibson , cl. sti. concilii . and will. paterson , cl. sti. concilii . a blasphemous and treasonable paper , emitted by the phanatical undersubscribers , on may . . according to the original lying in the hands of the clerks of his majesties most honourable privy council . we undersubscribers , now prisoners for the truth in the cannongate tolbuith , though most vile , yet it pleased the holy ghost to work on our spirits of a time past , in clearing causes of wrath , and shewing us duty from day to day , that now in some time past we are , and have been called mad men and devils , and now there is none in the kingdom , in prison , or out of prison that we can converse with as christians . and yesterday being the day of the th moneth , it seemed good to the holy ghost and to us , to take out of our bibles the psalms in meeter for several causes mentioned afterwards , for the book of the revelation says , if any man should add unto these things , god shall add unto him the plagues which are written in this book ; and we did burn them in our prison-house , and sweep away the ashes . likewise , in the holy scriptures , we renounce chapters and verses , and contents , because it is only done by humane wisdom , and the changing of the books after the holy ghost had placed them : we being pressed to this work by the holy ghost , do renounce the impression and translation of both the old and new testaments , and that for additions put unto them by men , and other causes ; as first , putting in horrid blasphemy , making a tyrant patron of the church , when the scriptures holds of none but of god , and needs no patronage from any king , prince , or rulers , and the writing of that blasphemous , sacrilegious , ( as some call it ) the epistle dedicatory , filled with such language , as dread sovereign highness , most high and mighty , most sacred majesty ; and likewise the horrid unparallell'd blasphemy , making a triangle with these hebrew letters in it thus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 iehovah , representing the trinity ; and likewise putting in horrid pictures in several places of the holy scripture , and likewise drawing scores betwixt the books of the bible , and other superfluous traditions . likewise we renounce the catechisms larger and shorter , and confession of faith , against which we have many causes ; one cause is , in the chap. for the scripture proofs that they cite , proves the contrary of that they write . we renounce the acts of the general assembly , and all the covenants , and acknowledging of sins and engagement to duties , and that which they call preaching books , and all their works , way , form , and manner of worship , doctrine , discipline , and government , and the studying on their books , the thing they call their preaching , for instead of going to god for his mind to the people , they go to their books , and so makes their books their god and their leader , and so all following that way , go to hell together : the cause of this is , we find none of their works but they are like themselves , carnal and corrupt , according to that scripture , hate the garment spotted with the flesh. we renounce the limiting of the lord's mind by glasses , and their ordination of men only learned , and their saying , that learning is the essential of a minister without grace . likewise , we renounce their manner of renewing covenants , pressing mens consciences to take a covenant , and by so doing has filled the kirk and state with tyrants and incarnate devils , as we find this day , they knew the men to have no marks of grace , but on the other hand , to be prophane , as them they call king and rulers , captains and comanders in state and armies , and all kirk officers whom we call tyrants and iudas's , for by so doing they have corrupted both kirk and state , as this day kirk men and states men , whom we call iudas's and tyrants , are studying in opposition to holiness and the work of reformation , who entred in by these same covenants , are now pursuing our lives for a christian walk . and likewise , we renounce the covenant taken at queensferry , commonly called cargil's covenant , and likewise hamiltown declaration , yea , and sanquhare declaration , because they may and has owned these , and are owning these , who are enemies to holiness , and were enemies to us , as some of them said , we should suffer kirk censure for giving over the old apostat ministers to the devil , and some of them counted us their enemies for the truths sake , and sent us word they would protest against us , and so we justifie our lord in breaking them at airds moss , we justifie the lord likewise , in taking away that they call field-preachings , or mockings , because they were nothing but rebellion against the high lord , as we find now when our lord is come to the cross , there is neither minister nor people to bide by him , of the many thousands has flocked to the thing they call preachings or mockings , and therefore now all are found void of saving grace , and so we see that word is accomplished , strait and narrow is the way that leadeth unto life , and few there be that find it : and that other word , many shall strive and shall not be able . we finding all former actions to be such as devils has and can creep in at ( as declarations and covenants ) and get the name of saints : therefore , this day it seemed good to the holy ghost and to us , to renounce and burn the former covenants and declarations , because they are not strait enough according to scripture , and all their works such like , and therefore we will own none of their works , till it please the lord to give us teaching from himself . by this all may know and understand , we overturn , and formally burns all the former works of the clergy of scotland , and throughout all the whole world , that are in opposition to holiness , dated the th day of the week , being the . of the th month , . about mid-day . we renounce and decline all authority throughout the world , and all that are in authority , and all their acts and edicts , from the tyrant charles stuart , to the lowest tyrant , and burns them the same day , being the th day of the week , the day of the th month , . at cannongate tolbuith iron-house . we renounce the names of months , as ianuary , february , march , april , may , iune , iuly , august , september , october , november , december . sunday , monday , tuesday , wednesday , thursday , friday , saturday . martimas , holydays , for there is none holy but the sabbath day . lambmas day , whitsunday ▪ candlemas , beltan , cross stones , and images , fairs named by saints , and all the remnants of popery , tool or christmas , old wives fables and by-words , as palmsunday , carlinesunday , the th of may , being dedicat by this generation to prophanity , peacesunday , halloweven , hogmynae night , valentins even ; no marrying in the month they call may , the innumerable relicts of popery , atheism and sorcery , and new years day , and hansell-monday , dredgies and likewakes , valenteins fair , chappels and chaplains : likewise sabbath days feastings , blythmeats , banquetings , revelling , pipings , sportings , dancings , laughings , singing prophane and lustful songs and ballads , table-lawings , monk-lands , frier-lands , blackfrier-lands , kirks and kirkyards , and mencat crosses , fount-stones , images , registers of lands and houses , register bonds , discharges , and all their law-works , inhibitions , hornings , letters of adjudications , ships-passes , prophanity and all unchast thoughts , words and actions , formality and indifferency , story-books and ballads , romances and pamphlets , comedy-books , cards and dice , and all such like , we disown all of them , and burns them the th day of the week being the th day of the th month , , at the cannongate , tolbuith iron-house . we renounce all the customs and fashions of this generation , their way and custom of eating and drinking , sleeping and wearing , and all our own former ways , as well religious as moral , in so far as they have been squared and casten in this generations mould , and all our iniquious courses , lightness and unconcernedness with the glory of god , the only end wherefore we were sent into the world the th day of the week , being the th of the th month. we renounce all that are now in prison-houses or correction-houses , men and women ; for none of them are with us in this work , and when we sent them a copy of this our renounciation , they called us devils . the copy of this we burnt instead of the books and works of this apostate generation , and buried the ashes in our and covered it with dust . notwithstanding of our burning covenants and declarations , and renouncing of them and their works ; be it known to all , that we do neither vindicate the cursed murderers of their bloodshed on fields , and scaffolds , and seas , and other horrid cruelties , such as torturings , imprisonments , pillagings , banishments , scourgings , stigmatizings , &c. nor condemn we the worthy martyrs , and the sufferings of others , only we give the lord justice , and vindicats his tarrying , for now the furnace has brought forth a more pure cause which we term , holiness to be built upon the word of god. that all may know and see our innocency , and know our end is and was the glory of god in all we did , though we came far short ; and in the months past we could get none to shew us kindness for meat or lodging , though we could pay for it our selves : that word in malachy , ye are cursed with a curse , for ye have robbed me , even the whole nation . and likewise in deut. we seeing the land all thus cursed , and all justifying themselves in that iniquity , were afraid to eat , or drink , or sleep under a roof with them : though there were many that would have shelter'd us , yet we could not eat , drink , converse , or pray with them , lest we had come under the curse , so many times our beds has been in the open fields , and we have come to houses and they would not sell us meal to make potage of , and we have found meal and water a rare dish , because the curse was off it , and it was blessed to us , according to that scripture , the blessing of the lord maketh rich. we are not murmuring in this , but when the weather has been worst , winds and rain , cold frost and snow , and when we had fasted most , we were best satisfied , according to that scripture , all shall work together for their good , that truly seek the lord ; when we had outward straits , then we had most inward peace , we had joy in the holy ghost , so the things the world calls the worst of our life , as reproaches , imprisonments , nakedness , hunger , and cold , &c. we had rather be suffering for our lords sake , than be kings of the whole earth , for our joy no man can take from us , and our prison is so pleasant through our lord , that we care for no company , for we know no company but all are cursed , and we know not what it is to be weary , but according to that scripture , eat and drink my beloved , yea eat and drink abundantly , we are rather in paradise . these things were cleared to us when fasting and praying , and we were pressed to do this by the holy ghost , we had many fasts about this thing , and this week we took some milk and bread in the third day of the week in the morning being the after the th month . and tasted neither meat nor drink , nor any other kind of living , till the th day of the week at ▪ day of noon ( and then we took a little milk and bread ) for to find out the causes of his wrath we have wandred , mourned , wept , many a night and day in houses and fields , for we have and has had no other end but his glory , that the elect such as should be saved might be brought in , and it is only conscience that keeps us from giving men reverence in word and behaviour , though some call us dumb devils , and unlearned bruits , and one of us when coming before them they call rulers , was called a block-head , notwithstanding of all that came on us , we know and are taught by the holy scriptures , to give honour unto whom honour is due , and to salute one another , but it has been our work of a time to renounce the filthy vile imbracings , salutations , and complements of this generation , which they call court-breeding , our carriage , professing to follow the lord jesus , should be steed and circumspect according to that scripture , let us walk circumspectly , not as fools , but as wise men , as it is written in matthew , let your light so shine before men , that they may see your good works , and glorifie your father which is in heaven . cursed are they that says peace to a land , who are in the place of watchmen , when the lord says no peace , which practice , we silly unlearned creatures renounce , for we bless him he has keeped us from resting till the ark rest , and as for these they call watchmen , that cries peace or keep silence , we shall refer them to the prophet ezekiel , which ye may read at leisure , which we think shall be scotland . doom , for we have heard tell of few of them they call ministers , but they have all said peace , when brought before the enemies to witness their practice , being most unconscionable on hill sides , and moor sides , before several thousands , they called them tyrants , and intollerable oppressors , and their government tyranny and oppression , and that the crown of supremacy that charles stuart had usurped over the kirk , would weigh him down from the throne , and all that race with him , and when they are brought before them , and into prisons , nothing but in with the other supplication , to the honourable lords of his majesties secret council , beck and beinge , and please your lordships grace , &c. and now they are all at peace with his enemies , save one whom we disown , and so or long the enemies shall curse them , when the lord awakens their consciences , ( though we confess we have had some special witnesses of ministers ) and we think or long , the malignants shall pursue these ministers to death for unfaithfulness , for the vilest creatures in the land high and low , rich and poor , noble and ignoble , must give account for works done in the flesh ; then the dogs , sorcerers , whoremongers , and murderers , and idolaters , false-swearers , cursers , sabbath-breakers , idle loose livers , and all that are unchast in thoughts , words , and behaviour , and all that makes no conscience of their way , and whosoever loveth and maketh a lye , shall tremble that day when they shall enter into eternity ; when it shall be said as it was to dives , thou in thy lifetime hadst thy good things , and lazarus his bad things : for except a man be born again , he can in no wise enter into the kingdom of heaven . we take up the book of the holy scripture at the lords command , and for a testimony of our dissatisfaction , at the abounding corruptions , both of translators and the press , and likewise for a testimony of our desires and intentions for a new translation and impression , free of the foresaid and other abuses , we to our power reform our own books , and sayes , that the word of god needs no humane art ; we hold that the word of god is laid the foundation of this new building , and shortly it shall become the head corner stone of the building , over both kirk and stater kirk-men , and states-men ; so that scripture towards the end of the rev. of iohn shall be fulfilled ; and i saw heaven opened , and behold a white horse , and he that sat upon him was called faithful and true , and in righteousness he doth iudge and make war , his eyes were as a flame of fire , and on his head were many crowns , and he had a new name written that no man knew , but he himself , and he was cloathed with a vesture dipt in blood , and his name is called the word of god. and first , to shew that we take the word of god in every point to be our rule , the sum and end of our so much reproached and mocked at exercise ( fasting and prayer ) will be found in the book of psalms ; be thou exalted , o god , above the heavens ; and let thy glory be above all the earth . it is written in the acts of the apostles , it seemed good to the holy ghost and to us : but they usurping supremacy , says , by the authority of the general assembly allows these psalms to be sung in congregations , &c. which we renounce : and more , we think the psalm book in meeter , and no other thing ought to be within the broads of the bible , but the simple scriptures of truth ; the psalms may be had in a book by themselves . we are so reproached and calumniate , that we are forced to make our defence , and shew that we have mourned , fasted , and prayed many a day , and many a night this last winter , many times in the open fields , in frost and snow , while our cloaths were frozen upon us , and our feet frozen in our shooes , as the town of cursed borronstonness can witness , and all this to find out the causes of our lords tarrying , when those who are now calling us devils , were turning themselves upon their ivory beds , like a door upon the hinges , eating the fat and drinking the sweet at their own ease : and when we were driven thence by persecution , we took our selves to the fields , holding still by our duty , where many women did offer themselves to the work , with whom our spirits was many a time burdened , whom we could not put away ( as our blessed lord dealt with iudas whom he knew would betray him ) without manifest causes : we stayed not with them but on solemn days , such as sabbaths , and appointed times for publick meeting , but when they took their rest betwixt hands , we continnued still in fields , nights and days , fasting and praying for two or three days together several times , and it was always their fear we should propose some question to try them for separation , and that night before we was taken , we warned them that the soldiers would come , and told them to use their freedom : we saw them also a mile off , an hour before they came , and none of them would go away ; and after we were brought in hither , after some several days fasting and prayer , we being warned by the holy ghost , followed esther's advice , and continued from eight a clock of the morning the day of the month , till the at four afternoon , fasting and praying ; we sent them word likewise to fast and pray , and when we sent them the answer of our prayers in the writ , they called us devils : thence we fasted till the day at night , and thence till the at night , waiting still to see if they would recover , but they waxed still worse , and we were forced to write this to vindicate our carriage towards them . walter ker. iohn gibb . david iamison . iohn young. this is exactly compared and collationed with the principal copy , by me wil. paterson , cl. sti. concilii . finis . a catalogue of some books printed for io. hindmarsh at the golden-ball over against the royal-exchange in cornhill . the antiquity of the royal line of scotland farther cleared and defended , against the exceptions lately offer'd by dr. stillingfleet , in his vindication of the bishop of st. asaph . by sir george mackenzie , his majesty's advocate for the kingdom of scotland . the moral history of frugality with its opposite vices , covetousness , niggardliness , prodigality , and luxury . written by the honourable sir george mackenzie , late lord advocate of scotland . a memorial for his highness the prince of orange , in relation to the affairs of scotland : together with the address of the presbyterian-party in that kingdom to his highness ; and some observations on that address . by two persons of quality . an account of the present persecution of the church in scotland , in several letters . the case of the present afflicted clergy in scotland truly represented . to which is added for probation , the attestation of many unexceptionable witnesses to every particular ; and all the publick acts and proclamations of the convention and parliament relating to the clergy . by a lover of the church and his country . an historical relation of the late presbyterian general assembly , held at edinburgh , from october . to november . in the year . in a letter from a person in edinburgh to his friend in london . notes, typically marginal, from the original text notes for div a -e vid. cargil and sanchars covenant at the end . * that is , this noise of prisoners yet preserved alive . so the preacher applied his doctrin . the truly learned advocate for the king. † illud tamen generaliter observandum , quod iurisdictio nunquam privative sed cumulative delega●i potest , non est quasi transitio juris de un● persona in aliam sed tantum mandata , jurisdictio quod non obstante delegatione adhuc remanet in delegante . considering the violent and cruel temper of their enemies . * compare this with the sanchar declaration , and cargil's covenant at the end of this paper . notes for div a -e * that is , the same punishment which the law provides against such a criminal . art. eod . ii. art. . ejusdem . art. . act . ses. ii. iac. . * vid. cargils covenant and sanchar . declaration . religio stoici mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) religio stoici mackenzie, george, sir, - . [ ], - , , , [ ] p. printed for r. broun, edinburgh : . errata: p. 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ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng toleration. great britain -- politics and government -- - . - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - judith siefring sampled and proofread - judith siefring text and markup reviewed and edited - pfs batch review (qc) and xml conversion religio stoici . acts . . — ye men of gallile , why stand ye gazing up into heaven ? edinburgh . printed for r. broun , . the stoick to his censurers . i am , by religion , a protestant , and such confide little in merit ; and by humour , a stoick , and such are most inconcerned in censures : wherefore , as i intend to rival none of these who court fame , i hope none of these will asperse me ; and if i obtain truce from them , i know none else will attaque me . the multitude ( which albeit it be said to have many heads , yet , was ever known to have few brains ) will doubtless condemn me for enveighing against vanity , whilst i my self am so vain as to write books ; and will pronounce me as ridiculous in this , as these philosophers were of old , who denyed motion whilst their tongues mov'd in their cheek ; to whom my return shall be , that finding many ( even of such as i know will censure me ) be-myred in the puddle of error , i have , in this essay , proffer'd them my assistance , with an intention , not to shew my strength , but my compassion . i am no such fool , as to shew these philistines the sampsons-lock wherein my strength lyes , which doubtless their cruelty would never spare . others , who , by their gravity , ( or serious dulness ) have sublimated themselves above the rabble , will possibly accuse my studies of adultery , for hugging contemplations so excentrick to my employment . but , these may know , that thir papers are but the pairings of my other studies , and because they were such , i have flung them out into the streets . neither can i understand , how it proves a lawyer to be remisse in his imployment , that he takes leisure to reach a little helebor which lyes by him , to such poor persons , as because of their phanatick melancholy stand much in need thereof . this discourse is intended to be a medicine , and such never rel●sh well nor receive commendation from their pleasantesse , but from their profit , and are not to be censured by their taste , but by their operation . there are many things in this small peece , which may seem heterodoxe to such as defie custom , and worship the dagon of authorized tradition : yet , who knows but my watch goes right , albeit it differ from the publick clock of the city ; especially where the sun of righteousness hath not , by pointing clearly the dyal of faith , declared which of the two is in the right . i acknowledge the church to be my mother ; neither will i offer to scratch out my mothers eyes when they perceive my errors : yet , i believe that a childe may differ from his mothers judgement , in things wherein her honour is not concerned : but , i will wed no opinion without her consent who is my parent ; or , if i have wedded any , it is in the power of the church and it's officials , to grant me a divorce . i submit my self and this tractat to her and their censures , and desires none to believe me or it , but in these things only wherein i believe her and them . as for others , since i have taken the liberty to write , i were unmannerly if i refused them the liberty to censure and really it pleases my humour , 〈…〉 see curres bark and snarle at wha 〈…〉 hold out to them . g. mk. the stoicks friendly addresse to the phanaticks of all sects and sorts . the mad-cap zealots of this bigot age , intending to mount heaven , elias-like , in zeals fiery chariot , do , like foolish phaeton , not only fall themselves from their flaming seat , but by their furious over-driving , invelop the ●●rld in unquenchable combustions ; 〈◊〉 when they have thus set the whole globe on a blaze , this they tearm a new light . it is remarkable in scripture , that jehu , who drove furiously , and called up the prophet to see what zeal he had for the house of god , was even at that instant , doing it more wrong then ever was done to it by unconcerned gallio , who flantingly cared for none of those things . and that none of all the apostolick conclave desired ever fire might rain from above upon mis-believers ; except the sons of zebedee , who immediatly thereafter , arrived at that pitch of vanity , as to desire to sit in heaven upon christs right and left hand . and that peter , who was the first who did draw a sword in his masters quarrel , was likewayes the first who denyed him . firy zeal blows soon up , such combustible mater as the sons of zebedee ; and that flash being spent and evaporat , a fall follows , as befell peter . as that body is hardly cureable , which entertains such ill-suited neighbours as a cold stomach and a hote liver ; so , the body of the visible church may be now concluded to be in a very distempered conditon , when it 's charity waxeth cold , and it's zeal hot , beyond what is due to either ; and these feaverish fits of unnatural zeal , wherewith the church is troubled in it's old and cold age , betokens too much that it draws near it's last period . the inconsiderableness likewayes of our differences , and inconsideratness wherewith they are persued , induces me to believe , that the zeal now a-la-mode , is not that holy fire which is kindled by a coal from the altar , but is that ign's fatuus , or wild-fire , which is but a meteor peec'd up of malignant vapours , and is observed to frequent church-yards ofter then other places . i am none of those who acknowledge no temples , besides these of their own heads . and i am of opinion , that such as think that they have a church within their own breasts , should likewayes believe , that their heads are steeples , and so should provide them with bells . i believe that there is a church-militant , which , like the ark , must lodge in it's bowels all such as are to be saved from the flood of condemnation : but , to chalk out it's bordering lines , is beyond the geography of my religion . he was infallible who compared gods spirit to the wind which bloweth where it listeth , we hear the sound of it , but knows not whence it comes , or whether it goeth . and the name graven upon the whit-stone , none knows but he who hath it . eli concluded hannah to be drunk , when she was pouring out her soul before her maker : and elias believed , that the church , in his dayes , was stinted to his own person ; and yet god told him , that there were seven thousand in israel who had not bowed their knees to baal : why then should any private christian determine , magigisterially , that , wherein the greatest of prophets erred ? the reed wherewith the temple was to be measured , rev. . . was only entrusted to an angel ; and yet he had not in commission , to measure the court that was without , because it was given to the gentiles . and albeit , rev. . the number of the iews who were saved is determined ; yet , the number of gentiles is left indefinit , and said to be numberless . there is nothing more ordinar , then for each nation to confine the church within themselves . and in that nation again , one corner will have themselves the sanctum sanctorum of that only temple ; albeit our saviour in his gospel assures us , that men shall come from all corners of the world , and sit down with abraham , isaac and jacob. and john in his revelation tells us , that multitudes of all nations , kindreds and families , were seen following the lamb. upon this same block do these likewayes stumble , who put the bolt of their uncharitableness upon the gates of heaven , to debar whole professions , such as lawyers and physitians , from entring in thereat ; notwithstanding that the abovecited place tells us , that there were only twelve thousand of the tribe of levi the priest chosen , and the like number was prickt ; in the tribe of judah , the law-giver : aaron the priest did mould the golden calf , and not moses the iudge ; and korah and dathan were levits , and yet mutined against their magistrates . i say not this to disparage that holy function : for , none shall wish aarons rod to flourish more then my self ; and ordinarily , these who love not to touch the lords anointed , will likewayes be sure , to do his prophets no harm : but , i say it to take off an aspersion which hath stain'd too long , and too injustly , these of my own profession . is not the church our common mother ? albeit , i confess , she is likewayes their nurse , in a more particular way ; and since there is heavenly mannah enough to aliment us all , why should christans de ny to admit their brethren to an equal partage ? it grieves me sore to see my mother the church tortur'd like rebecca , by carrying strugling twaines in her pained bowels . and seing all christians are but pilgrims here , i admire that these pilgrims should leave off to journey , and stand skirmishing and fighting with all such as will not travel their road . and albeit we acknowledge , that the spirit of god takes pains , and is sufficient for leading all men in the way wherein they should walk ; yet , we must compell them , as if either he needed our help , or we resolved to share with him the glory of their conversion . thus god ( who loves us all infinitly better then one any of us doth another ) leaves us , upon our own hazard , a freedom in our choice , albeit we poor miscreants compell one another , denying to our fellow-creatures that freedom which he allowes all the creation . i wish we would consider how each man eats , drinks , cares for his family and performes all common duties , rational enough without any compulsion ; and yet , in the affairs of religion , wherein doubtless man is led by a far more infallible assistance , there are many slips committed , daily and grossly , notwithstanding of all the pains taken , and force used by one man towards another . thus it fairs with us as with patients , whom when the physitians stints to a narrow dyet , then they loath even that food , which their unreined appetite would never have rejected . and this makes me apt to believe , that if laws and law-givers did not make hereticks vain , by taking too much notice of their extravagancies , the world should be no more troubled with these , then they are with the chimeras of alchimists and philosophers . and it fairs with them as with tops , which , how long they are scourged , keep foot and run pleasantly , but fall how soon they are neglected and left to themselves . in order to which , it was wittily observed by our great king james the sixth , that the puritans of his age strove with him , and yet ceded at first , in a difference between them and the shoe-makers of edinburgh : for , not only pleases it their humour to contend where they may gain honour and can loss none , but likewayes , by contesting with monarchs , they magnifie to the people their pious courage , assuring the world , that such attempts require a particular assistance from heaven ; and when their jangling hath extorted some concessions from the magistrate , ( as ordinarily it doth ) then they press that success as an infallible mark of the jure-divinoship of their quarrel . albeit , i confess , that when these , not only recede from the canonized creed of the church , but likewayes incroach upon the laws of the state , then , as of all others , they are the most dangerous ; so , of all others , they should be most severely punished . opinion , kept within it's proper bounds , is an pure act of the mind : and so it would appear , that to punish the body for that which is a guilt of the soul , is as unjust as to punish one relation for another . and this blood-thirsty zeal , which hath reigned in our age , supposes our most mercifull god to be of the same temper with these pagan deities , who desired to have their altars gored with blood ; and being devils themselves , delighted in the destruction of men : whereas the almighty , who delights not in the death of a sinner , but rather that he should repent and live , hath left no warr and upon holy record , for persecuting such as dissent from us ; but even then when he commands that the prophets , who tempts others to idolatry , should be slain , yet , speaks he nothing of punishing these who were seduced by them . and why should we shew so much violence in these things whereof we can show no certain evidence ? as ordinarily we cannot in circumfundamental debates . are we not ready to condemn to day , as phanatick , what yesterday was judged jure-divino ? and do not even those who persecuted others for their opinions , admire why they should be , upon that score , persecuted themselves ? so that ( victory depending upon event ) we legitimat the persecutions , to be used by others , against our selves , by the persecutions used by our selves , against others . our saviour forbids us to pluck up the tears , lest the wheat be pulled up with it ; and how can the most pious persecutors know , that the saints are not destroyed with the sinners ? it is remarkable , that our saviour disarmed zealous peter , even when he was serving him in person , in his greatest straits , and against the most profligat of his enemies , the iews : and that to prevent the irregular zeal even of the first and best of christians , the blessed apostles , their divine master thought it fit to arme them not with swords , but with scrips , and to root out of their hearts all thoughts of violence , did oft inculcat in them , that his kingdom was not of this world ; convinceing them by an excellent argument , that he had no need of armes or armies ; for else he could have commanded thousands of angells . did ever god command the iews to war against any neighbouring nation because they were pagans ( a quarrel which would have lasted till all the world had been conquered ) or , did our saviour leave in legacie to his servants , that they should force others to turn prosylits , which doubtlesse he had done , if he had resolved to allow such a rude mean of conversion ? all which makes me admire , why in our late troubles , men really pious , and naturally sober , could have been so transported , as to destroy whom they could not convince , and to perswade these who were convinced , that religion obliged them to destroy others . my heart bleeds when i consider how scaffolds were dyed with christian blood , and the fields covered with the carcasses of murthered christians ; and its probable , that there were more damned by unprepared deaths , in the fields , then were saved by peeping sermons in incendiary churches ; and in this , i admire the clemency of our royal master , who , albeit his cause was more just then theirs , albeit he might have convinced them by obtruding to them their own practices : yet , hath rather chosen to command with his scepter then his sword. but , if the glory of god were the mark at which these do levell , why bestow they not their zeal , rather in converting such as scarce know or acknowledge that there is a god ? and why are they more enraged against these who agree with them in most things , then these who dissent from them in all ? take not christians more pains to refute one another , then to convince gentiles ? and stand not episcopists and presbyterians at greater distance , then either do with turks and pagans ? and to evidence , that rather humour then piety occasions our differences , we may easily percieve , that the meaner the subject is , the heat is alwayes the greater . if i had ever known so much as one whose faith had been the trophy of a debate , i should allow of debates in maters of religion : but seeing men cannot be convinced by miracles , it were ridiculous to presse conversion by arguments . all the divines in europe could not press the best founded of their contraverted and polemick truths , with so much scripture , or so many miracles as our blessed saviour did his own divinity ( which is the foundation of all truths ) and yet the iews and all the world besides , slighted this infallible doctrine ; and to evidence that there is a season of grace , independent from arguments , did not many thousands turn prosylits at peters sermon ? whom all our saviours homilies and miracles could not perswade . if one should say , that the testimony of a few fisher-men should not be believed in a mater of so great consequence , as is the salvation of the whole world , especially when they did depone as witnesses , in a matter wherein both their honour and livelyhood was concerned , might not this stagger some mean christian ? and yet i believe these truths so much the more , because such as these were its first asserters ; for , certainly it is one of the greatest of miracles , that so few , and so illiterate persons were able to convince the whole world . thus we see , that one may account that a miracle which another looks upon as a folly ; and yet , none but gods spirit can decide the controversie . maters of religion and faith , resembling some curious pictures and optick prismes , which seems to change shapes and colours , according to the several stances from which the asp●cient views them . the ballance of our judgments hath ●atched such a bruise by adams fall , that scarce can we by them know the weight of any argument . but , which is worse , there is as great a defect in our partial weighing , as in the scales themselves : for , when we take either the pro or con . of any controversie into our patronage , we throw alwayes in arguments into that scale , wherein our own opinion lyes , without ever taking leisure to consider what may be alledged for the antipode proposition : and then , when we receive an answer , our invention is busied , not in pondering how much conviction it hath in it , but by what slight it may be answered ; and thus either passion , interest or frequent meditation , are still the weights which cast the ballance . this firy zeal hath likewayes made an other pimple flash out in the face of the phanatick church , and that is , a conceit that the saints have the only right to all gods creatures , the wicked being only usurpers and not masters of them : but , i have heard this opinion ( so beastly is it ) confuted by balaam's asse , who could tell it's master , am not i thine own asse ? when aaron and the people did covenant without moses , then every man did bring his ear-rings to make up the golden calf . and we have lived in an age , wherein we have seen our countrey-men , like the chaldeans , take the furniture both of the temple and of the kings house , and carry them away to their babylon of confusions ; and in an age wherein sober men were forced to lend monies , to buy for their own armes the heavy shekles of slavery , tantum religio potuit suadere malorum . religion doubtless aims at two great designes , one is like the first table , to perswade us to adore god almighty . another is to perswade us , like to the second table , to love our neighbour , and to be a mean to settle all these jealousies , and compesce all these animosities which interest might occasion ; and this appears by the doxology jubilyed by the angels at our saviours birth , glory to god , and peace and good-will towards men . and therefore , as every private christian should be tollerated by his fellow subjects , to worship god inwardly according to his conscience ; so all should conspire in that exteriour uniformity of worship , which the laws of his countrey injoins . the first remark which god made of us after the creation , was , that it was not fit for man to be alone ; there was only one ark amongst the iews by gods own appointment . and seing the gospel tearms the church christ's spouse , it were absurd to think , that he will divorce from her upon every error or escape ; especially , seing his blessed mouth hath told us , that under the gospel it is not lawfull to divorce upon all occasions ; and if he will not for these , deny her to be his spouse , much less should we deny her to be our mother . may not one , who is convinced in his judgment , that monarchy is the best of governments , live happily in venice or holland ? and that traveller were absurd , who would rather squable with these amongst whom he sojourns , then observe these rites and solemnities which are required by the laws of the places where he lives ? what is once statuted by a law , we all consent to , in choosing commissioners to represent us in these parliaments where the laws are made ; and so if they ordain us to be decimated , or to leave the nation if we conform not , we cannot say , when that law is put to execution , that we are opprest ; no more then we could complain , if one did remove us legally from these lands which he purchas'd from our trustee , whom we had impowered to sell it . as david said to saul , sam. . . why went the king out to catch a flea ? so may i say to our great divines , why contravert they about shadows ? is it fit that christians , who find it too great a task to govern their private souls , should be so much concerned how the church is governed by others ? wherefore , seing many have been saved who were most inexpert in these questions , and that foolish zeal , passion , and too much curiositie therein , hath damned many , i may conclude , that to pry in these , is neither necessary , because of the first , nor expedient , because of the last . since discretion opened my eyes , i have alwayes judg'd it necessar for a christian , to look oftner to his practice of piety , then to his confession of faith , and to fear more the crookedness of his will , then the blindness of his judgment , delighting more to walk on from grace to grace , working out the work of his own salvation with fear and trembling , then to stand still with the galileans curiously gazing up to heaven . true religion and undefiled is to visit the widow and the fatherless ; and the dittay drawn up against the damned spirits shall be , that when our saviours poor ones were hungry , they did not feed them ; when they were naked , they did not cloath them , without mentioning any thing of their unbelief in maters of controversie or government . and therefore i hope , that these to whom i address my self in this discourse , will rather believe me to be their friend , because of their piety , then their enemy , because of their errors . the virtuoso , or stoick . albeit man be but a statue of dust kneaded with tears , moved by the hid engines of his restless passions , a clod of earth , which the shortest feaver can burn to ashes , and the least shower of rheums wash away to nothing ; yet makes he as much noise in the world , as if both the globes ( these glorious twaines ) had been un-wombed from that formless chaos , by the midwifry of his wit ; he speaks thunder , looks lightning , breaths storms , and by the eloquence of his own vanity , perswads himself that his commands are able to unhinge the poles . from which boundless pride , i considently conclude , that if a natural instinct , or as the stoicks terme it , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , had not irresistably bowed his faith to assent to a deity , he had never , neither upon design nor in complyance to custom ( as atheists alledge ) suffer'd to creep into his creed , that there was one greater then himself , who could rein his affections , and bound their effects , according to the dictates of his irresistable will. and albeit regiments of arguments , levyed both from the stately fabrick of heavens arched pend , and from the inimitable embroidery of earths flowry boul , be requisite for conquering the infidelity of others , and for rendring them tributaries to that all-forming essence : yet , doth my faith render up the arms of it's depraved reason , and turn prosolyte to this divine truth , upon the sole sight of one of these dying atheists ; who , upon any surprisal , do with amazement throw up their eyes to heaven , as if they sent their looks in ambassade to beg assistance from thence ; and cry , god save me , as if these beastly souls , when attaqued unexpectedly , knew whence their health were to be expected : like to other sick brutes , who when assaulted by sickness , are , by the hand of that same storge and instinct , led to some herb or flower , which is an apothecary shop appointed by nature for them . neither think i these arguments which are twisted together of three propositions so strong as these instincts are ; where truth , like the sun , seems to dart home it's light in one unperceiveable act , whereas in these , pur-blind nature may be mistaken , not only in judging of the truth of either of the three parts , but likewise of their connexion and allyance . i know that that miscreant , who began his hell upon earth , by being burnt at tholouse for theorick atheisme , did upon his first approach to the fire , cry , o god : whereupon , being taxt by the assisting jesuit , answered , that these and such like expressions were the offspring of custom : but poor soul , he might have considered , that seing he had creept from his cradle into that error , and had run his glass to it's last sand , in propagating that hellish conceit : that therefore this expression was rather a confession then an escape , rather the product of a rational soul then of depraved custom ; for as it was in it self a divine truth , so it was in him contrary to a settled habit . there is another caball of atheists , who think that this beleef was at first ; but the quaint leger-de-main of some strongly-pated states-man ; who to over-awe the capriciousness of a giddy multitude , did forge this opinion of a rewarder of all humane actions : and to enforce this , do instance numa pompiluis , and mahomet , whose palpable cheats grew up in their successors into religions ; and whose inventions were received with as much bigotrie , by the wisest of men , as is that deity which is now the object of our adorations . wherefore ( say they ) seing the rational soul hath failed so oft , and so absurdly in its discoveries , how , or why , should we submit our selves slavishly to it's determinations ? for that which doth at some times erre , can never at any time be concluded infallible . to these i answer , that albeit , as to the particular way of worship , the world is oft times deluded . and albeit , even as to their apprehensions of this incomprehensible essence , multitudes be some times misled ; yet , these staggering fancies fix this great truth , that there is a supream who must be adored : for if this innate instinct did not coopere with these impostures , in gaining an assent no their fictitious religions and hierarchies , it were impossible for any humane authority to establish principles so remote from reason , and to subjugate by these even the mildest tempers . but i take the root from which these errors do spring , to be , that the twilight of darkned reason glimpsing to man , that impressa of the divine image , which though much decayed , yet rests still upon his soul ; and not being able , because of the faintness of his light , and the decay of that divine impressa , to discern exactly what that deity is , with whose image it is signeted ; believes implicitely with a profound respect , any who hath the confidence to obtrude any knowledge of it upon them . concluding in the conclave of their own thoughts , that none durst contemn so far , that omnipotent thunder-darter , as to vend their own fancies for sacred oracles . and albeit these hood-winked nations did erect a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in their own hearts , wherein all these vice-gods were worshiped ; yet were all these but representations of the true god ; for his omnipotency and power was adored in their mars ; his omniscience in their appollo , &c. and it is very probable that the heathens admired so each attribute of god almighty , that they thought each deserved distinct altars ; so that their errors had their rise from rather too much then too little respect ; and that as the same ocean receives several names from the several shoars it washes , so , according to the several operations of the most high , did these deluded pagans establish several deities . but that all these did ultimatly terminat in one , is clear from the inscription of that athenian altar , to the unknown god ; from the designation of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , from their common feasts or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; from the adjunct of delphicus given to appollo , which in greek signifies unus ; as macrobius observes , from their altars erected , disque deabusque omnibus , and from the general invocation of all the deities joyntly subjoyned to all their particular sacrifices . so that the great and all comprehending idea , wherein he is represented , as in one big mirrour to us , was by them broke in pieces , and in each of these pieces taken alone did they see a deity , though much abridged ; whereas all these pieces , when set together , did represent but one , and each piece did then shew but a part . but to evidence that our belief of a deity is not a state and traditionall imposture , i would willingly know if ever the skilfullest of sathans emissaries was able to induce the world to believe that there was no god ; which ( doubtless ) might have at some occasions contributed much to some mens politick designs , and which that rebell would have attempted , if either god had not restrained him , or himself had not known it imprestable . and it is most remarkable , that the first promoters of that divine doctrine were persons , who , both by precept and practice , decryed ambition and declined state imployments ; and so it were absurd to think that they invented these in subordination to state projects . there is also much force in that argument , wherein from the nature of prophesying , is concluded the being of a god : for , to foresee , is doubtless a way of seeing , far above the reach of humane nature ; man not being able to conclude but that , what is possible upon both parts , may come to pass upon either of its parts . and hence it was , that the heathens themselves termed this prediction divination , as if it could not be but divine . as also , if there were not a god , but that this were a fiction , it would follow , that errour and delusion ( such as this ex hypothesi ) were able , and actually did , of all other things , frame a man's soul most to virtue : and that the best of men ( such as are the adorers of a deity ) were both the greatest cheats and block-heads . all which , are absurdities to be hiss'd at by all who are masters of the meanest portion of humane reason . there lurketh much curious contemplation in pondering , how that albeit the parents of all heathnish religions , have been incomparably the chiefest witts in their times ; for else they could not have impress'd the spirits of their disciples with such abstract principles ; yet , all their models , seem repugnant to common reason : and they have chois'd to teach principles which seem ridiculous . thus the fictions related by the poets of their gods , the rites used by the romans , and the fopperies of the alcoran , are absurdities unworthy of a rational belief , if man were not acted by an innate principle , to place the mysteries of religion above his reason . by which we see , that the imputation cast upon the scriptures of their contrariety to reason , chocks likewayes the principles of all nations : and certainly , if there were nothing revealed to us in religion , but what the short line of our reason might fadom , the omnipotency of god , and the weakness of our own reason , should remain still unknown : and seing our reason is only suitable to our nature , certainly if that infinit essence and it's mysteries might be comprehended by that same reason , which measureth things finit , we might conclude god to be finit likewayes ; and is it not impudence in us who know not the ebbing and flowing of the sea , nor the reason why the adamant draweth the iron , to repine because we cannot comprehend the essence of god almighty ? and then vainly to conclude , that because we cannot grasp within the short armes of our understanding , the vast bulk of the deity , that there is no deity ? a conclusion as absurd , as if one should say , that when the nimble wings of an arrow transport it above our sight , it did leave off to be , when it left off to be perceived . and i am of opinion , that mysteriousness suits rarely well with divine truths , the finest things using alwayes to be best wrapt up : thus if we listen to our hid inclinations , we will find a pleasing veneration in reserved silence ; and our curiosity will swiftly follow , what by it's retiredness fleeth from us : silent groves whose bush-top trees lay their heads together , as in a conspiracy to resist the sun's entry , and powder its light with sables , creat's a veneration in us . and as the heathens did choise groves , so did the primitive christians light their devotions with torches and candles , intimating thereby that umbrag'd silence was an excellent shryn for sincere devotions ; and in this sense , it may be , the word of god is said to be a lantern to our steps , and the seven churches are compared to seven candlsticks . did not our saviour teach his disciples in parables ? and was not the ark vailed from the eyes of the people ? the pagans dispensed their divinity in hieroglyphicks ; and amongst humane writers , the most mysterious carry still the lawrels : and why should we vainly wish to comprehend the nature of the deity , seing moses , god's intimate , and minion , could not have that allowance ? and god himself , when for our necessary instruction he would discover something of himself to us , is forced per 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , ( as divines speak ) to discover himself in a stile borrowed from humane frailty , and to express his infinit affections by our disordered passions . i believe , that socrates , natur's greatest disciple , and the deity 's protomartyr , was a prosolyt of the same faith , which we profess , and had his large soul illuminated by that sun of righteousness , whose refulgent rayes are now the bright torches of the christian church . neither is my belief in this staggered by the silence of his co-temporary writers , as to this particular : seing these , not being of the same perswasion with him , but being convinced of his moral worth , did descrive his opinions suitably to their own apprehension . thus did these pagan historians admire the great saviour of mankind , only for his morall accomplishments , without reaching these divine principles , by which he was acted . the stoicks likewayes were in all probability , a tribe of iohn baptist's , and god having resolved to purge the universe of its original unrighteousness by that blessed manna which came down from heaven to give life to the world , did by their doctrine of abstemiousness , as by a spare dyet , prepare its body for receiving that divine dose . and certainly , if men had disbanded that execrable troup of lusts , against which these preached , and had listned ( as the stoicks book of discipline injoyned ) to their own private consciences , and had by retiredness abstracted themselves from the reach of temptations , it had facilitated much their conversion : for if the young lawyer , who came to consult christ how to draw up his securities of heaven , and of his portion there , had believed their oracle , which decry'd riches as the unnecessary baggadge of man's life , and the mudd which clog'd the wings of the souls contemplation , and kept it from soaring its natural pitch , he had never refuised our saviour's yoke , because he was commanded to sell all and to give it to the poor . thus likewayes if the rich glutton had dyeted himself according to the scant prescript of their allowance , his scoarched tongue had not stood in need of a drop of watter to allay it's thirst . neither had nicodemus needed to have mantled himself in the darkness of the night , when he came to our saviour , out of fear , lest he should have been discovered ; seing their doctrine might have taught him , that fear was a passion , unworthy to be lodged in the soul of man : and that there is nothing here , which a man either should , or needeth to fear . but albeit neither instinct nor faith , were able to convince us infallibly of this truth ; yet is it both more satisfying , and more safe to embrace this opinion , then its contrary . more satisfying , because man's summum bonum here , being lodged in the tranquillity of his spirit ; that which can best plaine and smooth the rugged and uneven face of his frequent and inevitable misfortunes , must be doubtless the most carressable of opinions : wherefore , seing nothing can strengthen so much man's frailty , nothing check so soon his dispair , nothing feed so much his hope , nor animate so much his courage , as to believe that there is a god , who beareth the heaviest end of all our crosses upon the shoulders of his love ; who is able to turn , or arrest the giddie wheel of fortune by the strong hand of his omnipotency ; and who twisteth lawrels of inimaginable joyes for the heads of these who fight under his banners . if a man leaned not his weary soul upon this divine rest , he were not only an enemy to nature , but even to his own happiness . what rocks of danger could men escape , if blind-fortune did sit at the helme , and if vertuous persons complain , as affairs are presently stated ? that their merites are not weighed with indifferency enough in the scales of justice , what might be expected , if hazard got the ballance to mannage ? and these who leave their native countries , when they perceive that the law beginneth to render its oracles in an unconstant stile , and with a trembling voice , behooved to leave the world , if this anarchy were by atheisme established ? for as a wise stoick well observed , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . it were impossible to live in a world , void of god and void of providence . it is likewayes most safe ; for if there be a deity , doubtless these obdured atheists , whose obstinacy hath conjured their consciences to a constrain'd silence , and brybed these infallible witnesses , to depone what suited best with their wild resolutions , or rather neglected resolutly their sincere depositions : then certainly , the just flames of that god's indignation , whom they have disclaimed , will heat for them a furnace in hell , beyond what the other damned spirits shall meet with in their torture . whereas albeit there be no tribunall , from which such a thunder-bolt sentence may be darted , nor no supreme judge by whom our actions shall be canvass'd , then these who have paid their adorations at his altars , shall be in no danger . wherefore , seing it should be the task of a virtuoso , to turn out all such thoughts as may raise a mutiny in his breast ; it were a foolish toy in him to entertain atheisme , which is a nurcery of disquietness : for whose breast could enjoy a calme whilst a concernment of so much weight , as his externall portion , did hing from the weak threed of a mere may be , and of such a may be , as marches so near with a will not be ? but if ye would know , what disquieting vapours atheisme sends up to the brain , when it is once drunk in : go to the horrour creating beds of a dying atheist , whose roaring voice , might awake the most lethargick conscience that ever the devil iull'd a sleep . there ye shall know by the urinal of his eyes , and the water standing therein , what convulsion-fits his soul suffers ; and shall learn from his own mouth , how grievously his diseased soul is streatched upon the rack of despair : then it is , that the voluminous registers of his conscience , which did ly formerly clasp'd in some unsearcht corner of his memory , are laid open before him , and the devil who hitherto gave him the lessening end of the prospect , to survey his sins in , turns now its magnifying end to his fearfull eye . it should be then the grand design of a philosopher , to order his own breast aright , before he go abroad to view the works of the creation ; least if he leave its door unbolted , the devil steal from him his richest jewel , whilest he sweats to enrich his contemplation with what is of far less consequence . it is no wild fancy to think , that atheisme hath been the product of superstition : for certainly , many who were by humour gallio's , finding that religion exacted from men such inhumane homage to its recognizance , as was the sacrificing children amongst the heathens , wearying pilgrimages , and hectick lents amongst christians , did resolve rather to deny than to adore such deities . thus lucretius revolted upon agamemnon's sacrificing his daughter iphigenia for the grecian safety , crying out , tantum religio potuit suadere malorum . and thus petronius ▪ arbiter a monck of the same cell , says that , primus in orbe deos timor fecit , fulmina coelo cum caderent — and to prevent this , our saviour doth oft inculcat , that his yoke is easie and his burden is light . and doubtless , as the straightest line is alwayes the shortest ; so the most rational designes are alwayes easilyest effectuated ; and as seneca hath excellently observed , licet deus non esset , tamen non peccarem ob peccati vilitatem . there is something of meanness in the gallantest , and most alluring sin . and this is most energetically exprest in scripture , whilst it is said that the wicked weary themseles by their sins . a principle , which not only the magisterial authority of god's spirit , but our experience likewayes places above the reach of all scruples : for are not the inquietuds , the cheats , and palliated parricids , and sacriledges brooded by ambition , the churlishness and close-handedness parented by avarice , effects unworthy to be father'd upon any rational soul ; and at which we should scarlet our cheeks with blushes , as well as ●npale them through fear , and should stand as much in awe of our consciences , as most do of a deity ? yet , it may be we are in a mistake , whilst we place superstition in the excess of such adorations , as are either commanded or indifferent : for seing the object of our adorations , god almighty , is in himself infinit , we can never exceed either in our respects to him , or in the expression of them . excess being only admissible , where the object is finit , and where we attribute mor then is due , which can never be here . thus if kneeling be lawfull at any occasion , i hardly see why it is not lawfull to kneel at all occasions . and if these exteriour rites and ceremonies ( some whereof are allow'd in all churches ) be judged requisit , for expressing our vassalage and subordination to god our maker , either they are altogether unwarrantable , or else we should proportion them ( as far as in us lyes ) to that infinit object . and seing the angels are said to cover their faces with their wings before him , the patriarchs to fall upon their face and worship ; and our adorable saviour , in that conflict wherein he represented sinfull man , is by matthew remark'd to have fall'n upon his face , by mark to have fall'n upon the ground , and by luke to have kneel'd . what is crawling man , that he should account such gestures fond superstition ? it would appear then , that superstition consists in man's worshiping god by meanes unlawfull , such as are children-sacrifices , and such like , whereby his divine attributes are mis-represented , and tainted with cruelty , or tyrannie , and not in an excess , in such expressions of our respect as are in themselves lawfull . and if there be any strength in that argument , wherein we inforce the being of god , from the harmonious consent and assent of all nations : certainly , by that same argument , we may establish the decency , if not the necessity , of ceremonies . for , what nation bowes to altars , without profound and external submissions ? and , who lodges upon the surface of our globe , who payes not as the reddendo of their charter to these gods whom they worship , ceremonial adorations , wrapt up in most submissive rites ? that god made all things for his glory , is an expression , which ( i think ) looks not well at the test of reason , and hath no warrand but unwary custome : for beyond all question , his glory was so brim-full formerly , that it neither needed , nor could recieve any considerable accession from this small drop . and besids this , the innate apprehension we have of doing any thing for one's glory , dyes this expression with some guilt ; yet , i confess , we may warrantably say , that when perverse man calls his power in question , or controverts his being only wise ; that then , god for our instruction , and the vindication of his own glorious attributes , doth many things for his own glory . and in this sense , the scripture saith , that god will punish the wicked , and deliver his people , for his own glory . and wherever it is said , that god doth , or createh any thing , for his own glory , it is doubtless in this sense ; in which man ( who is made after his image ) may act for his own glory without any vanity ; albeit to act for his own glory in the first sense , were in him criminal . it is then more probable , that god being infinitly good , and all good being sui communicativum , that his design in creating the world , was to communicate and display his goodness : and upon this base probably hath aristotle reared up his errour , of the worlds existency from all eternity : for , seing god was ab aeterno infinitly good , and that good is still communicative : he did ( it may be ) conclude , that ab aeterno , god did communicate his goodness : which could only be to creatures . and therefore it was necessar that there should have been a world : and some philosophers have aver'd , that the world flowed from god per emanationem , ab aeterno , as beames are lanced out from the body of the sun. albeit i be none of aristotle's partisans , nor holds my philosophy of him as my superior ; yet i cannot but think , that god hath communicated his goodness to worlds prior to ours , which is but of years standing . but i am not so arrogant as to determine the time of the first worlds birth , nor how many cadets it hath had , resolving to leave its date , blank , to be fill'd up by some arrogant pretender . neither should i accuse mine own thoughts of heresie , for concluding , that probably there are presently thousands of worlds co-existing with ours , whereof some , it may be , are governed by maximes . if not contrair , yet at least differnt from these which are our canons . all which worlds , albeit they were actually subsisting , would ly in the bosome of the large imaginarie spaces , but like so many small balls in the corner of a large tennis-court . i shall not for confirming this opinion , cite , with an ignorant french curate , the parable of the lepers , where it is said , nonne sunt decem mundi ? because i know that it was wittily answered , sed ubi sunt reliqui novem ? that eternity is all present , and that in it , there is neither preterit , nor future , is but a conceit , and a needless mysterie imposed upon our belief , which is really more mysterious then the trinity ; who knows but it is founded upon an expression in cicero , wherein eternity is call'd aeternum instans ? for how then can it be said , that god was before the world ? for was is preterit , and before the world there was , as themselves alledge , no time ; and so there was a was in eternity . is not god call'd by himself alpha and omega , first and last , the one whereof is preterite and the other future ? and it is said , rev. . . o glorious god , who art , and wast , and shalt be . and if it be answered , that this is only fitted to our capacities ; certainly , that is all is craved : for , doubtlesse there is no such reall thing , as these three measures of time , even in things finit and created ; for they ow their being only to our conceit , as well in the one as in the other . and when god descriv'd himself by his name jah i am , it was not mean't , that no measure of time could be attributed to him , but the present ; but rather , that what he was , was to man incomprehensible . and that all we could know of him , was that he existed ; and by that expression , that all things to him are present , was mean't , that by his knowledge intuitive , ( as divines terme it ) he comprehends all things which were to be , as if they were really present ; and this is spoke , not of his being , but of his knowledge . neither can it be concluded that if was or shall be , may be attributed to god , then he must be mutable , and that was , denotats mutation ; for as i said formerly , these are but termes , not really existing , and so cannot import any real mutation . how god imployes his uncontrolable scepter , after what fashion he governs this lower world , and in what characters he writs his eternal decrees , hath been the arrogant study of some mad-cap pedants , who talk as magisterially of his decrees , as if they were of his cabinet councel . and albeit to deterre such bold intruders , he destroyed thousands of his ancient people , because they look'd into his ark ; yet , such is the petulancie of some latter witts , that they must needs look in to his unsearchable bosome , and there marishall all his decrees , and conceit they understand his way of working ; and thus in disputing of objects , infinitly removed by their obstruseness from their sense , they shew themselves more ridiculous , then these who would dispute concerning the qualities of an object , before it come so near , as that they may know of what species it is : for seing it is a maxime , that there is nothing in our understanding , which hath not past to it thorow our senses , and that the things of god are immaterial , and so fall not under the cognizance of our senses ; it must be folly to think , that any humane scrutinie can find out mysteries that are so unsearchable , except they be imparted to them by immediat revelation ; a kind of correspondence which i concieve few now a dayes holds with heaven . yet , i confess , it is as hard to confute their fictions , as it is impossible for them to come by the knowledge of them . but as this study is unattainable , so it is unprofitable for seeing god's art of governing the world , and his decrees of saveing or damning its citizens is a trade we shall never be able to practise , why should we have such an itch to understand it ? it should be enough to us , to be saved , albeit we know not how , or by what manner of decrees ; except we be of the same mettal with that foolish patient , who would not be cured , because the physician would not shew him how the cure was to be composed , and what were its ingredients . and is it not the zenith and top-branch of madness for us to pry into go'ds unsearchable decrees , who know not how our neighbour's calf is formed in its dames belly ? it was a narrow omnipotency , which some mean spirit'd heathens allowed their iupiter , when they conceited that he wanted leasure to dispose of trifles . non licet exiguis rebus adesse jovi . for if the twinkling of an eye , were not time sufficient for god to dispose upon all the affairs of this world , then there might be a greater power then his ; and the power to dispose so suddainly , were wanting to his omnipotency , and so he were not infinit , and consequently no god. neither was the rodomontade of alphonsus , king of portugal , more pious then this ; when he alleadged that if god had made use of his advice in framing the world , he had helped many things in it , which he now could justly taxe of errour . these two extremes , are the two poles , whereon the globe of atheisme turns it self ; some , out of an impious humility , complementing god out of his authority , by denying that he disposes of the meaner size of business , and others detracting from his providence , in attributing his operations to chance and fate , or branding them with injustice or imprudence . there are among school-men two opinions which dispute victory with ( almost ) equal forces . the one whereof , will have god the sole agent , and to make use of secundary causes , only , as of ciphers , these say that it is not fire which burns , but that god burns ad praesentiam ignis ; nor water which cools , but that god cools ad praesentiam aquae : which is , in my opinion , the same thing as to say , that god jugl'd with man ; and as charmers do , presented ingredients , but wrought by hid means . in too near an affinity with this , is the doctrine of predestination as some teach it , wherein they will have man to play the mere spectator in his own salvation : and albeit there be a free and full tender of mercy made to lost man , yet will not allow him any power to embrace or reject it ; judging this one of the necessary appanages of god's omnipotency , that he doth save or condemn ex mero beneplacito , never considering , that the question is not , what god can do , but what he doth : and that it derogats nothing from his omnipotency , that he will not damn poor sinners , who according to their doctrine cannot be blamed for their obstinacy ; because it was never free to them to do otherwise : and how ( i pray you ) could the sluggard in the parable , have been punished , for not improving his talent , and laying it up in a napkin , i● god had by his decree cast an insolvable knot upon that napkin , wherein it was laid up ? the other opinion , will have secundary causes the sole agents ; and teaches , that god in the first moulding of each creature , did dote it with innate qualities , sufficient to act every thing requisit for its subsistence ; but in sign of its subjection to its maker , reserved to himself , as his prerogative royal , a power to bend and bow these inclinations upon extraordinary occasions , for the good of the universe , or when his infallible omni-prudence should think expedient . thus , when that alleyeing eye of the world , the sun , was first turn'd off the frame , it had in commission to sow its influences over the world without any retardment ; yet was its motion arrested , and turn'd back by an extraordinar warrand in the dayes of ioshua and zedekiah . thus they make the creatures resemble a watch , which after it is once compleated , goes by its own springs and wheels , without the artist's continual assistance . yet , when either its motion becomes irregular , or when the owner finds it fit , it is unpeec'd , or hath its index put forward or backward at his pleasure . and this last , seems to suit best with the principles , both of christianity and stoicisme . with christianity , because it gives a check to presumption , and suffers not man to think himself the sole arbiter of his own condition ; because god can easily quash these babylon-like fancies , which his topless ambition is still a building ; and to his despair , because a lift from the strong arme of providence , may heave him up above all his difficulties . this corresponds best likewayes with stoicisme , because it pulls the hands of a sluggard from his bosome and setts them awork to prepare for himself , and not to repose his unreasonable hopes upon divine providence ; which only keeps these from sinking , who endeavour to swimme . this likewayes takes from man , all excuse of sining , not suffering him to lay over his vitiousness upon providence , a shift too ordinar amongst such , as misunderstand the tashless doctrine of the reformed churches . this opinion makes us likewayes understand , what the heathens meant by fortune , which they termed giddie ; what the stoicks meant by fate , which they confessed to be irresistable ; and in what sense philosophers concluded , that each man could hammer out his own fortune . as to the pagan's fortune , it cannot be thought , that seing it was by themselves confess'd to be blind , that they could trust it with the reines of the admirably manag'd world . and seing they confess'd , that it was alwayes stagering and unconstant , it cannot be thought that they could ascrive to it , all these curious and just events , which they themselves admired hourly . wherefore it is probable , that the philosophers , having through the prospect of nature , and by an uninterrupted experience , observed , that man ( who acted from a freedom of spirit unrestrained , either by providence or starr-influences as to his ordinar operations ) was of a volatile and capricious humour ; therefore they concluded , that the state of humane affairs , which was framed and unframed at his ill-fixt pleasure , behoved necessarily to be most subject to changes . and that seing the victories of cesar , depended upon the inclinations of his souldiers , who by abandoning him , would fetch his prosperity away with them : they had reason therefore to terme his fortune frail and exposed to hazard . thus the advancement of the restless courtier is uncertain , because it hings from the humor of his prince , whose spirit hath some allay of unconstancy , as well as hath that of the fearfull subject , who trembls under his scepter . and thus the oyl-consuming student , can promise himself no applause , because the paralytick hand of the multitudes fancies , holds the scales wherein his abilities are weighed . in fine , fortune was nothing to these ancients , but the unbodyed freedom of man's will , considered abstractly from all particular persons and the innate qualities of all other creatures , ( which , because they are mortal , must therefore be changable ) then which nothing is more inconstant , nothing more blind . the other branch of divine providence , which consists in the supreme authority , whereby god makes all humane inclinations run sometime against the byasse of their specifick nature , was by them termed fate . and this in their mythologie they fabled to be an adamant chain , which they fastned to the foot of iupiter's chair , meaning by its adamantine nature , that it was hard to be brok like the adamant ; and by fastning it to iupiter's chair , that it was the product of the almighty's power . thus fortune and fate , were to them but the right and left hands of christian providence . these embodyed angels , the stoicks , finding that fortunes megrim could not be cured , nor fates decrees rescinded , and yet resolving , in spight of all external accidents , to secure to themselves a calmness of spirit ; did place their happiness in the contempt of all these follies , whose blossomes fortune could not blast , and sought for happiness in an acquiescence to all which providence did unalterably decree ; so that neither fortune nor fate could stand in the way of their happiness , because they slighted the one , and submitted to the other . and in this sense , each man in their schools , was admitted to be master-of-work to his own fortune : and that without disparaging the omnipotent power of the great fortune-maker , in submission to whom their happiness was plac'd . albeit the knowledge and acknowledgment of a god , be the basis of true stoicisme , and a firmer one then any the heathens could pretend to ; yet , that knowledge of him , which by the curiosity of school-men and the bigotrie of tub-preachers , as now formed in a body of divinity , is of all others the least necessary and the most dangerous . and whereas we did see god but in a glass formerly , that glass is now so misted and soyl'd by each pedant's flegmatick breath , that it is hard to see him at all , but impossible to see him there . and to extend a little that mysterious analogy ; we are said to behold god here , as in a glass , and as objects are best percieved in the smoothest mirrors ; so the plainest descriptions of him , are still the truest : for when he is seen by atheists in the globe-glass of their infidelity , he appears less then really he is , when beheld by the pagans in the multiplying glass of paganisme , he appears many ; and when he is look't upon in the magnifying glass of superstition , though he appear but one , yet he is misrepresented , because he is represented , as more terrible then he desires to appear : and ordinarily the better cut glasses are , and the more artificiall , the worse the face is by them represented . that first curse which did sowe all the world with briers and thorns , did , of all other things , fall most heavily upon the soul of man. which because it was chief in the transgression , ought in reason to have been most tortured in the punishment . and now his disquieted spirit , is daily pierc'd with the prickles of thornie disputes and debates : which , as like briers , they produce no fruit fit for alimenting that noble half of man , which is his rational soul ; so do they , like thorns , pierce his tender conscience , and to screw his torments to their highest pinn ; the thoughts of god , and of settlment in him , which like balme should cure these sores , is become that hemlock , which occasions his distractions , and poysons his meditations . for , albeit the heroes of the primitive church , did give milk in abundance to infant-christians ; yet , many of their successors , have mixt it so with the tart vinegar of contention , that that milk beginns now to crudle , and so is become loathsome to the appetite of tender believers . for , most of church-men , being idle , and concieving , that if they taught only the holy scriptures , their vocation might by laicks be undervalued as easy ; and that they would be denyed that applause , which was due to quaintnesse of wit , especially in a setled church , wherein church-men could not draw reverence from the people , by oracles , as did the heathen priests ; nor by prophecies and miracles , as did the servants of the most high , under the old and new testaments . did therefore , according to their private inclinations , frame each to himself a new kind of divinity . the more pragmatick sort , and these whose humour was edged with choler , invented polemick or controverted divinity . and so by an intestine and civil war of opinions ▪ raised within the bowels of religion ; did waste and pillage that holy canaan , which formerly slowed with the milk of sincere doctrine , and the honey of divine consolations . and then , that precious blood , which formerly purpled only pagan-scaffolds , dyed now the swords of fellow-believers : who , to propagate their private judgment , buried churches under their rubbish , fed the birds of heaven with the carcases of pious and reverend church-men ; and by the mad hands of bigott opiniastrity , brok to pieces all the sacred bonds of natural and civil duties : and thus they raised the devil of contention , whom they could not lay again ; and made this itch of disputing , turn the scab of the church . others again , in whose brains sullen melancholy , form'd phantomes and ideas , invented scolastick theology ; and these , in abstract cells , erected a mint-house for coyning the dross of their own contemplations , into wonderfull bombast notions : and to make them go current , in the suffering church , gave them the impressa of theology . a third sort , not able to soare their pitch in the sky of invention , resolved to set up a correspondence with heaven : and this they called enthusiastick , or inspired , theology . and their cabbins were post-houses , where one might know what was resolved lately in the conclave of heaven , whether the king or parliament was to wear the lawrels , and what should be the issue of our pious rebellions . these could likewise cast the horoscop of your salvation ; and invented a species of physiognomy , whereby they could tell if the marks of grace dwelt upon a face , and if one had the traicts of an elect child of god. after this fashion did they prophesie their own fancies , and call that providence only which made for them . there wants not some likewayes , who , out of a well meaning desire , to make the lamp of truth darte its rayes with the clearer splendor , snuff it so nearly , that they extinguish it quyt : and leavs us nothing but the stink of its snuff ; like some curious physicians , who purge so frequently , that they destroy the body entrusted to their cure . we in this island have met with some of these charletans , who , i am confident , purged oftner both church and state , then luke , the beloved physician , would have prescrived , if we had had the good fortune to have been his patients . the talest witt is not able to reach heaven , albeit ( i know ) many disjoint their witts in stretching them too high in the inquiry of its mysteries . neither impute i our short-coming in the knowledge of these mysteries , solly to their obstrusness ; but , i believe , our meditations are more clouded in relation to these , then really they need to be , because of their innate frailty : for we see , that some who are masters of much reason in things humane , betray much solly in their devotions : wherefore ▪ i am induced to believe , that it fares with the soul in this , as usually it doth with the body , whose pulls are proportionally the weaker , as the thing grasp'd-after is plac'd above its true reach . and so these arrogant pretenders pull but faintly , because they raise their meditations too high on their tip-toes : whereby they are disabl'd from imploying all their naturall vigour , in pulling at these weighty and sublime truths , which they catch , not by that corner which is nearest , as meanner witts do , ( and so are more successfull ) but endeavour a fetch at what in divinity is highest , by which effort , their endeavours are fainter , then these whose spirit is of a lesser size . and these colossus witts , become the greatest hereticks , as these ordinarily are most burnt , whose fingers oftest stir up fires , and as chirurgians have moe cuts and wounds , then any other mechanicks , who handle not so oft these wounding tools . it is not fit that mortal man should wrestle too much with these mysteries , least his reason , like iacob , be forc'd to come off , halting . nothing hath more busied my thoughts , then to find a reason why the heathens , who were as assiduous and zealous too in the worship of their gods , as we christians , did never frequent sermons , nor knew no such part of divine service ; whereof ( probably ) the reason was because their governors ( whose commands amongst them were the sole jure-divinoship of all ecclesiastick rites ) feared , that church-men , if they had been licenc'd to harangue to the people , would have influenc'd too much that gross body : which was the reason likewayes , why in the primitive church ( as one of their historians observes ) ex formula populo praedicabant , tantum antiquitas timebat 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . they preached only approved sermons , so much did antiquity fear these leaders of the people , a practice , as is reported , lately renewed by the duke of russia : and this seemeth also to have been the reason , why all liturgies have prick't texts for their preachers , lest if they had been left a freedom in their choice , they had chose such as might , in the letter , have suited best with such seditious libels as are now obtruded upon the people , in lieu of pious homilies , at remarkable or festival occasions . yet , i think , that our late doctors , who can find all doctrine in any text , would easily have eluded that canonick designe . if we should parallel the homilies , which these renowned fathers have left , as legacies , to posterity , with these which our age runs after , we would find , that the first were pointed lessons of mortification ; which , like moses rod , could draw gushes of tears from the rocky hearts of the most obdured sinners ; whereas many of these last are but state-gazets , wherein the people are informed , what are the resolves of the civil magistrate : and whereas their first institution made them ambassadors of glad-tydings betwixt god and his people , they have made themselves heraulds , to denounce warres betwixt god's vice-gerent and his subjects . thus , peter's successors will oft times , like himself , rather draw the sword then watch for their master . and since our saviour hath disarmed them , as he did peter , and filled their hands with the keyes , these who offend them are sure to get over the head with these . i confesse , god hath not left his church without some skilfull pilots , to lead in his servants , with security , to the harbour of salvation : to whom this discourse and it's author shall pay all respects . most of all churches do , like coy maids , lace their bodies so strait , that they bring on them a consumption ; and will have the gates of heaven to have been only made for themselves : and as this nigardliness hath possest churches , so from that root hath stem'd the churlishness of some private christians , who will allow god but a most inconsiderable number of these whom he hath admitted to make up his visible church . thus , some pastors will only admit two or three to be guests at the lord's table , allowing no wedding garment , but what is of their own spinning : and others , with their uncharitable hands , blut the names of all their acquaintances out of the books of life , as if they were keepers of his registers and rolls ; and will only have seats kept in the church , triumphant , for three or four sisters , who are so srugal of their devotions , as to spare them at home , to the end , they may be liberal in publick . but both these should consider , that the new ierusalem is said to have moe gates then one ; that iohn in his revelation tells us , that numberless numbers were seen following the lamb ; and that it is not probable , that the wise framer of the world made such a spacious dwelling as heaven , to be inhabited by so inconsiderable a number : whereas hell ( in the geography of believed tradition ) is only the small kernel of this small shell the earth . i know , that many are called and few chosen ; and that the way is strait , and few enter in at it : but we should consider , that these chosen , are said to be few , in respect only of these many who are called . which is most certain ; for ten parts of eleven are pagans or mahumetans , ( and all are called ) of that elevnth part , many are malitious hereticks ; and amongst the residue many are flagitious and publick sinners ; so that albeit the greatest part of the regular members of the visible church were sav'd , yet the number would be small in comparison of these others : the body of the visible church , must ( like all other bodies ) be compounded of contrary elements . and albeit i am not of opinion , that this body should be suffer'd to swell with humours , yet i would not wish , that it should be macerated with purgations . it 's nails ( though but excrementitious parts ) should not be so nearly pair'd , as that the body may bleed ; yet , they should be so pared , as that christians may not scratch one another . they should feed , not upon blood , but milk : and they are unmannerly guests , who will not suffer others to sit at their masters table with them . it pleases my humour to contemplat , how , that albeit all religions war against one another ; yet , are all of them governed by the same principles , and even by these principles , in effect , which they seem to abominat . thus , albeit the cessation of miracles be cryed down by many , yet , do the most bigot relate , what miracles have been wrought by the founders of their hierarchies , and what prophesies they have oraculously pronounced . and seing all confess , that god , in our dayes , breaks the prosperous upon the same wheel , on whose top they did but lately triumph ; making fortune adopt the opprest in their vice ; why should we talk so much of the ceasing of miracles ? for , doubtless , these effects are in policy , as contrair to nature , as are the swimming of iron , or sweetning of rivers ; or rather more : seing in the first , mans will is forc'd ( without which , such revolutions could not be effectuated ) whereas in the last , dull and sensual qualities are only wrested : which , as they are not so excellent , so , doubtless , are not able to make such resistance as the soul of man : yea , i should rather think , that the world being become old , must , doubtless , be more dim-sighted ( as all old things are ) then formerly ; and therefore , god doth now present greater objects of admiration to our eyes then he did formerly : for , man is become so atheisticall , that if god did not presse his meditations with such infallible testimonies of the being of an irresistable power , he would , doubtless , shake of all resolutions of submitting . thus , we see that in all the tract of iohn's revelations , miracles grow still more frequent , the nearer the world draweth to it's grave ; and , like all other bodies , the weaker it becomes , the more subject it is to all alterations , and the less is nature able to resist . and it would appear , that if miracles were requisit at first , for the establishment of religion , even when no older religion was to cede to it , and to make an exit at it's entry ; much more , should miracles be necessar , for fixing any religion against the received constitutions of a previously settled church . but to prosecute my first design , it is remarkable , that albeit infallibility be not by all , conceded to any militant church ; yet , it is assumed by all : neither is there any church under the sun , which would not fix the name of heretick , and account him ( almost ) reprobat , who would refuse to acknowledge the least rational of their principles : and thus these church-men pull up the ladders from the reach of others , after they have by them scal'd the walls of preferment themselves . that church-men should immerse themselves in things civil , is thought excentrick to their sphere , even in ordine ad spiritualia : and yet , even the capuchins , who are the greatest pretenders to abstract christianity and mortification , do , of all others , dipth most in things civil . the phanaticks enveigh against presbyterian gowns . the presbyterian tears the episcopal lawn sleeves , and thinks them the whore of babel's shirt . the episcopist slouts at the popish robes , as the livery of the beast . the antinomian emancipats his disciples from all obedience to the law. the protestant enjoyn good works , and such are commanded , but place no merit in them . the roman-catholick thinks he merits in his obedience . the phanatick believs the lords supper but a ceremony , though taken with very little outward respect . the presbyterian allowes it , but will not kneel . the episcopist kneels , but will not adore it . the catholick mixeth adoration with his kneeling . and thus , most of all religions are made up of the same elements , albeit their asymbolick qualities predomine in some more then in others . and if that maxime hold , that majus & minus non variant speciem , we may pronounce all of them to be one religion . the church , like the river nilus , can hardly condescend where it's head lyes ; and as all condescend that the church is a multitude of christians , so joyn all their opinions , and you shall find that they will have it to have , like the multitude , many heads . but in this ( as in all articles , not absolutely necessar for being saved ) i make the laws of my countrey to be my creed : and that a clear decision herein is not absolutely necessar for salvation , is clear from this , that many poor clowns shall be saved , whose conscience is not able to teach their judgments how to decide this controversie , wherein so many heads have been confounded , so many have been lost , and so many have been shrewdly knockt against one another ; from which flinty collisions , much fire , but little light , hath ever burst forth . god , by his omniscience , foreseeing , that it was too dazleing a sight for the pur-blind eyes of man's soul , to behold him invironed with the rayes of divine majesty , did bestow upon us , three mirrours , wherein we might contemplat him ( as we use to look upon the sun in a tub of water , not daring eye his native splendor ) the one was the mirrour of the law , the second is the works of the creation , and the third is the soul of man , which he himself hath told us is framed after his own glorious image . as for the first mirrour , the law ; god knowing that instinct , or as we terme it , a natural conscience , were compleat digests of all that man was to observe ▪ he did make that mirrour very little , a volumne of only two pages ; but that mirrour is , of late , so mullered about , by marginal notes and commentars , that the mirrour it self is almost over-spread by them ; and it is very observable , that in the holy registers , the law is still abridged , but we never see it enlarg'd : for , albeit the fundamental laws of both tables were packed up in narrow bounds , yet our saviour sums them in these two , fear the lord thy god with all thy heart , and , love thy neighbour as thy self . and the apostle paul , in his divine epistles , professes , that he desires to know only christ , and him crucified : so , that i am confident , that if our saviour were to preach in person , once more to the world , he would enveigh against our casuists , as much as he did against the jewish talmudists ; for , the one as well as the other , are equally guilty of burdening the shoulders of weak christians , with the unnecessary trash of humane inventions . for , i remember to have seen a late casuist , dispute contentiously amongst his other cases , whither tobacco , taken in the morning , did break a commanded fast or not ? to which , after a feaverish conflict , his wisdom , forsooth , returns this oraculous answer ; that if tobacco be taken at the nose , it breaks not the fast , but if it be taken at the mouth , then it breaks the fast . which , because i made a collasterion betwixt the casuists and the talmudists , i shall only mention out of the talmude ( which was the iews comment upon the law ) a case , exactly parallel to this : wherein is decided , that if a man carry a burden on the sabbath day , upon both his shoulders , then he is guilty of breach of sabbath , but that he is not guilty if he carry it upon one shoulder . as to my own private judgment , ( which i submitt to my spiritual tutors ) i think , that seing the conscience of man , is the same faculty with the judgment when conversant about spiritual imployments ( as the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which imports a knowledge reflexive upon a man 's own self , doth abundantly evidence ) that therefore , as there are judgments of different tempers ; so there are likewise consciences of different frames : and which vary as much amongst themselves , as natural constitutions do . and therefore , as the same dose would prove noxious to one constitution , wherein another would find his health ; so in one and the same act , that resolution may be saving to one conscience , which may condemn another : for , seing god hath kindled a torch in each mans breast , by whose flame he may see what path he should beat . in which sense it is said , prov. . . that the understanding of man is the candle of the lord ; and can that light mislead ? and seing man must be answerable according to what it prescrives to him , doubtless it is fitter that he should hearken to the reiterated dictates of his conscience , than to the resolution of any school-casuist : and that for the same reason , that it is more rational to obey the law it self , than the wisest lawier , who may either be deceived himself , or have a design to deceive others . for if god hath endued man with every thing necessary for working out the work of his own salvation , with fear and trembling , he hath doubtless bestowed upon him an internal touch-stone , by whose test he may discern betwixt good and evil ; seing to command man to walk uprightly , and not to bestow on him eyes to see the road , were to command a blind man to walk , and to punish him if he went astray . and as the composure of man's body , would be imperfect and manck , if he wanted a palate to discern bewixt the tast of what is wholsome , or what is putrid ; so if the soul of man were not able to know its own duty , and by the palate of a natural conscience , to difference betwixt lawfull and unlawfull : certainly the soul might be thought to be but ill appointed . thus , beasts are by an intrinsick principle taught their duty , and do accordingly shun or follow what is convenient for them , without consulting any thing from without . and shall man be less perspicacious , or more defective then these ? as also seing man is oftimes by thousands of occasions , removed far from the assistance of chair or pulpit-informers ; and in that his retiredness , hath most of these cases to be resolved : it were absurd to think that he then wants sufficiency of help for their resolution . and it is most observable in scripture , that men are oft check'd for quenching the spirit , but never for not consulting casuists . i know it may be thought , that when the soul of man rages at sometime in a feaver of lust , revenge , or some such sin , that then the conscience may rave ; yet i dare say , that albeit the soul , out of an inordinat desire to enjoy its own pleasures , may set its invention a work , to palliat the sinfulness of what it desires ; yet by some secret knell , the conscience sounds still its reproof . and i dare say , that never man erred without a check from his conscience ; nor that ever any sinned , after an approbation obtained from his conscience of what he was about : and when we assent to these doctors , is it not because our consciences , or our judgments ( which are the same ) assent , to what they inform ? which evidences , that our consciences are more to be believed , then they , by that rule , propter quod unumquodque est tale , &c. but to convince us of the folly of our addresses to these doctors . it may , and often doth fall out , that that may be a sin in me , which a casuist pronounces to be none , as if my breast did suggest to me , that it were a sin to buy church-lands ; if thereafter i did buy them , it were doubtless a sin , albeit my doctors , following the canons of their particular church , assured me , that the sale of church-lands were no sin in it self . i am confident then , that this casuist divinity , hath taken its rise from the desire church-men had to know the mysterie of each man's breast , and to the end , nothing of import , might be undertaken without consulting their cell ; perswading men , that in ordine ad spiritualia , their consciences , and consequently their salvation , may be interested in every civil affair . and to confirm this , it is most observable , that this trade is most used by iesuits and innovators , who desire to know all intrigues and subvert all states , whereas the primitive church knew no such divinity , neither hath its doctors left any such volumns . it may be urged , that seing the conscience is but a reflex act of the judgment , that as the judgment is an unsure guid , the conscience cannot pretend to be infallible ; and that the one , as well as the other , is tutor'd by the fallacious principles of sense and custom : and i my self have seen my lands-lady , in france , as much troubled in conscience for giving us flesh to eat in lent , as if she had cast out the flesh of a christian to be devoured by dogs ; and so atheisme may attribute to custom , these inclinations whereby we are acted-on to believe a deity ; and may tell us , that the mahumetans find themselves as much prickt in conscience , for transgressing their prophets canons , as we for offending against the moral law. and thus the adoring of a deity might have at first been brooded in the councilchamber of a states-mans head , and yet might have been , at that time by the vulgar , and thereafter by the wisest pates , worshipped with profound respects : yet , if we pry narrowly into this conceit , we shall find in it something of instinct previous to all forgeries possible . for , what was it ( i pray you ) which encouraged , or suggested to these politicians , that such a thing as the deity might be dissembled to their people for their imposing that cheat , presupposed some pre-existing notion of it ? or , how entred that fancie first in their wild heads ? or , how could so many contemporary , and yet far distant , legislators , fall upon the same thoughts , especialy , it being so remote from sense ; and for framing of which idea , their experience could never furnish a pattern ? conscience then must be something else then the fumes of melancholy , or , capricio's of fancie ; for else , roaring gallants , who are little troubled , or can easily conquer all other fancies , would not be so haunted by these pricking pangs ; which if they were not infallibly divine , behooved to be meerly ridiculous , and to want all support from reason or experience . there is another fyle of cases of conscience , which is a cadet of that same family ; and these are such cases as were the brood of these late times , which , like infects and unclean creatures , may be said generari ex putri materiâ : an instance whereof , was that famous sister , who ask'd if she was oblidg'd to execute her catt for killing a mouse upon the sabbath . this was a theology , taught by old dotting wives , and studied by state-expectants , who , to gain applause , and in hope to mount preferment 's sadle , made use of this gilded stirrop . i shall not inveigh against this foppery , seing it hath not possest mens conceit so long , as to have prescrived the tittle of divinity ; but , like a meteor , which , because it is fixt to no orbe , and is but a mass of inflamed vapours , doth therefore disappear immediatly , how soon its substance flashes out ; and its ashes are now entomb'd in the same clay with its brother twain , that pious non-sense , wherein god almighty was treated with in familiar and not in superiour . as god did light the candle of a private conscience , in each private breast ; so hath he hung up the lamp of the scriptures , in the body of his church ; and these we may call the conscience of the church , whilst triumphant . which some , by the breath of their vanity , and stormes of their passion , endeavour to blow out , whilst others , make no other use of its light , then to shew them where to find a jest . and within the armes of this division , ly folded , all the prophane race of mankind . as to these first ( who should be first , because they are sathan's first-born , and so deserve a double portion of this reproof ) they contend , that the scriptures are writen in a mean and low stile ; are in some places too mysterious , in others too obscure ; contain many things ineredible , many repetitions , and many contradictions . but these miscreants should consider , that much of the scriptures native splendor is impared by its translators , who , fearing to fall within the verge of the curse pronounced against such as should pair from , or adde to , any thing contained in that divine book , were , and are willing , that their translation should want rather the lustre , then meaning of the original . as also of all tongues , i believe the hebrew admits least of a translation ; especially into northern languages : for as these nations differ least in their expressions , who , because of their commerce or contiguity , have the most frequent converse . so doubtless ▪ the iews and we , by this rule , should in language hold the least correspondence . and because there is no pure fountain of this tongue left , besides the bible , it must be hard to understand its expressions , wherein the translators can find little or no help from the variety and collation of authors . and seing this book was penn'd indifferently , for all ages , nations and sexes , it was sit that its stile should have been condescending : for these who are tall , can pull the fruit which hangs low , whereas these who are low , cannot pull what pearch's high . and it is very observable , that where the fruit is greatest and ripest , there the branch whereon it hangs , bowes lowest . when god appeared to elijah , kings . there came first a terrible wind , thereafter a great earthquake , and then fire ; and yet god was in none of these , but spoke in the shrill small voice . his divine providence hath so order'd it , that our conviction cannot be ascrib'd to the fard of eloquence nor slight of logick , but merely to the truth of what is therein represented : our saviour , will with clay and spitle , illuminate our eyes , as he did these of the other blind man in the gospel . and such is the strength of his divine arme , that he can vanquish sathan , misbelief and ignorance with any weapon . and as we think the sun's circumference but little , because it is situated so far above us ; so we conclude these truths and excellencies but mean , because they are plac'd above our frail reach , and will blame the scriptures , when the fault lurks in our selves , that great physician will cure us , like an artist , with simples , specifick for our disease , and not like a charletan , with perfumed and gilded nothings . it is not allwayes the best mettal , which carries the pleasingest impressa ; nor doth the painted candle cast the clearest light . there are many things in scripture , which because of our frailty , appear ( like a staff in the waters ) to be crooked , albeit they be streight . why abraham should have kill'd his son isaac ; or the israelites have borrowed and not restored the egyptian ear-rings , staggers not my belief : for these belong'd to god , and neither to abraham , nor the egyptians : and so god might have given order to any he pleased to recieve them : and these who obey'd , were no more guilty , then such are , who by order from the master , recieve what he did formerly lend to others . and as to its repetitions ▪ they differ , no doubt , from one another ; albeit we ( who think all things removed , though by a little distance from us , of one shape ) judge ill , in judging otherwayes . and as an excellent person hath well observed , god hath appointed these reiterated expressions , to be as so many witnesses , to convince hereticks and others , who should call the meaning of any one place in question , or wrest it by what preceeds or followes it . as to these others , in whom the wine of god's consolations , ( by being winded in the crackt vessels of their heads ) turns into the tart vinegar of prophane satyres , i condole their condition : for , that stomach must be very corrupt , wherein the best of aliment putrifies most ; and probably , that indigested milk , being converted in excrementitious bile and humours , may cast them in a feaver which shall never cool to all eternity . i pity likewayes these , who , out of an in-advertent ( and as they think , sinless ) humour , jest with these divine truths ; like foolish children , who love rather to sport with their meat then eat it . these , albeit they intend not to prophane scripture , yet , they vilifie it : and we may say of the bible as of taking of god's name in our mouths , which must not only , not be done upon design , to blaspheme and diffame him ; but must not be taken but upon necessity , and , like the shew-bread , must be used only when we are in straits . i have been too guilty of this last sin my self ; and therefore , least i should make no attonement , i have rather resolved to appear before the world , in the dust and sackcloath of this silly discourse , a pennance , really , to me very great . when i consider how various and innumerable are the actions of men , and that in all these , they need particular instructions from above the poles , i admire why there are so many passages in scripture , from which our necessity may expect no assistance . and therefore , least i should think , that in scripture there is any waste of words , i am induced to believe , that there run 〈…〉 allegory in that holy book from genesis to iohn's revelation , and that it 's mystical sense is that which deserves the name of god's word . might we not have admired why the story of hagar and her bastard is there voluminously descrived , and what the church or private devotion was concerned therein , if paul , gal. . . had not discovered the mystery to us ? by which things , another thing is meant : for , these two mothers are the two testaments , the one which is agar , of mount sinai , which gendereth into bondage , &c. i might here relate many excellent allusions to prove this , but i shall satisfie my self with one which i did read in one doctor ever●t ; who , preaching upon ioshua , . . then caleb said , he who smiteth kirjath-sepher and taketh it , even to him will i give achsah my daughter to wife . and othniel took it , &c. saith , that caleb signifies a good heart , kirjath-sepher the city of the letter , achsah the vision , othniel god's opportunity . and so the mystical sense runs , a good heart saith , that whoever will take in ( and smite , as moses did the rock ) the letter of the word , shall have the vision which lurks under it discovered and given to him . and god's own time is the only mean for accomplishing this : as also , it is most remarkable , that that city which was called cirjath-sepher before it was taken in , or , the city of the letter , was , after it was conquered , called debi● , which signifies an oracle ; so that the word or letter is no oracle , till it be once , as it were , taken in and overcome . since the reading of which sermon , i believe that one may profit more by an hebrew lexicon , then by a thousand english lectures . these who detract from scripture , by attributing the production of miracles , to natural causes , do not much disparage the power of god , but ( though against their depraved intention ) cry rather up his omnipotency : for certainly , if these miracles were produced by secondary causes , then doubtless , that productive faculty was bestowed upon them by the almighty ; and if he can make the creatures produce such strange effects , much more is he able to effectuate them himself ; as it is more difficult , for a great master , to form curious and admirable characters when he leads a schollars hand , then when he writes them with his own ; for , such help may be called resisting assistance . i cannot likewise but blame many of our preachers , who rather break then open holy texts ; and rather make new meanings , suiting with their private designes , then tell the meaning of the spirit . who would not have laugh'd to hear a presbyterian observe , from the first chapter of genesis , first verse , that whilst moses relates what god made , he speaks nothing of bishops ; by which it was evident ( said don quixot's chaplain ) that bishops were not of divine institution : a conceit as ridiculous as that of a priest , who hearing maria spoken of for to signifie seas , did brag that he had found the virgine mary named in the old testament . albeit i think preaching no part of divine worship , hearing being no adoration ; yet , love i to go to church , were it but to see a multitude met together , to confess that there is a god : but , when i go to hear i care not whom , knowing that christ elected fisher-men to preach down infidelity , when it was in the ●uff of it's pride : and that paul ( the most signal trophe of our christian faith ) was sent for confirmation , not to peter or iames at ierusalem , but to ananias , one of the meanest amongst the disciples . and seing our salvation , by preaching , is a miracle ; it is still so much the greater by how much weaker the instruments are . when the pulpit was a mount sinai , from which the law was thundered , or a mount of o lives , whereon our saviour's glorious transformation was to be seen , then were sermons to be honoured ; but , since it is become a mount calvar , whereon our blessed saviour suffers daily , by scandalous railings , sermons are now become unfavoury for the most part . i hate to see that divine place made either a bar , whereat secular quarrels are , with passion , pleaded ; or a stage , whereon revenge is , by satyres , satisfied ; or , a school-chair , from which un-intelligible questions are mysteriously debated ; but amongst all these innovations , introduced by our infant divines . i hate none more then that of giving reasons for proving the doctrine , which being scripture it self , can be proven by nothing that is more certain . as for instance , when the doctrine is , that god loved us freely , how can this be proven more convincingly then thus , my text sayes it : and that is idem p●r idem , a most unlogical kind of probation . when i then go to church , i should love to spend my time in praises and prayers ; which as they are the only parts of adoration , so are they the natural imployments of the church , either militant or triumphant : yet , it displeases me to hear our young pulpitires skrich and cry , like baal's priests , as if god were no nearer them then the visible heavens . it honours much our imployment , that god almighty was the first and great law-giver ; and that our blessed saviour stiles himself our advocat . and it is an amazing wonder that we are tyed only by ten laws ; whereof seven were enacted doubtless for our advantage and respect , more immediatly the security of the creature then the honour of the creator , and are such restraints as men behoved to have laid upon one another , and which nature layes upon us all . and albeit i laugh at the jewish cabala , which sayes , that the moral law was written , two thousand years before moses , in black letters , at the back of a clear burning fire : yet , can i not approve tertullian's wit , who endeavours to find all these ten in the prohibition made to adam . there are indeed some sins which scarce a consequence can bring within the verge of these commandments . as for instance , drunkenness : yet , these are such as are so destructive to our nature , that there needs no law be made against them . so that the priest hit wittily , to whom that sin being confess'd , enjoyned as an pennance , their being drunk a second time ; which makes me conclude , that if drunkenness were to be ranged under any of these laws , it would fal most naturally under that , thou shalt not kill . albeit the fourth commandment seems to respect only the honour of god , and that the creature seems to be no wayes bettered by it : yet , our more serious observation will discover , that all be-labouring creatures , as it were , expect an ease the seventh day more then any other . whether it be , that nature is by custom framed to that expectation , i cannot tell : but , we see that god choic'd that number to be the year of jubile amongst his own people , and that it is the period of all the several consistencies in our life , infancie , pubertie , &c. and for this reason physicians observe , that the child born in the seventh moneth is stronger then that which is born in the eight ; because in the seventh it is come to a knot , by passing whereof , in the eight it is in a state of imperfection : but , what the mystery of this holy climaterick is , i refer till we come to that sabbath of rest , whereat we ordinarly arrive , after seven times nine years hath snowed upon us . we may think , that if god had intended , that one and the same day of the week should have been appropriated to have been a sabbath , he had designed each day by a special terme , and had commanded , that a day of such a designation , should have been sequestrated for a sabbath ; and that by designing only the seventh day he did leave a liberty to employ any day of the seven for that use . yet , it is remarkable , that mosos nor the jewish church durst not attempt the change of their new-years day ; but that the almighty was pleased to bestow a peculiar sanction upon that alteration : for , exod. . . he commands , that the moneth wherein the israelites came from egypt , should be , by them , reputed the first moneth of their year . wherefore , seing each nation chalks out a divers sabbath , it would appear that there is something of humour in it as well as of religion . the venerious mahumetan chooseth friday , or , dies veneris ; the dull iew dull saturn's day ; the warlick parthians tuesday , or , mars-day ; the cheery europeans sunday . and albeit the christians are influenc'd only by inspiration ; yet , i am confident , that the heathens did follow that for religion , which suited best with their natural temper . but this is a meditation which should travel no where beyond a mans private breast , lest it meet with enmity and beget scandal . it would puzle a heathen much to hear , that he who breaks one of these laws , is guilty of the breach of all : but , it troubles not me , seing all these laws are made to shew our obedience , and the breach of any one of them shewes our contempt of him who is the author of all . and it may be this was typified in moses's breaking both tables with one passionat fling , after he came down from the mount : for , if this breaking of them had not been pre-design'd for some hid end ▪ doubtless he had been reproved for his negligence . however , we may from this learn the desperate nature of passion , which made moses , who was the meekest man upon earth , break all the laws of god in one act . it might be also argued , that seing all the laws of the second table were enacted for , and respect ultimatly , the advantage of man , that where man is not wronged , there the law cannot be broke . and thus , if a married man should have liberty from his wife to take another woman , this could be no more reputed adultery , then it could be reputed theft to take what belongs to our neighbour , himself consenting ; and that for this cause , iacob's begetting children with his wifes maids , is not in scripture reproved as adultery , because they were given to him by her self for that effect : but , seing the practice of all the world condemns this conclusion , far be it from me to press it further . albeit the judicial law ( which may be justly called the judicious law ) is commonly reputed to be but the municipal law of the jews ; yet , seing it was thundered from mount sinai with so much pomp , and is ingrost in the books of holy truth , and seems nearlier related to reason then any other law , i admire why it should not be religiously observed by all nations : especially seing , as it is , the exactest picture of justice that ever was drawn , so it hath this of a picture in it , that it seems to look directly upon all who behold it , albeit they be placed ( amongst themselves ) in directly opposite , situations and stances . thus this law suits even with contrary tempers , and the unequal complexions of all nations . i know that the ceremonial law is likewayes insert amongst the other holy canons , and yet binds not us who live under the jurisdiction of the gospel : but , the reason of this seems to be , because these did immediatly concern the jewish church , and were conversant about these holy things . and so , seing the old testament is a description of their hierarchy , and of god's way of working in these times , i wonder not to see these ceremonies amidst other sacred truths , and yet not observed , seing they are expresly abrogat . but , if the judicial law , which respected not the hierarchy of that church , was obligatour only whilst the jewish state was in being , i admire why the spirit of god took so much pains , first to penn it , and then to deliver it so canon-like to posterity . and since it is a principle in law and reason , that laws must still stand in vigor till they be expresly abrogat , and must not be derogated from by consequences or presumptions , i admire why this law , which god hath enervat by no express text , should be now look'd upon as statutes nowise a-la-mode . it is true , that our saviour , when the woman , convicted of adultery , was brought to him , did not , according to that law , pronounce the sentence of death against her ; whence some think , that church-men , following their masters example , should not give their suffrage in criminal cases , and have only 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a bloodless jurisdiction ; for , they are appointed to be nurses , not chyrurgions . but , it is as true , that our saviour professed in all the tract of his life , that he came not to be a judge in things temporal , and his design in that place was only to convince them of their own sinnes , and not to absolve her , not to abrogat the law : and therefore he desired him who was freest from sin , to cast the first stone at her . and whereas it is conjectured , that these words which our saviour stoop'd down to write in the clay , immediatly thereafter was an abrogation of that law ; this is a geomancy more wilde then any lesson which is alledged to have been read in the mysterious face of heaven , and should never be taught but in a rabbies cabalastick gown . and whereas it is alledged , that there are many precepts in that corpus iuris , which respects only the humor of the jews , i admire why that can be urged ; for certainly , theft , murder , and these other crimes punished there , are the same crimes which reigns amongst us ; and so why not punishable after that same manner ? neither are the humors of these jews more different from ours , then was the genius of the romans ; and yet , few or no nations refuse to cast their modern laws in that antique mould . and it is very probable , that as god did , in the moral law , teach man how to be just in his own actions , so he would likewayes instruct him by a judicial law , how to administrate justice to others . what can perpetuate a law more then that the authority whereby it is enacted should be obligatory in all ages , and the reason whereon it is founded should be eternal ? and in what laws do these two qualities appear more , or so much , as in the judicial laws of the jews , where the eternal law-giver was legislator , and the occasion , productive of them seemed rational ( and necessar ) to his infallible omniscience ? and if in any of these statutes , our purblind judgments cannot see a present conveniency , we should rather impute that to our own simplicity , then charge it as a guilt upon his divine statutes ; and are there not many municipal laws in each country , which have no hedge about them to keep them untrampled upon by wanton and too curious wits ? but , that excellent maxime , omnium quae fererunt majores nostri , non est reddenda ratio , ne que certa sunt , incerta redderentur ; a reason must not be rendred for all that our ancestors have enacted , lest what is now certain , become then uncertain . albeit a law enacted only by humane authority , seem unreasonable or inconvenient ; yet , it retains it's vigor till it be abrogat by the same , or a higher authority , then that whereby it was first statuted ; and the law sayes , that nihil est tam naturale quam unumquodque eodem modo dissolvi quo colligatum est . and , seing the moral and judicial laws are twisted so together , and are oft incorporated in one statute , as levit. . . deut. . . where adultery is forbidden , and the adulterer is to die the death : how can we think the one half of this law obligatory for ever , and yet neglect it 's other half , wherein the punishment is specified , and which appears to have been the scope of the divine law-giver ? for , the world needed not so much to have been acquainted , that adultery was a sin , as that that sin deserved death ; and if we allow our capricious humor the liberty to reject what we think inconvenient , we may at last arrive at that pitch of licentiousness , as to abrogat , by our practice , whatever choaks our present humor . there are many things much mistaken in that law , which makes the dissonancy betwixt it and our law , appear so much the greater . as for instance , it is concluded , that by that law , no theft was punishable by death ; whereof this is given as a reason , because there is no proportion betwixt goods and life ; and that all that a man hath he will give for his life , whereas this argument would prove , that no guilt but murder should be punished with death ; and so this dart rather flees over then hits the mark at which it is level'd . and if this argument concluded , why should adultery have been punished with death by that law , seing there seems no proportion betwixt that guilt and death ? for , if vita & fama be in law equiparat , by that same law , pecunia est alter sanguis . but , if there be no proportion betwixt goods and life , and if the punishment of theft ; when it is aggrag'd to it 's greatest height , cannot , in their opinion , reach so far as to be capital . why was it , that by that law nocturnal theevs might have been killed by those who found them ? exod. . . for , it appears against reason , that more should be permitted to a private and passionat party , then to a dis-interested judge . and it is clear by sam. . ▪ that theft was in some cases capital : for , there david vows , that he who took his neighbours one sheep , and spared his own many , should surely die ; which being spoke by a just king to an excellent prophet , and not reproved , must not be thought a flash of passion , but a well-founded sentence . were not likewayes two theevs crucified by the jews at the same time with our ever glorious saviour ? which must not be thought a romish execution , seing the law of the romans allowed no such punishment for theft : i judge therefore , the reason why murder and adultery were punished with death , rather then all thefts , to have been , because theft may be repaired by restitution , but murder and adultery cannot . and albeit the judicial law commands restitution only in the theft of an ox or sheep , ( things of small moment , and which may be stollen to satisfie rather hunger then lust ) yet , i see no limits set to judges , commanding them not to inflict a capital punishment in extraordinary cases : for certainly , he who steals , may , for ought he himself knows , be about the committing of murder , seing to steal what should aliment any poor one , is , in effect , the same thing as to murder him . it is much controverted , if this law prohibits self-murder , and i think it doth : for , we are commanded to love our neighbour as our self ; and so , since we are commanded not to kill our neighbour , that same law must likewayes forbid our killing of our selves . but the reason probably , why no express text did forbid that sin , was , because the spirit of god knew that the natural aversion we have against death , would , in this , do more then supply a law ; and that these who would be so desperat as to neglect the one , would never be so pious as to obey the other . or else , god hath been unwilling , by making such a law , to intimate to the world , that such a sin might be committed . yet , it seems strange , that many are in scripture related , as saul and others , to have killed themselves , against whom no check stands registrated in holy records . but , i stop here , intending to bestow a whole tractat upon the judicial law , a task hitherto too much neglected . the second mirrour , wherein god almighty is to be seen , is that of his creatures ; and in that a virtuoso may contemplat his infinite power , as in the other he may see his admirable justice . it is very observable , that when god , or his prophets , would prove his greatness , the sun , orion and the leviathan , are made use of as arguments . and when the spirit of god descrives the inimitable knowledge of solomb● , bestowed upon him by god , as an extraordinar mark of his favour , he sayes not , that he understood the quirks of philosophy , or notions of divinity ; but , it is said , that he knew all from the cedar of lebanon to the hysope that grows upon the wall . and in earnest , it is strange , that when man comes into the gallery of this world , he should take such pleasure in gazing upon these ill-drawn fictions , which have only past the pencil of humane wit , and should not fix his admiration upon these glorious creatures , which are the works of that great master ; in framing whereof , god is content to be said to have spent six dayes , to the end , that man might admire the effects of so much pains ; whereas his omnipotency might , with one fiat , have summoned them all to appear , apparrell'd in these gorgeous dresses which now adorns them . and it is as strange , that man , having that huge volumn of the creation to revolve , wherein is such an infinit number of curious tale-duces , to feast his eyes with curiosity , and to futnish his soul with solid knowledge ; he should notwithstanding spend so much oyl and sweat , in spinning out ens rationis , materia prima , potentia obedientialis , and such like untelligible trash , which , like cob-webs , are but envenomed dust curiously wrought . and because the gross of mankind was so gross , as not to understand god's greatness by the abstract idea's which instinct presented to him : therefore , to teach that sensual croud , by the trunchmanrie of sense he hath bestowed upon them this mirrour , wherein they may see how infinit he is in power , who made nothing so fruitfull , as to bud forth in this glorious crop of creatures , which now inhabits the surface of heaven and earth . i admire that such philosophers as have had their faces wash'd at the font , can allow of monsters , and define them to be the preter-intentional works of nature , wherein nature miss'd of her design , and was not able to effectuat what she intended : for , if nature and providence signifie the same thing in the dictionary of christianity , it were blasphemy to think , that providence could not be able to effectuat what it once designed . all the creatures are indeed but as clay in the hand of this great potter ; but , it were impious to think , that his art can be mistaken in framing any vessel : wherefore , i am apter to believe , that all these creatures which the schools term monsters , are rather the intentions , then errors of nature ; and that as nature doth nothing without design , so it doth nothing without success . and thus i rather admire nature in these , for her cunning variety , then upbraid her with insufficiency and weakness . neither term i an hermophrodite , man or woman , according to the prevalency of that sex which predomines in it , no more then i think that the painter , when he hath delineated curiously an exact marmaid , resolved to draw either a woman or fish , and not one distinct creature , peec'd up of both . and doubtless this error did at first proceed from mans vanity ; who concluded , that every frame which answered not that idea , which resides in him , was the effect of chance , and not of nature ; as if nature had been obliged to leave in the bibliothick of his head , the original of all such peeces as was to pass it's press . seing god , in his survey of the creation , called all that he had made good , because they were usefull . i conclude , that these are the best which are the most usefull . and albeit i condemn prodigality of ignorance , in preferring a diamond to a capon or sheep ; yet , do i not condemn such of vanity , as shine with these sparkling creatures : for , since god made nothing , which he did not destinat for some use , and seing most of these serve for no use else , doubtless , the wearing of them is most allowable . yet , can i not allow of these gaudy compounds , which men creat to themselves ; as if something had been still wanting after the creation was finished ; wherein man could supply god , and art , nature . the bestowing a hundred pounds upon a tulip , or a thousand on a picture , are not to me the meer rants of luxury ; but are courses pre-ordained by the almighty , for returning to poor artisans , that money , which oppression did at first most injustly screw from their weary hands . it is our ignorance of nature's mysteries which perswads us , that some , if not most of the creatures , serve rather for beautifying the universe , then for supplying necessity , an error which experience daily confutes : so , these herbs which of old cloathed only the uninhabited mountains , do now deserve their own place in apothecaries shops . and it is most observable , that the scurvy growes no where but where the disease rages , which is cured by it : seing god loved variety in the creation , he cannot hate curiosity in man , these two being correspondents ; and the one without the other would be but as flowers to the blind , or musick to the deaf . i laugh at the fruitless pilgrimages of such as travel to ioppa or china , to satisfie their curiosity ; there being a tredaskins closet in each tulip , and a solomon's court in each lilly of the field . and seing mens tempers are so various , it was no wonder that the creatures ( which ▪ were made for his use ) should have been made proportional to his humor : but , seing art hath in many things copied nature to the life , i think not the symetrie nor variety to be seen amongst the creatures such an infallible argument for proving the being of a god. as is instinct , which all the art of men and angels cannot counterfit ; and herein is it , that that grand magician must acknowledge the finger of his maker , seing here his own art fails . these who expect equal excellency in all the parts of this curious fabrick , do not understand wherein its symetrie consists . all the strings of an instrument sound not equally high , and yet they make up the harmony : the face of the earth looks in some places deform'd and parcht ; and yet it is there the mother of rich mines ( as if god intended to bestow a great portion where he bestowes an ill face ) and what we think deformities , were placed there as patches , and are no more blemishes , then the spots are to the leopards . i confess , that at first it puzl'd much my enquiry , for what end these mountains were made so near neighbours to the devided clouds : and i once imagin'd , that these were rather the effects of the flood , then creatures at first intended ; and were but the rubbish and mud which these impetuous waters had heap'd up in a mass : but , i was thereafter disswaded from this conjecture , by the . chap. prov. where wisdom , proving it's antiquity , sayes , that it was with god before the heavens were prepared , and the mountains setled ; by the scope of which text , it is clear , that the heavens , hills , and the rest of the creation , are said to bear one date . it is then more probable , that god foreseeing that the lust of conquest would , like the needle of the compass , look oft north ; as is evident by comparing all the monarchies ( first the assyrian , then grecian , then roman , now german ) did therefore bound ambition , as it were , with high hills , ( albeit since , ambition hath found a way to climb over them ) as if he told them , that they should march no furder . thus , it is very observable , that the northern parts of one kingdom are alwayes more barren then the southern limits of the country which lyes to the north of it . the north of england more mountainous and barren then the south of scotland , albeit it ly nearer the sun ; the south of england more pleasant and fertile then the north of france ; and the south of france then the north of italy , &c. we must like wayes consider , that nature brused it's face so when it fell in adam , that it did then contract many of these blemishes which now deform it ; and that as it waxes old , it 's native beauty is the more deformed by furrowed wrinkels . we cannot judge what it was in health , by it's present distempered condition , wherein it groans and travelleth in pain , as the apostle tells us . and the differences betwixt these two states may be known from this , that god , when he compleated the creation , saw that all was good ; whereas solomon , having reviewed it in his time , saw all to be vanity and vexation of spirit . the third mirrour , wherein god is to be admired , is man. this is that noble creature which god was pleased to mould last of all others , not willing to bring him home , till , by the preceeding creations , he had plenished his house abundantly for him . and albeit in the creation of all other creatures , it is only said , that god spoke , and it was : yet , when man was to be framed , the cabinet council of heaven was call'd ▪ and it is said ( let us ) as if more art had been to be shewed here , then in all the remanent fabrick of the terraqueous glob , and glorious circles of heaven . it is likewise very observable , that albeit all the fishes of the sea were formed by one word , all the beasts of the field by one act , &c. yet , god was pleased to bestow two upon the creation of man ; by the first , his body was created out of the dust , and thereafter , was breathed in , his soul. and albeit transient mention is only made of all other creations ; yet , the history of mans creation is twice repeated , once , gen , . . and again , . . and , least that foreseen deformity , wherewith he was to be besmear'd after his fall , should make it be questioned , that at his first creation he had received the impressa of god's image , this is oft repeated : for , in the . ver . gen. . it is said , let us make man in our image ; and then again ▪ and after our likeness . and in the . verse , so god created man in his own image ; and again immediately thereafter , in the image of god created he him . yet , i am confident , that this image is so bedabled in the mire of sin , and so chattred by it's first fall , and this divine impressa , and print , so worn out , by our old and vicious habits , that , if this genealogy had not been so oft inculcat , we could not but have called it in question , albeit our vanity be ready enough to believe a descent so royal and sublime . wherefore i must again admire the folly of atheists , who , by denying a deity , cloud their own noble birth-right . but , albeit man be made after god's image , yet , that can be no argument to conclude , that therefore god may be made after man's image , or represented under his figure , as the anthropomorphits foolishly contend , no more , then if we should conclude , that because a copy may be taken off an original , therefore an original may be taken off a copy . neither is this representation salv'd from being idolatry , by alleaging , that the image is not worshiped , but god , who is represented by it : for , it hath been well observed by an ancient father , that idolatry in scripture is called adultery ▪ and it is no good excuse for an adulteress , that she did ly with another because he represented her husband to her , and resembled him as a copy doth it's original : yet , seing nothing is room'd in our judgment and apprehension , but what first entred by the wicket of sense , it is almost impossible for man to conceive the idea of any thing but vested with some shape , as each man's private reflections will abundantly convince him , as the boundless ocean keeps and shews it 's well drawn images , whilst it stands quiet , with a face polisht like a christal cake , but losses them immediately , how soon it 's proud waves begin to swell and in rage , to spit it's froathy foam in the face of the angry heavens ; so , whilst a stoical indolency and christian repose smooths our restless spirits , it is only then , that the soul of man can be said to retain that glorious image of god almighty , with which it was impress'd at it's created nativity . but , when the waves of choler begin to roar , or the winds of vanity to blow , then that glorious image is no more to be discerned in him , then the shadows and representations of in-looking objects are to be seen and discerned in the disquieted bosom of the troubled waters . the stings of a natural conscience , which , according to each mans actings , creats to him either agues of fear , or paradises of joy , do by these ominating presages , convince us of the immortality of the soul : and seing we see its predictions , both in dreams , in damps of melancholy , and such like enthusiastick fits , followed by suteable events ; why may we not like wayes believe its predictions , as to its own immortality , it being the prudence of a virtuoso to lay hold of every mean , which may allay the rage of his hereditary misfortunes ? and to what end would the soul of man receive such impressions of fear and hope , if , by its mortality , it were not to be stated in a condition , wherein its fears and hopes were to have suteable rewards or punishments ? moreover , seing god is just , he will punish and reward : and therefore , seing he punishes and rewards not men according to their merits , or demerits here , there must be doubtless a future state wherein that is to be expected . but , that which convinces my private judgment most of this truth , is , that the noblest souls , and the sharpest sighted , do , of all others , most desire the state of separation , and have the weakest attaches to this life ; which must doubtless proceed from an assurance of immortality , and that it hath , from the pisgah of its contemplation , got a view of the spiritual canoan : for , seing the brutishest of creatures abhors annihilation , as the most aversable ill in nature , doubtless the soul of man , which is the most divine of all creatures , would never appete this separation , if by it it were to be extinct , and to be no more . and how absurd were it to believe , that man's soul should be made after god's image , and yet conclude it mortal , a quality repugnant to any thing that is divine ? as also , how can the soul be thought to perish with the body , seing these accidents which destroy the body cannot reach it ? how can the heat of a feaver burn , or rheums drown , that which is not corporeal and cannot be touched ? and , seing man's least peccadilio against god almighty , is against one who is infinit , were it not absurd to think , that it could be proportionally punished in the swift glass of man's short life ? then which , nothing is more finit , or sooner finished . as the soul is god's image , so it's products are the images of his admirable operations . do not mathematicians creat eagles , doves , and such like automata's ? and spring not flowers from the chimists glasses ? and thus art , which is man's offspring , doth ape nature , which is the workmanship of the almighty : and therefore , seing the soul can with one thought grasp both the poles , can dart out it's conceits as far as the furdest borders of the imaginary spaces , creat worlds , and order , and disorder , all that is in this which is already created ; it 's strange to think it to be either corporeal or mortal : for , if it were corporeal and a mass of blood , it's actings would be lent and dull , neither could it's motions be so nimble and winged , as are these of our agile spirits . it were impossible for our narrow heads , to inn all these innumerable idea's ( which are now in them ) if these were all corporeal , and if these be not corporeal , that which produces them most be doubtless incorporeal , seing simile generatur à simili ; and dull flesh and blood could never produce such spiritual emanations . as the soul is god's image , so in this it resembles him very much , that we can know nothing of it's nature without it's own assistance : like a dark lanthron , or a spy , it discovers every thing to us , except it self . and because it refuses us the light of it's candle , whilst we are in the quest of it's mysteries ; therefore it is , that our re-searches of it's nature are gropeings in the dark : and so ofttimes vain , if not ridiculous . avicenna , averroes , and the remanent of that arabian tribe , admiring it's prodigious effects , did attribute our spiritual motions to assisting angels ; as if such admirable notions could not be fathered upon less sublime causes ; which cardan likewayes thinks , do offer their assistance and light to sensitive creatures , but that the churlishness of their mater will not suffer them to entertain such pure irradiations . this disparages so much humanity , making man only a statue , that it were against the soul's interest to admit of any such idea's : for , as it tends more to the artists praise to cause his products move from hid and internall springs , then from extrinsick causes ; as we see in watches and such like . so it is more for the honour of that great artist , and more suteable to the being and nature of his creatures , that all it's operations flow from it self , then from assisting but exteriour co-adjutors ▪ which makes me averse from aristotle's opinion of the motion of the spheres by intelligences . and it were absurd to think , that men should be blamed or praised for those effects which their assessour angels could only be charged with . the platonicks alleaged , that all souls existed before their incarceration in bodies ▪ iin which state of pre-existence , they were doted with all these spiritual endowments , which shall attend them in the state of separation : and that at their first allyance with bodies , their native knowledge , was clouded , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , with the putting off knowledge for a time , till , by a reminiscentia , their intellectuals revived , as by a resurrection . and origen added , that these souls were , according to their escapes , committed in the state of their primitive separation , yoaked with better or worse bodies ; a shift taken , in all probability , by him , to evite the apprehension of god's being injust , for nfusing innocent souls , in bodies which would infect them ; and by drawing them in inevitable snares , at last condemn them , or at least their infusion was the imprisoning these who were not guilty ; a difficulty which straits much , such as maintain that the soul is not ex traduce . what the hazard of this opinion may be , my twilight is not able to discover . it may be , that the stoicks mistake in making the souls of men to be but parcels , decerpt from that universal anima mundi ( by which they doubtless meant god himself ) was occasioned by a mistake of that text , that god breathed into man's nostrils , the breath of life : concluding , that as the breath is a part of the body which breathed it , so the soul behoved to be a part of that divine essence , from which , by a second consequence , they concluded , that the soul , being a part of that divine beeing , could not suffer , nor undergo any torments ; as is asserted by seneca , epist. . cicero , tusc. . and defended by their successors , these primitive hereticks , the gnosticks , manichees and priscillianists . but this bastard is not worth the fostering , being an opinion that god hath parts , and man real divinity , and is doubtless a false and flattering testimony given by the soul to it self : for , seing the soul is , by divine oracles , told us to be made after god's image , it can be no more called a part of god , then the picture should be repute a part of the painter . aristotle ( like the devil ( who because he knows not what to answer , answers ever in engines ) tells us , that anima is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a terme fitted to exercise the empty brains of curious pedants , and apter to beget , then explicat difficulties . neither believe i , that his three souls , which he lodges in man , to wit , the rational , sensitive and vegetative , do differ more amongst themselves , then the will , understanding and fancy differ from the two last ; so that his arithmetick might have bestowed five souls upon man , as well as three : but , seing he , and many of his disciples , believe these to be three and yet these three to be but one ; i admire why they should be so nice , as not to believe that pious mystery of the holy trinity : whereof in my opinion , his trinity of the soul is as apposit an emblem , as was the conceit of a simple clown , who being askt , how he could apprehend the three glorious persons to be but one ? did fold his garment in three plates , and thereafter drew out all the three in one ▪ as the herauldrie of our reason cannot blazen the souls impressa ; so can it not help us to line out it's descent : and such would appear to be the excellency of that noble creature , that heaven and earth seem to contend , the which shall be the place of it's nativity . divines ( who are obliged to contend for heaven , because they are it 's more immediat pensioners ) will have it to be created and infused : whereas philosophers ( ambitious to have so noble a compatriot , and willing to gratifie nature , which aliments their sublime meditations ) contend , that it is ex traduce , and is in generation , the bodies other twinne . and albeit it would appear from scripture , that god accomplish'd the creation the first seven dayes , and that nature did then pass child-bearing : yet , that , in my judgment , must be meant of the creation of whole species , and not of individuals , and to press the souls not traduction ; i shall lend only one argument , not because it is the best , but because it is my own . we see , that there where the soul is confess'd to be ex traduce , as in bruits and vegetative creatures , that nature , as it were , with a pencil , copies the young from off the old . the young lyons are still as rapacious and roaring as were their syers , from whose loyns they descended : and the rose being pous'd up by the salt nitre which makes it vegetative , spreads the same leaves , and appears with the same blushes or paleness that beautified it's eye-pleasing predecessors . the reason of which continual assimulation , preceeds from the seeds , having in it's bosome , all these qualities and shapes , which appear thereafter in it's larger products , whereof they were but a mappe or index . whereas man resembles never , at least not oft , these who are called his parents ; the vitious and tall father , having oft low , but vertuous children ; which shows , that the soul of man is not derived by generation , and that the soul bestowed upon the son's body , is most different and assymbolick to that which lodged in the father . and this may be further confirmed by that excellent passage , prov. . , where it is said , that the understanding of man is the candle of the lord. our soul is god's image , and none can draw that image but himself ; we are the stamp of his divine nature , and so can only be formed by himself , who is the glorious seal . from this divine principle , that man's soul is made after god's image , i am almost induced to believe , that prophesie is no miraculous gift bestowed upon the soul at extraordinary occasions only , but is a natural ( though the highest ) perfection of our humane nature : for , if it be natural for the stamp , to have impress'd upon it all the traits that dwell upon the face of the seal , then it must be natural to the soul , which is god's impressa , to have a faculty of foreseeing , since that is one of god's excellencies . albeit i confess , that that stamp is here infinitly be-dimm'd and worn off ; as also , we know by experience , that men upon death bed , when the soul begins ( being detached by sickness from the bodies slavery ) to act like it self , do foresee and foretell many remote and improbable events : and for the same reason do i think predictions , by dreams , not to be extraordinary revelations , but rather the products natural of a rational soul. and if sagacious men can be so sharp-sighted in this state of glimmering , as to foresee many events which fall out , why may we not say , that man , if he were rehabilitat in the former state of pure nature , might , without any extraordinary assistance , foresee and prophesie ? for , there is not such a distance betwixt that foresight and prophesie , as is betwixt the two states of innocency and corruption , according to the received notion , which men have settled to themselves of that primitive state of innocency . from the same principle , may it likewayes be deduced , that natural reason cannot but be an excellent mean , for knowing , as far as is possiible , the glorious nature of god almighty : he hath doubtless lighted this candle , that we might , by it , see himself ; and how can we better know the seal , then by looking upon it's impression . and if religion and it's mysteries , cannot be comprehended by reason ▪ i confess it is a pretty jest , to hear such frequent reasonings amongst church-men , in matters of religion . and albeit faith and reason be look'd upon as iacob and esau , whereof the younger only hath the blessings , and are , by divines , placed at the two opposit points of the diameter ; yet , upon an unbyassed inquiry , it will appear , that faith is but sublimated reason , calcin'd by that divine chymical fire of baptisme ; and that the soul of man hath lurking in it , all these vertues and faculties which we call theological ; such as faith , hope and repentance : for else david would not have prayed , enlighten , lord , my eyes , that i may see the wonders of thy law ; but rather , lord bestow new eyes upon me . neither could the opening of lidea's heart , have been sufficient for her conversion , if these pre-existing qualities had not been treasur'd up there formerly : so that it would appear , that these holy flames lurk under the ashes of corruption , untill god , by the breath of his spirit ( and that wind which bloweth where it listeth ) sweep them off : and that god , having once made man perfect in the first creation , doth not in his regeneration super-add any new faculty ( for else the soul had not at first been perfect ) but only removes all obstructing impediments . i am alwayes ashamed , when i hear reason call'd the step-mother of faith , and proclaimed rebel against god almighty , and such declared traitors , as dare harbour it , or appear in it's defence . these are such fools as they who break their prospects , because they bring not home to their sight the remotest objects ; and are as injust as iacob had been , if he had divorc'd from leah , because she was tender-eyed : whereas , we should not put out the eyes of our understanding , but should beg from god the eye-salve of his spirit for their illumination . nor should we dash the prospect of our reason , against the rockie walls of dispair ; but should rather wash it's glasses with the tears of unfeigned repentance . ever since faith and reason have been , by divines , set by the ears , the brutish multitude conclude , these who are most reasonable to be least religious ; and the greatest spirits to be least spiritual : a conceit most inconsistent with that divine parable , wherein these who received the many talents improved them to the best advantage , whilst he who had but one laid it up in a napkin . and it is most improbable , that god would choose low shrubs , and not tall cedars , for the building of his glorious temple . and it is remarkable , that god , in the old law , refused to accept the first born of an asse in sacrifice , but not of any other creature . and some , who were content to be call'd atheists , providing they were thought wits , did take advantage in this of the rables ignorance , and authorized by their devilish invention , what was at first but a mistake : and this unridles to us that mystery , why the greatest wits are most frequently the greatest atheists . when i consider , how the angels , who have no bodies , sinn'd before man ; and that brutes , who are all body , sin not at all , but follow the pure dictates of nature . i am induced to believe , that the body is rather injustly bamed for being , then that really it is , the occasion of sin ; and probably , the witty soul hath in this , cunningly laid over upon it's fellow , that where with it self is only to be charged . what influence can flesh or blood have upon that which is immaterial , no more sure then the case hath upon the watch , or the heavens upon it's burgessing angels ? and see we not , that when the soul hath bid the body adieu , it remains a carcasse , fit nor able for nothing . i believe , that the body being a clog to it , m●y slow it's pursute after spiritual obiects , and that it may occasion , indirectly , some sins of omission : for , we see palpably , that eating and drinking dulls our devotions ; but , i can never understand , how such dumb orators , as flesh and blood , can perswade the soul to commit the least sin . and thus , albeit our saviour sayes , that flesh and blood did not teach peter to give him his true epithets ; neither indeed could it : yet , our saviour imputes not any actual sin to these pithless causes . and seing our first sin hath occasioned all our after sinning , certainly , that which occasioned our first sin was the main source of sinning , and this was doubtless the soul ; for , our first sin being an immoderat desire of knowledge , was the effect and product of our spirit , because it was a spiritual sin ; whereas if it had been gluttony , lust or such like , which seems corporeal , the body had been more to have been blamed for it . and in this contest , i am of opinion , that the soul wins the cause , because it is the best orator . what was the occasion of the first ill , is much debated ( and most deservedly ) amongst moralists ; for , that which was good could not produce that which was evil , seing that which works mischief cannot be called good . nor can we ascribe the efficiency of the first evil to evil ▪ for then the question recurres , what was the cause of that evil ? and by this , the supposition is likewise destroyed , whereby the evil enquired after , is supposed to be the first evil : but , if we enquire , what could produce in the angels that first sin , whereby they forfeited their glory ? we will find this disquisition most mysterious . and it is commonly believ'd , but by what revelation i know not , that their pride caus'd their fall ; and that they carcht their bruise in climbing , in desiring to be equal to their creator , they are become inferior to all their fellow creatures . yet , this seems to me most strange , that these excellent spirits whose very substance was light , and who surpassed far , man , in capacity and understanding , should have so err'd as to imagine , that equality fa●sable , a fancy which the fondest of men could not have entertained . and it were improbable to say , that their error could have sprouted at first from their understandnging ; and to think it to have been so gross , as that fallen man doth now admire it : but , why may we not rather think , that their first error was rather a crookedness in their will , then a blindness in their judgment ▪ and that they fretted to see man , whom they knew to be inferiour to themselves by many stages , made lord of all that pleasant creation , which they gazed on with a stareing maze . and that this opinion is more probable , appears , because this sin was the far more bating , seing it appeared with all the charmes , wherewith either pride , vanity or avarice could busk it ; and explicats better to us the occasion of all that enmity with which that serpent hath alwayes since pursued silly man : but , whither god will save just as many believers as there fell of the angels , none can determine ; neither can it be rationally deduced from that scripture , statuit terminos gentium , juxta nu●erum angelorum dei. but , if it please god so to order it , it will doubtless aggrage their punishment , by rackling their disdain . and seing the angels have never obtained a remission for this crime , it is probable , that the correspondent of their sin is , in us , the sin against the holy ghost . for , if their lapse had been pardonable , some one or other of them had in all probability escap'd ; but , if this was not that unpardonable sin , i scarce see where it shall be found . for , to say that it is a hateing of god , as god , is to make it unpracticable rather then unpardonable : for , all creatures appete naturally what is good , and god , as god , is good ; so that it is impossible that he can be hated under that reduplication . it may be likewise conjectured , that voluntar and deliberate sacriledge is the sin against the holy ghost ; because ananias and saphira , in with-holding from the church , a part of the price for which they sold their lands , are , by peter , said to have lied , not to man , but to the holy ghost ; and his wife is there said to have tempted the spirit : but , seing both of them resolved to continue in the church ( a resolution inconsistent with the sin against the holy ghost ) and seing many sins are more heinous , i cannot interpret this lying to the holy ghost to be any thing else , but a sin against light , in which most penitents have been involved ; albeit , i confess , this was a gross escape , seing it rob'd god of his omnisciency , and supposed that he was not privy to such humane actings as have not the sun for a witness . i do then conclude , that the sin against the holy ghost may rather be a resolute undervaluing of god , and a scorning to receive a pardon from him : and this is that which makes the angels fall irrecoverable , and like the flaming sword , defends them from their re-entry into that paradise from which they exile . and albeit to say , that the angels rebellion flows from god's denying them repentance , may suit abundantly well with his unstainable justice ; yet , it is hard to reconcile it with his mercy . and this makes my private judgment place the unpardonableness of this sin , not in god's decree , but in their obduration and rebellious impenitency : and the reason why these who commit this sin are never pardoned , is , because a pardon is never sought . that place of scripture , wherein esau is said to have sought the blessing with tears and not to have found it , astonishes me : yet , i believe , that if his tears had streamed from a sense of his guilt more then of his punishment , doubtless he had not weept in vain ; and in that he tear'd , he was no more to be pitied , far less pardoned , then a malefactor , who , upon the scaffold , grants some few tears to the importunity of his tortutes , but scornes to acknowledge the guilt of his crime : for , pain , by contracting our bodies , strains out that liquid mater , which thereafter globs it self in tears : there could ●ome no holy water from the pagan font of esaw's eyes ; and if his remorse could have pierc'd his own heart , it had easily pierc'd heaven . whilst others admire , i bless god , that he hath closed up the knowledge of that unpardonable sin under his own privy seal : for , seing sathan tempts me to sin with the hopes of an after-pardon , this bait is pull'd off his hook , by the fear i stand under , that the sin to which i am tempted , is that sin which can expect no pardon . and albeit it be customary amongst men , to beacon and set a mark upon such shelves and rocks as destroy passengers ; yet , that is only done where commerce is allowed and sailing necessar : but , seing all sin is forbidden , god was not obliged to guard us with the knowledge of that sin , no further then by prohibiting us not to sin , but to stand in awe . that first sin whereby our first parents forfeited their primitive excellencies , was so pitifull a frailty , that i think we should rather lament , then enquire after it . to think that an aple had in it the seeds of all knowledge , or that it could assimulate him to his creator , and could , in an instant , sublimate his nature , was a frailty to be admired in one of his piety and knowledge . yet , i admire not that the breach of so mean a precept was punish'd with such appearing rigor , because , the easier the command was , the contempt was proportionally the greater ; and the first crimes are by legislators punished , not only for guilt , but for example : but , i rather admire what could perswade the facile world to believe , that adam was created , not only innocent , but even stored with all humane knowledge : for , besides that , we have no warrand from scripture for this alleadgiance , this his easie escape speaketh far otherwayes . and albeit the scripture tells us , that man was created perfect ; yet , that inferres not that man was furnished with all humane knowledge : for , his perfection consisted in his adoring of , and depending upon , god , wherein we see these are exactest , whose judgements are least pestered with terrestrial knowledge , and least diverted with unnecessar speculations . and thus it appears , that these sciences , after which his posterity pants , were not intended as noble appanages of the rational soul , but are rather toyish babies busk't up by fal'n man , whereby he diverts himself from reflecting too narrowly upon his native frailty . and thus scripture tells us , that god made man perfect , but that he sought out to himself many inventions , where perfection and invention seem to be stated as enemies ; and it is palpable , that these sciences , which are by us lawrel'd and rewarded , are such , as were inconsistent with that state of innocency , such as law , theology and physick . and as for the rest , it is absur'd to think , that adams happiness did consist in the knowledge of these things which we our selves account either impertinent or superfluous . but , that which convinces me most of this , is , that we forfeited nothing by adam's fall which christ's death restores not to us ; wherefore , seing christ by his own , or his apostles promises , hath not assured us of any sub-lunary or school knowledge ; nor hath our experience taught us , that sciences are entailed upon the saints , i almost believe , that adam neither possest these before , nor yet lost them by his fall . neither think i st. paul the more imperfect , that he desired to know nothing but christ and him crucified : so that the difference betwixt adam and his successors , stood more in the straightness of his affections , then in the depth of his knowledge . for , albeit it be believed , that the names whereby he baptised the creature , were full histories of their natures written in short hand ; yet , this is but a conjecture authorized by no holy text. it is a more civil error in the jewish talmudists , to think that all the creatures were brought to adam , to let him see that there were none amongst them fit to be his companion , nor none so beautifull as eve , then it is in their cabalists to observe , that the hebrew word , signifying man , doth , by a transposition of letters , signifie likewayes , benediction , and the word signifying woman , makes up malediction . if we should take a character of adam's knowledge from the scriptures , we shall find more imprudence charged upon him then upon any of his successors : for , albeit the silly woman was not deceived without the help of subtilty ; yet , adam sinned upon a bare suggestion , and thereafter was so simple , as to hide himself when god called him to an account , as if a thicket of trees could have sconced him from his all-seeing maker ; and when he was accused , was so simple , as to think his wives commands sufficient to exoner him , and so absurd , as to make god himself sharer with him in his guilt , the woman whom thou gavest me , &c. there is more charm in acquireing new knowledge , then in reflecting upon what we have already gain'd , ( as if the species of known objects did corrupt , by being treasur'd up in our brains ) and this induces me to believe , that our scantness of native knowledge , is rather a happiness then a punishment ; the citizens of london or paris are not so tickled by the sight of these stately cities , as strangers who were not born within their walls , and i may say to such , as by spelling the starres desire to read the fortunes of others , as our saviour said to peter , when he was desirous to know the horoscope of the beloved apostle , what is that to thee ? what can it advantage us to know the correspondence kept amongst the planets , and to understand the whole anatomy of natures skeleton ; in gazing upon whose parts , we are oft times as ridiculous as children , who love to leaf over taliduce pictures ; for in both variety is all the usury that can be expected , as the return of our time and pains ; and if we pry inly into this small ma●s of our present knowledge , we shall find , that our knowledge is one of the fertilest fountains of our misery : for , do not such as know that they are sick , groan more heavily then a countrey clown , who apprehends nothing till extremity creat in him some sense ? and doubtless the reason why children and idiots endure more , and drunken men escape mo dangers then others , is , because albeit they cannot provide such apt remedies , yet , they are less acquainted with what they feel then we are . are not these who understand that they are affronted , more vex'd then such as are ignorant of these misfortunes ? and these who foresee the changes and revolutions , which are to befall either their friends or their countries , are thereby more sadly diseased , then he who sees no further then his nose ? our saviour wept when he did foresee , that one stone of ierusalem should not be left upon another ; and when hazael askt elisha why he wept , he told him , it was because he did foresee what mischief hazael was to do in israel . let us not then complain of the loss of adam's knowledge , but of his innocency ; we know enough to save us , and what is more then that , is superfluous . adam cannot be thought to have been the first sinner , for eve sinned before him ; so that albeit it seem a paradox , yet it is most probable , that albeit adam had for ever abstained from eating the forbidden fruit , his posterity had been still as miserable as now they are ; seing the guilt of either of the parents had been sufficient to tash the innocency of the children . for , as the scripture tells us , who can bring a clean thing out of an unclean ? and david , in that text , which of all others speaks most expressly of original sin , layes the guilt upon her and confesseth only , that his mother had conceived him in sin . as adam was not the first sinner , so the eating of the aple may be justly thought not to be the first sin ; eve having , before his eating the aple , repeated most falsely the command : for , whereas god did assure them , that in that day they did eat the fruit , they should surely die , eve relates it thus , ye shall not eat the fruit , least ye die , representing only that as contingent which was most certain : and whereas god had only said , ye shall not eat of the fruit of the tree , eve sayes , god said , ye shall not touch it ; which it may be furnish'd the serpent this argument to cheat her , ye see god hath deceived you , for the fruit may be touched without danger , why may it not then be eaten without hazard ? and it is probable , that he hath failed in the one as well as in the other . but to abstract from this , it cannot be said , that the eating of the forbidden fruit was the first sin ; for , before adam did eat thereof , he behoved both to believe the serpent and mis-believe his maker , and thus mis-belief was the first sin : for , after he had credited the serpents report , he was no longer innocent , and so he did not eat the aple till after his fall . what wiser are these divines , who debate , whither adams falling-sickness and sin had become heriditarie , if our predecessors had come out of his loins before he sin'd , then these who combated for the largest share of the king of spains gold , if it had been to be devided ? in the almighties procedure against poor adam for this crime , his infinite mercy appears to admiration ; and god foreseeing , that man might sharpen the ax of justice too much upon the whet-stone of private revenge , seems to have , in this process , formed to him , an exact model of inquisition . for , he arraigns and cites adam , adam , where art thou ? he shews him his dittay , hast thou eat of the fruit whereof i commanded thee that thou shouldst not eat ? he allows him exculpation , who told thee ? and in order thereto , did examine the woman , upon whom adam did transfer the guilt . and albeit nothing could escape his omnisciency , and that he did see adam eat the aple , yet , to teach judges that they should walk according to what is proven , and not according to what they are themselves conscious to , he did not condemn him till first he should have a confession from his own mouth . and thus , gen. . . the lord sayes ▪ because the cry of sodom is great — i will go down and see whether they have done altogether according to the cry of it , &c. and in the last place , albeit the fatal decree did bear , in that day that thou eatest thereof , thou shalt surely die , yet , were his dayes prolonged a hundred and thirty years after the sin was committed . it is too curious a disquisition to enquire how god can be said to be mercifull , mercy being the mitigation of justice , of which his pure nature cannot be capable , seing whatever he wills is just : and so he cannot be thought in any thing which he wills to recede from justice , and so can no more properly be said to be mercifull , then one act can be both the law and the mitigation of the law. but i will press no point of this nature , knowing that humble modesty is the best theology . the vatican of paganism cannot , for the male-ness of it's stile , match that matchless book of genesis , whereof each sentence seems a quarry of rich meditations , and each word a spell , sufficient to conjure the devil of delphos . might not that excellent expression , let us make man after our image , convince any of the being of a trinity , who deny plurality of gods. it is wonderfull , that the saturn-humour'd jew can , in this passage , mis-take his own saviour ; and it is strange that he should not , from the triangular architecture of his own heart , conclude the trinity of the god-head , whose temple it was appointed to be . albeit i be an admirer of this nurse of cabalism ; yet , i approve not the conceit of these doting rabbies , who teach , that god from his own mouth , dited both the words and mater of the pentateuch ; whereas , he furnish'd only to the other prophets the mater and subject unphrased : for , not only did god promise , that he should put his words in their mouths , but likewayes , they preface thus their own prophesies , in the dayes of such a king , the word of the lord came to such a prophet , saying , &c. neither is this conceit consistent with that high esteem , which they , ( even in this ) intend for their patron , moses ; seing it allows him less trust from his divine master , then the other pen-men of scripture had reposed in them . that brain hath too little pia mater , that is too curious to know why god , who evidences so great a desire to save poor man , and is so powerfull , as that his salvation needed never have run the hazard , if his infinit wisdom had so decree'd , did yet suffer him to fall : for , if we enter once the lists of that debate , our reason is too weak to bear the burden of so great a difficulty . and albeit it may be answered , that god might have restrained man , but that restraint did not stand with the freedom of mans will which god had bestowed upon him ; yet , this answer stops not the mouth of the difficulty . for certainly , if one should detain a mad man from running over a precipice , he could not be thereby said to have wronged his liberty : and seing man is by many divines allowed a freedom of will , albeit he must of necessity do what is evil , and that his freedom is salv'd by a liberty to choose only one of moe evils , it would appear strange why his liberty might not have consisted well enough with a moral impossibility of sinning , and might not have been abundantly conserved in his freedom to choose one of moe goods : yet , these reasonings are the calling god to an account , and so impious . for , if god had first created man , surrounded with our present infirmities , could we have complained ? why then should we now complain , seing we are but faln to a better estate then we deserved ; seing we stumbled not for want of light ▪ but because we extinguish'd our own light , and seing our saviours dying for us may yet re-instate us in a happier estate then that from which we are now faln . albeit the glass of my years hath not yet turn'd five and twenty , yet the curiosity i have to know the different limbo's of departed souls and to view the card of the region of death , would give me abundance of courage to encounter this king of terrors , though i were a pagan : but , when i consider what joyes are prepared for them who fear the almighty , and what craziness attends such as sleep in methuselams cradle , i pity them who make long-life one of the oftest repeated petitions of their pater noster ; and yet these sure are the more advanc'd in folly , who desire to have their names enshrin'd after death in the airy monument of fame : whereas it is one of the promises made to the elect , that they shall rest from their labours , and their works shall follow them . most mens mouths are so foul , that it is a punishment to be much in them : for my own part , i desire the same good offices from my good name that i do from my cloaths , which is to skreen me from the violence of exteriour accidents . as these criminals might be judg'd distracted , who being condemned to die , would spend their short reprival in disputing about the situation and fabrick of their gibbets ; so may i justly think these literati mad , who spend the short time allotted them for repentance , in debating about the seat of hell , and the torments of tortur'd spirits . to satisfie my curiositie , i was once resolv'd , with the platonick , to take the promise of some dying friend , that he should return and satisfie me in all my private doubts concerning hell and heaven ; yet i was justly afraid , that he might have return'd me the same answer which abraham return'd to dives , have they not moses and the prophets ? if they hear not them , wherefore will they be perswaded though one should rise from the dead ? the millenar's ephimerides , which assures us , that christ shall reign a thousand years with the saints on earth , is as sensual an opinion as that of the turks , who make heaven a bordell , wherein we shall satisfie our venerious appetites ; for the one shews the vain glory and vindictive humour of the saints , as palpably as the other shews the lust of the mahumetans . if christs reigning som any years be for convincing the world that he is the real messiah , their heresie should have ante-dated his coming ; and his reign should rather have begun long since , when many ages were to be converted , or at least it should not have been thrust out upon the selvage and border of time , when very few shall remain to be convinc'd : and if in this they intend a displaying of christs glory , certainly they are mistaken ; for what honour can it be for a king , to have his footstool made his throne ? so that i think , these poor phanaticks have taken the patronage of this error rather by necessity then choice , all other opinions and conceits being formerly pre-ingaged to other authors . as i am not able , by the iacobsladder of my merits , to scale heaven , so am i less able , by the iacobs-staffe of my private ability , to take up the true altitude of its mysteries . i have travell'd no further in theology then a sabbath-dayes journey ; and therefore , it were arrogance in me to offer a map of it to the credulous world : but , if i were worthy to be consulted in these spiritual securities , i should advise every private christian , rather to stay still in the barge of the church with the other disciples , then by an ill bridled zeal , to hazard drowning alone with peter , by offering to walk upon the unstable surface of his own fleeting and water-weak fancies , though with a pious resolution to meet our saviour . for , albeit one may be a real christian , and yet differ from the church , which sayes , that the wise men who come to bow before our saviours cradle-throne , were three kings , and in such other opinions as these , wherein the fundamentals of faith and quiet of the church are no wayes concerned ; yet certainly , he were no wise man himself , nor yet sound christian , who would not even in these bow the flag of his private opinion to the commands of the church . the church is our mother , and therefore we should wed no opinion without her consent who is our parent ; or if we have rashly wedded any , it is in the power of the church and her officials to grant us a divorce . as for my self , my vanity never prompted me to be standard-bearer to any , either new sect , or old heresie ; and i pity such as love to live like pewkeepers in the house of god , busied in seating others , without ever providing a room for themselves . if there be any thing in this discourse which may offend such as are really pious , it shall much grieve me , who above all men honours them most . what i have spoken against cases of conscience and the like , strikes not against their christian fellowship and correspondence , but against the apish fopperies of prentending counterfeits . it shall alwayes be my endeavour for the future , rather to drop tears for my own sins and the sins of others , then yrk for their conversion : our prayers help such as never heard them , whereas these only who read our discourses are better'd by them . abrahams prayers prevailed more with god ( even for sodom ) then lot's re-iterated sermons ; and no wonder that the success be unequal , seing in the one we have to do with a mercifull god , whereas in the other we must perswade a hard-hearted people . i intend not to purchase from posterity the title of reformer , seing most of these have faln under the same guilt ; and have had the same fate , with that curious painter , who having drawn an excellent face , as happily as could have been expected from the smoothest mirrour , did thereafter dash it afresh upon the suggestion of each intrant , till at last he reformed it from being any way like to the original . divinity differs in this from all other sciences , that these being invented by mortals , receive growth from time and experience ; whereas , it being penn'd by the omniscient spirit of god , can receive no addition without receiving prejudice . it is most remarkable , that our saviours prayers , his sermons and the creed , delivered to us by his apostles , were roomed up in farr narrower bounds then these of our times , which an hidropsie of ill concocted opinions hath swell'd beyond their true dimensions : many whereof have either been brooded by vanity or interest ; or else ignorant and violent defendents being brought to a bay , by such as impugn'd their resolv'd-upon principles , have been forc'd to assert these by-blow and preter-intentional tenets ; and having once floored them , have thereafter judg'd themselves concerned to defend them , in point of scholastick honour . some well-meaning christians likewayes , do sometimes , for maintenance of what is lawfull and pious , think , that they may lawfully advance opinions , which otherwayes they would never have allowed of ; and as in nature we see , that the collision of two hard bodies makes them rebound so much the further from one another , so opposition makes both parties fly into extremeties . thus i believe , that the debates betwixt roman-catholicks and protestants , concerning the virgin mary , have occasion'd , in some amongst both , expressions , if not hereticall , yet aleast undecent . thus a great many confessions of faith become , like noahs ark , a receptacle of clean and unclean : and which is also deplorable , they do , like ordinar dyals , serve only for use in that one meridian for which they are calculated , and by riding twenty miles ye make them heterodox . i speak not this to the disparagement of our own church , ( which i reverence in all it's precepts and practices ▪ ) but to beget a blushing conviction in such as have diverted from it ; and whose conventicles , compared with our ierusalem , resemble only the removed huts of these who live a part , because they are sick of the plague . i am not at a maze , to see men so tenacious of contrary principles in religion ; for , man's thoughts being vast and various , he snatches at every offered suggestion , and if by accident he entertain any of these many , as a divine immission , he thereafter thinks it were blasphemy to bring that thought to the test of reason , because he hears that faith is above reason , or to relinquish it , because the common suffrage of his country runs it counter , seing he is taught even by them , that the principles of belief must not be chosen by the pole. and seing faith is above reason , ( albeit , as i said formerly , it would seem otherwise ) i wonder not to see even the best temper'd christians , think that which is not their own religion to be therefore ridiculous . my design all alongst this discourse , butts at this one principle , that speculations in religion are not so necessary , and are more dangerous then sincere practice . it is in religion as in herauldry , the simpler the bearing be , it is so much the purer and the ancienter . i will not say that our school-distinctions are the impressions of the devils cloven foot ; but i may say , that our piety and principles scarce ever grow after they begin to fork in such dichotomies ; which , like iacob and esau , divide and jar as soon as they are born : and betwixt whom , the poor proposition , out of which both did spring , is like a malefactor , most lamentably drag'd to pieces . i have endeavoured to demonstrat , that dogmaticalness and paralitick scepticisme , are but the apocrypha of true religion ; and i believe the one begets the other , as a toad begets a cockatrice : for the sceptick perceiving , that the magisterial dogmatist erres ( as these must erre somewhere who assert too much ) even in these things whereof he affirms , he is as sure , as of any principle in religion , ( which is their ordinary stile ) he finding out their error in one of their principles , is thereby emboldned to contravert all . this being the scope of this essay . i wish that these who read it would expound it as divines do parables , quae non sunt argumentativa ultra suum scopum . i doubt not but some will think me no less absurd in writing against vanity , whilst i am so vain my self as to write books , then the philosophers were judged of old , for denying motion whilst their tongues mov'd in their cheek ; but , to these my answer shall be , that finding many grovelling in their errors , i have , in this essay , proffer'd them my assistance , not to shew my strength but my compassion . the multitude ( which albeit it hath ever been allowed many heads , yet was never allowed any brains ) will doubtless accuse my studies of adultery , for hugging contemplations so excentrick to my employment ; to these my return is , that these papers are but the pairings of my other studies , and because they were but pairings , i have flung them out into the streets . i wrote them in my retirements when i wanted both books and employment , and i resolve that this shall be the last inroad i shall ever make into forreign contemplations . there are some thoughts in this peece which may seem to rebell against the empire of the schools ; yet , who knows but my watch goes right , albeit it agree not with the publick clock of the city , especially where the sun of righteousness hath not , by pointing clearly the dyal of faith , shewed which of the two are in the error . there are some expressions in it , which censure may force to speak otherwayes then they have in commission ; yet none of them got room in this discourse , untill they first gave an account of their design to a most pious and learned divine : and so , it may be the lines are of themselves streight , albeit they lye not parallel with each censurers crooked rule . as this discourse intends , for the divines of our church , all respect ; so all that is in it , is most freely submitted to their censure . the author intended this discourse only as an introduction to the stoicks morals , but probably , he will , for many years , stop here . errata . blurres in the copy and the authors absence occasioned these errata's , which must be helped before reading , seing they destroy both the sense and soundness of the discourse . in the preface , p. . l. . for prophet , read iehouadab : p. . f. taps r. tops . p. . l. . add some before episcopists and presbyterians . p. . l. . f. all r. almost all . in the book , p. . l. . f. hath no , r. seems to have no. p. ● . l. . f. is but a conceit , r. seems but a conceit . p. . l. . f. continual r. extraordinar . p. . l. . f. triumphant , r. militant . p. . l. . f. ever any , r. few have . p. . l. . f. excrementilius , r. excrementitius . p. . l. . f. an allegory , etc. r. that there run many hid allegories from genesis to johns revelations , wherein the mystical sense deserves likewayes the name of gods word . p. . l. . add , yet this is but a sophisme ; for , seing our bodies are the temples of the holy ghost , we can no more bestow them upon such uses , then a church-warden can give the use of the church to taverners , p. . l. . f. thundered from mount sinai , r. delivered in almost one context with that law which was thundred from mount sinai . p. . l. . f. an unbyassed enquiry it will appear , r. upon an superficial enquiry it would appear . by the laws of his countrey , p. . and elsewhere , the author means , that religion which is setled by law. in other expressions , the author recommends himself to the gloss of the readers charity . finis notes, typically marginal, from the original text notes for div a -e atheisme . superstition . why the world was created . eternity . providence . theology . the strictness of churches . the scrip tures . the moral law. the judicial law. monsters . man & his creation . the immortality of the soul. faith and reason the fall of angels . the sin of the angels was the sin against the holy ghost man's fall . the stile of genesis . why man fell . the millenaries refuted . the authors censure of this essay , and an account of his design his apology . notes for div a -e ☞ reason an essay / by sir george mackenzie. mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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[ ], - p. printed for jacob tonson ..., london : . first edition. dedicated to the honourable robert boyl, esquire. reproduction of original in bodleian library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng reason. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - emma (leeson) huber sampled and proofread - emma (leeson) huber text and markup reviewed and edited - pfs batch review (qc) and xml conversion reason . an essay . by sir george mackenzie . london , printed for iacob tonson at the iudges head in chancery-lane near fleetstreet . . for the honourable robert boyl , esquire . i know nothing ( sir ) more inconsistent with right reason , or which deserves more to be reform'd amongst learned men , than their way of dedicating books : and that we may the better understand what ought to be done in this age , let us look back into what was done by the antients . the poets did indeed invoke their gods or the muses in the beginning of their works , but that was rather to obtain their assistance , than to bestow upon them panegyricks ; but their praising the gods was a safe subject in which they could not exceed : and therefore , though these invocations were the first occasion of writing dedications to mortals , yet flattery in this made them mistake their model so far , that at last some of the poets did likewise invoke the assistance of their emperours , as if they had been gods as well as patrons . others of the poets did very antiently dedicate their works to men also , as hesiod who was older than homer , dedicates or rather addresses his first poem to perses ; but 't is very observable , that he and others in such like addresses rather excite the persons to whom they address to vertue and glory , than magnify them for having attain'd to the perfection of either or both . yet some of these poets have left us dedications so excellent , that they are as little to be imitated as censur'd , such as : hor. epist. . lib. . cum tot sustineas & tanta negocia solus : res italas armis tuteris : moribus ornes : legibus emendes : in publica commoda peccem , si longo sermone morer tua tempora , caesar. and others of them , such as virgil , end their poems with very decent and delicate complements , as that which closes the th book of his georgicks , haec super arvorum cultu pecorumque canebam , et super arboribus : caesar dum magnus ad altum fulminat euphratem bel●o , victorque volentes per populos dat jura , viamque affectat olympo . which exceed , in my humble opinion , the fam'd and large dedications of grotius and causabon . it was usual amongst the modest antients , to address their books to such as they thought able to correct them , seeking rather advice than patronage : and thus plutarch tells us in the life of lucullus , that scylla having wrote an history , sent it to lucullus to be corrected ; and the greek word used there , seems to me to import only adlocutio . and i think that the antients have found protection and patronage even in those addresses wherein advice was sought for ; who durst have censur'd , as tully observes , what brutus or pomponius atticus approved ? some also prefixt modest prefaces , wherein they acknowledged the favours done them , and told the occasion of their writing , as vitruvius to augustus ; others did thereafter in imitation of the writers of tragedies and comedies , address themselves in a prologue , as valerius maximus to tiberius ; and this i think he did ▪ to give his fancy scope , as a poet , to praise with the latitude that poets take ; for that is the first debauch i find committed of this kind , for he could not have said greater things to a worse man. to shun which excess , some gave to their books the names of the muses , as herodotus ; or of men of great merit , as plato did in his socrates , or tully in laelius , &c. or else omitted all addresses , as thucidides , livy , salust , or at most extended not their addresses beyond a mere compellation , such as that in st. luke to theophilus , by which possibly may be meant any christian under this appellative name , rather than a particular patron or friend , as some books are now addressed to the christian reader , in imitation it may be of him ; for 't is observable that the church-men imitated this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , of st. luke , and thus origen dedicates his book against celsus , with this compellation , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : and eusebius names his patron 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . at last the word dedication was brought in by flattery , and books were dedicated to men in imitation of their dedicating temples , statues , and other things to the gods ; nor did this extravagant way of excessive praising ever appear till the world was under tiberius corrupted in all its morals . this depraved custom was also much heightned by the panegyricks , made by pliny to trajan , and by eusebius to the great constantine , who thought that they might more justly praise the good than others might impious emperours , tho' i am afraid the eloquence which charms us in those two discourses , shall never be able to account for the ill example they have given . my design in all this is to shew , that we can as little justify our flattery by the practice of the antients as by the principles of reason , by which they always regulated their eloquence ; and therefore it seems to me , that dedications should be brought back to the antient model , either of a naked compellation which satisfies abundantly friendship , or of acknowledging favours which satisfies gratitude , or of exciting the persons to whom we write , to deserve those praises which are now most unjustly bestow'd upon them , which is a christian duty . and i cannot but observe three very ill consequences which arise naturally and necessarily from our late dedications ; the first is , that they learn men to lye and flatter , and custom hath almost legitimated this crime , and made it a duty secondly , they have poison'd the very fountains of truth so far , that posterity can hardly distingnish betwixt those who have deserv'd well or ill , flattery thinking always fit to supply by its excessive praises , what is wanting in due merit ; and therefore by how much their patrons deserve ill , they praise so much the more , and the only mark of vertue in an author or merit in a patron now is , that there is no extraordinary thing said in any address to the one by ●he other ; for who can believe an author speaks truth in his book , who lyes and flatters in its very beginning ; or that a patron has any modesty or common sense , who suffers himself to be so imposed upon ? if the patron believe what the author says , he must be a fool ; and if he believes him not , he must think the author one ; and since they who lye improbably , are thought fools in all things else , why not in this too , in which they exceed the most romantick travellers , for they only would impose on us in things which we know not , but these in things wherein we cannot but discover them ? and i wonder why they do not as well praise the french king for having found out america , or for having vanquisht alexander the great , as for those things which they of late ascribe to him in their dedications . thirdly , our late dedications have really corrupted the eloquence of the age ; for whereas the true ornaments of eloquence are to be natural and decent in expressing our thoughts , these dedications have blown our style into a tympany , and have ruined it's natural beauty by fulsome and ill placed daubing paints : which made chrysippus , as laertius tells us , decry all dedications to kings and princes , lest they should entice men to flattery ; but this were to run from one excess to another . i design , sir , nothing in this essay , but to hold out a lanthorn to those who are ready to split on a rock ; and i wish rather that this may be one of the works that may follow me , than one of those that may bring me reputation : and i send this to you as lucullus did to scylla for correction ; or as cicero did to atticus , as a token of our friendship , and of my just esteem of your piety and learning . g. m. part i. how weakly men reason in matters of greatest importance . it may seem a bold undertaking in any man to owne right reason in this age , it being the declared enemy of our interests and inclinations , for it may possibly excite man to reflect upon what the world and himself does , and so inspire him with thoughts contrary to those which are generally received , and that is the only unpardonable errour . it may likewise seem ridiculous to think , that there is any common standard of reason amongst men , since that charms in one country , which is abhorred in others , and the very imaginary lines which divide kingdoms , seem likewise to divide their way of thinking , and to make a different geography in the reason which they adore , as well as in the earth on which they trample ; every age of the world has almost had a different way of reasoning , and every age in man suggests to him contrary thoughts , in the present he condemns what himself formerly admir'd : so little influence has it upon the best refin'd judicatures and assemblies , that the most infallible church-men , the most learned judges , and the most zealous patriots must trust to voting , because they cannot to reasoning , and they are by this likewise so often misled , that it may be expected men will one day agree to decide matters by the fewest votes , as the wiser have always told us , that votes are rather to be weighed , than numbred . it has often grieved me , that men could guess the decision and determination of any point to be debated , before they heard the reasons to be produced upon either side , and to hear them laugh at such as trusted to the solidity of the reasons they were to produce , being fully convinced that the point would be determined by interest , and not by reason . the inka of peru was much in the right , when he regreted , that his predecessors had not obliged him to worship a reasonable man ; yet his choice in this had been unsuccessful ; for it would have been as hard to have found him , except he had believed his priest , who had undoubtedly told him he was the man. and tho' i believe not that french physician who assures us , he found in his travels a nation that differed altogether from us in our way of reasoning , as if god design'd to shew mankind that his omnipotency is not tyed in this to any known measures ; yet i see , even amongst our selves , that conveniency ( the gentler name of avarice ) pride , revenge , bigotry , education , and every thing else pass for reason , except reason it self , which makes me oft-times cry out , is this that noble creature formed after the image of god , for whom christ dyed , and who is to be co-heir with him of his everlasting kingdoms . all which notwithstanding it is undeniably true , that there is something in man more sublime than can be ascribed to flesh and blood , that dull matter could never inspire him with these penetrating , subtil , comprehensive , generous , and elevated thoughts , which made the pagans believe , that his soul was particula divinae naturae , a parcel of that same divine substance of which the gods were formed , and that men so qualified were demi-gods , and god almighty himself has by a surer revelation revealed to us , that this noble soul was formed after his image , and it was most consequential that god who is infinite , being to communicate himself to some of his creatures , to the end his greatness and goodness might be known to them , he should in order to this breathe into them somewhat that might comprehend , at least , some ideas of that infinite perfection ; and therefore it was necessary that the soul should be an image of what was infinite , and that we might understand this from some exteriour and sensible representations and things , he has formed his very body ( the casket wherein that noble jewel is kept ) after a very wonderful manner , thus by small and interceptible rays darted into his eye , the representations of the vast hemisphere , are imprinted so on that little tablet , that it seems as great and distinct there , as in the original ; all he ever heard is laid up in his memory , as distinctly as papers in a cabinet . and almost by the same motion of the tongue ; or at least , without any studied variation , vast numbers of delicate words , or harmonious sounds , do , in a way unknown , and unperceptible by flesh and blood , sally out in mighty swarms and armies , which passing thus undiscovered , through the air , enter at many thousand ears in the same figure , ranks , and files , wherein they were at first spoke ; and there , in a spiritual way , they charm some , and enrage others ; they animate some , and discourage others ; working almost as great varieties as they bring . divine wisdom also foreseeing that interest would perswade men to pull all to pieces , whilst each drew all to himself , he imprest upon this soul common principles , which even those must reverence who neglect them , and therefore they err , not in the rule , but in the application , and cheat themselves by subterfuges , the recurring to which infers necessarily , that these principles are submitted to by the most stubborn , and somewhat respected by the wildest in sublunary matters ; and yet in what concerns our immortal souls , and eternal state , we are more negligent , as will appear too clearly by these following particulars which i have classed according to their different inferences . i have oft-times admir'd to see men busied about nothing , save external and sensual objects ; but it is yet stranger to find , that amongst such as are convinc'd , that knowledge is as much to be preferr'd to all other things , as the soul is to the body ; there are yet some so sensual , even in this point , that the knowledge they seek after is but a meer delicate sensuality . mathematicians consider chiefly how to measure bodies , physicians how to know and cure men , as souldiers do how to destroy them . but the study of christian morality ( which has for its object the soul of man heightned by the christian religion , teaching him how to understand the duty of that soul to god ) is too much neglected , as a thing obvious and easie : whereas when our saviour came into the world , he neither taught mathematicks , medicine , nor physiology , tho' all these were much considered in that age wherein he assum'd our nature ; and he could have made himself as much admir'd by clearing mysterious doubts in these , as by working miracles ; but he passing by all these as less useful notions , and such as too frequently divert and distract , rather than inform ; he declares he was come to make man happy , and begins his ministry by an admirable sermon on the mount , whereby , in order to the making him happy , he teaches him to reason rightly upon his duty to god and men : and it is strange , that we should think dull matter is able to afford more noble contemplations , than that subtle , that sublime , that vast , and that nimble soul , which retains so far the image of its maker , as to be inscrutable in all its faculties : and oh what wonderful springs and motions , what various windings and flights , what boundless and new spheres and worlds are there in his reflections , and what things are daily said , and volumes written on the love to women , which is but the excursion of one of them . our diseases cannot conceal themselves being tyed to matter , but the diseases of our immortal souls are so concealed by self-love , which loves to cover its own imperfections , and to hide its own retreats , that they are past finding out ; and if a little microscope can discover to the eye new and strange things in objects that have been daily seen , without being considered for many ages ; what wonderful discoveries may serious thinking men make in so immense an object that has been so much neglected ? especially since the thoughts of man do change and vary themselves into as many shapes , and give themselves as many colours as they please : and every duty or errour is really a different object as they are in conjunction with , or in opposition to one another ; whereas all other objects are incapable of such variations either from themselves or others : and tho' god has design'd to be known in his works , yet he seems on purpose to have made the knowledge of them so unsearchable to natural philosophers , and the success so little able to reward or honour their endeavours , to the end they might the more relish moral philosophy , which is then only uncertain when like the other it grows more a science than a duty . in my reasoning i will use the forms prescrib'd by god himself in his holy scriptures ; wherein when he would convince man of his folly , sin , or ingratitude , he argues with him from his own concessions , in these cases , or his own practice , on all other occasions : as for instance , when he sends nathan to david , he asks him what the man deserv'd , who having great herds and flocks of his own , took a poor man's lamb out of his bosom ? and david , having in great anger sworn that he should die , nathan then tells him , it was his case , and condemns him from his own mouth : and god says to his people , who acknowledg'd him to be their lord and father , but walk'd not suitably to their acknowledgment . if i be a father , where is mine honour , and if i be a master , where is my fear ? malach. . . he calls to them , isai. . . come , let us reason together ; and admiring the unreasonableness of unthinking man , he appeals to the heavens and earth , hear , o heavens , and give ear , o earth , for the lord hath spoken ! i have nourished and brought up children , and they have rebelled against me ! the ox knoweth his owner , and the ass his master's crib : but israel doth not know , my people do not consider ! and in the several gospels , we find our blessed saviour , after the same manner , confuting the iews , and convincing all his hearers . nor do i find so much delicate reasoning in any of those books , highly esteem'd by our men of sense , who slight too much that admirable one , which god himself owns as his sacred word : and i admire our saviour , as much for his reasonings as for his miracles . thus when he would convince men of the folly of careing immoderately for the things of this world , he asks them , what profit shall it be to gain all the world , that soon perishes , if they lose their own soul , which is immortal ? and which of you , ( says our lord ) by taking thought , can add one cubit to his stature ? and urges them , not to fear want , because , if they who are sinful know how to provide for their own families , how much more shall your father , which is in heaven , know how to provide for you , if ye be his children ? behold , ( says our blessed maker ) the fowls of the air , for they sow not , neither do they reap , yet your heavenly father feedeth them ; are not you much better than they ? for establishing this my position , it is fit to consider , that such as are reasonable , endeavour to shew it in the greatest concerns ; and it implies a want , or weakness of reason , to be exact and delicate in inconsiderable and silly things , and yet to err and be careless in matters of greatest consequence : and who would not laugh at an ambassadour or a general , who would value himself upon his dancing or playing upon the lute , bestowing upon these exercises the time due to his king , country , and negotiations ; which makes me admire , why in this foolish age , we call these men of good senses , and strong spirits , who can criticise virgil , iuvenal , livie , tacitus , or it may be , understand the mathematicks , or conversation ; whil'st we are convinc'd , that albeit they believe there is a god , yet they mind him not , and care less for their souls than they do for any of their ordinary recreations , tho' they are forc'd to tremble at its ill condition , when they begin to consider it . one of the things which prompted me to write this book , was the reading of a french treatise , de la iustesse ▪ wherein , tho' he made me expect great matters , by promising to learn us to think justly ; yet it only taught how to chuse true epithets , or understand criticisms , and such trivial knacks : but , alas , it is more to be regreted , that men should have the sense to laugh at others , for not having considered the plot and design of their plays ; whil'st many who pass for refin'd wits , want one in their whole life ; and where the want of it is not only a greater shame , but is of greater danger , since a man cannot err here without being ruined to all eternity : and one of these great wits , without a solid design in his life , appears to me , like a glorious , first-rate ship , magnificently equipp'd , richly gilded , and abundantly provided of all necessaries ; but because it wants a rudder , and a skilful pilot , fluctuating in a great storm , and near a dangerous shore , on which it is driven with violence , threaten'd by the wind , and overflown by the billows ; sometimes shatter'd by one rock , and sometimes by another , till at last it sinks down irrecoverably into an unfathomable and dreadful abyss . whether then is the owner of this ship , who looks on unconcernedly , and perhaps , would not leave his whore , game , or supper ; or that poet , who wrote his play without a plot , most to be contemn'd ? yet he who has no design to save his immortal soul from endless torments , is a much greater fool than either ; which recommends to me the sense of a wiser , tho' a heathen poet , on this subject , and which i wish the whole tribe would seriously consider . discite , ô iniseri , & causas cognoscite rerum , quid sumus , & quidnam victuri gignimur , ordo , quis datus , aut metae quam m●llis flexus & ●nde . quis modus argento , quid fas optare , quid asper . vtile nummus habet : patriae carisque propinquis quantum elargiri deceat : quem to deus esse iussit & humana qua parte locatus es in re . it is a pleasant thing to hear us admire men , for considering exactly the anatomy , specialities , and natures of fishes , fowls , flies , and other insects ; and yet never consider whence themselves came , whither they are going , or what is their duty whilst they remain here . and i wonder why we should think it just , to look upon men in bedlam , tho' they be very reasonable in many things , if they be very distracted in any one ; as i know one , who seem'd a discreet person , and could converse most pertinently in every thing , till they spoke of the moon ; but upon hearing that nam'd , fell instantly a staring , and into great extravagancies , believing himself to be secretary to the moon : and others will be discreet enough , till you mention the name of such a man or woman ; and yet we do not conclude such mad and distracted , who , tho' they understand to measure heaven , never design to enter into it ; and who can eloquently convince men of eternal torments , and fright them from the wicked course which lead to these , and yet ruine themselves on the precipices against which they guard others . and who would not think a physician mad , for all his skill , if after he had made a learned discourse , to prove a liquor to be poison , he should drink it off himself ; and yet more , if he would not take an antidote , tho' ready , and which he knew would secure him . i shall but lightly touch that ridiculous and impudent extravagance of some , who , rather pretending to reason , than having it , take pains to perswade themselves and others , that there is not a god , whilst even the subtilty which they use , when they are endeavouring to prove this their assertion , does necessarily prove his being : it being impossible , that matter and chance , ( their great idols ) could forge and polish such subtile notions : and how can they imagine , that since their own little affairs could not be managed without foresight and conduct , that yet this great and glorious universe , which comprehends so many millions , such as they , should be so exactly and justly governed , by blind chance ? if there were no men but the sillie and humorous asserters of this opinion , i should be asham'd to bring man as an instance of the power and wisdom of god : let us then consider this creature , form'd of i know not what , fed , breathing , and growing in the womb , we know not how ; but from those despicable beginnings , one rises in a short time , to measure the heavens , to calculate their motions , and to imitate their lightning and thunder ; another does for his own glory , form such models of religion as seduces , and draws after him millions of men , contrary to their former interests , as well as former inclinations : a third , by his skill , conduct , and courage , makes even the remotest countries of the world to tremble , overturning , and confounding that world , whereof he is so small a part : and a fourth , by drawing sweetly , and gently together very distant and different reflections , and thoughts , which come readily , as it were , upon his call , from their several repositories , forms an harangue , or a poem , which pleases or torments the hearers irresistably , as they have commission from their author ; it being harder to resist them than to make them : can so regular things be ascrib'd to wild chance , or such subtile things to dull matter , which by its nature , moves necessarily and without choice ? the best contriv'd machine can only repeat ; but man chuses his own thoughts , and varies or changes them as he pleases . i desire our wits to consider , that every thing which they see , or know , is so marvellously fitted to some use , that as they could not be wanted , so they cannot be contrived better : and it is ridiculous to answer with epicurus , ( who , tho' he denied providence , yet denied not a deity ) that these things were not made for these uses , as we pretend , but were , in process of time , made use of to these ends by wit or necessity : for even bruits do immediately after they are brought forth , run to those things which they need , with greater exactness than man could teach them ; and how could men , by reason , make every thing useful , if so infinite a being did not direct and supervise their almost infinitely various necessities and designs , and instruct them , by the use of thinking , ( that wonderful engine ) to accommodate every thing to its true use . the next thing i recommend to them , is to consider that all the principles of justice and government , without which , the world could not subsist , depend upon the belief of this infinite being ; for how could i convince a man without this , that it were not fit to poyson his brother for an estate ; or his prince , when he thought that by that he might step into his throne ; which oft-times might be done covertly enough , to escape the punishment of laws , if they could that of conscience : nor is it of any force to tell us , that politicians have only invented this for their own conveniency , since even this answer presupposes that there was a pre-disposition on the spirits of men , to receive and submit to this impression , which is an unanswerable proof of its truth ; and this trick had not been long believ'd , had it been only such ; nor could their inventions secure us against private treachery , tho' it could against open force ; nor can i omit to observe from this answer , how unfit these men would be to govern others , and how unsufferable they are under all governments ; who thus expose to contempt that which they confess to be the great engine of government . i might likewise urge the consent of all nations , which , by how much they became the more polish'd and civiliz'd , do so much the more rest on this belief . the certainty that has arisen from predictions which are above nature , and the wonderful effects wrought by miracles , even against it , are confirm'd to us , by the unerring testimony of those senses , which our atheists make the only and sure test of knowledge . and do not we perceive , that that light of reason , which by constant and penetrating reflections , in time , discover'd , overcame , and baffled every cheat and errour ; has notwithstanding , more fully fix'd , ascertain'd , and clear'd the being of a god , whose power affords us such protection ; and whose providence affords us such beautiful and pleasant contemplations , that to love that life , without believing his being , is to be without that sense and wit which these wild scepticks pretend to ; who , whil'st they shun to be miserable , make themselves so , and whil'st they pretend to pass for wits , demonstrate themselves to be fools , and brutish . i purposely avoid the proof of this by metaphysical arguments , because god's own way of proving it , is , by desiring us to consider the sun , moon , and stars , and the other objects which are obvious to all men ; for it was fit , that what was to be universally believ'd , should be inferr'd from what was universally seen : and such as understand not those metaphysical notions , are apt to beli●●e that there is a design to impose upon them . but since our curiosity must be always somewhat satisfied with arguments raised above sense , i shall offer this one : it cannot be deny'd , but that there is something in man that can compare two or more different things , such as , whether the pain of the head or the leg be greatest ? and that this cannot be done by any thing that is material , is very clear ; for if so , it must be done by something that touches at once both the things to be compared , and no material thing can do that in the same points ; and if it be in different points , then it cannot judge of the difference betwixt the two ; for they must be touched in one common point , else there can be no application of the material judge , to both , at the same time : and if this judgment must be made by something in man that is immaterial , and so is able to extend its indivisible self to both the things to be compared ; then it necessarily follows , that this must be a sprit ; for there can be nothing immaterial bur a spirit ; and if we can once comprehend a spirit , we can never deny there is a god : for the hardest things that are objected against his being , are those which strike against the being of spirits in general . because few or none are really distracted by this kind of madness , tho' they could wish they were , by smothering their reason with illusions , that they may cover their crimes to themselves , with the hopes of impunity , i hasten to another kind of unreasonable men , who , tho' they acknowledge there is a god , do yet , by a deplorable negligence , little mind how to please and obey him . and that i may enforce upon my reader , the weakness of their reasonings , i wish any of us would think , that if a society of men were shipwrack'd upon , or sent prisoners to an unknown isle , were it not most unreasonable for them , to sit reading , discoursing , or gaming , and not to think who were masters of that isle , and how they might live in it ; and if they learn'd that it belong'd to a great prince , who had absolute power of life and death , were it not unreasonable , not to desire to obtain his friendship ? but much more to reject it , if he offer'd it with riches and preferment , upon no other condition , save that they would attend at his court , love him , and not wrong one another ? but this is our condition in a much stronger case ; for we are here in a world created by god almighty , in which he can kill and preserve , not the body only , but the soul too ; nor for some time only , but for ever ; nor requires he any harder condition of us , than that we would love the lord our god with all our hearts , and our neighbours as our selves ; which are so far from being hard lessons , that one would think we could not but take great delight in them , if they were not prescrib'd to us as our duty : for if a man be admir'd once for his great courage , conduct , or learning , who would not be pleas'd with being allow'd to converse with him ? who amongst us would not have taken pains to have been lov'd by caesar , as his friend , but more , as his son ? but if caesar had been as expert a mathematician as he was a souldier , and could have burnt his enemies ships , like archimedes ; if he had invented gun-powder for his magazins , and found out the whole new world , as well as conquer'd a considerable part of the old : how much more would we yet have esteem'd him ? and to proceed further , if this caesar could either have sav'd his own life , by knowing the secrets of , or by killing alone all his assassinates , or prolong'd for many hundreds of years that of his servants ; we should yet more have rejoyced in his service and adoption : but what is all this to the infinite perfection of the great king of kings , whose servants , friends , nay , and adopted sons we may be ? he it is who govern'd caesar , as he does the flies or ants , who , with one word made caesar , and all the wrld , whereof he conquer'd only a part , which he was not able to retain . by whose skill , the heavens were stretched out , in which , vain caesar's greatest ambition was to be a little star : who not only knows , but in one moment , governs all the various , and almost infinite thoughts and designs of angels , men , and devils ; and who forces them all , how contrary soever to one another , to agree in the great designs he has in governing the world. who would not rejoyce to serve a master , that knew when he were innocent , and who , as he is exactly just to his servants , so could not be impos'd upon by others , to their prejudice ; and tho' even swarms of witnesses combined against them , could see through the mists that they threw up , which no earthly master , how just soever , can do ? but such is our heavenly master , who can also not only enrich us when we are poor , and cure us when we are sick ; but can tame our passions , illuminate our ignorance , strengthen our inclinations , sweeten our tempers , and make all these joys compleat , by the removal of all fears or jealousies that can end or lessen them . can we give any reasonable account , why we should be careful to keep the road exactly , if we knew there were great precipices on every hand , into which whoever fell , were irrecoverable ; and yet knowing , that in our voyage to eternity , there are precipices that lead to dreadful pits of fire and brimstone , kindled by the wrath of an angry god : we notwithstanding , go on carelesly , laughing at such as admonish us , and minding little trifles , which we are convinc'd will please no longer than we possess them . how falsly do we reason , in reflecting on our selves and others ? for we think them mad who endeavour not to get themselves cur'd , when they find they are tormented with gout and gravel ; yet who amongst us is at any pains , so much as to seek remedies for his passions and vices , which of all other diseases torment us most : and if we heard a fellow in livery , value himself upon the richness of his suit , would we not esteem him an airy and foolish creature ? but if we saw a man who were condemned , and going to the scaffold , admire himself , and talk of his power and glory , would we not conclude him distracted ? and yet this is the true state of a vain and glorious monarch , who has nothing but what he has receiv'd from an infinite god , who can recal it when he pleases ; and who ▪ whil'st he talks of his glory and greatness , is by that god condemn'd to die , as irredeemably , as must the meanest slave , over whom he insults . and since we would laugh at a vain coxcomb , who whilst he were entertaining his friends in his master's house , as if it were his own , were taken out of it by the ears , and forc'd to tremble under the lash ; how ridiculous must we conclude belshazzar ( and which is the case of too many other great men ) who whilst he was feasting all his nobles , and perswading them of his independance , was seized by an irresistable horrour which shak'd him all to pieces . i doubt not for all this but learned men will think they may justly value themselves on their own great parts and skill ; and you may read long lectures made by them on this subject ; but how unreasonable are they in this , since these endowments are given them as external things are given to others ; and a school-boy may more justly admire himself , because he can repeat excellent lines made by another : or a man , because the borrowed furniture , that he would make us believe to be his own , were within , and not without doors , or were finer than that borrowed stuff which another had , whom he despis'd . if two poor men should borrow , the one ten , and the other a thousand pounds , the difference of the borrowed summs should not cease to leave both of them equally poor . but he is really a wise and reasonable man , who knowing that what he has is borrow'd , endeavours not to boast of it as his own , but to repay as much as he can the interest to the true owner for the loan . let us then conclude this period with the apostle's just reasoning , cor. . . for who maketh thee to differ from another ? and what hast thou that thou didst not receive ? now if thou didst receive it , why dost thou glory as if thou hadst not received it ? being once in company with a great wit , who seeing two poor chair-men sweat in carrying a gross corpulent vain fellow ; he cry'd out , that he had rather be hang'd than serve so meanly such a rogue . whereupon i told him he was doing a meaner thing , in bearing up the extravagancies of a violent and tyrannous statesman , to please whose extravagant humour , i had seen him sweat more than these poor men did ; who had also in this the advantage of him , that they did so to get bread for their family , whereas he did the other to feed that ambition and avarice which tended to destroy himself . man's unreasonableness appears also in the unsuitableness of the means he uses , to the ends he proposes to himself . who would not think him a fool , who would endeavour to cure a mad dog by putting a golden collar about his neck ? or who would think to cure a fever in a man by bestowing a great office on him ? but are not men such fools , when they think they can quiet their passions by riches , or their minds by advancement ? spiritual distempers are to be cur'd by spiritual means , and as the finest thoughts cannot feed the body , so neither can the greatest riches , or any other external thing satisfie the immaterial soul. if i were desirous to get preferment , would not i endeavour to please him from whom i were to expect it , and not his enemies ? but tho' we say that we expect , or at least wish to be favourites to god almighty , and to be by him happy for ever ; yet we spend not our time in obeying him , but in serving openly and assiduously the world , the devil , and our own lusts , which are his declar'd enemies ; and that too so resolutely , that any reasonable man cannot upon considering our actions , but conclude , that either we car'd not for what he could give , or else that we were subtle enough to cheat him , or strong enough to over-power him . if a man were going to live in another country , would he not endeavour to accustom himself to the customs of it , and to carry with him things that were useful in that country ? and would we not laugh at him , if he spent his time in building and adorning that inne which he were to leave ? but this is our condition , who bestow all our thoughts on the things of this world , from which we should expect to remove every moment , and in which we cannot stay long . it is most strange that men , to secure themselves against fortune , should put themselves more and more into its power : for the remedies we use are to grow richer and greater , and nothing subjects us more to accidents than these do ; for it is for these that men are pursued , and destroyed , and they are oftner crimes than defences . god has promised , that if we seek we shall find , if we knock it shall be opened ; so that prayer is the true way to attain to what is desirable : and men may pray securely at their own bed-side , or in walking about their own field . but yet men will leave this sure , safe , and easie way ; and sail to the indies amidst storms , and travel through the desarts of arabia amongst thieves , to get unnecessary riches ; expose themselves to cannons , and watch in camps to get honours , trusting the seas , winds , and cannons more than their own kind and merciful father , who made and governs all these . when we have children , we are very desirous to leave them well secur'd , and consequently provide them estates ; but tho' we take pains to breed our colts , and hawks , we take no pains in teaching our children their duty to their master , as we do those beasts ; and probably by not being bred to a just way of reasoning , they may lose by one extravagance all that we have left them , or at least live unhappily in not knowing how to use it aright . and the same parents which would bestow their estates to free their children from burning for a month in a fever , will , to get them a little addition to that same state , breed them so , as may occasion their burning to all eternity . if any man were guilty of crimes , and so needed the king's pardon , would we not think him a meer brute , if he should instead of seeking it earnestly and sincerely , run up and down railing at him , and reviling his laws ? yet most of our wits , who have indeed more guilt than wit , and are not sure what moment they shall be damn'd for ever , make it their business , rather than sport , to treat in ridicule his divine majesty and laws . let us a little examine the unreasonableness of mens arguing in matters of honour , wherein they pretend to be so exact , and delicate , and we shall be convinc'd how weak their reason is . and in the first place , would not right reason dictate to us , that those things are fittest for men of honour , which are most approv'd and recommended by that judge whom all acknowledge to understand best what is great , glorious , and just ? who would believe any thing to be honourable for a souldier , which caesar or mareshal turenne had condemned as unjust and mean ? and if this rule hold , we must conclude , that it is the almighty god , the glorious maker of heaven and earth , and of the heart of man , and not the insolent courtier , the huffing hector , or the unstable and ignorant rabble , who must give the rules to just honour and true grandeur . nor should the best of moral men be able to perswade us , that any thing● is honourable , but according as it agrees with the reveal'd will of that omnipotent and infallible judge ; for if he be infallible , it is ridiculous that his judgment should not be acquiesc'd in ; and if we think him not infallible , we cannot think he is god. if any man should call one perjur'd , especially if he were a person of quality , he would resent it irreconcileably ; and yet are not all such as are guilty of adultery , guilty of perjury ? and to aggravate this perjury , it is perjury against a lady , to injure whom , and to whom the breach of an ordinary promise would be thought a shameful crime ; but yet much more , when it is considered , that upon that oath the lady had deliver'd her self up , and by the like oath had forsaken all the rest of mankind : so then , if perjury be a villainy , when committed in the most trivial things , and to a person who neve● obliged us ; what can it then be , when committed in the greatest concern , and when the oath was given in the most considerate manner , and under the greatest obligation to the most deserving person , and to one of that delicate sex , which the most unworthy are unwilling to injure or cheat ? i doubt not , but all who pretend to reason , will acknowledge , that ingratitude is the most abominable of all vices , and most inconsistent with true honour . and if a prince had obliged one of his subjects , behaving himself as a kind father to him ; would he not be a very rogue if he were ungrateful ; but yet more , if he refused to obey him , after many promises and vows , nay , and after many pardons , having several times relapsed again and again into those crimes , and even employed the forces , with which the king had trusted him , against himself ? and yet the king of kings , and our heavenly father , having heaped hourly such favours on us , that it needs a mans whole time to repeat them , because every moment of our time makes a part of them , we ungrateful miscreants employ all the strength of our spirits and bodies in offending him daily , to that height , that tho' we our selves tremble when we think with confusion upon them , and vow against , and mourn for them ; yet we reasonable men return with the dog to the vomit , and with the sow to the puddle ; and add the breach of our new vows to our old sins . i know that pride has form'd for its own defence a body of law call'd point of honour ; as one instance whereof , amongst others , i urge how unreasonably men repair their honour , in endeavouring to take a man's life for a word , damning both themselves and him , and by way of complement drawing innocent men ( and such ordinarily as have the greatest kindness for them ) into the same hazard and condemnation ; which in spight of all the gallantry imaginable , does prove how little use of true reason men have , tho' they value themselves very much , as if they were the sole masters of it . for this is not only contrary to the law of god , the true fountain of honour , as of all good , but to the laws of our country : and what can be more absurd , than that some private , young , and ranting hectors should be able to make that pass for generous and gallant , which whole nations assembled have after much reasoning and deliberation condemned as a crime in all ages and countries ; and even the same men , who brag of this when enrag'd , and in the field , condemn it in parliament and in cold blood ? but nothing discredits this heroism more , than that those , who would not yield up their revenge to god , nor their conscience , have been frighted from it by the french king and the gallows . if one man give another the lye , he must pay down his life , because a man of honour would rather chuse to dye than to be a lyar , or rather thought one ; but this man of honour will flatter , till all men laugh at him for lying so grosly ; and this eloquence of knaves must likewise make his patron a fool , for being capable to believe what none believes , save himself ; so that this flatterer , who yet passes for a man of true honour , makes himself a liar , and his patron a fool. how oftentimes also have we seen these men of honour lie and flatter , to promote faction , and to please the multitude , which they were thereby designing to cheat , as if the addition of a cheat could make a lie honourable . rebellion and pimping are noble flights of glory and kindness , to which , fashionable men , and men of honour can only pretend , and a prerogative deny'd to those men who are truly virtuous . if men , who are tender of their reputation , were reasonable , would they not consider , that all these their crimes and vices are known to that great god , who is the fountain of truth , and the rule of purity , and shall at the great day be known to men and angels ? if a lady considered , that all her unchast thoughts , and a person who passes for an honest man , that all his secrets and cheats would be discover'd to their neighbours , though as guilty as they , it would confound them : how then will all men look , when the sins they are endeavouring to cover , shall be laid open in that illustrious assembly , where innocence and knowledge shall be in such high perfection ? how can we then be judg'd reasonable creatures , when we dare do that before the almighty god , who is of purer eyes than that he can behold iniquity , which we durst not attempt before our own servants , who depend on us , and are as frail as our selves ? and if we cannot abide the accusation of our own conscience , how shall we be able to hold up our faces in so glorious a judicature ? and can men be reasonable creatures , and yet not mind so great a concern ? fame , that tacite acknowledgment of immortality , even in those who believe it not , is pursued so extravagantly , that idolatry it self is not more inexcusable : for to gain the opinion of a brutal multitude , we sacrifice to them our duty , our quiet and our security ; and what design can we have , or return can we expect for all this ? for if we be not immortal , what signifies our being esteem'd , when we are to have no being ? and why should we give our selves real trouble for an imaginary good ? and if we believe the christian religion , it teaches us , that either we must be sav'd or damn'd ; if sav'd , fame from men will signifie nothing , when we discover how foolish we were to adore such worms ; if damn'd , that which made a great part of our crime , cannot be an alleviation of its punishment . but if a man , believing there is a god , did argue justly , he would value highly the being esteem'd by that wisdome that cannot err , and whose fuffrage will last to all eternity . men can only raise our character , without being able to raise our merit , but our great master can really make us merit , and open the eyes of others to understand it , when true , which no man can do , and his esteem brings rewards suitable to its greatness ; and therefore is only worthy of our pains , especially if we bestowed that pains in serving him , which we do in gaining fame ; we might expect from his goodness what can never be valuable when obtain'd from men , because of their meanness ; or secure , because of their injustice or caprice . if we saw any of our acquaintance running up and down among mean and ignorant people , to perswade them to praise and admire him , we would laugh at his folly , as well as vanity ; but this is the condition of us poor blind sinners , who are sick and dejected , if our silly , blind fellow-mortals do not admire us , and praise our actions . i have remark'd in my own time , that some , by taking too much care to be esteem'd and admir'd , have by that course miss'd their aim , whil'st others of them , who shunn'd it , did meet with it , as if it had fallen on them , whil'st it was flying from the others ; which proceeded from the unfit means these able and reasonable men took to establish their reputation . it is very strange to hear men value themselves upon their honour , and their being men of their word in trifles , when yet that same honour cannot tie them to pay the debts they have contracted upon solemn promises , of secure and speedy repayment , starving poor widows and orphans , to feed their lusts ; and adding thus , robbery and oppression to the dishonourable breach of trust. and how can we think them men of honour , who , when a potent and foreign monarch is oppressing his weaker neighbours , hazard their very lives to assist him , tho' they would rail at any of their acquaintance , that meeting a strong man fighting with a weaker , should assist the stronger in his oppression . the surest and most pleasant path to universal esteem , and true popularity , is to be just ; for all men esteem him most , who secures most their private interest , and protects best their innocence ; and all who have any notion of a deity , believe that justice is one of his chief attributes ; and that therefore , whoever is just , is next in nature to him , and the best picture of him ; and to be reverenc'd and lov'd : but yet , how few trace this path , most men chusing rather to toil and vex themselves , in seeking popular applause , by living high , and in profuse prodigalities , which are entertain'd by injustice and oppression , as if rational men would pardon robbers , because they feasted them upon a part of their own spoils ; or did let them see fine and glorious shows , made for the honour of the giver , upon the expence of the robb'd spectators . but when a virtuous person appears great by his merit , and obey'd only by the charming force of his reason , all men think him descended from that heaven which he serves , and to him they gladly pay the noble tribute of deserved praises . another great class of arguments , to prove how ill men reason in matters of greatest importance , may be brought from the contradictions we are guilty of in our conduct . as for instance , life is the thing in the world most valu'd , for without it , we can enjoy nothing ; and yet , so unreasonable are we , that for a complement , we will hazard it so far , as may be rather call'd a losing of it . when time is going , we cry out against providence , for having made it so short , and when it is gone , we would give all the world to redeem it ; and yet we are weary of it so far as to bestow money upon any thing that will help to spend it ; and give it away in visits , to such , to whom we would not give any thing else . we would for no money quit one year of our life ; and yet for the same money ; which we so undervalue in the express exchange , most men do really give away very many of their best years , since they are spent in gaining money . we exclaim against tyranny , usurpation and oppression , and in this we are much in the right : but why then do we admire , and cry up such as have been great oppressors and usurpers , as alexander , coesar ? for in this , we are not only unjust upon the matter , but enemies to our selves ; for that esteem we put upon them who have been such , invites others to make us the prey of our own errors . most men do admire , and prefer themselves to all others , which is a great proof of our unreasonableness ; but yet , even these cannot stay with themselves , and by being afraid to look into their own hearts , contradict the esteem which yet at all times they have for themselves , to an unsufferable excess . all men desire to prefer the best company ; and when men prefer any company to the being alone , they demonstrate that themselves are not the best . most men , when they are young , contemn riches , and love them when they are old ; and though our wits scorn to think , or say with the vulgar , yet even these are swayed as much , and as stronly by vulgar vices , as those who never exclaim'd against the unthinking crowd . all creatures stand in awe of others , according to the esteem they have of them ; and tho' we admire our own perfections , and value our selves far above our proportion , yet stand we not in awe to commit wickedness when alone , which we durst not commit if others were present ; and thus we are so unreasonable , that we want a due reverence and esteem for our selves , where we ought to have it , and have it excessively where we ought to want it totally . self-love , the falsest tho' the subtilest of all reasoners , endeavours to perswade us , that in revenge , we shall , by seeing our enemies ruined , remain our selves the more excellent creatures , our rivals being thus depress'd : and this is that hid reason which justifies to us that passion which is truly most inhumane . but what an improper argument is this , for we are not one whit the more excellent , that another is ruined by an accident . another argument brought by revenge , is , that thus we shall secure our selves against our enemies , and so revenge would pass with us under the disguise of self-defence ; but because this would seem cowardly , and be in effect , a tacite acknowledgment of fear ; we rather say , that in revenge , we will teach others not to attack us . but all these are false reasonings ; for no man secures his true quiet by revenge , for it raises an enemy within , which is always present , and able to disquiet : and all men conclude themselves obliged to destroy the revengeful man , by the same argument that he pursues his revenge ; and thus a man is tortured by it till it be satisfied , and frighted by it after he has prevail'd . most men desire to be in employment , from a secret desire to be admir'd ; whereas when they are in employments , they do not those just and virtuous things , for which they would be truly admir'd : and albeit self-love makes them believe , that the being fear'd is a mark of true dominion ; yet they consider not , that even dominion is only at the bottom desireable , because it is a sign of merit and innate excellency ; and does please , because it makes us believe , by the suffrage of others , that we are noble and excellent persons , of which , even the least reasonable cannot seriously be perswaded , except they believe they have done virtuous things . and thus it were more reasonable to do what is really virtuous , than to cheat our selves , with thinking that others admire us . and it is very unreasonable not to do things rather for virtue it self , than for the applause which follows it , since that applause derives its desireableness from virtue , and so virtue it self should be much more desired : and which shews yet more the weakness of our reason , tho' in this we contradict the undeniable sentiments of mankind , yet we are cheated into it by a mistake , as if it were easier to attain to the applause of virtue , than to virtue it self ; whereas , quite contrary , it must be more difficult to attain applause , since it depends upon many thousands of rivals and capricious fools ; whereas virtue springs from a man 's own breast , and we may have it , and keep it , in spight of all mankind . every man also , may in his private station and employment , find thousands of instances to confirm this truth . and thus a courtier should consider , that when he sees his prince bow and pray to a superiour , before whom , he acknowledges himself to be a worm and a vapour , that certainly it is fit to do nothing to displease that superiour power , for gaining the favour of that prince who adores him ; and who would not think him mad , who would scorn to depend on a monarch , but would take pains to flatter his footman ? when a lawyer observes that men take such pains to secure in law an interest that cannot be secur'd against accidents , he should in reason conclude , that it is brutish not to take more pains to secure that which shall never fail : and when he observes how zealously the eldest men defend a life that accidents , nay , and nature probably will end with the process , should he not consider , what pains should be taken to secure a life that continues for ever , free too from that care , and those sicknesses , that even before death make this life miserable . if a souldier who were besieg'd by his enemies , should abandon his watch , and spend his time in gaming and drinking , or should lose the glorious opportunity of defeating them , for a feast ; or , as mark anthony , for a mistress : especially , if they be such enemies , whom we know , would not only kill , but torment us to death , were he not to be accounted a fool ? but that is our case ; for being surrounded with temptations and devils , we spend our time in toyes and trifles , and whilst we hear that others have receiv'd an immortal crown , for having overcome their spiritual enemies , we , who value fame and glory so much , spend our time in pleasing two or three silly courtiers , whom we despise whilst we attend them , and laugh at the actions which we seem to admire . a merchant were ridiculous , if he should spend his stock and his time in buying up wares that were unfashionable in that country where he has his abode ; and yet most men employ themselves wholly in gathering riches , and getting that knowledge , which can neither be carried to heaven with them , nor can comfort them when they are in hell. and i have oft applauded the remark of a gentlewoman , who hearing a whole society admire one of her acquaintance , for a great wit , told them , that his father had left him a great estate , which he had spent amongst whores , that he had himself married a whore , and had chang'd the orthodox religion , in which he was bred up , for a worse , and was not devout in that neither ; and desir'd them to consider if that man deserv'd to be call'd a wit ? nor are we only unreasonable in pursuing our pleasures and vices ; but the very measures we take in being virtuous , shew how weak our reason is , and how ill we use it . for our friendship is for the most part but the preferring those for whom we have a kindness , to those who deserve better both our kindness and those employments ; and thus we rob the commonwealth , to repay the debt our gratitude owes . the courage of many is but a hypocritical disguising of their fear , or a dull ignorance of their danger . for when a man goes to battel , he fears to dye ; but to disguise this fear , he considers the shame of flying , and knowing certainly that his reputation would be ruined , he fears more this certain loss , than the hazard of being kill'd : but if he cannot attain to that , he at least braves it out , and endeavours to cheat others , when he cannot satisfie himself . liberality and charity are oft-times but the disguised effects of vanity , wherein men tacitely design rather their own perpetuity , than the advantage of those on whom they bestow what is given , in which they act very unreasonably : for if they lent it to god , he would restore it with a very enriching interest : but in bestowing it on fame , they bestow it on a cheat , which has oft deceived both them and others . and it still seems strange , that we will bestow it on that multitude ( for fame and the multitude are the same thing ) to preserve any one of whom from starving , we would not bestow one farthing . and yet the world esteem those who do such things more than they do reasonable and judicious persons . it is one of the chief and fundamental dictates of reason , that we should do to others as we would wish them to do to us . but tho' we exclaim against our equals , poor mortals , if they refuse us this measure , yet we allow it not to our great king and soveraign . if we heard that any who pretended to be our friend , did sit tamely and hear us rail'd at , and contemn'd , we would conclude them base and treacherous ; and a king would for this treat his subjects as rebels ; but yet we sit not only to hear impious creatures rail at religion , and oft-times at providence it self , with so little resentment , that we comply and even admire the miscreant . i remember that i suggested once to a person of quality , who was busie about his accompts , to consider if our steward should spend our rents upon his own affairs , or upon maintaining his own family or luxury , and much more if he should riot it away with our enemies , would we not hate him as a rogue , and at least recal the trust we gave him . but the great master of the family of the faithful having appointed us only to be stewards , not to appropriate , but to bestow the estates he gave us for the use of his poor children and servants , preferring us kindly to as much as may satisfie our conveniency , for so the scripture , and even reason it self , teaches us : ( for why should the wise god have bestowed so much upon some , whilst others want , if he had not design'd to level all by this necessity of distribution ) yet we see his children starve , whilst we employ the portions due to them upon the wicked who are his enemies . and thus we use the almighty god at the rate we would not suffer from the meanest of our servants . and so unreasonable are even such as are convinc'd of the reasonableness of charity , that by doing their charitable actions in publick , they lose the reward , by not preserving the true design of it ; for as our saviour argues , mat. . . it is very just , that since they bestow their charity to gain the applause of men , they should be rewarded with the applause for which they bestowed it ; and how can they expect a reward from god , to please whom it was not given ; and he is not obliged to repay what was not lent him : and they cannot expect double payment , for being paid by men , the obligation is fully satisfied . i shall conclude these observations with what ordinarily we conclude our unreasonable lives , and that is death-bed repentance , which of all things is the most unreasonable . for if we believe the rewards and torments which attend our future state , and make the delay so dangerous , why delay we ? and if we believe neither of these , why repent we ? the one cannot but make our present pleasures very bitter , by the fear that must thereupon haunt us ; and the other cannot but needlesly cut off the pleasures which we exclude as inconsistent with true repentance . but which of us being condemn'd to horrible torments , would delay to seek a remission till the last hour ? or being invited to leave our cottage to receive a plentiful estate , would delay to undertake his journey ? and yet we easily delay our repentance , which can only preserve us , condemn'd sinners , from eternal torments ; and which would certainly bring us , poor wretches , to that inheritance of immortal glory . and tho' we condemn our selves for leaving the dispatch of our little concerns till the last hour , yet we delay that great and necessary work , on which a long eternity hangs , for every trifle . and that which aggravates much this neglect , is , that the reasons which encourage us to it are as weak , as the thing it self is absurd and dangerous . for the hope we may live , has for its foundation a frail body , that every accident can destroy ; and it is a wonder , that when we hear of so many unexpected deaths , we should not tremble to think , what if i had dyed ? and tho' the mercy of god be as infinite as his justice , yet it is insupportable insolence in us to think , that we can be sav'd when we please : this is not only to undervalue him as the last thing to be chosen , which implies that our infinitely glorious maker is of all things least worthy of our choice , but in this we exalt our selves above him , as if we might command him to bestow upon us heaven and happiness when-ever we thought fit to call for it . and which of us would bestow the meanest favour upon him , who would resolve to oppose , or but neglect us as long as he pleas'd . the delaying makes us the unfitter , not only to crave , but even to receive , mercy ; and since all our life , albeit as piously spent as humane frailty can allow , is short enough for so great a work ; what can we expect from a few sickly hours distracted by new pains , and amazed at so many old sins ? and the scripture having commanded us to repent , and bring forth good works ; it has every where made good works and a subsequent amendment of our lives , the mark as well as fruit of sincere repentance : and therefore since a death-bed repentance must want this proof , it cannot but be by so much the more uncomfortable to us and our friends . nor is there any generous soul , who having receiv'd so great and undeserved a pardon , would not desire to be able to live , that he might magnifie that infinite god to whom he ow'd it . i know that the thief on the cross has been a stumbling-block to many others ; but we reason very weakly from this instance of god's mercy : for he by believing the divinity of our saviour amidst all that could have been said against it , when even the jews were desiring him to come down from the cross , and they would believe in him , and the other thief was reviling him ; did evidence as much faith in that contracted span when dying , as the best of us can do in a prolong'd life . and it being fit for the saviour of the world to shew his power and mercy when he was leading captivity captive , that happy thief can be no precedent for us who remain unconverted after so many miracles , that no reasonable man can now doubt of , especially if he never heard , as its probable , of that gospel which we have so oft undervalued , and if he has not neglected former offers of mercy which we have so oft contemn'd . and shall we presume on god's goodness , because one man was sav'd , and but one , to preserve mankind from despair ; not remembring , that as the thief obtain'd a pardon when he sought it , so esau found no place for repentance , tho' he sought it earnestly , heb. . . and tho' those who came in at the last hour , got as much as those who had wrought at the first ; yet it is remarkable , that it is said , they came not sooner , because no man had desired them . but let me conjure any noble soul to consider , that if god be worthy of the adoration of angels through all eternity ; and that we confess , that to walk , like enoch , with him , will be so amiable and glorious , why should we delay it for pleasures that are unworthy of a reasonable soul , and which last but for a moment ? for at least we lose so much unexpressible joy and pleasure ; and in delaying our repentance we continue to be sick when we may be whole , to be blind when we may see , to be poor when we may be rich , to lye in prison when we may live at liberty , and to be slaves to our enemies when we may be heirs to a kingdom . all which induce me to believe , that they who delay repentance , design not to repent , but flatter themselves with a false conceit of it ; for to repent is to be grieved , and no man who is grieved can put it off at his pleasure , no more than a man can be griev'd or not as he pleases . as also if a man resolv'd sincerely to repent , 't is necessary that he were convinc'd of the greatness of his danger , and were actually asham'd as well as afraid thereof ; and if he were truly touch'd with these convictions , he would not continue in the courses which occasion'd them . and to finish all , is it not the height of unreasonableness for a man to continue to do these things , of which he knows he must be asham'd , and for which he resolves to be exceedingly troubled and afflicted ? and if we were coming into a room where a man were wounding himself , would we not conclude him yet madder if he told us , that he would give himself more and more , because such a man got so many wounds , and yet was cured . let me therefore conclude this discourse with the noble and just reasoning us'd by st. peter , epist. . , . but the day of the lord will come as a thief in the night , in the which the heavens will pass away with a great noise , and the elements shall melt with a fervent heat , the earth also and the works that are therein shall be burnt up : seeing then that all these things shall be dissolved , what manner of persons ought ye to be in all holy conversation and godliness ? and what a frighted creature will the greatest hero be , when he finds himself in the midst of a burning world , having greater terrors within his breast than these , rais'd by an omnipotent god , and which will force him to cry to the hills and mountains to fall upon him , and cover him from the face of this angry judge ? but these great and sad truths need ( alas ) to be preach'd by an angel , to hearers standing upon the brink of their grave , and having heaven and hell open'd before them . part ii. whence proceeds it that man is so unreasonable , and how to improve our reason . it is indeed very strange , that man , who improves daily so much in all arts and sciences , that are neither so necessary , so easie , nor so advantageous to us , should still decrease in this excellent study , this noble and useful knowledge : let us then enquire a little into the occasions of these errours in his reasonings , and we shall find them so silly , that they also discover to us new weaknesses in his reason . i know that we generally charge this on man's atheism , imagining he would reason justly , if he believ'd the principles i have laid down ; but this is a mistake , for atheists reason most weakly , as well as others , and most inconsequentially to their own principles : for even atheists disquiet themselves for fame and money , and by whoring and drinking destroy their bodies , which is all they dote upon , and should preserve , and which shews their unreasonableness , according to their own principles ; and that infidelity is not the cause of false reasoning , appears clearly , because such as are not atheists , reason falsly ; and we may observe , that such as believe that by the ill diets they use , their terrible pains will be renew'd , do yet adventure on them ; oh , that they only of all mankind were the unreasonable men ! but how unreasonable are they , who believing there is a crown of glory reserv'd for those that will run that heavenly race , chuse rather to sit tipling and gaming ; that believe the son of god stands stretching out his arms , ready to preserve them , and yet will rather sink down into that fearful pit , from which there is no redemption ; who will rather starve than seek that heavenly manna , and languish of their wounds , than seek the balm of gilead , from the hand of a loving father ; whom no judgments on others can awaken , nor mercies to themselves can oblige ; sick amidst so many cures ; poor , amidst such plenty ; blind , notwithstanding so much light ; and insensible , in spight of so many convictions . but how can men reason well , since they neither understand the true use of reason , nor what man is ? and these are the two first and great occasions of our errours . as to reason , let us examin our selves narrowly , and we shall find that men think they need not reason in the great and considerable designs of life , as if these were matters to be taken upon trust ; and as if reason were to be us'd only in matters of state , or in debate or trade . and i desire to know , who sits down to reason with himself , why he lives so or so , or to know , if what he does , is according to the rules given him , for regulating his actions . i have my self spent twenty years in reasoning eagerly to secure other mens estates ; but i have spent very little time to consider , by a nobler reasoning , why do i spend so much time in reasoning for other men , and yet so little for my self ? tho' in the mean time , i do but too much prefer my self to all others ? you will find some divines very busie in arguing , whether god from all eternity could have made creatures , and yet these men will never consider what shall become of them in eternity . the cure then of this , is to consider reason , not as a tool , useful for gain or fame only , but as a square , put in our hands , by our kind god , to instruct us how to make our actions straight and even ; and as a workman does first mind to have all regulated by his square , and after his work is finished , applyes the square to what he has made ; so ought we , when any thing is design'd by us , resolve to do all in it by the rules of reason , and when the action is ended , examin if it be so : and to invite us to this , god has not oblig'd us to seek for this any foreign or remote remedy ; no , nor to owe our remedy to any other ; but has plac'd his candle in our breasts , and honour'd us with the being our own governours and directors . let us then think , and think of matters of importance , and of matters that import us ; let us think as much of heaven , which cannot be taken from us , when once we are possessed of it , as we do of temporal estates , in the possession of which we cannot be secured . let us think as much upon our selves , whom we value too much , as upon others , whom we value too little . we use oft-times our reason to argue falsly for interest , or by pre-ingagement , and this debauches our reason , after which it continues easily in this errour : for this takes off that reverence and esteem we ought to have for just reasoning . thus lawyers favouring still , and being oblig'd to maintain the cause of those who have retain'd them , force their reason to find arguments for their own side ; divines thinking themselves oblig'd to defend the positions of that church wherein they were born , reason still in its defence : states-men , to fortifie their partie , endeavour to perswade all men to embrace it ; and orators , not excepting the philosophers amongst them , to beautifie their discourses , urge things that are meer flourishes , having much lustre , but no strength ; great instances whereof are to be seen in seneca , and generally in all the heathens , who , as i shall shew expresly elsewhere , were forc'd , by not knowing the true principles whereupon reason was to be built , to maintain by false reasonings the true principles that they design'd to recommend . we do likewise form our morality by our interest , and guide not our interest by our morals ; and after we have form'd any design , we find out reasons to perswade us that it is just : and thus we oft-times mistake interest , imagination , and prejudices , for solid reason ; the true cure whereof lies in being painful and curious in our first reasonings ; and as careful not to commit errours by false and careless arguings , in matters of eternal happiness , as mathematicians are in their demonstrations about figures and conclusions , which cannot secure them against one misfortune , nor add one day to their lives . bigotry , and false conceptions of religion , do also darken much our reason ; for sometimes , by implicit faith and infallibility , ( those great tyrants over reason ) we accustome our selves to laziness , wherein we lose the habit of reasoning ; and sometimes by imposing upon us things inconsistent with it , and by teaching us that it is a dangerous guide , we lessen our own esteem for it , and create insensibly in our selves a jealousie that it is an imposture ; and we baffle it so on these occasions , that at other times it dares not try its own strength . i confess , that it ought in a just submission yield to his commands who made it , nor should we hear the servant when the master speaks ; but except when the will of god does expresly ordain ones reason to submit , we ought not to deny our selves the true exercise of it , to please men , who understand not its true strength , or do upon designs impose on us the abandoning of it . and this has infected us so far , that by it all other sciences did fall very low . and if some bold defender , such as cartes and others , had not interpos'd , we had been led by implicit faith , in all the objects of knowledge as well as in all the objects of faith ; and every school-man would have exacted as much absolute submission to his own dictates , as we should pay to the unerring commands of our infallible creator . and oft-times self-love passing for religion , blinds us whilst it promises illumination : as a clear instance whereof i shall desire any wise man to consider , that if this were true zeal which led men to hazard all they have for the ridiculous difference about indifferent ceremonies or tenets , why do they not hazard all they possess for the defence of the christian religion against the turks ; since in sound reason , and by a mathematical certainty , the whole is to be preferred to a part ; and to prove that this is the effect of self-love , and not of true devotion , it is very observable , that the less the differences be in such cases , we are ordinarily the more passionate in them , being inclin'd rather to have our sentiments sustain'd , than the commands of god obey'd ; most men being to themselves their own only god , and being asham'd that they should err even in the meanest circumstance . men may think me insolent when i tell them that they understand not themselves , but they should bear this from me ; who would willingly wish that they could justly tax me of a lye in it . but for my security i must put them in mind , that monsieur paschal told them before me , that he had laid aside the study of the mathematicks , because few understood to converse with him in it , and betook himself to consider man ; as thinking that a subject so near , and of such concern to every one , that all could not but understand it ; and yet he found this less understood than the other . but that i may contribute my mean endeavors for clearing them in this , i must desire them to consider , that man being created to love and admire god , it must follow by a necessary consequence , that god was to be the center of all his knowledge ; and right reason was a drawing of all his conclusions as so many lines , to rest upon god as that center . but man designing to exalt himself , does by a woful mistake make himself the center , and self-love , as another reason , draws all into this design . and thus , whereas we should study to understand the excellent works of the creation , that in them we may understand the infiniteness of that wonderful creator ; we study them only thereby to adorn our own spirits , and thus to raise an esteem in others for us : and crook in all the conclusions we make to our selves and our conveniency , as the center of all our designs . and thus we have invented new sciences , arts , and recreations , such as criticisms , rraillery , comedies , tragedies , &c. meerly that our works may be admir'd as much as his . and therefore it is impossible we can ever reason justly , since all the lines of our reasoning tend to a wrong center ; but if we return to our duty in resolving to love and admire him , and not our selves , every conclusion being drawn from true principles and positions , would recover its original streightness . and thus if we ador'd god more than kings and princes , we would not displease god to please them , that we might be enrich'd or advanc'd by them . if we studied only to know him in his creatures , and not to raise our own fame by them , we would not toil and vex our selves to acquire fame ; nor forget serving and adoring him , that we might get time to know those sciences , and be esteem'd for , and delighted in that learning . self-love , amongst its other cheats , hinders us to study christian morality , because that would let us see how vile and frail we are ; and therefore , as a diversion , it carries us impetuously to study other sciences , wherein we may admire our own wit and sagacity : but that which seems to me the true notion of learning is , that it should be a design to know and admire god in his works ; for which natural philosophy and mathematicks are to be studied ; in his providence , which we may know by history ; in his justice to be known by law ; and in his governing the soul of man , which is the object of moral philosophy : but above all , in himself and the mysteries of our salvation , taught by divinity when well directed . a proof of which , as well as a new cause of our errours and reasoning is , that the first rule by which our reasons are squared and directed , are the writings of those illustrious heathens , who in our youth are recommended to us as the only guides and patterns : the best of which , such as plato , epictetus , seneca , and others , being absolutely ignorant of man's great disease , which is original sin , could not but mistake the remedies of his actual transgressions ; and knowing nothing more excellent than their own reason , they concluded it was sufficient . and having from their poets and traditions learned mean , low thoughts of their gods , who were in those days made the chief actors of the sins they should have punished , and describ'd as more employ'd in satisfying their own passions , than in governing of the world. those misled philosophers did not only equal themselves to , but raised themselves above the gods , whom they taught others and themselves to adore . and to that height did this mistake in their reasoning fly , that seneca concludes his wise man much preferable to the gods , because the good they did , arose from the necessity of their own nature ; whereas man being left to a freedom in his actions , made them good by his own wise choice . epictetus founds his philosophy upon that only principle , that the things within us are in our own power , but the things without us are not . whereas st. paul from heaven assures us , that of our selves , as of our selves , we can do no good . and our own experience doth most convincingly agree with st. paul , against epictetus . and whereas a principle in any science should be an uncontroverted truth , we find daily that this principle is an absolute lye. for that man who thinks that he can with an unerring hand govern his passions , has never undertaken the subduing of them . and video meliora , proboque , deteriora sequor , agrees much better with our own experience , as well as with st. paul , who , tho' among the greatest of saints , complains justly , rom. . . that which i would , that do i not ; but what i hate , that do i : and therefore is forced to cry out , who shall deliver me from this body of death ? cicero's discourse concerning the nature of gods , and plato's dialogues of the immortality of the soul , may convince us how weakly those great patterns of philosophy do reason , even upon those subjects where reason was not altogether mistaken . and from those , and all the writings of the ancient pagans , i do more justly conclude , that those great ideas which our masters have given us of them , and the eloquence which shines every where in their writings , have misled us from the ways that lead to the new ierusalem ; and from admiring the beauty of holiness which shines in those scriptures , which have god almighty and the holy one of israel for their author and subject , and in which we are taught to expect more help from heaven , than from our selves , against our innate and original corruption , which is more to be overcome by praying than thinking , and can never be overcome without that humility and self-denial , which was absolutely unknown to the heathens , as i hope to prove in another discourse , where these thoughts shall have their full scope . i am far from designing in this to root out self-love , but rather to direct and improve it . for certainly god has grafted self-love in every man's heart , to the end , man might thereby be the more oblig'd to love him , to whom he owes all those excellencies which he loves in himself , and that he may be thereby oblig'd to preserve himself as a part of the universe , and which is in general preserv'd by every man's loving himself ; and so far has god allow'd this self-love , that he punishes man when he destroyes himself . but that self-love which i here inveigh against , is a false and imposture passion , whereby man makes himself the spring , from which all his designs follow , the mark at which they aim , and the rule by which they are to be squared , than which nothing can be more unreasonable . for how can we justifie our selves , in requiring absolute deference from all that is ours , if we yield it not to that infinite being to whom we owe all ; and as he brought us out of nothing , so we should still remember that we are nothing before him . if every man made himself the rule , and drew all to himself , what a distracted thing would this world be , and how impossible would it be for any man to live comfortably in it ? and as a private man would be esteem'd mad , who in a court , would think that all things should be design'd there for his glory and pleasure : so much more is man a distracted creature , when he makes himself the chief aim of all his actions . whereas , if a courtier take great care to please the monarch , and to design his glory and advantage , he will thereby raise himself in a securer , as well as a juster way . and therefore because self-love is so strong an oratour , and is still at the bottom of all perswasion , we should examine cautiously , what is urged upon us under the disguise of self-love , and whether we do really love our selves when we yield to those things to which we are tempted . i shall conclude this period with a sad assertion , that in spight of all that men profess , yet too many really , at the bottom , mistake themselves so far , as to think that they have no original frailties , and therefore that they are able to command their passions , and that they need no divine assistance , that they are nothing else , save that body which we see , that they are not to die so soon , and that the things they are doing now are the only things to be car'd for , and will remain with them for ever . and if most men have this idea of themselves , i desire to know how they can draw just conclusions from such mistaken principles . another cause of our reasoning so weakly , is , that the things of another world are too remote to seem great to us , and too spiritual to be discerned by carnal eyes . the least thing , when plac'd immediately before our eyes , will intercept , and exclude all further prospect ; and even the least conspicuous objects , and sensual things do , by a constant tide of emanations , flow in continually upon us , so as to fill our thoughts , and leave little room for any thing else . but as a remedy to this , let us consider , that since even corporeal , and sensual pleasures charm us only when we think much upon them , it follows , that thinking is the source , and origin of esteem : tho' we see not the riches of a golden mine , yet our belief will make us toil for it , and the hope of succeeding to an estate will oblige us to follow eagerly what that hope suggests . and since faith is the evidence of things not seen , it does represent things to come , with a certainty , that makes them present ; and albeit it may be objected , that we have seen some such things as these mines , and worldly successions , and therefore it is that we believe and love them more ; yet that is of no moment : for the miracles that men have heard of , and the wonderful works of providence which we daily see , especially when born in upon us , by the conviction of our own consciences , seem as strong motives as any that sense can afford conscience , that luminous sense of the soul , being stronger , and more perswasive to any that will hear it , than any of our dull and outward senses , which have only assistance from stupid flesh and blood : conversation also about things spiritual and divine , will be in place of sensual emanations to us , and will represent a future life , and the world to come to a hearkning soul , as if it were present ; nor will the almighty fail to assist that eloquence which has him for its only and ultimate scope . the soul cetrtainly being a spiritual substance , can more easily unite it self to immaterial objects , such as a future state of happiness , than to the terrestrial objects , with which we fill it ; and the only fault is in us , who do not apply our selves to the thinking on these . do we not find that such as aspire to fame are more taken with it than any man is with meat or drink , yea , and life it self , for the conquest whereof all these are contemn'd : and yet fame is a meer immaterial object , that has nothing affecting the senses otherwise than by thinking nothing present , nothing corporeal ; and generally , the spirit of man is more pleas'd with expectation than with any present possession whatsoever ; so far , that if we expect any little accident , it will busie more our thoughts , and fasten them more to it than a thousand things of greater value already possess'd . this then can be no such hard task as our laziness perswades it to be . tho' we be convinc'd of the truths on which i have founded my observations , yet we advert not to them , nor heed them . thus tho' an object were most conspicuous , yet if we dote so upon any other , as ▪ never to turn our eyes that way , we shall not be taken with either its value or beauty . we are bred up in a great esteem for the things of this world , and so are rather pre-engag'd than blind , and buy not that pearl of price , because we have laid out our stock on other trifles , which is a great defect in our reason , and for which we would contemn other merchants : and this is to be cur'd by having a true value for things , and by rectifying all our ideas ; and therefore , he who resolves to reason justly , should begin first to consider , when any thing occurs , of what use it may be , and of what value it is . as for instance , is this land , for which i am sinfully providing money , worth heaven ? or this man , whom i am to please , abler to make me happy than god almighty , to whom in this i prefer him ? and so , like a skilful chymist , resolve every thing into its true principles , and then try its value ; and like a merchant , who has been often cheated , resolve at last to consider what such things are worth , whether they will be fashionable where we are going , and whether they will return us the stock we lay out upon them ? for improving this thought , we should consider , that tho' we discover truths , yet we do not take time to ponder them sufficiently : and thus , tho' we be convinc'd , yet we improve not sufficiently our convictions . self-love , and the love of ease has us'd us to a partial and superficial way of enquiry ; and from this also proceed these wanderings which weaken those pious meditations , and disturb that earnestness in prayer , by which we can only procure a just illumination in our reasoning ; desultoriness of thought grows daily when it is not lessen'd , and the next days wanderings are the punishment of those which we suffered to prevail yesterday . but should we not be asham'd , that we cannot think our salvation worthy of some serious hours , since it is that which god almighty has constantly design'd , and follow'd from all eternity , tho' we are far more concerned in it . and that we can spend many entire hours upon a question of law or mathematicks , and yet cannot fix our thoughts upon that infinite being , in whom there are far more infinite perfections ; an object that can never be exhausted , where every thought would open a new scene of thoughts , yet more delightful ; by which , angels have been for many thousands of years detain'd in constant raptures , contemplating those admirable mysteries , which the scripture tells us , the angels desire to pry into , finding by a constant enquiry , new matter of holy learning , and blessed curiosity ; and are said by god himself to have learn'd this from those happy christians to whom those mysteries were first reveal'd , eph. . . learn then , o christian , to manage thy spirit , try first by what means thou usest to fix it on other occasions , and improving these from the obvious advantages that pious fixation will yield above all others ; beg humbly , by prayer , a new supply to thy native forces , acknowledge to god that thou hast taught thy own thoughts this seditiousness and tumultuariness of which thou complain'st , and hope , that as by frequent yieldings thou feddest that vice into a habit , so that by frequent and resolute oppositions thou may'st destroy that obstinate and dangerous habit , and introduce a contrary one , which will make thy fix'dness easie and pleasant . frequent reasonings do also not only make us argue more strongly and easily , but do warm us into a conviction first , and then into a love for that for which we contend : and thus lawyers are oft-times convinc'd , even in the ill causes they plead ; and hereticks fix themselves in their errors , by frequent contests for them . why then should we not argue more frequently both against our selves , and with others , upon these excellent truths , by which also we should be engag'd in honour to walk sutably to these truths , of which we profess to others that we are convinc'd ? and who could be so absurd , as after he has been debating against another for his drinking , yet would invite him to a debauch ? but , alas , every man loves to debate in his own calling , except the christian : and it is become as much a shame to talk of devotion as it ought to be our glory and delight ; and men seem afraid to debate , lest by being too much convinc'd of what they ought to do , they should be too much terrified for what they have done ; and so these convictions beget an uneasiness to them , when to gratifie their humour ; they are tempted to renew their sins . hypocrisie affords us a clear proof of this partiality , as well as of man's contradicting himself ; for to confess there is a god who is omniscient , who knows the secrets of hearts , and before whom there is nothing hid in heaven or earth , and yet to think that we can conceal our thoughts from his all-seeing eye , implies a flat contradiction ; as it also does to care for nothing but what may cause an esteem in our selves , for our selves . we really value other mens approbation , because it confirms us in our own : nor would the vainest man alive value all the flatteries imaginable , if he thought he could not deserve them . yet in hypocrisie we must know , that we deserve not the applause to which we pretend , and it is worthy of our thoughts to enquire impartially , how men can reconcile these in themselves ; for the most debauched reason will not adventure upon any contradiction without some seeming reconciliation . and tho' at the first it may seem that want of consideration is the cause of this , yet this cannot be ; for if we know not that we are masquing , it is no hypocrisie ; and on the contrary , hypocrisie requires great reflection , because it needs much precaution . the reason then of the first must be , that as to god we trust our repentance , and to his mercy ; as if forsooth , we did him little wrong , by making his creature appear more excellent than it is , and as if it might prejudge his service to let others see , that we are many times more wicked than they , or that we did god good service in encouraging others to be pious by our good example , and that we by hypocrisie do only raise an esteem , or come to an employment by which we may be truly serviceable to god in our other actions . but i really think , that the heart of man is so narrow , that it can hold only one scheme of thoughts at once , and therefore this little soul being fill'd with a desire of applause , and with the shame of being silly and undeserving , it reflects indeed , but all its reflections look that way . the man is full of this , and intent upon it , and so he sees not the contradiction , how palpable soever it be ; but yet it is so notorious and discernable , that i may justly conclude his reason weak , if not blind , who does not discern it . the cure then of this subtile cheat must be by pursuing this imposture into its secret recess , by seeing this player before he put on his fine cloaths and disguises , by turning all our thoughts to god , and from our selves , adverting seriously and impartially to every little circumstance in the design that is to be considered . i have oft-times admired the prevalency of custom above reason ; and tho' brutes , who want reason , or children , in whom it is yet scarce ripened , be led by it ; yet what a strange thing is it , that in men who have reason in maturity , custom becomes not only a second nature , but overcomes nature , and is a second nature , because it almost extirpates reason , which was our first nature . for tho' the older we grow , our reason should grow the stronger , yet it falls still weaker , and melts so before custom , that even the vertuous and dutiful actions we do , seem rather the effects of custom than of reason . for if they proceeded from reason , the same reason which prompted us to do them , would oblige us to act vertuously on all other occasions . and we see that we alter our vertues as the fashions and customs of our country change . but to conclude this expostulation , i cannot but wonder that a man should be call'd reasonable , after he has trusted the making laws and moulds for living happily and dutifully to the multitude or crowd , the worst of all judges ; and which we our selves contemn as an ignorant , giddy , and capricious rabble . of which influence of custom over reason , many different causes occur to me ; for sometimes i think that customs establish and fix themselves in us whilst we are yet young , that reason can neither defend it self nor us , especially as to unusual pleasures , which are the proper and natural objects of our first years : and like weeds that have over-grown the ground , tho' never so fertile , they hinder the better plants from growing up . to prevent which , it is necessary that we teach young ones to reason very early , and accustom them to a christian logick , that is better than what they can learn in the schools . thus we may make custom it self useful rather than hurtful to reason , and teach it to serve , whereas now it governs . and i know one who cur'd his habitual swearing by arguing with himself , that since even the king's enemies were able to restrain themselves from speaking treason , by reflecting on its dangerous consequences , it was strange , that he who was convinc'd that swearing did draw on more dangerous consequences , could not abstain from a custom that was altogether hateful , without the least allay of pleasure or advantage , to which the others might pretend . sometimes i think , that custom having the force of the multitude which supports it , they all concur to pull back a well resolved man from his vertuous resolutions ; and custom prevails rather by numbers than by strength : and to prevent this , it is necessary for a man who resolves to reason justly , to withdraw for some time from the crowd : prov. . . a man , says solomon , having separated himself , meddleth with all wisdom ; and seneca tells us , that sanabimur modo à caetu separemur . jesus christ also who has triumphed over the world , is by strong intercessions , to be called in against this potent enemy , who has shewn us , that he can throw out and dispossess that devil whose name is legion : but the multitude is never so corrupt , but that still some are to be found who can assist us in reasoning justly upon things ; and we should also remember , that we value so little the multitude , that we stand not in awe of what they say of us , when we are gaining money , or satisfying our pleasures : why then should we still spend all we have , and deny our selves all pleasure in following custom , or courting fame ; since custom and fame are but the dictates of the multitude , an homage which unthinking men are forced to pay the rabble , because they dare not seriously reflect on what they do ? or which designing men pay them in hopes to make them first tools to their ambition , and thereafter slaves to their tyranny . but at other times the strength of custom flows from our laziness , who love the way that is chalked out to us , and think it safe to follow , rather than lead the crowd ; cheated to this by a cowardly humility , which proves our never having considered the nobleness of our own origine : which is to be cured by a generous resolution of despising difficulties ; and of being slaves , as all persons are , who love better to obey , than to examine the dictates of others ; and we are most unreasonable , when we have so strong desires to lead the multitude to our ruine , as in seditious tumults and factions ; and yet will be content to be tamely led by them in what is much nobler and of greater consequence . how much more do we praise those great legislators , who govern'd the multitude by their vertues , than those sycophants who adored them by submissions ? there is light in vertue and religion , and there is none dares resist it ; it is able to astonish as well as convince : nor are men so wicked as not to desire to be assisted by some happy genius , in what they are convinced is best . and every man almost stands only in awe of another , expecting and wishing some moses to undertake their delivery . generally self-love seems to lead into these sentiments , as thinking the multitude will cry up their own inclinations , and is unwilling to check that multitude from which it expects applause ; and whose many suffrages it needs to maintain it , against that inward sense it has of its own weakness and silliness : and this is to be cured by a noble reflection upon the dignity of our first creation ; and a desire to be again like to that god whose image at first we were , and whose sons we may yet be , if we can raise our hopes above those lower spheres of sensual joyes and pleasures which poyson us when they seem sweet , and cheat us when they appear great . one of the dreadful effects of our following the example of others , is , that we think it is sufficient to be as reasonable as they : and thus we foolish and unreasonable mortals , stint and bound one anothers goodness ; now this we shall easily perceive to be most unreasonable , when we consider that no man will satisfie himself in being as powerful or rich as his neighbours ; tho' these be much less desireable for a soul and spirit , which is the image of an infinite god , and is , after all its best endeavours here , very far from attaining to that degree of perfection which is even requisite to the life of a christian. devotion is a race , and who is it that when he runs with many rivals , will content himself to be in the throng , especially if the prize be considerable : and therefore the apostle exhorts us to forget those things which are behind , and to reach forth to those things that are before , pressing towards the mark , for the prize of the high calling in christ iesus , phil. . . we are not only obliged to press on to obtain the crown , but being pursued by our spiritual enemies , we are concerned to use all the speed that is possible . and would not we conclude him mad , who if he were pursu'd for his life , would not desire to be past all danger , but content himself that he were not the last amongst those who endeavoured to escape ? it is strange , that notwithstanding that custom does so lead us when we go not where we ought to go , but where others have gone before us , yet we oft-times err to a contrary extreme , and by a contrary reason , which is as false and more dangerous than the other , reasoning weakly and falsly from a design and desire to be singular , and consequently to be admir'd ; thus even whilst in this we oppose the multitude , we design to please them too ; for no man admires what does not delight him ; and probably , these same contradictors would have chosen rather to have gone to fame in the beaten path , by a direct pleasing and following of them ; but finding a crowd before them in it , which they could not pass by , they , by a long and a dangerous circuit , run before , and endeavour to keep the pass on their rivals , and hinder them from coming up at fame ; and tho' they want the multitude at present , yet they hope to make them follow , else they would not differ from them ; for few would care to continue alone till the last , tho' they love to be singular at first ; yet this humour is a very great enemy to true reasoning , for it introduces a habit of arguing falsly ; and it is difficult in this dark estate to recover our road ; if we once quit our light , one errour emboldens us to commit another , and it is the punishment of it , when committed ; even those who care not to oppose truth , love to be consequential in their opposition ; for to do otherwise , were to be guilty of a double and more palpable vice in reasoning . another great hinderance to right reasoning , is sensuality : for though i am far from being of their opinion , who think the soul nothing but the animal spirits ; since we cannot conceive how matters can think so delicately and subtily , yet there is no doubt but the tempers of the body has great influence on the mind ; and that sobriety does purifie the blood , and make these animal spirits fitter organs for the soul ; as on the other hand , drunkenness drowns it , gluttony stupifies it , and even after that time has dissipated those loads which oppress the soul , there remains a stock of dregs which are easily inflam'd into lust , rage , and other brutal passions , which in a more lasting manner inslave it . therefore pagans have recommended sobriety as a diet for the soul as well as the body , and the scripture fasting , as a religious duty ; and since there is none of us so brutal , but if we were about to preach , plead , or assist in a publick judicature , we would be careful to avoid all these excesses , lest thereby our reason might be disturbed or clouded ; we ought much more to shun them , with an eye to the service of an infinite god , and the preservation of our immortal souls , minding in this the observation of the prophet , wine , and new wine take away the heart ; and the advice of our saviour , see that you be not overcharged with surfeiting and drunkenness . there remain yet two vigorous enemies to our reason to be subdued , bigotry and raillery ; which tho' they be contrary to one another ; bigotry treating things that are ridiculous as sacred , and raillery treating things sacred as ridiculous , yet they both conspire against our reason , and are the favourite extravagancies of the times , which obliges me to insist the more upon them . i define bigotry to be a laying too much stress upon any circumstantial point of religion or worship , and the making all other essential duties subservient thereto , and got its name from an occasion extravagant like it self . rolland first duke of normandy , being obliged to do homage to charles king of france , for that dutchy , refus'd to kiss his foot , except the king would raise it himself to his mouth ; and when it was told him that the solemnity consisted in his taking up the king's foot and kissing it , he answer'd , ne se bigot , that is to say in old norman , not so by god ; whereupon the king and court derided him , and the normans were from that occasion called bigots , as they who adhered pertinaciously to ridiculous extravagancies . these latter ages having , in this dotage of the world , produc'd multitudes , who mistaking reformation for humour , and seeing some devout men admired for separating from idolatrous and superstitious churches , because they would not reform great and fundamental errours , imagined that every thing was to be stuck at with the same zeal which these shewed in matters of greatest consequence , and by a farther effect of the same zeal , they proceeded to force others to concur with them in their extravagancies , which surprising distraction forced men to bestow on them the name of bigots ; superstition could not so well agree to them , that being only an excessive worship paid to a deity , true or false , from an ill-grounded fear of mischief from it : nor could dogmatising serve , that being only a positiveness in any opinion , joyned to the vanity of thinking , that the dogmatizer had right to dictate to others ; nor opiniarity , because that consists only in adhering too stifly to any opinion in spight of the best reasons ; nor schism , because it is an unnecessary separation ; nor heresie , for tho' it is an obstinate errour in some important point , yet it is always in matters of faith ; whereas bigotry rests only in matters of small importance ; but tho bigotry properly relates to matters ecclesiastical in our late acceptation , yet it is by an easie stretch used to express opiniatrities of all kinds ; and if we consider its original , we must conclude , that it has been drawn to matters ecclesiastick , and is appropriated now to them , because they are the most remarkable and frequent instances or effects of this mischievous principle . for we may justly say , that bigotry is the hypochondriacism of reason , the bedlam of religion , and the ape of infallibility . instances of this bigotry , as they are very frequent , so they are very ancient . the apostles themselves were forc'd very early to inveigh against zeal that was not according to knowledge ; and the chief of their scholars , who had been so happy as to hear them preach , did yet rend the church by a dreadful schism , which soon after grew to that heighth , that the western church excommunicated the eastern , for differing from them in the observation of easter . the best way to deter men from spending their time and zeal in the service of bigotry , either as its chaplains , or as its emissaries or executioners , will be to consider the great defects , under which it labours , and the sad effects which it produceth . the first pernicious effect of bigotry , is , that it obtrudes on us things of no moment as matters of the greatest importance . now , as it would be a great defect in a man's sense to take a star for the sun ; or in an oratour to insist tenaciously on a point which deserved no consideration ; so it must be a much greater errour in a christian to prefer , or even to equal a meer circumstance to the solid points of religion . but these mistakes become more dangerous , by inducing their votaries to believe , that because they are orthodox in these matters , they are the only people of god , and all who joyn not are aliens to the commonwealth of israel : and from this springs first , that they , as friends of god , may be familiar with him , and , as friends do one to another , may speak to him without distance or premeditation ; thence it is that we hear dreadful nonsense insolently vented in extemporary prayers , such as would induce one to think that they do not believe him to be a god to whom they shew so little respect ; for who can think that infinite wisdom can consider them as friends , who dare address to him so unsuitably ? bigotry having thus corrupted our reasoning in matters of religion , it easily depraves it in the whole course of our morals and politicks . the bigots in the second place proceed to fancy , that they who differ from them are enemies to god , because they differ from god's people ; and then the old testament is consulted for expressions denouncing vengeance against them : all murders become sacrifices by the example of phineas and ehud ; all rapines are hallowed by the israelites borrowing the ear-rings of the egyptians ; and rebellions have an hundred forc'd texts of scripture brought to patronise them . but i oftentimes wonder where they find precedents in the old testament for murdering and robbing mens reputations , or for lying so impudently for what they think the good old cause ; which god foreseeing , has commanded us not to lie , even for his sake . the third link of this chain , is , that they fancying themselves to be the only israel , conclude that god sees no sin in them , all is allowable to them ; and ( as one of themselves said ) they will be as good to god another way . the fourth is , that such as differ from them are bastards , and not the true sons of god , and therefore they ought to have no share of this earth , or its government ; hence flow these holy and useful maxims , dominion is founded in grace , and the saints have the only right to govern the earth ; which being once upon an occasion earnestly press'd in cromwel's little parliament , it was answered by the president of his council , that the saints deserved all things , but that publick employment was such a drudgery that it would be unjust to condemn the saints to it , and that the securest way to make the common-wealth happy , was to leave them in a pious retirement , interceding for the nation at the throne of grace . the fifth errour in their reasoning , is , that seeing their opinions flow immediately from heaven , no earthly government can condemn any thing they do , in prosecution of these their opinions ; thence it is that they raise seditions and rebellions without any scruple of conscience , and believing themselves the darlings and friends of god , they think themselves above kings , who are only their servants and executioners . it may seem strange , that such principles as bigotry suggests should be able to produce so strange effects , and many fanciful persons pretend it to be from god , because it prevails so . but this wonder will be much lessen'd if we consider first , that the greatest part of mankind are weak or dishonest , and both these support bigotry with all their might . many virtuous men also promote its interest from a mistaken good nature , and vain men from a design of gaining popularity . these who are disoblig'd by the government joyn their forces with it , to make to themselves a party ; and those who are naturally unquiet or factious , find in it a pleasant divertisement ; whereas on the other side , few are so concern'd for moderation and truth as the bigots are for their belov'd conceits . there is also a tinsel devotion in it which dazles the eyes of unthinking people ; and this arises either from the new zeal , that like youth , is still vigorous , and has not as yet spent it self so as that it needs to languish ; or else , from the bigot's being conscious that his opinions need to be disguis'd under this hypocritical mask . severity also encreases the number and zeal of bigots . humane nature inclines us wisely to that pity which we may one day need ; and few pardon the severity of a magistrate , because they know not where it may stop . i have known also some very serious men , who have concluded , that since magistrates have not oftentimes in other things a great concern for devotion , their forwardness against these errours must arise either from the cruelty of their temper , or from some hid design of carrying on a particular interest , very different from , and oft-times inconsistent with the religious zeal they pretend . and generally , the vulgar believe that all superiours are inclin'd to triumph over those who are subjected to them ; many have also a secret perswasion that the magistrates are still in league with the national church , and its hierarchy , which they suspect to be supported by them , because it maintains their interest , and they are apt to consider churchmen but as pensioners , and so as partizans to the civil magistrate . many are drawn into the esteem of such opinions as they see men suffer difficulties for but this mistake was foreseen by the primitive church , who therefore declared that non paena , sed causa facit martyrem . christian prudence does not allow a man to sell his precious life for an incompetent price ; forwardness that way does not always recommend an opinion : men of all perswasions have died with firmness ; pagans , yea , women for their country or husbands have shewed a courage beyond any of these bigots or enthusiasts . the history of china relates a notable instance of fantastical bigotry ; an hundred thousand chineses , who had born tamely their nation 's being enslav'd by the tartars , without making any effort to recover their liberty , chose rather to dye than conform to the tartars , in turning up their mustaches after their mode ; vanity well disguis'd can flatter men with the glory of martyrdom ; and its observable that this firmness faints often where executions are private ; however , this should prevail with a wise magistrate , never to make religious opinions criminal . the true cures then of this disease seem to be , first , to endeavour to plant reason early and carefully in the hearts of young ones , or to recover it in those of more advanced years ; for this is a more solid and effectual way , than the immediate opposing , or offering to cure this imperfection it self , will prove ; men love their old and familiar acquaintance ; traveling abroad conduces much to this cure ; for such as converse only with those of their own perswasion , are daily warm'd into new degrees of zeal ; whereas , when we see that men of true sense differ from us , we will be inclin'd from a christian modesty and humility , first to doubt our own opinions , and then to hear instructions : the orthodox clergy should by their pious lives conduce to this cure ; and even laicks should , by their serious and devout conversation , convince them that sincerity and piety are not inseparable from such humorous conceits . these poor deluded people should consider what mischiefs and desolations those vulcanos of zeal have brought upon this island by their dreadful eruptions ; there being but very few families , in which some of their children have not been sacrificed to this moloch : nor can our navies or armies secure us while this enemy lodgeth within us , and is cherished by us . they should also consider , that religious reason left to it self will at last overcome those prejudices , which , like meteors , may shine for a time , but will at last vanish into the common and undistinguish'd air. but the best of all remedies , is , to consider seriously the doctrine and practice of our blessed saviour ( to form our reason by which is the great design of this essay ) and therefore they should remember , that our saviour foreseeing the inconsequentialness of their actions , did observe , that they did start at straws , and swallow camels ; that they tithed the mint and annise , but forgot the great things of the law. our saviour's reasoning in the parable of the publican and pharisee , should humble all spiritual pride ; and his humble and submissive form of prayer should bridle the indiscretion of all rude addressers ; he suffered the sons of zebedee to call for fire from heaven , that he might thereby instruct the world how unsuitable their zeal was to his gospel ; he reasoned against fighting peter , that if his kingdom were of this earth , his servants would fight for him ; and if he needed any assistance , he might call for legions of angels : nor can i think , after this instance , our saviour would have trusted peter , in his absence , with two swords , since he was so forward in his own presence , when he had but one : but if others will be so blind as not to follow our saviour's way of reasoning , let us at least follow it , in praying for them , because they know not what they are doing ; yet i wish both they and we would consider , that we resemble too much at this time the unhappy iews , who , by fighting amongst themsleves , for small matters , relating to their religious rites , occasioned their being totally destroyed , and extirpated by the romans who besieged them . i know no greater enemy to just thoughts or reasoning than raillery and satyrs , and the new way of reasoning by ridiculous similies . most men are so famous for this kind of arguing , and do by it confute and baffle so much all who oppose it , that it passes for the stronger way of reasoning , victory being still accounted the effect as well as the reward of strength : but yet this way looks so sillie to men when they retire and are alone , that they begin to wonder what it was that pleas'd them so before they left the conversation . and therefore i think it worth my pains to search a little into the causes of this vulgar errour , why men are so much pleased with raillery , and why it prevails so in the world at this day ? the first cause of this , in my opinion , is , that men naturally love truth , as the eyes do light , or bruits food ; for truth is indeed the light and food of the soul ; yet missing it , after much enquiry , and a passionate search , they do either conclude there is none , and so laugh at all others who seek it , or in revenge , contemn it as a cheat ; and this breeds at first raillery and satyrs ; even as we see , that when gallants are rebuked by a severe mistress , they please or revenge themselves in railing at her , or treating her in ridicule . as states-men and courtiers seldom fail , when thrown off , to use the court and employments from which they are fall'n , after the same manner . and since too few seek after truth it self , naked and unrewarded ; others again weary of the toils and severity required in true reasoning ; rest on this , as the easiest ; even as men content themselves with gilded plate , when they cannot attain to true gold ; and raillery has become by this as ordinary as the false jewels , with which so many now please themselves , instead , of true ones ; and at a distance , and on the publick theatre , even of business , the one appears brisker than the other . raillery pleases also mens self-love better than truth ; for truth is too severe to flatter our vanity , and too honest to serve our revenge ; whereas raillery does tempt the jester to flatter himself , and is an ordinary occasion for others to flatter him as a formidable wit : nor can the world find so fit a tool for revenge as raillery ; since few durst even for fear of checks of conscience stab their neighbour , or for honour wound him when his back is turn'd , if it were not in a pleasant jest , which makes malice pass for wit , and cheats the satyrists into a belief that they design not to wrong him , but to please the company : the hearers also would hate such enemies to mankind , if they were not so ravish'd with the way , that they had not time to think on the malice . this misfortune also attends it , that it tempts men to do or say many things on which they would not otherwise adventure ; presuming that their wit , which is so much admir'd , will also fright or bribe others from accusing or punishing them . truth is a sober and equal pleasure , free from all transports and hateing them , and so seems dull and flat to young and warm spirits ; whereas that passion which accompanies raillery , either in joy or revenge , is more vigorous and elevated ; and it is indeed a wonder to think what force and energy there is in the soul , when the sails of its imagination are filled with the prosperous gale of applause , and by what secret springs the fancy is able to raise it to such heights when it is warmly pleas'd ; or what infinite numbers of ravishing images appear to a strong fancy : and how it creates so many pleasant notions out of other mens infirmities : and what great variety and newness it constantly produces , forming always various scenes of joy , to the wonder even of sober men : i deny not , but some do from good nature , and to please the conversation , scoff and jest , and , as i said formerly , some seeing it so much admir'd , think it is truly good , it being a kind of modesty , to believe that good which pleases others ; and some seeing victory attend it , think it is the strongest way of arguing ; and , thus this weed rises and spreads , and we sit with delight under the refreshing shades ; and with these raptures of malice or pleasure , scoffers are so much taken , that they have not the leisure to think on what they ought to do , or even on what they are doing ; and thus they forget frequently the duty they owe to great men , to whom they have access , and can hardly keep themselves within that moderation in conversation , eating , drinking , and other exercises that are requisite for preserving health and quiet , or for observing the rules of decency and discretion : i conclude , that jesting and satyrs are so far from being a relaxation of spirit to those who are wearied with serious employments , as is pretended , that they are oft-times rather a new and studied toil , and most of these extravagancies could scarce be pardoned ; like bitter and sour fruits which can hardly be eaten , except when confected with great care and expence . but if we look further into the matter , we shall find that nothing wrongs more both reason and piety , and is more destructive to true friendship , or more inconsistent with sincerity . for clearing whereof we may observe , that every faculty of the soul contributes in a peculiar way to our reasoning : the judgment does bring solid arguments , the memory instances , examples , and citations , the fancy or imagination beautifies rather than illuminates its objects with similies , metaphors , and other rhetorical figures ; so that raillery neglecting the other two , sports it self lightly amidst those flowers , without minding the great business ; and i have observed , that few who have been once bewitched with this way , ever minded any other . this suffers them not to penetrate further than the outside of things , and so it is impossible , that they who use it as their constant divertisement , can have any deep thoughts , or can search into the bottom of affairs . i have also observed , that raillery arises oft-times from an undervaluing of all persons and things , and nothing can be more contrary to religion or government than this is . to religion , because , when a man contemns all that god has created , he undervalues what the almighty himself was pleased with , and rejoyced in , and scorns those great exemplars of piety and devotion , whom god has called his friends , and men after his own heart ; and so in effect he concludes , that god ( blessed be his holy name ) made not good choice , and knew not how to value men a-right . and therefore i stand astonish'd to hear ballads against moses and david so much admir'd by such as confess there is a god , that the scriptures are his dictates , and they the pen-men of these scriptures , and so secretaries to god : nor do such scoffers make good states-men ; for none are such , save they who from a principle of conviction and perswasion , manage publick affairs to the advantage of those who employ them : whereas they who believe that nothing is worth their pains , can never do any thing with affection and vigour ; and since they care not for the things themselves , and scorn such as employ them , they must never care for what events attend them . have we not seen some of these great wits prove the worst of all states-men in our own days ? and as far below the meanness in management as they were above the wisest in wit and sharpness . what friends also these prove is sufficiently understood to those whom they have lost for a jest , after all the services they could have done them : and it is very observable , that if three or four of them be in a room , they who remain after such conversations will fall on him who is gone with all the malice imaginable ; and we very seldom see two such wits true friends . i shall end these reflections with this addition , that generally satyrs are made up of impiety , malice or baudery ; the first , unworthy of a christian ; the second , of a gentleman ; and the last , of a sober man ; and in which railers have atheists for their masters , satyrical wasps for their comrades , and oft-times fools and mad men for their superiours . unhappy men who do things that they must be asham'd of , and whereof the pleasure is lessen'd in the present time by checks of conscience , and grows bitter afterwards by fear of torments ; a quality our saviour never countenanc'd , which his favourites have ever zealously decry'd , in which buffoons and players have exceeded the greatest kings , the most renowned hero's , and the wisest men ; a cowardly extravagancy which ever attacks the weak , and a merciless humour which triumphs over the unfortunate ; upon which accounts all men make it their interest to expose the scoffer , as finding in his ruine their own self-defence ; and because they know he cannot be pleased except they be miserable , therefore they conclude , that they cannot be secured till he be humbled . i design not by this to lessen the esteem due to true wit , and that pleasantness in conversation which arises from it as flowers do from the root . the almighty certainly design'd to make all men happy , and there is no happiness without pleasure ; and as he rejoyced , when he saw that all that he had made was good , so he was desirous that man might find out this good , both for making himself thereby happy , and for inviting him the more to magnify the creator , and therefore to sweeten the miseries which naturally imbitter humane life : god has illuminated some with a pleasantness of humour , which rejoyces the society into which they come , as the sun illuminates the room into which it enters ; these are they who having peace of conscience at home , are thereby allowed to be glad ; and who having wit , employ it in turning the right side of things to them , understanding as well to find out what is pleasant in any object as artists do to find a mine of gold in a barren mountain . this is the true use of wit ; and if at any time they use it to treat vice or extravagancy in ridicule , it is not from malice to the person , but from desire to reform him , and mankind by him . there is a justice in scourging , defaming , and banishing vice ; and this jurisdiction is given by heaven immediately to such as have sense ; of whom , upon that account , the greatest rulers stand in awe ; and so much reverence is due to them , that the rest of mankind bestow applause according to their inclinations : bitterness then , and sullen moroseness in wit is the tyranny of this jurisdiction : if it be insolent , it is but the wrong side of this delicate picture , a flashing light , which at first dazles , but thereafter blinds ; a delicious fruit corrupted into bitterness , and a beautiful face wrinkled by fretting humours . the ancients term'd wit a salt ; and that is not fit for food , but for seasoning ; it may be us'd plentifully in conversation , moderately in business , but never in religion . they who enter into a faction do not properly reason weakly : but desert reason altogether , as one does who leaves his own to go into another country , whereof the laws customs and language are different . the design and center of faction is to drive on such a project , and adhere to those who prosecute it . and therefore nothing must be allow'd or argu'd but with respect to these . hence it is that in vain you reason with them ; for one may transubstantiate as soon as convert them , all that their friends say is unanswerable , and they contemn and scorn what is said by their adversaries when they cannot answer it ; there is no crime they dare not commit , for the guilt seems but small when divided amongst so many bearers , they warm themselves by clubbing into a kind of belief , and they vote themselves into a shadow of infallibility ; whilst they cry out against others as slaves to the government , they become really slaves to the faction , their liveries and chains being seen by all , except themselves ; but the great salary with which their bondage is to be rewarded , is applause from their friends , or it may be the mob , to whom naturally their appeal lies , and the getting into the government , where they will be abhorred for practising every thing they formerly decry'd , & so have that reputation for which they toil'd , blasted by their own old arguments ; this extravagancy is in it self so unacceptable to all devout and reasonable men , that it is forc'd to use railery to baffle religion by bigotry , and reason by railery ; and i believe that faction was the first introducer of the one into the church , and of the other into the state. my chiefest wish then shall be , that god who has ennobled me with right reason , may make me happy in the right use of it ; that i may neither sell it for money , nor barter it for fame ; and that it may never be dazled by the shining brightness of favour , nor clouded by the black shadows of fear ; and tho' the portion bestowed upon me be very small , that yet i may employ that one precious talent so , as that i may have from my glorious master that only desireable character , well done , good and faithful servant , thou hast been faithful in a few things , enter thou into the joy of thy lord , matth. . . finis . notes, typically marginal, from the original text notes for div a -e 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . notes for div a -e du lange verb. bigot .